In re Ezekiel J.

Filed 7/12/06 In re Ezekiel J. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jane A. Cardoza.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Plaintiff and Respondent.

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Dina D. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son, Ezekiel J.^[1] Appellant is a member of the Picayune Rancheria of Chukchansi Indians (the tribe), a federally-recognized Indian tribe, and Ezekiel, as her son, is eligible for enrollment. Consequently, the tribe intervened and the superior court followed the substantive requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) commencing at the dispositional phase of the case and throughout the remainder of these dependency proceedings. Now, for the first time, appellant contends the court violated ICWA notice requirements by not serving other Indian tribes. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

Ezekiel J. came to the attention of respondent Fresno County Department of Children and Family Services (the department) following the May 2004 arrest of each of his parents for parole violations. Shortly after his detention in foster care, four-month-old Ezekiel was diagnosed with Shaken Baby syndrome based on seizures he experienced and numerous injuries he suffered which were at different stages of healing. Medical evidence established the injuries were consistent with non-accidental trauma inflicted while Ezekiel was in the custody of his parents.

From the outset, the department was aware that appellant was a member of the tribe. Her older children had been the subject of dependency proceedings a decade earlier and the tribe had intervened in their case based on appellant's tribal membership and the children's eligibility for membership. Nonetheless, it took at least six months for the department to properly complete the necessary paperwork and serve notice on the tribe, the Bureau of Indian Affairs, and two other Rancherias. In the meantime, however, the tribe had already determined Ezekiel was eligible for enrollment and its ICWA coordinator worked with appellant once she was released from custody. For its part, the superior court postponed disposition in Ezekiel's case pending proper notice.

The tribe intervened in Ezekiel's dependency in early 2005. In so doing, the tribe declared Ezekiel an Indian child based on appellant's enrolled membership and the child's eligibility.^[2] There is also evidence in the record that a tribal representative advised the department that the tribe would enroll Ezekiel.

Thereafter, in April 2005, the superior court adjudged Ezekiel a dependent child of the court and removed him from parental custody. The court also denied the parents reunification services due to the severe abuse Ezekiel had suffered. (§ 361.5, subd. (b)(5).) It is undisputed that, in conducting its dispositional hearing, the court complied with ICWA's substantive requirements. Having denied the parents reunification services, the court set a section 366.26 hearing to select and implement a permanent plan for Ezekiel as well as served the parents notice of their writ remedy (§ 366.26, subd. (l); Cal. Rules of Court, rule 38 and 38.1).^[3]

In advance of the section 366.26 hearing, the department prepared a written assessment recommending that the court find Ezekiel adoptable and order parental rights terminated; the child's foster parents were committed to adopting him. The department also scheduled a permanency planning panel with the foster parents and the tribe to discuss the recommendation. The tribe would not contest the adoption recommendation for Ezekiel in his current placement provided the foster parents would agree to an open adoption with the tribe and would attend, along with Ezekiel, the tribe's cultural events. The foster parents, who were Native Americans, although not members of the tribe, agreed to those conditions.

At the hearing conducted in October 2005, the court found the child adoptable and terminated parental rights. In the process, the court also made requisite findings under ICWA.

DISCUSSION

Despite the intervention of her own tribe and the superior court's compliance with the substantive requirements of ICWA, appellant contends reversal is required because the department did not send ICWA notice of the proceedings to other tribes. Her rationale is as follows. First, according to the record, although she was a member of the Picayune Rancheria, the Indian heritage of her father was described as not only Picayune Rancheria but also Choinumni. Second, two other Rancherias of Mono Indian heritage who responded to the department's notice volunteered the names of other Rancherias with Mono affiliation. Therefore, in appellant's view, the department should have noticed all federally-recognized Choinumni tribes and all rather than some of the Rancherias with Mono affiliation. Absent such notice, according to appellant, there is no way to determine whether Ezekiel was entitled to membership in one of those tribes or Rancherias. As discussed below, appellant's contention fails.

First, implicit in appellant's argument is the notion that the superior court should have denied the tribe's motion to intervene and instead ordered additional notice. In granting the motion to intervene, the superior court followed that portion of ICWA which acknowledges the right of the Indian child's tribe to intervene at any point in the proceeding. (25 U.S.C. § 1911 (c).) If appellant questioned the Picayune Rancheria's claimed status as Ezekiel's tribe, the time to raise such a complaint was at the dispositional phase, not now. The court's 2002 dispositional findings and orders are final and no longer subject to attack by appellant. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185.)

In In re Pedro N., supra, 35 Cal.App.4th at page 185, this court held a parent who fails to timely challenge a juvenile court's action regarding ICWA is foreclosed from raising ICWA notice issues once the court's ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.

Appellant invites us to revisit our holding because other courts of appeal do not apply waiver principles to belated claims of ICWA notice error. For instance, the court in In re Marinna J. (2001) 90 Cal.App.4th 731 (Mariana J.) disagreed with our holding on the theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes. On this point, we differ. This court did not foreclose a tribe's rights under ICWA on account of a parent's appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [where this court reversed the denial of a tribe's motion to intervene after a final order terminating parental rights and invalidated actions dating back to the outset of the dependency and taken in violation of ICWA].)

Even so, we note the facts in the pending case are so different from those in Marinna J. as to make it distinguishable and its analysis inapplicable to this case. In Marinna J., supra, 90 Cal.App.4th at page 739, the appellate court made a point of explaining there was no record that the department sent notice of the proceedings either to any of the identified tribes in which the children could be members or to the BIA. Further, it observed the trial court in Marinna J. took no action on its part to assure compliance with the ICWA notice requirements. It was thus under those circumstances that the appellate court would not invoke the waiver doctrine. (Ibid.) That is hardly the case here. Under the circumstances of this case, we are confident appellant, by her silence until now, has waived her right to complain.

Second, were we not to apply waiver, we still would not hesitate to affirm. With regard to appellant's argument as to her father's Choinumni heritage, our research of the Federal Register, which periodically lists all federally-recognized Indian tribes, reveals there are to-date no Choinumni tribes which have received federal recognition. (70 Fed. Reg. 71194 (Nov. 25, 2005).) As for notice to other tribes with Mono affiliation, we conclude this contention is meritless because appellant specifically claimed her tribe was the Picayune Rancheria of the Chukchansi Indians. She did not claim a more general Mono heritage. The fact that other Rancherias with Mono affiliation volunteered the names of additional Mono affiliated Rancherias would not invalidate the department's notice efforts given appellant's specific claim.

DISPOSITION

The order terminating parental rights is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Under ICWA, an Indian child is defined as â€