KERN COUNTY DEPARTMENT OF HUMAN SERVICES v. MICHAEL P

Filed 6/30/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Jennifer E. Zahry, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Michael P. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his son and daughter.^[1] Much earlier in the proceedings, the court determined, based on information it received from the Bureau of Indian Affairs (BIA), that the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply to the children's case. Eleven months later at the termination hearing, appellant through his attorney claimed for the first time that he was Mohican. The court observed it had not heard anything that would justify changing the previous finding and proceeded to make its termination findings and orders. Appellant contends the court should have suspended the proceedings and sent new ICWA notice to the tribe. As discussed herein, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

Because appellant's late claim of Mohican Indian heritage and the court's disinclination to act on that claim forms the basis for this appeal, we limit our summary of the record to the facts relevant to the issue raised.

The department initiated the underlying dependency proceedings on October 13, 2004, as to appellant's two toddler-aged children. At the time, appellant's and the mother's regular use of methamphetamine disabled them from providing the children with adequate care and supervision. During the detention hearing conducted on the same date, the mother's attorney represented to the court that his client had â€