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In re K.B.

May 13, 2009


APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super.Ct.No. RIJ102213).

The opinion of the court was delivered by: McKinster J.



The parents of Ka.B., Kr.B. and D.B. appeal from an order terminating their parental rights and placing the children for adoption. (Welf. & Inst. Code, § 366.26.)*fn1

They contend that, following our limited remand in their prior appeal from the termination order (In re K[.]B. (Dec. 7, 2006, E039777) [nonpub. opn.]) for compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), the juvenile court erred by failing to vacate its disposition order and by finding, in compliance with ICWA‟s requirements, that "active efforts" were made to prevent the breakup of the family. They also contend that there was insufficient evidence to support the finding that the children are likely to be adopted.*fn2 We reject these contentions, and we affirm the judgment of the juvenile court.


Ka.B, Kr.B. and D.B. and their half sister, Ke.B. (hereafter Ka., Kr., D. and Ke.), were the subjects of a prior dependency proceeding which was initiated in August 2001 and terminated in December 2003 with the four children being returned to the mother‟s custody.*fn3 The petition, which was filed before D. was born, alleged that the mother‟s residence was filthy; that the mother left the children with an unrelated caretaker for an extended period without providing adequately for their care and support, thus placing the children at risk of serious physical harm; that the children were extremely dirty and that their health needs were not being provided for; that the mother and the father of Ka. and Kr. had a history of criminal behavior; and that the fathers were not providing support. The father of Ka. and Kr. (i.e., the appellant father in this appeal) was in prison on drug charges, and the whereabouts of Ke.‟s father were unknown. When D. was born in February 2003, a petition was filed as to him, but he remained in the physical custody of the mother. The mother successfully reunited with the children, and the petition was dismissed in December 2003.

The father was released from prison on parole during the pendency of the prior proceeding, but because of a prior conviction for lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), his parole conditions forbade contact with minors under a specified age,*fn4 including his own children, and forbade him to live with any minor "18 years or younger."

The current petition was filed on March 9, 2004. It alleged that the father, who was living with the family in violation of the conditions of his parole,*fn5 had molested Ke., then 14 years old, and that the mother knew or reasonably should have known that the children were at risk of sexual abuse. The petition alleged that the children were filthy and infested with head lice, that the parents engaged in acts of domestic violence, and that the mother had previously been provided with reunification and family maintenance services but had failed to benefit from those services. The allegations of the petition were found true. The children were placed in foster care. Services were ordered for the mother, but not for the father. Ultimately, parental rights were terminated and the children were freed for adoption by their foster parents.*fn6

During the prior dependency proceeding, the father informed the Department of Public Social Services (DPSS) that he might have Indian ancestry. No action was taken to notify the appropriate tribal authorities pursuant to ICWA before that case was dismissed. When the current petition was filed, the father‟s information was ignored, and no inquiry was made of either parent as to possible Indian ancestry. The father also failed to inform the court that ICWA might apply. The father asserted for the first time in his appeal from the original termination order in the current proceeding that the court had failed to comply with the notice provisions of ICWA. (In re K[.]B., supra, E039777 [at pp. 15-18].) We affirmed the juvenile court‟s finding that the children are adoptable, but reversed the termination order and remanded the cause for the limited purpose of providing the mandatory notice to the appropriate tribal authorities. We ordered that "If, after proper notice, a tribe claims the minors . . . as Indian children, the juvenile court shall proceed in conformity with all provisions of ICWA." (Id. [at p. 18].)

Following remand, notice was given, and on May 31, 2007, the Choctaw Nation of Oklahoma determined that the children had Choctaw heritage and that they were Indian children within the meaning of ICWA.*fn7 The father was recognized as a member of the tribe on June 30, 2007. On August 27, 2007, the juvenile court found that ICWA applied. The tribe intervened but did not assert jurisdiction. It chose instead to review all filings in the case, to work directly with the social worker and to make recommendations. Several months later, after having received the reports filed by DPSS, the tribe stated that it was in agreement with termination of parental rights and the plan for adoption. It originally asked that all family members be considered as adoptive parents, but ultimately agreed to the plan for adoption by the children‟s current non-tribal*fn8 caretakers. On June 5, 2008, at the scheduled hearing on termination of parental rights, the parents asked the court to vacate all prior orders as having been rendered in violation of ICWA. The court conducted a hearing and determined that the substantive requirements of ICWA had been met and that the earlier failure to give notice as required by ICWA was not prejudicial. The court then conducted a hearing pursuant to section 366.26. It terminated parental rights and adopted a permanent plan of adoption by the children‟s current caretakers. The parents appealed.



Both ICWA and the Welfare and Institutions Code provide that any party seeking an involuntary foster care placement of an Indian child must satisfy the court that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d); Welf. & Inst. Code, § 361.7, subd. (a); see also Cal. Rules of Court, rule 5.484(c).) Both state and federal law provide that any parent from whose custody an Indian child was removed may petition the court to invalidate an order for foster care or termination of parental rights if the order violated any provision of specified sections of ICWA, including title 25 United States Code section 1912. (25 U.S.C. § 1914; Welf. & Inst. Code, § 224, subd. (e).)

At the scheduled 366.26 hearing on June 5, 2008, the parents asked the court to vacate all of its prior orders pursuant to title 25 United States Code section 1914 for lack of compliance with ICWA. The parents contended that because the court had not previously found that "active efforts" had been made to prevent the breakup of the family before placing the children in foster care, as required by title 25 United States Code section 1912(d), the court lacked jurisdiction to proceed to a hearing on termination of parental rights. The parents also contended that the court lacked jurisdiction to place the children in foster care because the disposition order was not supported by testimony by an expert on Indian tribal matters.

After hearing argument and reviewing the file and this court‟s opinion in In re S.B. (2005) 130 Cal.App.4th 1148, the court concluded that there was no reasonable probability that if the substantive provisions of ICWA had been applied, either parent would have received more favorable results. For that reason, the court declined to vacate the past orders and proceeded to hold the section 366.26 hearing.

The parents now contend, as they did below, that the juvenile court lacked jurisdiction to enter disposition orders placing the children in foster care because the court failed to comply with ICWA‟s notice provisions.

We agree with the line of cases which hold that failure to comply with ICWA‟s notice provisions does not divest courts of jurisdiction to remove an Indian child from the custody of the parents. (See, e.g., In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410-1411; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 785; but see In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Accordingly, we reject the parents‟ contention.

DPSS contends that the juvenile court lacked the authority to entertain the request to invalidate the disposition order in any event, because in the prior appeal, we reversed only the order terminating parental rights. When a judgment is reversed with directions, the trial court‟s jurisdiction is limited by those directions. (In re N.M. (2008) 161 Cal.App.4th 253, 264.) DPSS is correct that our opinion reversed only the final order for purposes of compliance with ICWA‟s notice provisions. However, we also directed that if the children were found to be Indian children, the trial court must proceed "in conformity with all provisions of ICWA." (In re. K[.]B., supra, E039777 [at p. 18].) As noted above, ICWA permits the parents to petition the juvenile court to invalidate prior orders. (25 U.S.C. § 1914; Welf. & Inst. Code, § 224, subd. (e).) ...

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