In Re ISAIAH W., A Person Coming Under the Juvenile Court Law.
ASHLEE R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Court Los Angeles County No. CK91018, Ct.App. 2/3 B250231
Jacquie H. Lewis, Commissioner Judge
L. Dikes, under appointment by the Supreme Court, for
Defendant and Appellant.
Radoff, Delia Parr and Mark Vezzola for California Indian
Legal Services as Amicus Curiae on behalf of Defendant and
C. Cruden, Assistant Attorney General, Amber Blaha, Joann
Kintz and Christine E. Ennis for The United States as Amicus
Curiae on behalf of Defendant and Appellant.
F. Krattli and Mark J. Saladino, County Counsel, James M.
Owens and Dawyn R. Harrison, Assistant County Counsel, Tracey
F. Dodds, Principal Deputy County Counsel, and Stephen D.
Watson, Deputy County Counsel, Plaintiff and Respondent.
Jennifer B. Henning; Thomas E. Montgomery, County Counsel
(San Diego), John E. Phillips, Chief Deputy County Counsel,
and L. David Casey, Deputy County Counsel, for California
State Association of Counties as Amicus Curiae on behalf of
Plaintiff and Respondent.
federal Indian Child Welfare Act (ICWA) 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.” (25 U.S.C. § 1912(a).) This notice
requirement, which is also codified in California law (Welf.
& Inst. Code, § 224.2; all undesignated statutory
references are to this code), enables a tribe to determine
whether the child is an Indian child and, if so, whether to
intervene in or exercise jurisdiction over the proceeding. No
foster care placement or termination of parental rights
proceeding may be held until at least 10 days after the tribe
receives the required notice. (25 U.S.C. § 1912(a); see
§ 224.2, subd. (d).)
case, a juvenile court removed newborn Isaiah W. from his
parents’ care and placed him in foster care. In that
proceeding, the court concluded there was no reason to know
Isaiah was an Indian child. The court thus found ICWA
inapplicable and did not order the Los Angeles County
Department of Children and Family Services (the Department)
to notify any tribe or the federal Bureau of Indian Affairs
(BIA). Isaiah’s mother, defendant Ashlee R., did not
appeal from this order placing Isaiah in foster care. More
than a year later, the juvenile court terminated
Ashlee’s parental rights. Ashlee appealed from that
order, citing the court’s failure to order the
Department to comply with ICWA’s notice requirements.
We granted review to decide whether a parent who does not
bring a timely appeal from a juvenile court order that
subsumes a finding of ICWA’s inapplicability may
challenge such a finding in the course of appealing from a
subsequent order terminating parental rights. Because ICWA
imposes on the juvenile court a continuing duty to inquire
whether the child is an Indian child, we hold that the parent
may a challenge a finding of ICWA’s inapplicability in
an appeal from the subsequent order, even if she did not
raise such a challenge in an appeal from the initial order.
was born in November 2011, with a positive toxicology for
marijuana, and he showed signs of withdrawal. The Department
filed a petition in juvenile court pursuant to section 300,
subdivision (b), alleging that parental drug use placed
Isaiah at risk of harm. At a hearing on December 8, 2011, the
court removed Isaiah from his parents’ care and granted
temporary custody to the Department. The court also ordered
reunification services, drug rehabilitation, and counseling
for Isaiah’s parents. During the hearing, Ashlee told
the court she may have American Indian ancestry. The court
concluded it had no reason to know that Isaiah was an Indian
child but ordered the Department to investigate
January 20, 2012, the juvenile court held a jurisdictional
and dispositional hearing. The court placed Isaiah in foster
care and again ordered the Department to offer reunification
services to Isaiah’s parents, including monitored
visitation and substance abuse treatment. At this hearing,
the court reviewed an ICWA report prepared by the Department
indicating that Isaiah’s grandfather may have had
Blackfeet ancestry and his great-great-grandmother may have
been a member of a Cherokee tribe. The court concluded that
“any possibility [that Isaiah is an Indian child] is
really too attenuated and remote for it to suggest to this
court or... for this court to know that the child would fall
under the Indian Child Welfare Act.” Accordingly, the
court did not order the Department to provide notice to any
tribe or to the BIA. Ashlee did not appeal from this order
placing Isaiah in foster care or otherwise object to the
court’s finding that ICWA was inapplicable.
the next several months, Ashlee visited Isaiah weekly. But
she did not complete her drug treatment program or attend her
scheduled drug tests. As a result, the juvenile court
terminated reunification services in September 2012 and set a
hearing on the termination of parental rights. The court
ordered a permanent placement plan according to which Isaiah
would be adopted by his foster mother.
April 10, 2013, the juvenile court terminated Ashlee’s
parental rights and again said it had no reason to know that
Isaiah was an Indian child. The court cleared Isaiah for
permanent and final adoption.
5, 2013, Ashlee appealed from the order terminating her
parental rights on the ground that the juvenile court had
reason to know Isaiah was an Indian child yet failed to order
the Department to comply with ICWA’s notice
requirements. The Court of Appeal denied relief, explaining:
“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) 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 [(Pedro N.)].) 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 In re ...