In re A.R.

Filed 8/2/07 In re A.R. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant Lisa B., the mother of minors A.R. and N.R., appeals from an order terminating her parental rights. She contends (1) her retained counsel rendered ineffective assistance when he inexplicably failed to attend the hearing at which parental rights were terminated, (2) the juvenile court failed to ensure that the Sacramento County Department of Health and Human Services (DHHS) complied with the notice provisions of the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901 et seq.) by providing notice to the tribes of a reset jurisdiction and disposition hearing, and (3) the court failed to wait 60 days following two tribes receipt of their ICWA notices before concluding that ICWA does not apply to this case (Cal. Rules of Court, rule 5.664(f)(6)). We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2002 DHHS filed petitions alleging that then two-year-old N.R. and 11-month-old A.R. were at substantial risk of harm because of their parents history of domestic violence and previously sustained charges of physical and sexual abuse of the minors half-sibling by the father.

In November 2002 the Sacramento County Juvenile Court sustained the petitions and found that the minors were dependent children of the court. They were placed in the custody of DHHS for foster care.

Periodic status review hearings were held between March 2003 and April 2004, but the minors were not reunified with appellant. In April 2004 the juvenile court terminated appellants reunification services, set the matter for a selection and implementation hearing (Welf. & Inst. Code,  366.26),^[1]and ordered DHHS to facilitate a bonding assessment between appellant and the minors to determine whether severing the parent/child relationship would deprive the minors of positive emotional attachment such that the minors would be greatly harmed.

In August 2004 DHHS issued notices required by the ICWA, as more fully set forth in part II, post.

In October 2004 the juvenile court conducted the section 366.26 hearing and set the permanent plan as long-term foster care with the goal of guardianship. In March 2005 an administrative review was conducted pursuant to section 366.3, subdivision (d).

In October 2005 the juvenile court conducted a 12-month postpermanency review hearing pursuant to section 366.3, subdivision (d)(4). As a result, a second selection and implementation hearing was set.

On February 22, 2006, the second selection and implementation hearing was conducted. It was scheduled for 8:30 a.m. and was eventually conducted beginning at 8:50 a.m. Neither appellant nor her retained counsel was present. The juvenile court expressly found that both appellant and her counsel had been properly notified of the hearing. At the conclusion of the hearing, the court found that termination of parental rights would not be detrimental to the minors. ( 366.26, subd. (c)(1).) The court found that appellant had made minimal progress toward alleviating or mitigating the causes necessitating placement, and found that the minors were likely to be adopted.

DISCUSSION

I

Appellant contends her trial counsel, Grant Pegg of Sacramento, rendered ineffective assistance by failing to appear at the section 366.26 hearing.^[2] The issue is not properly raised in this appeal.

In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253 [85 Cal.App.4th 1023c, 101 Cal.Rptr.2d 548]; People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) However, an ineffective assistance claim may be reviewed on direct appeal where there simply could be no satisfactory explanation for trial counsels action or inaction. (People v. Pope, supra, at p. 426.) (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.)

In this case, the appellate record is silent as to why attorney Pegg failed to appear at the hearing. Because there could be a satisfactory explanation for an absence, this is not a case in which the ineffective assistance claim may be reviewed on direct appeal. (In re Dennis H., supra, 88 Cal.App.4th at p. 98, fn. 1.)

Acknowledging this state of the record, appellants appellate counsel filed a companion petition for writ of habeas corpus. In March 2007 this court issued an order to show cause returnable to the juvenile court. In April 2007 that court denied the petition on the ground that Peggs deficient performance was not prejudicial. Appellate counsel responded by filing a second petition for writ of habeas corpus in this court. Agreeing with the juvenile courts assessment of prejudice, we denied that petition in July 2007.^[3]

II

Appellant contends the juvenile court erred by (1) failing to ensure that DHHS provided ICWA notice to the tribes of a reset jurisdiction and disposition hearing, and (2) failing to wait 60 days following two tribes receipt of their ICWA notices before concluding the ICWA does not apply to this case. (Cal. Rules of Court, rule 5.664(f)(6).) We find no prejudicial error.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) DHHS and the juvenile court have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).) If, after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe, or the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. 1912; Cal. Rules of Court, rule 5.664(f).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

At the jurisdiction hearing, the juvenile court ordered notice sent to the BIA, even though a tribal affiliation -- Cherokee -- was known, as a result of the courts exchange with the father. In our prior consolidated opinion, we accepted DHHSs concession that this notice was insufficient. (In re A.R. et al. (June 29, 2004, C042798, C043074) [nonpub. opn.].) We reversed the jurisdiction and disposition orders and remanded the matter to the juvenile court with directions to order DHHS to provide each of the three Cherokee tribes proper ICWA notice of these proceedings. If, after receiving notice under ICWA, no tribe indicates either minor is an Indian child within the meaning of ICWA, then the juvenile court shall reinstate the jurisdictional and dispositional orders. (Ibid.)

In July 2004 appellant informed a DHHS paralegal that she has Cherokee and Blackfeet heritage through her maternal relatives. The maternal grandmother gave the paralegal additional information regarding that heritage.

Thus, a DHHS paralegal sent notice forms to the three federally recognized Cherokee tribes, the one federally recognized Blackfeet tribe, and the BIA. The forms were sent on or about August 4, 2004, and provided notice of a section 366.26 hearing to be held on September 23, 2004.

DHHS received return receipts from all four tribes and the BIA. Two of the Cherokee tribes later responded by letter, stating that the minors were not Indian children. The third Cherokee tribe (Eastern Band of Cherokee Indians) and the Blackfeet tribe did not respond.

On September 23, 2004, the juvenile court found that ICWA notice has been properly completed and the children are found not to be Indian children according to the requirements of the Indian Child Welfare Act. The court ordered reinstatement of the jurisdiction orders.

Appellant contends, and DHHS concedes, that the documents sent to the tribes and the BIA should have given notice of a jurisdiction and disposition hearing; more specifically, they should have given notice of a hearing on reinstatement of the orders that had been reversed in our prior opinion. We accept DHHSs concession.

Appellant does not contend the notices were prejudicially misleading, and no conceivable prejudice appears. The nearing completion of the dependency process makes the urgency attendant to a hearing on termination of parental rights even greater than the urgency attendant to a jurisdiction and disposition hearing. Thus, the notices could not have misled the tribes to their detriment by minimizing the matters significance and urgency.

Appellant contends, and DHHS concedes, that the juvenile courts September 23, 2004, reinstatement of the prior orders was premature under California Rules of Court, rule 5.664(f)(6), which provides: If, after a reasonable time following the sending of notice under this rule -- but in no event less than 60 days -- no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received. (Italics added.) We accept DHHSs concession.

Because the notices had been sent on or about August 4, 2004, the court should have waited at least 60 days -- until Monday, October 4, 2004 -- before concluding that the Eastern Band of Cherokee Indians and the Blackfeet tribe had not made determinative responses. However, the premature determination is utterly harmless because no further response was ever received from either tribe. Thus, the court never received any basis upon which to make a different determination. The error could not have been prejudicial.

In any event, there was no error as to the Eastern Band of Cherokee Indians because that tribe had reported in November 2003 that neither minor was a member of the tribe.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] All further statutory references are to the Welfare and Institutions Code.

^[2] Much of appellants argument focuses on whether she had a constitutional or statutory right to counsel. That argument is misplaced where, as here, the state never impinged upon or interfered with her right to counsel. Appellants complaint is that her retained counsel, to which she had a statutory and perhaps a constitutional right, rendered ineffective assistance by failing to attend the selection and implementation hearing.

^[3] On our own motion, we take judicial notice of our records in In re Lisa B. on Habeas Corpus, No. C054409 and In re Lisa B. on Habeas Corpus, No. C056064. (Evid. Code, 452, subd. (d)(1), 459, subd. (a).)