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In re Isaiah W.

Supreme Court of California

July 7, 2016

In Re ISAIAH W., A Person Coming Under the Juvenile Court Law.
v.
ASHLEE R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

         Superior Court Los Angeles County No. CK91018, Ct.App. 2/3 B250231 Jacquie H. Lewis, Commissioner Judge

          Pattie L. Dikes, under appointment by the Supreme Court, for Defendant and Appellant.

          Mark Radoff, Delia Parr and Mark Vezzola for California Indian Legal Services as Amicus Curiae on behalf of Defendant and Appellant.

          John 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.

          John 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.

          LIU, J.

         The 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).)

         In this 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.

         I.

         Isaiah 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 Ashlee’s claims.

         On 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.

         Over 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.

         On 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.

         On June 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 ...


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