Filed 8/8/14 Opn filed after rehearing
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re ISAIAH W., A Person Coming Under B250231
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK91018)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ASHLEE R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Jacqueline H. Lewis, Judge. Affirmed.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the County Counsel, John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
___________________________________________
Ashlee R. (mother) appeals from the order terminating her parental rights to the
now two-year-old Isaiah W. She contends that the juvenile court erred in finding that
the Indian Child Welfare Act (ICWA) did not apply. We hold that mother failed to
timely appeal the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2011, Isaiah was born with a positive toxicology for marijuana and
exhibited withdrawal symptoms. The Department of Children and Family Services
(Department) filed a petition alleging that mother’s and father’s illicit drug use placed
Isaiah at risk of harm.1 At the detention hearing, the juvenile court removed Isaiah from
his parents’ care and ordered reunification services for them.
Mother told the juvenile court that she may have American Indian ancestry, and
the court ordered the Department to investigate mother’s claim. The Department
interviewed maternal relatives and reported to the court that maternal grandfather may
have had Blackfoot ancestry and maternal great-great-grandmother may have been part
of a Cherokee tribe.
At the jurisdictional and dispositional hearing on January 20, 2012, the juvenile
court reviewed the Department’s report and concluded that there was no “reason to
know” that Isaiah was “an Indian child as defined under ICWA.” Accordingly, the
court did not order that the Department provide notice to any tribe or the Bureau of
Indian Affairs. Neither mother nor father objected or argued that the ICWA was
applicable. The court adjudged Isaiah a dependent and ordered him placed in foster
care. The court ordered the parents to participate in counseling and drug testing.
Mother did not appeal that order.
1
Father is not a party to this appeal.
2
Mother did not attend her scheduled drug tests or drug treatment program.
Although she visited with Isaiah on a weekly basis, she never remained for the full two
hours scheduled for the visits. Father only visited Isaiah two or three times. On
September 12, 2012, the juvenile court terminated the parents’ reunification services
and set a hearing on the termination of parental rights.
On November 5, 2012, the Department placed Isaiah with a prospective adoptive
family. On April 10, 2013, the juvenile court terminated mother’s and father’s parental
rights. At the hearing, the court repeated its prior finding that there was no reason to
know Isaiah was an Indian child. On June 5, 2013, mother appealed from the
termination of parental rights.
CONTENTIONS
Mother contends the juvenile court erred in finding that it had no “reason to
know” Isaiah was an Indian child, and in failing to order the Department to comply with
the ICWA’s notice requirements.
DISCUSSION
The ICWA “protect[s] the best interests of Indian children and [] promote[s] the
stability and security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the unique
values of Indian culture . . . . ” (25 U.S.C. § 1902.) “In general, the ICWA applies to
any state court proceeding involving the foster care or adoptive placement of, or the
termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c),
1912-1921.)” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) An “Indian child”
is defined as a child who is “either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian
tribe.” (25 U.S.C. § 1903(4).)
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The ICWA provides that “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. If the identity or location of the parent or
Indian custodian and the tribe cannot be determined, such notice shall be given to the
Secretary [of the Interior] in like manner . . . . No foster care placement or termination
of parental rights proceeding shall be held until at least ten days after receipt of notice
by the parent or Indian custodian and the tribe or the Secretary . . . . ” (25 U.S.C.
§ 1912(a).)
Here, mother argues the court had “reason to know” that Isaiah was an “Indian
child,” and, thus, should have ordered the Department to comply with the ICWA’s
notice requirements. This argument relates to the court’s dispositional order of
January 2012. At that point, all of the information provided by mother and her relatives
about their American Indian heritage was before the juvenile court, and the court
considered the Department’s report on its investigation into mother’s heritage.
Therefore, according to mother’s argument, because the Department should have
provided notice under the ICWA, it was error for the juvenile court to proceed with its
disposition of removal and foster care placement. Instead, the court should have
continued the dispositional hearing until at least ten days after the Department had
served notice on the identified tribes or Secretary of the Interior. (See 25 U.S.C.
§ 1912(a).) We reject mother’s argument.
Mother had the right to appeal the juvenile court’s order at the dispositional
hearing. She did not do so, and only challenged the court’s failure to provide notice
under the ICWA approximately one and a half years later which was after the court
terminated parental rights. However, the juvenile court’s dispositional findings and
orders had become final 60 days after the court’s announcement of the order. (Cal.
Rules of Court, rule 8.406(a)(1).) “Appellate jurisdiction to review an appealable order
is dependent upon a timely notice of appeal. [Citation.]” (In re Elizabeth G. (1988)
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205 Cal.App.3d 1327, 1331.) “An appeal from the most recent order entered in a
dependency matter may not challenge prior orders for which the statutory time for filing
an appeal has passed.” (In re Pedro N. (1995) 35 Cal.App.4th 183, 189.) Here,
because mother failed to timely appeal from the ICWA finding in the juvenile court’s
dispositional order, “she is foreclosed from raising the issue now on appeal from the
order terminating her parental rights.” (Ibid.; see also In re Elizabeth G,, supra,
205 Cal.App.3d at p. 1331.)
Although cases such as In re Marinna J. (2001) 90 Cal.App.4th 731 and
Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 have disagreed with
Pedro N., we are not persuaded by their reasoning. Those cases held that “parental
inaction” cannot “excuse the failure of the juvenile court to ensure that notice under the
Act was provided to the Indian tribe named in the proceeding.” (In re Marinna J.,
supra, 90 Cal.App.4th at p. 739; see also Dwayne P., supra, 103 Cal.App.4th at p. 261.)
We decline to adopt the implied conclusion in Marinna J. and Dwayne P. that there is
no time limit on a parent’s right to raise the issue of ICWA compliance. To allow a
parent unlimited time within which to raise this challenge would violate the child’s
constitutional right to a stable and permanent home. (See In re Jasmon O. (1994)
8 Cal.4th 398, 421.) Children have a constitutional interest in stability, ibid., and in
California, the courts have held that this includes the “right to a reasonably directed
early life, unmarked by unnecessary and excessive shifts in custody . . . .” (In re Arturo
A. (1992) 8 Cal.App.4th 229, 241, fn.6.) Accordingly, in the context of dependency
proceedings, “where a child has formed familial bonds with a de facto family with
whom the child was placed owing to a biological parent’s unfitness [citation] . . . and
where it is shown that the child would be harmed by any severance of those bonds, the
child’s constitutionally protected interests outweigh those of the biological parents.”
(In re Bridget R. (1996) 41 Cal.App.4th 1483, 1506, superseded by statute on another
ground as stated in In re Santos Y. (2001) 92 Cal.App.4th 1274, 1311-1312.)
In accordance with these principles, we adopt Pedro N.’s conclusion that the
ICWA does not authorize a parent to delay in challenging a trial court’s determination
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on the applicability of ICWA until after the disputed decision is final. (In re Pedro N.,
supra, 35 Cal.App.4th at p. 190.) In Pedro N., the mother informed the juvenile court at
the detention hearing for her two children that she was “a full-blooded member of the
Mono Indian Tribe.” (In re Pedro N., supra, 35 Cal.App.4th at p. 186.) The
Department sent ICWA notice to the Bureau of Indian Affairs, and the Bureau
responded that it needed the identity of the reservation or rancheria with which the
mother was associated in order to confirm the family’s tribal membership. (Id. at
p. 187.) When county counsel raised this issue at the disposition hearing, the mother
volunteered the name “ ‘North Fork.’ ” (Ibid.) However, there was no further
discussion regarding ICWA notice and the juvenile court removed the children from the
mother’s care at the conclusion of the hearing. (Ibid.) After reunification efforts with
the mother failed, the court terminated her parental rights. (Id. at p. 185.) The mother
appealed from the order terminating her parental rights and argued that the Department
had given inadequate notice under the ICWA. (Ibid.)
The Pedro N. court held that the mother was foreclosed from raising ICWA
compliance issues because she did not raise this challenge until approximately two years
after the juvenile court’s decision not to proceed under the ICWA. (Id. at p. 189.) The
court also found that Congress did not indicate an intent to permit a parent to delay in
raising an ICWA violation until after the disputed action is final. (Id. at p. 190.) The
court cited to an ICWA provision that “confers standing upon a parent claiming an
ICWA violation to petition to invalidate a state court dependency action,” and noted that
this provision does not state that a parent may claim an ICWA violation at any point in
the proceeding. (Ibid. [citing to 25 U.S.C. § 1914].) In fact, in another provision the
ICWA does authorize a tribe to intervene in a dependency action “at any point in the
proceeding.” (25 U.S.C. § 1911(c).) Accordingly, the Pedro N. court concluded that,
“We assume from the absence of such language in [the provision authorizing a parent to
raise ICWA violations], that the Congress did not intend to preempt, in the case of
appellate review, state law requiring timely notices of appeal from a parent who
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appeared in the underlying proceedings and who had knowledge of the applicability of
the ICWA.” (In re Pedro N., supra, 35 Cal.App.4th at p. 190.)
“Congress’s intent to not cause unnecessary delay in dependency proceedings is
evidenced by the [ICWA] provision allowing a hearing on the termination of parental
rights within a relatively short time, 10 days, after the [Secretary of the Interior] or tribe
receives ICWA notice. (25 U.S.C. § 1912(a).)” (In re X.V. (2005) 132 Cal.App.4th
794, 804.) Such an intent is supported by the maxim that “[b]ecause juvenile
dependency proceedings ‘involve the well-being of children, considerations such as
permanency and stability are of paramount importance. (§ 366.26.)’ [Citation.]”
(Ibid.)
In X.V., the parents of a dependent child filed two appeals, each time challenging
the Department’s failure to provide adequate notice under ICWA. The court, on the
first appeal, remanded the matter for the limited purpose of complying with ICWA
notice requirements, and, on the second appeal, held that “the parents ha[d] forfeited a
second appeal of ICWA notice issues.” (In re X.V., supra, 132 Cal.App.4th at p. 804.)
The court reasoned that, “[b]alancing the interests of Indian children and tribes under
the ICWA, and the interests of dependent children to permanency and stability,” there
must be a limit to a parent’s ability to “delay permanence for children” through
“numerous belated ICWA notice appeals and writs.” (Id. at pp. 804-805.)
The principles enunciated in X.V. support our conclusion that a dependent child’s
interest in permanency and stability requires that there be a time limit to a parent’s right
to raise the issue of ICWA compliance. In addition, we do not believe Congress
intended to authorize a parent to wait for over a year before challenging a trial court’s
decision on the applicability of the ICWA. Accordingly, we conclude that mother has
forfeited her right to raise a challenge to the juvenile court’s finding that the ICWA did
not apply here. However, we note that, as in Pedro N., we are only addressing the rights
of mother, not the rights of a tribe under the ICWA. (In re Pedro N., supra,
35 Cal.App.4th at p. 191; see also 25 U.S.C. § 1902 [the ICWA protects the interests of
Indian children, their families and Indian tribes].)
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DISPOSITION
The orders of the juvenile court are affirmed.
CERTIFIED FOR PUBLICATION
KITCHING, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
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