In re J.A.

Filed 3/14/07 In re J.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.

Karen J. Dodd, under appointment by the Court of Appeal, for Minor.

Mischelle A. (hereafter mother) raises two claims in this appeal from the trial courts order under Welfare and Institutions Code section 366.26 terminating her parental rights to her then 17-month-old son, J.A. First, mother contends that the trial court violated the due process rights of J.A.s father because the trial court failed to appoint counsel for him. Next, mother contends that the trial court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) because, among other things, J.A.s name was misspelled on a notice sent to the Indian tribe. Mother lacks standing to raise the first claim, and the second claim lacks merit. Therefore, we will affirm the order terminating mothers parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

The facts and procedural details are undisputed. Moreover, mother is known to this court from appeals in prior dependency proceedings that date back to 1991, and that involved her seven other children, six of whom were removed from mothers custody in January 2003. J.A., the subject of this dependency, was removed from mothers custody shortly after his birth in August 2005. The pertinent Welfare and Institutions Code section 300 petition alleged J.A. was at risk due, among other things, to mothers history of substance abuse, neglect of her other children which included her failure to protect two of the children from sexual abuse, and her failure to reunify with J.A.s six siblings, who had been removed from mothers custody due to neglect, physical abuse, and sexual abuse.

At the six-month review hearing, the trial court terminated reunification services and set a selection and implementation hearing, after finding that mother had failed to comply with the requirements of the reunification plan. At the selection and implementation hearing, the trial court made the required findings, including the finding that J.A. was adoptable, and terminated mothers parental rights.

DISCUSSION

Mother first contends that because the trial court failed to appoint counsel for J.A.s father, and thereby violated his due process rights, the order terminating mothers parental rights is an act in excess of the trial courts jurisdiction. Mother does not cite any authority to support her assertion that the purported violation of fathers rights affects the validity of the proceedings as to her. Simply put mother does not have standing to raise the purported violation of fathers constitutional rights because she is not aggrieved by the purported violation. Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citation.] However, a parent must also establish she is a party aggrieved to obtain a review of a ruling on the merits. [Citation.] (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. [Citation.] The injury must be immediate and substantial, and not nominal or remote. [Citation.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948.) Therefore, a parent cannot raise issues on appeal from a dependency matter that do not affect her own rights. [Citation.] (In re Frank L., supra, 81 Cal.App.4th at p. 703.)

The trial court appointed counsel for mother and her rights were fully protected. Father received notice of the dependency proceeding and of his right to have counsel appointed for him, but he did not appear in court or participate in the proceeding in any way. Consequently, father was not entitled to appointment of counsel. More importantly, mothers rights were not affected by the purported oversight and therefore she lacks standing to assert the claim regarding father, her argument to the contrary notwithstanding.

Mother also contends the trial court lacked jurisdiction to terminate her parental rights because of purported defects in the ICWA notices sent to the Keetoowah Band of Cherokee Indians. Compliance with the ICWA notice provisions was necessary because mother reported at the detention hearing that she was one-quarter Cherokee Indian through her father, Dale Craig. Based on that information, the social worker sent notices to the Keetoowah Band of Cherokee Indians. The tribe sent a letter in response that stated J.A. was not a descendant of anyone on the tribes membership roll and therefore was not an Indian child, as that term is defined in the ICWA.

Mother claims that the ICWA notices were defective because they were not addressed to the chief of the tribe, were sent to the wrong post office box address, and J.A.s last name was misspelled on Judicial Council Form JV-135 (although correctly spelled in the accompanying letters). Mothers claims are irrelevant because, as previously noted, the tribe responded and therefore actually received the requisite notice. Undaunted, mother contends that there was no indication that the person who responded to the ICWA notices had authority to speak for the tribe. No showing was required and mother does not cite any authority to suggest otherwise. If mother questioned the authenticity or validity of the tribes response, she should have raised the challenge in the trial court by offering evidence or authority to support her claim. Mother did not do that and consequently may not raise the challenge on appeal. The rule is well established that points not urged in the trial court may not be urged for the first time on appeal. (Damiani v. Albert (1957) 48 Cal.2d 15, 18.)

DISPOSITION

The order terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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