Opinion
F050681
12-11-2006
In re JESSICA R., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOHN S., Defendant and Appellant.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
Before Harris, Acting P.J., Levy, J., and Cornell, J.
INTRODUCTION
Appellant, John S., appeals from an order of the superior court terminating his parental rights pursuant to Welfare and Institutions Code section 366.26. Appellant argues the court failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., ICWA), requiring reversal of its order terminating his parental rights.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
Only the father has filed an appeal in this case. The mothers parental rights were also terminated.
FACTS AND PROCEEDINGS
In January 2005, the Fresno County Department of Children and Family Services (Department) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (a) for Jessica R., the 28-day old daughter of appellant. The petition stated Jessica was at risk under section 300, subdivision (b)(1) of serious physical harm because her mother was developmentally delayed, had an anger control problem, and was frequently violent. Appellant was the presumed father because he was living with Jessicas mother and signed a voluntary declaration of paternity at the hospital.
The petition stated that Jessica "may be of Indian ancestry." The Department prepared a detention report for the detention hearing, noting that the mother was frustrated and took her frustrations out on her baby. Both the mother and father are developmentally delayed. The mother was willing to accept anger management services. The father is a registered sex offender (Pen. Code, § 290). The report noted that Jessicas status under the ICWA was pending. Appellant reported "that he heard he had Native American ancestry." The social worker noted notices would be sent to the Bureau of Indian Affairs (BIA). On January 14, 2005, notices were sent by the Department to the BIA. The BIA responded with notice that the family provided insufficient information to substantiate they were members of a federally recognized tribe. This response was filed April 12, 2005.
The court found at the conclusion of the detention hearing on January 5, 2005, that a prima facie case was made pursuant to section 300.
The Department prepared a jurisdiction hearing report. The Department sent notice to the BIA of the upcoming proceedings. The BIA again responded that appellant had failed to provide sufficient information to substantiate his family were members of a federally recognized tribe. The second BIA response was filed April 19, 2005. Both responses from the BIA, including return receipts from the BIA, were filed into the record along with return receipts from appellant that he received the first reply from the BIA.
Appellant appeared at the February 24, 2005, jurisdiction hearing. At the conclusion of the hearing, the court found Jessica to be a child defined by section 300, subd. (a). On February 24, 2005, the Department filed a motion for the court to find the ICWA inapplicable to Jessicas case. Appellant received a copy of the motion. Throughout the proceedings, appellant was represented by counsel.
During the April 15, 2005, disposition hearing, counsel for the Department argued to the court that the parents had provided no information concerning potential tribal connection, other than the suggestion by appellant of possible Native American heritage. Counsel for the Department informed the court that the BIA had responded that appellant had given insufficient information concerning his heritage for the BIA to verify a tribal connection. The court asked appellant if he had any additional information. Appellant replied that he wanted his daughter back and that he had no additional information.
When the court asked appellants great aunt, who was at the hearing, if she had any additional information concerning his ancestry, she replied that appellant was Navaho from his fathers family and Pueblo from his mothers family. When the great aunt was asked whether appellant was a member of either tribe, she replied her family had "never filed for any help from any of the Indian rights."
Counsel for the Department requested its motion be granted in light of the family acknowledgement that no one was a member of a tribe. Counsel noted that there was a requirement in the ICWA that to be considered an Indian child, the child either must be a member of a federally recognized tribe, or the childs biological parent must be a member of such a tribe. Based on the information before it, the court found that Jessica was not subject to the ICWA.
The disposition hearing was continued to May 6, 2006, to assess whether Jessica could be placed with her father. After several continuances, the appellant failed to appear at the May 20, 2005, hearing. The disposition hearing was continued to June 10, 2005, at which time the court granted the Departments request to take judicial notice of appellants conviction in 1988 for violating Penal Code section 288, subdivision (a) on a victim five years old and for his conviction on another occasion for violating his registration requirement pursuant to Penal Code section 290.
According to the social workers report prepared for the disposition hearing, appellant also had prior convictions for petty theft, buying or selling items with the identification removed, battery, grand theft of a person, and obstruction or resisting a public officer.
Though both parents were permitted visitations twice a week, the visitation schedule was terminated on March 10, 2005, because neither parent had shown up consecutively for three times. When a social worker met with appellant on May 6, 2005, he requested reunification services. When the social worker asked appellant why he stopped visiting his daughter, he said he could not stand going over to the visitation location. He did not elaborate any further. The social worker attempted to schedule a visitation on May 10, 2005, but appellant said he had a parenting class. The social worker attempted to call appellant the next day, but he did not answer his phone. The Department recommended that no services be provided the father pursuant to section 361.5, subdivision (b)(12).
At the hearing, the parties noted there was an earlier finding concerning the ICWA. The appellant stipulated that he had a prior conviction which required him to register pursuant to Penal Code section 290. The court ordered reunification services continue for the mother, but not for appellant. The court set the matter for a contested hearing for the final disposition as to the appellant.
Appellant failed to appear at the continued disposition hearing on July 12, 2005. The court denied the request of appellants counsel to continue the hearing once more. The court took judicial notice of appellants Penal Code section 288, subdivision (a) conviction and ordered no reunification services for the father pursuant to section 361.5, subdivision (b)(12). Nothing was said at the disposition hearing concerning the ICWA. Appellant failed to appear at the six-month family reunification review hearing on August 19, 2005. Again, no issue was raised concerning the ICWA. Appellant failed to appear at the September 13, 2005, settlement conference. No one raised an issue concerning the ICWA.
Appellant failed to appear at the first setting of the section 366.26 hearing on January 18, 2006, which was rescheduled. On April 19, 2006, neither the appellant nor the mother appeared at the section 366.26 hearing. No party raised the issue of appellants Indian heritage or the ICWA. The court terminated the parental rights of both parents.
ICWA CHALLENGE
In his appeal from the termination order, appellant challenges for the first time the courts April 15, 2005, finding and order that ICWA did not apply to Jessicas dependency. Appellant contends the Department failed in its duty to notify the BIA pursuant to ICWA that Jessica had potential American Indian heritage. The problem for appellant is that the courts finding and order have long been final. The final disposition hearing was July 12, 2005.
In In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.), this court held that a parent who fails to timely challenge a juvenile courts action regarding ICWA is foreclosed from raising ICWA notice issues once the courts 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.
Appellant relies on another appellate courts ruling in In re Marinna J. (2001) 90 Cal.App.4th 731. The Marinna J. court disagreed with our holding in Pedro N. on the theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes. On this point, we differ. This court did not foreclose a tribes rights under ICWA on account of a parents appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [where this court reversed the denial of a tribes motion to intervene after a final order terminating parental rights and invalidated actions dating back to the outset of the dependency and taken in violation of ICWA].)
Appellants opening and reply briefs criticize our ruling in Pedro N. with citations to authorities from other appellate districts. We are aware of these authorities, but see no reason to revisit our holding in Pedro N.
Appellant did not challenge the juvenile courts finding that ICWA was inapplicable to him. The Department twice notified the BIA that appellant asserted Indian heritage. In both instances, the BIA notified the parties that it needed more family history to make a determination concerning appellants tribal affiliation. During the April 15, 2005, hearing, appellants great aunt asserted he had Indian heritage from both his father and mother, but acknowledged that appellant was not himself a member of either tribe. She further explained that her family had "never filed for any help from any of the Indian rights." The only reasonable inference the court could have drawn from this statement was that no one in appellants family was a member of a federally recognized tribe.
Appellant argues at length that the Departments notice to the BIA was insufficient and that the court should have stayed the proceedings to determine whether appellant was a member of a federally recognized tribe. Appellant, however, received notice of the Departments motion that the trial court find the ICWA did not apply to his case. It appears from the record that no later than the April 15, 2005, hearing, if not before, appellant and his counsel were aware of the BIA finding that more information was necessary. From the time the petition was filed until the April 15, 2005, hearing on the Departments motion, appellant failed to provide the Department or the BIA with further information concerning his ancestry. Even after the trial courts ruling, the appellant did nothing more to assist the Department, the court or the BIA in determining his Indian heritage.
After the July 12, 2005, disposition order, appellant did not file a writ with this court pursuant to section 366.26, subdivision (l), and California Rules of Court, Rule 38.1, challenging the trial courts findings regarding its denial of services or the inapplicability of the ICWA to his case. The dispositional order constitutes an appealable judgment. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Appellant has waived his right to pursue this issue on appeal from the courts order terminating his parental rights. We, therefore, reject appellants ICWA challenge.
DISPOSITION
The judgment is affirmed.