Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County Nos. 03CEJ300153-2, 3, James R. Oppliger, Judge.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J. and Levy, J.
A.B. appeals from a 2008 order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her two daughters. She contends for the first time that the superior court and respondent Fresno County Department of Children and Family Services (department) failed to ask her on the record if she had any Indian ancestry. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Appellant’s eight- and six-year-old daughters were exposed to ongoing domestic violence between their father, with whom they lived, and his girlfriend. In early February 2007, the children were in the middle of a dispute in which their father had a shotgun while the girlfriend tried to stab him. This led to the father’s arrest and the children’s detention by the department. Appellant was already incarcerated at the time. In addition, another child of appellant’s previously had been removed from her care due to drug-related neglect and unstable housing. Despite services, appellant failed to reunify with him.
Based on these facts which the Fresno County Superior Court found true, the trial court exercised its dependency jurisdiction over the children. In July 2006, the trial court adjudged the children dependents, removed them from parental custody, and ordered reunification services for appellant, but not the father.
Despite more than a year’s worth of reunification services, appellant and her children could not be reunified. Consequently, in December 2007, the court terminated those services and set the matter for a permanency planning hearing under section 366.26. Although appellant received notice of her writ remedy, she failed to timely seek writ review of the court’s decision. (Dismissal order, F054450, A[.]B. v. Superior Court.)
At an October 2008 hearing, the court found the children adoptable and terminated parental rights.
DISCUSSION
The day after the children were detained, a social worker interviewed their father in the county jail. During the interview he stated he had no American Indian heritage. At the time, appellant was incarcerated at the Valley State Prison in Chowchilla.
The court conducted its detention hearing for the children over three separate dates in mid February, in part to assure appellant’s appearance in court. Appellant made her first appearance, while still in custody, on the last of these dates, February 21, 2006. The appellate record does not include a reporter’s transcript of the February 21st hearing and appellant never sought to augment the record with it. The minute order for February 21st does not state whether the court made an ICWA inquiry of appellant.
The social worker’s jurisdictional report prepared in mid-March 2006 as well as all subsequently filed social reports contained the statement “The Indian Child Welfare Act does not apply.” The record for the next two plus years of the children’s dependency is otherwise silent regarding ICWA. The record does not contain a form JV-130 completed by appellant or by the father for that matter denying any Indian heritage. Finally, the record does not include any court finding that ICWA either did or did not apply to the children’s dependency.
It is on this basis that appellant contends the court and the department failed to comply with their statutory duty to inquire whether the children may be Indian pursuant to ICWA. (§ 224.3, subd. (a).) In her view, it is apparent she was never asked whether she had any Indian ancestry and therefore she is entitled to reversal of the termination order. We disagree.
First, appellant’s contention is untimely. By the time of the jurisdictional hearings, the department was reporting that ICWA did not apply. If appellant or her court-appointed trial counsel disagreed, she should have raised the issue in the trial court or at a minimum sought appellate review after the trial court entered its disposition of the case. However, she did neither. Thus, the time to raise her ICWA compliance issue has passed. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).) In Pedro N., this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.
Second, appellant’s argument is speculative. She has not satisfied her burden as an appellant to affirmatively show error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As previously mentioned, the court continued the detention hearing as to appellant for her presence. However, appellant failed to provide this court with the transcript of that continued detention hearing. This transcript would be critical since it is at the parent’s first appearance that the court should make an ICWA inquiry. (See Cal. Rules of Court, rule 5.481.) Instead, appellant apparently would have us speculate that the court made no inquiry on the continued detention hearing date. Similarly, she would have us speculate the department did not inquire of her even though it reported to the court, starting approximately one month after appellant’s appearance in court, that ICWA did not apply. This we will not do.
Third, to the extent appellant claims the absence of a form JV-130 completed by her and denying Indian heritage constitutes reversible error, citing our opinion in In re J.N. (2006) 138 Cal.App.4th 450 (J.N.), we would disagree as well. In J.N., there was a record of the entire proceedings which revealed a complete failure to inquire of a mother regarding her ancestry. There was also a concession of error by the child welfare department. (Id. at pp. 501-502.) In our analysis, we noted the court’s as well as the department’s continuing duty to inquire, as stated in former California Rules of Court, rule 1439(d) (see now Cal. Rules of Court, rule 5.481 (a)(1)-(3)). We mentioned as well the procedure set out in the rules of court for satisfying this duty, namely that a social worker ask parents about ancestry and the parents be ordered to complete form JV-130 at the outset of dependency proceedings. However, we reversed the dispositional order in J.N. due to the complete failure by all concerned to make an inquiry, not for noncompliance with the rule of court procedure for completing the form.
The rule of court in effect at the start of this dependency was former rule 5.664(d), repealed effective January 1, 2008.
DISPOSITION
The order terminating parental rights is affirmed.