In re Michael S

Filed 5/4/06 In re Michael S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from judgments of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.

Janet H. Saalfield, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Dependency was initially established for Michele V.'s (Mother) two children in January of 2000, and jurisdiction dismissed in August of 2005. Mother informed the social worker before the first petition was filed that the children likely had Indian blood. But compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1901 et seq.) during the five and one half years that the children were dependents of the court was not consistent. Mother now contends all findings and orders must be reversed because the juvenile court failed to comply with the ICWA. In the alternative, Mother argues she received ineffective assistance of counsel in that counsel failed to protect her rights under the ICWA. Respondent acknowledges that the Kern County Department of Human Services (Department) failed to strictly comply with the ICWA requirements, but claims Mother has waived any such argument, as well as her argument of ineffective assistance of counsel, except on the order establishing guardianship and terminating dependency jurisdiction pursuant to Welfare and Institutions Code section 366.26.^[1] Respondent further argues that any failure to strictly comply at that final hearing was harmless. We agree with respondent and affirm.

PROCEDURAL AND FACTUAL HISTORY

In response to an investigation, dependency petitions were filed January 28, 2000, alleging brothers Michael S., age nine, and Ryan S., age eight, were children described by section 300, subdivisions (b) and (g). The petitions alleged that the children had suffered, or there was a substantial risk they would suffer, serious physical harm or illness as a result of Mother's willful or negligent failure to provide them with adequate food, clothing, shelter, or medical treatment. The subdivision (b) allegation specifically alleged that on January 26, 2000, the children's home was found to be a health and safety hazard, with â€