Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza, Judge. No. 03CEJ300106
Roshni Mehta, 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, Acting P.J., Dawson, J., and Kane, J.
G.S. (mother) appeals from a 2009 order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter, D. She contends there was a failure to comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In 2007, the trial court ruled mother’s daughter was not an Indian child pursuant to ICWA. In 2008, mother renewed her claim that D. could be an Indian child but the court did not order another round of ICWA notices be sent.
Mother timely challenged the trial court’s orders by way of a petition for extraordinary writ review (§ 366.26, subd. (l)) to this court. In her petition, she claimed, in relevant part, that the court’s 2007 ICWA finding was erroneous and the information she provided in 2008 was new and should have prompted new tribal notice. After this court issued an order to show cause in the matter and upon our review of her petition, we filed a written opinion denying it on its merits. (G[.]S. v. Superior Court (July 28, 2008, F055134) [nonpub. opn.].)
We have taken judicial notice of our earlier opinion.
In this appeal, mother once again argues the court’s 2007 ICWA finding was erroneous albeit on slightly different grounds. On review, we conclude the law precludes mother’s attempt at a proverbial second bite of the apple and affirm.
PROCEDURAL AND FACTUAL HISTORY
We begin the history of this case by reciting our statement of the case and facts from our earlier opinion on mother’s writ petition.
“Petitioner is a young mother with a 13-year history of drug abuse, which resulted in the removal and adoption of four of her six children in 2003 through 2005. In April 2007, petitioner’s sixth child, a daughter A., was removed from her custody at birth after petitioner and A. tested positive for methamphetamine. A protective order was issued for petitioner’s fifth child, D., born in August 2005, who was in the custody of her father M[.] However, instead of turning D. over to the social services department (department), M[.] left the county with her. D.’s whereabouts would be discovered months later with the assistance of the child abduction unit.
“Meanwhile, in April 2007, the department filed a dependency petition seeking the removal of then 19-month-old D. and newborn A. based on allegations petitioner’s drug use placed the children at risk of harm and neglect as was suffered by their four half-siblings. The juvenile court ordered the children detained pursuant to the petition and ordered the department to refer petitioner and M[.] for a parenting class, mental health, and substance abuse evaluations and random drug testing. The department placed A. in foster care.
“Petitioner told the social worker she thought she had Cherokee Indian ancestry through her father and that her paternal uncle, G[.] R[.], lived on a reservation in Oklahoma. However, she stated she was not a registered tribal member. She completed a ‘Parental Notification of Indian Status,’ identifying five possible tribes but did not include the names of any relatives who might have American Indian ancestry.
“In May 2007, the department gave notice pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1912) to 36 tribes, both in California and out-of-state, including the Cherokee Nation and United Keetowah Band of Cherokee, both located in Oklahoma, the Eastern Band of Cherokee Indians in North Carolina and to the Bureau of Indian Affairs (BIA). On the ‘Notice of Involuntary Child Custody Proceedings For An Indian Child’ (JV-135), the department identified petitioner’s father, ‘C[.] N[.] E[.],’ as possibly having Indian heritage. Petitioner was provided notice that the tribes had been notified. None of the tribes served nor the BIA could confirm tribal membership or eligibility for petitioner’s children.
“In June 2007, following a contested jurisdictional hearing, the juvenile court adjudged A. a dependent of the court. The court set a combined dispositional hearing for A. and jurisdictional hearing for D. in July 2007 (combined hearing). Prior to the combined hearing, the department filed a noticed motion asking the juvenile court to find that ICWA was inapplicable to the proceedings.
“The juvenile court convened the combined hearing in July 2007. Petitioner did not personally appear. After the parties, including petitioner’s attorney, submitted on the department’s ICWA motion, the court found D. and A. are not Indian children pursuant to ICWA. The court continued the jurisdictional hearing as to D. and set a contested dispositional hearing as to A.
“The combined hearing was conducted in October 2007. The juvenile court continued the jurisdictional hearing as to D. and denied petitioner and M[.] reunification services as to A. The court also set a combined jurisdictional hearing and status review hearing as to D. and A. respectively.
“In January 2008, two-year-old D. was located with her paternal grandparents in Ventura County. The department took her into protective custody and filed a first amended petition on her behalf but left her in the custody of her grandparents. The juvenile court detained D. pursuant to the first amended petition and adjudged her a dependent of the court at a jurisdictional hearing conducted in January 2008. At that same hearing, petitioner stated in open court that she had Indian ancestry and completed a ‘Parental Notification of Indian Status,’ identifying her paternal uncle, G[.] R[.], and her father ‘C[.] N[.] E[.]’ as having Indian heritage through the Cherokee tribe in Oklahoma. The court directed the department to follow up on the ICWA issue and set a section 366.26 hearing as to A. for March 2008.
“In its dispositional report for the April 2008 hearing, the department recommended the juvenile court deny petitioner reunification services under section 361.5, subdivision (b)(10), (b)(11) and (b)(13) because of her continuing drug use despite the loss of her parental rights as to four of her children and the opportunity to receive drug treatment. According to the department, petitioner attempted three separate times in the summer of 2003 to engage in drug treatment but chose not to continue in treatment each time. The department also recommended the court deny M[.] reunification services. Under the section designated for ICWA, the department stated the court previously found ICWA did not apply to D.
“In April 2008, the juvenile court conducted a combined contested dispositional hearing as to D. and a contested section 366.26 hearing as to A. Petitioner testified she had been drug-free since May 2007 and was progressing in all her court-ordered services.
“Following the hearing, the juvenile court denied petitioner and M[.] reunification services as to D. and set a section 366.26 hearing in August 2008.” (G[.]S. v. Superior Court, supra, F055134, fns. omitted.)
Mother in turn unsuccessfully pursued extraordinary writ review from this court. In our opinion denying her relief, we wrote in relevant part the following.
“Petitioner argues new information she provided on the “Parental Notification of Indian Status” (notification) form she completed in January 2008 should have prompted the department to file new tribal notices under ICWA. Its failure to do so, she claims, renders the juvenile court’s ICWA finding reversible error. Real party in interest counters that petitioner waived her right to challenge the juvenile court’s ICWA finding by not challenging it by a timely notice of appeal. We find no waiver. In dependency proceedings, the dispositional order is the first appealable order. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Consequently, even though the juvenile court’s ICWA finding was made in July 2007, the court did not issue its dispositional orders as to D. until April 2008. By challenging the court’s ICWA finding along with its dispositional orders by means of this writ petition, petitioner preserved the issue for our review. Nevertheless, we find no merit to her claim the court’s ICWA finding was error.
“Petitioner does not specify in her writ petition what new information is contained in the January 2008 notification, forcing this court to speculate that she is referring to the inclusion of her paternal uncle’s name (G[.] R[.]) and a slightly varied spelling of her father’s middle name (N[.]). We find the discrepancy in petitioner’s father’s middle name to be de minimus and not prejudicial. As to petitioner’s paternal uncle, the appellate record reflects that his identity was known to the department prior to its notification to the tribes in May 2007. Consequently, no new information was provided in the January 2008 notification.
“Further, the department was not required to notify the tribes of petitioner’s paternal uncle. The applicable statute, section 224.2, subdivision (a)(5)(C) requires that notice include the names and addresses of the child's parents, grandparents, and great-grandparents, along with dates of birth or death and/or other identifying information. Further, nothing precluded either petitioner or her attorney on their own from directly providing the applicable Indian tribes of any additional information that would assist in establishing D.’s Indian heritage. However, on these facts, we find no error.” (G[.]S. v. Superior Court, supra, F055134.)
The court eventually conducted its hearing to select and implement a permanent plan for D. in January 2009. Having found it likely D. would be adopted, the court terminated parental rights.
DISCUSSION
Mother once again challenges the adequacy of the ICWA notice given in 2007. This time she contends the 2007 notice was insufficient because it did not include her father’s city and year of birth. She also argues her uncle’s name should have been included in the notice in order to comply with the spirit of ICWA’s notice provisions. She claims she is entitled to our review of these contentions on this appeal from the termination order because these contentions are different from her writ petition claim. As discussed below, we disagree.
As we ruled in our earlier writ opinion, the trial court’s 2007 ICWA ruling was reviewable once the court issued its dispositional orders as to D. in April 2008. The dispositional orders, however, were not directly appealable orders. Because the trial court, having made its necessary findings and orders, also set a section 366.26 hearing, the trial court’s decision was reviewable instead by means of a petition for extraordinary writ review. (§ 366.26, subd. (l)(1); Cal. Rules of Court, rules 5.600 & 8.452; In re Anthony B. (1999) 72 Cal.App.4th 1017, 1023.)
Mother sought writ review by filing a timely petition for extraordinary writ review that substantively addressed the specific issues to be challenged and supported the challenge by an adequate record. (§ 366.26, subd. (l)(1)(A) & (B).) This court in turn determined the writ petition on its merits after issuing an order to show cause. (§ 366.26, subd. (l)(4); Cal. Rules of Court, rule 8.452(e).)
Consequently, the trial court’s previous findings and orders resulting in the order setting the section 366.26 hearing are not reviewable on this appeal. (In re Julie S. (1996) 48 Cal.App.4th 988, 991.) Our opinion on mother’s writ petition constitutes law of the case such that she may not re-litigate the issue of ICWA notice compliance on this appeal. (Kowis v. Howard (1992) 3 Cal.4th 888, 894.)
Mother nonetheless contends law of the case doctrine should not apply to her new arguments. She, however, fails to explain why or cite any authority which supports her view. The fact that her arguments are somewhat different this time certainly does not suffice. Our prior opinion upheld the trial court’s determination that D. was not an Indian child. To the extent she assumes she is entitled to argue new theories simply because her appeal pertains to ICWA, we are unaware of any authority which would support such an assumption.
DISPOSITION
The order terminating parental rights is affirmed.