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In re Jesse E.

California Court of Appeals, Second District, Second Division
Mar 12, 2008
No. B200426 (Cal. Ct. App. Mar. 12, 2008)

Opinion


In re JESSE E., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JASON E., Defendant and Appellant. B200426 California Court of Appeal, Second District, Second Division March 12, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK61252 Sherri S. Sobel, Judge.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

ASHMANN-GERST, J.

Jason E. (father) appeals from the juvenile court’s order terminating his parental rights to Jesse E. (minor). Father is a member of the Choctaw Nation of Oklahoma, and minor is eligible to be a member. According to father, the Choctaw Nation of Oklahoma participated in the dependency proceedings below and, until the very end, expressed a preference for legal guardianship or long term foster care as the minor’s permanent plan. However, at the end, the Choctaw Nation of Oklahoma consented to adoption as long as it was an “open adoption.” Father contends that this matter must be remanded for a new hearing under Welfare and Institutions Code section 366.26 because: (1) the Indian Child Welfare Act (ICWA) required that the Choctaw Nation of Oklahoma receive notice of a change in the law that was added by statute in 2006; i.e., the new Indian child exception to the termination of parental rights; and (2) the Choctaw Nation of Oklahoma consented to an “open adoption” even though there is no such thing, so its consent was void. We find no error and affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTS

In the fall 2005, when the minor was born, he tested positive for methamphetamine and amphetamine. He was detained by the Department of Children and Family Services (Department). Subsequently, the Department filed a petition under section 300 alleging that April H. (mother) had placed the minor at risk of physical harm, and that father failed to take action to protect the minor.

At the time of the detention, father was incarcerated in the Los Angeles County Jail. He appeared at the October 28, 2005, detention hearing. When asked if his family belongs to an American Indian Tribe, he said, “Choctaw.” He also said that his family is registered. The juvenile court ordered the Department to notify the “Choctaw Tribes.”

Father told investigators that mother is part Cherokee. Notice was sent to various federal agencies and Indian tribes, including multiple branches of the Choctaw Nation and Cherokee Nation.

The minor was placed in foster care.

The Choctaw Nation of Oklahoma sent notice that it was able to establish ancestry for the minor, it wanted to intervene under ICWA, and it would be monitoring the case. The letter was signed by Amanda Cavender (Cavender), an Indian Child Welfare social worker. Cavender contacted the Department. On behalf of father, she stated that the Choctaw Nation of Oklahoma wanted legal guardianship instead of adoption in case he straightened out his life.

By November 15, 2006, the minor’s foster parents wanted to adopt him. Their adoption homestudy was approved. Father told Cavender he would be on parole in 2006 and was opposed to adoption. Cavender reiterated to the Department that, on father’s behalf, the Choctaw Nation of Oklahoma wanted legal guardianship as the minor’s permanent plan. Susana M. (paternal grandmother) said father would not be out of prison until 2009.

In his opening brief, father refers to paternal grandmother as Susan M.

The Department recommended adoption.

On January 6, 2007, Nanette L. Gledhill of the Hoopa Valley Tribe prepared an expert declaration. She recommended that the minor remain in a plan of legal guardianship, and that the juvenile court refrain from terminating mother’s and father’s parental rights.

On January 10, 2007, the juvenile court opined that the case fell within a newly added sixth exception to the termination of parental rights for when a tribe identified guardianship as a permanent plan.

In Statutes 2006, chapter 838, the Legislature amended section 366.26 and added a sixth exception to the termination of parental rights. Prior to that, there were five exceptions, which were: (1) the parents maintained regular visitation and contact and the child would benefit from continuing the relationship; (2) a child 12 years of age or older objects to the termination of parental rights; (3) the child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding a permanent family placement; (4) the child is living with a foster parent who is unable or unwilling to adopt the child because of exceptional circumstance; and (5) there would be substantial interference with a child’s sibling relationship. The sixth exception provided: “The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including but not limited to: [¶] . . . [¶] (II) The child’s tribe has identified guardianship, long-term foster case with a fit and willing relative, or another planned permanent living arrangement for the child.” (§ 366.26, subd. (c)(1)(B)(vi)(II).) This amendment appeared in section 366.26, subdivision (c)(1)(F). In 2007, the exception was renumbered and appears in section 366.26, subdivision (c)(1)(B)(iv)(II). (Stats. 2007, ch. 565.) The text remains the same, so we refer to the current statute.

Subsequently, in February 2007, Cavender sent a letter to the Department and stated the following: “The Choctaw Nation of Oklahoma is aware of the current situation. It is our understanding that the potential adoptive home that [the minor] is in is an appropriate placement and they are taking excellent care of his special needs. We do want permanency to take place for this child as soon as possible and are in agreement with an open adoption in the case that the father may maintain some type of relationship with the [minor] in the future. The [Choctaw Nation of Oklahoma] wants to make sure that if there is a possibility for a positive relationship with the father and [the minor], the option will be there.”

Father sent a letter stating that he agreed to a plan of adoption, and that he agreed to monitored visits after he got out of prison on March 7, 2010.

The foster parents filed a section 388 petition seeking an order that would cease paternal grandmother’s visitation with the minor. The petition was denied. However, the juvenile court changed paternal grandmother’s visitation from unmonitored to monitored. Father sent a second letter. This time he stated that he no longer agreed to a permanent plan of adoption due to the foster parents’ attempt to stop paternal grandmother’s visits.

On May 16, 2007, the parties appeared for a section 366.26 hearing. The Department recommended termination of parental rights and a plan of adoption with the understanding that the Choctaw Nation of Oklahoma and the paternal grandmother would have contact with the minor. Father said he did not object to the plan. He did, however, ask for permission to be part of the minor’s life, and the juvenile court said that any visits would be at the foster parents’ sole discretion. The foster parents reported that they had worked out a visitation schedule with paternal grandmother, which pleased the juvenile court. It found that the minor was adoptable, then it terminated father’s and mother’s parental rights.

This timely appeal followed.

DISCUSSION

According to father, the order terminating his parental rights should be reversed because the Choctaw Nation of Oklahoma was not informed of section 366.26, subdivision (c)(1)(B)(vi)(II), and because it mistakenly believed that California permits open adoptions. These are questions of law that we analyze on an independent basis. (In re Miguel E. (2004) 120 Cal.App.4th 521, 543.)

1. The Department had no duty to provide notice of a change in the law.

Father argues that it is “quite clear that [the Department] must notify the tribes of their rights under ICWA— 25 U.S.C.A. section 1912, subdivision (a)—most notably the right to intervene. [And] the right to intervene means much more than the right to be heard and make recommendations.” Then father contends: “It is clear that [the Department] has a continuing duty to comply with ICWA and to notify the tribes involved not only of any new information that may be pertinent but of any changes in the law that may be pertinent.”

We put these assertions to the test.

In part, title 25 United States Code section 1912(a) provides: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” This is the only notice requirement in title 25 United States Code section 1912(a). It does not require the Department to provide an Indian tribe with notice of changes in the law.

As a source of the lobbied for notice obligation, father also relies on section 224.3, subdivision (a). It provides: “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” This statute is unavailing for father’s cause because it does not impose notice obligations on the Department. Rather, the purpose of section 224.3, subdivision (a) is to ensure that there is continual inquiry as to whether a child is an Indian child. Here, the minor’s Indian heritage was established early on.

Last, father points to In re K.W. (2006) 144 Cal.App.4th 1349, 1359, a case that was ordered not published by the Supreme Court. The case is not citable as precedent. Beyond that, the page father adverts to does not state that the Department must notify a tribe of a change in the law.

Simply put, father’s authorities do not support his position.

Moreover, the Department contends that father waived his objection by not asserting it below, and we agree. There are cases which hold that a parent does not waive an ICWA notice issue by failing to raise it before the juvenile court. (In re S.B. (2005) 130 Cal.App.4th 1148, 1159.) This is because a parent cannot waive a tribe’s right to receive notice. But “[o]nce the child’s tribe has appeared and has not asked, on its own behalf, that any prior actions be invalidated, this rationale does not apply. The parent has an independent right to invalidate prior actions, but there is every reason to hold that this can be waived.” (In re S.B., supra, at p. 1159.) Because father did not object to the lack of notice of the change in law, he waived any objection.

2. Even if the Choctaw Nation of Oklahoma’s consent to adoption was based on a mistake of law, there is no basis for reversal.

A tribe’s objection to adoption may constitute a compelling reason for a juvenile court to preserve parental rights. Subdivision (c)(1)(B)(vi) of section 366.26, which was added in 2007, provides that a juvenile court shall terminate parental rights if reunification services have been terminated and a child is adoptable, unless, among other exceptions: “The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to: [¶] . . . [¶] (II) The child’s tribe has identified guardianship, long-term foster care with a fit and willing relative, or another planned permanent living arrangement for the child.” (§ 366.26, subd. (c)(1)(B)(vi).) This marks the first time the Legislature recognized an Indian tribe’s preference as grounds for a juvenile court to determine that parental rights should be preserved.

Father asks us to reverse the order terminating parental rights on the theory that the Choctaw National of Oklahoma should be advised of this new exception to the termination of parental rights and then should be given an opportunity to revoke its consent to adoption. Father implies that consent will in fact be revoked once the Choctaw Nation of Oklahoma learns that there is no such thing as an open adoption in California. But first, as we have indicated, there is no basis for holding that the Department was obligated to advise the Choctaw Nation of Oklahoma of the change in law. Second, father bore the burden of proving that the termination of parental rights would be detrimental to the minor under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) However, he did not raise this exception below. Arguments raised for the first time on appeal are deemed abandoned. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.)

DISPOSITION

The order terminating parental rights is affirmed.

We concur: BOREN, P. J., DOI TODD, J.


Summaries of

In re Jesse E.

California Court of Appeals, Second District, Second Division
Mar 12, 2008
No. B200426 (Cal. Ct. App. Mar. 12, 2008)
Case details for

In re Jesse E.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Second Division

Date published: Mar 12, 2008

Citations

No. B200426 (Cal. Ct. App. Mar. 12, 2008)