In re Isaiah W.
In this case, a juvenile court removed newborn Isaiah W. from his parents’ care and placed him in foster care. In that proceeding, the court concluded there was no reason to know Isaiah was an Indian child. The court thus found ICWA inapplicable and did not order the Los Angeles County Department of Children and Family Services (the Department) to notify any tribe or the federal Bureau of Indian Affairs (BIA). Isaiah‘s mother, defendant Ashlee R., did not appeal from this order placing Isaiah in foster care. More than a year later, the juvenile court terminated Ashlee‘s parental rights. Ashlee appealed from that order, citing the court‘s failure to order the Department to comply with ICWA‘s notice requirements. We granted review to decide whether a parent who does not bring a timely appeal from a juvenile court order that subsumes a finding of ICWA‘s inapplicability may challenge such a finding in the course of appealing from a subsequent order terminating parental rights. Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.
I.
Isaiah was born in November 2011, with a positive toxicology for marijuana, and he showed signs of withdrawal. The Department filed a petition in juvenile court pursuant to section 300, subdivision (b), alleging that parental drug use placed Isaiah at risk of harm. At a hearing on December 8, 2011, the court removed Isaiah from his parents’ care and granted temporary custody to the Department. The court also ordered reunification servicеs, drug rehabilitation, and counseling for Isaiah‘s parents. During the hearing, Ashlee told the court she may
On January 20, 2012, the juvenile court held a jurisdictional and dispositional hearing. The court placed Isaiah in foster care and again ordered the Department to offer reunification services to Isaiah‘s parents, including monitored visitation and substance abuse treatment. At this hearing, the court reviewed an ICWA report prepared by the Department indicating that Isaiah‘s grandfather may have had Blackfeet ancestry and his great-great-grandmother may have been a member of a Cherokee tribe. The court concluded that “any pоssibility [that Isaiah is an Indian child] is really too attenuated and remote for it to suggest to this court or . . . for this court to know that the child would fall under the Indian Child Welfare Act.” Accordingly, the court did not order the Department to provide notice to any tribe or to the BIA. Ashlee did not appeal from this order placing Isaiah in foster care or otherwise object to the court‘s finding that ICWA was inapplicable.
Over the next several months, Ashlee visited Isaiah weekly. But she did not complete her drug treatment program or attend her scheduled drug tests. As a result, the juvenile court terminated reunification services in September 2012 and set a hearing on the termination of parental rights. The court ordered a permanent placement plan according to which Isaiah would be adopted by his foster mother.
On April 10, 2013, the juvenile court terminated Ashlee‘s parental rights and again said it had no reason to know that Isaiah was an Indian child. The court cleared Isaiah for permanent and final adoption.
On June 5, 2013, Ashlee appealed from the order terminating her parental rights on the ground that the juvenile court had reason to know Isaiah was an Indian child yet failed to order the Department to comply with ICWA‘s notice
II.
Congress enacted ICWA in 1978 in response to “rising concern in the mid-1970‘s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32 (Holyfield).) ICWA declared that “it is the
The minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights “where the court knows or has reason to know that an Indian child is involved.” (
ICWA‘s notice requirements serve two purposes. First, they facilitate a determination of whether the child is an Indian child under ICWA. (
Second, ICWA notice ensures that an Indian tribe is aware of its right to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding involving an Indian child. (See
In 2006, our Legislature enacted provisions that affirm ICWA‘s purposes (
The question before us is not whether the juvenile court erroneously concluded from the record that it had no reason to know Isaiah was an Indian child. We express no view on that determination. Moreover, the Department does not contend that Ashlee‘s failure to object to the juvenile court‘s finding of ICWA‘s inapplicability at the April 2013 proceeding to terminate her parental rights precludes her from raising thе issue for the first time in this appeal. (See In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267–1268 (Samuel P.) [failure to raise ICWA notice error at juvenile court hearing does not waive the claim for purposes of appeal from an order issued at that hearing]; Marinna J., supra, 90 Cal.App.4th at p. 733 [same].) The issue presented here is whether Ashlee — having brought no timely challenge to the January 2012 foster care placement order, which subsumed a finding by the juvenile court that ICWA notice was unnecessary — may now challenge the April 2013 order terminating her parental rights on the ground that the juvenile court erred in finding ICWA notice unnecessary. This question requires us to interpret the federal and California statutes governing ICWA‘s applicability to dependency proceedings, and we apply independent review. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 840.)
The Court of Appeal was correct to observe that under rule 8.406(a)(1) of the California Rules of Court, the juvenile court‘s January 2012 order became final 60 days after it was announced. Ashlee did not appeal from that order during the 60-day period. Section 395 provides in relevant part: “A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.” In Sara M. v. Superior Court (2005) 36 Cal.4th 998 (Sara M.), we said that ” ‘[a] consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.’ [Citation.] An appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed.” (Id. at p. 1018.) Under section 395 and Sara M., Ashlee may not challenge the Jаnuary 2012 dispositional order through an appeal from the April 2013 order terminating her parental rights.
But it does not follow, as the Court of Appeal believed, that “because [Ashlee] failed to timely appeal from the ICWA finding in the juvenile court‘s dispositional order, ‘she is foreclosed from raising the issue now on appeal from the order terminating her parental rights.’ ” The reason is that the juvenile court had a continuing duty to inquire whether Isaiah was an Indian child in all dependency proceedings, including a proceeding to terminate parental rights. In light of this continuing duty, the April 2013 order terminating Ashlee‘s parental rights was necessarily premised on a current finding by the juvenile court that it had no reason to know Isaiah was an Indian child and thus ICWA notice was not required. Here, the juvenile court made that finding explicit in the course of the April 2013 heаring when it said, “the Court is once again making a finding [that] I have no reason to know the child would fall under the Indian Child Welfare Act.” Properly understood, Ashlee‘s present appeal does not seek to challenge the
The continuing nature of a juvenile court‘s duty to inquire into a child‘s Indian status appears on the face of section 224.3(a). As noted, that provision reads: “The court . . . ha[s] an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been . . . filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” (§ 224.3(a).) The plain language of this provision — declaring an “affirmative and continuing duty” that applies to “all dependency proceedings” — means that the juvenile court in this case had a present duty to inquire whether Isaiah was an Indian child at the April 2013 proceeding to terminate Ashlee‘s parental rights, even though the court had previously found no reason to know Isaiah was an Indian child at the January 2012 proceeding to place Isaiah in foster care. Because the validity of the April 2013 order is necessarily premised on the juvenile court‘s fulfillment of that duty, there is nothing improper or untimely about Ashlee‘s contention in this appeal that the juvenile court erred in discharging that duty.
Reading section 224.3(a) together with section 224.3, subdivision (e)(3) (section 224.3(e)(3)) underscores the continuing nature of the juvenile court‘s duty. The latter provision says: “If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the Indian Child Welfare Act (
Section 224.3(e)(3) implicitly recognizes that any finding of ICWA‘s inapplicability before proper and adequate ICWA notice has been given is not conclusive and does not relieve the court of its continuing duty under section 224.3(a) to inquire into a child‘s Indian status in all dependency proceedings. (See Dwayne P., supra, 103 Cal.App.4th at p. 261 [“Because the court‘s duty continues until proper notice is given, an error in not giving notice is also of a continuing nature and may be challenged at any time during the dependency proceedings.“].) Only after proper and adequate notice has been given and neither a tribe nor the BIA has provided a determinative response within 60 days does section 224.3(e)(3) authorize the court to determine that ICWA does not apply. The effect of that determination is to relieve the court of the duty it would otherwise have under section 224.2, subdivision (b) to provide ICWA notice “whenever it is known or thеre is reason to know that an Indian child is involved, and for every hearing thereafter.” Nevertheless, “the court shall reverse its determination of [ICWA‘s] inapplicability . . . if a tribe or the [BIA] subsequently confirms that the child is an Indian child.” (
The Court of Appeal observed that at the January 2012 dispositional hearing, “all of the information provided by [Ashlee] and her relatives about their American Indian heritage was before the juvenile court, and the court considered the Department‘s report on its investigation into mother‘s heritage.” It does not
The Department, echoing concerns expressed by the Court of Appeal, contends that ICWA notice issues are best resolved “at the beginning of any dependency proceeding” and that “allowing ICWA issues to be determined in an appeal from a hearing to terminate parental rights encourages the practice of ignoring ICWA violations for years while a dependency case creeps through the proceedings.” Amicus curiae California State Association of Counties similarly contends that “it is in the best interests of the all [sic] children to have a child‘s Indian status determined early in the child proceedings rather than waiting to raise the issue after parental rights have been terminated.” We are mindful of the child‘s need for a permanent and stable home, and we agree that swift and early resolution of ICWA notice issues is ideal. But the federal and state statutes were clearly written to proteсt the integrity and stability of Indian tribes despite the potential for delay in placing a child. The provisions of the California statute just discussed, as well as others, recognize the importance of properly determining a child‘s Indian status, even when a dependency proceeding has progressed beyond
In construing statutes, we consider ” ‘the сontext of the statute as a whole and the overall statutory scheme . . . .’ [Citation.] In other words, ’ “we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” ’ [Citation.]” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) The provisions above, considered as a whole, make clear that Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children. (See Holyfield, supra, 490 U.S. at pp. 49, 52.) ICWA‘s notice requirements are “intended to protect the interests of Indian children and tribes despite the parents’ inaction.” (Dwayne P., supra, 103 Cal.App.4th at p. 261; see Samuel P., supra, 99 Cal.App.4th at p. 1267 [“The notice requirements serve the interests of the Indian tribes ‘irrespective of the position of the parents’ and cannot be waived by the parent.“].) We agree with the majority view among the Courts of Appeal that “given the court‘s continuing duty throughout the dependency proceedings to ensure the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents’ inaction does not constitute a waiver or otherwise preclude appellate review.” (Dwayne P., at p. 251; accord, In re B.R., supra, 176 Cal.App.4th at p. 779; Marinna J., supra, 90 Cal.App.4th at p. 737.)
In reaching a contrary holding, the Court of Appeal, relying on Pedro N., said, “we are only addressing the rights of [Ashlee], not the rights of a tribe under the ICWA.” Pedro N. reasoned that whereas ICWA authorizes a tribe to intervene in a dependency action “at any point in the proceeding” (
The Court of Appeal also said, “The principles enunciated in [In re X.V. (2005) 132 Cal.App.4th 794] support our conclusion that a dependent child‘s interest in permanency and stability requires that there be a time limit to a parent‘s right to raise the issue of ICWA compliance.” But In re X.V. is distinguishable. There the Court of Appeal, relying on Dwayne P., granted the parents’ first appeal challenging ICWA notice violations and ordered the juvenile court to conditionally reverse its order terminating parental rights and to provide ICWA notice. (In re X.V., at p. 798.) The juvenile court gave notice to several tribes and, after receiving responses, concluded at a special hearing that ICWA did not apply. The parents did not attend the special hearing, and their counsel raised no objection to the court‘s ICWA findings. (In re X.V., at pp. 799–800.) The parents then appealed again, citing ICWA notice irregularities. Dismissing the appeal, the Court of Appeal said: “We do not believe Congress anticipated or intended to require successive or serial appeals challenging ICWA notices for the first time on appeal.” (Id. at p. 804.) Because the case before us does not involve a second or successive appeal, we have no occasion here to decide whether a parent would be precluded from raising an ICWA notice violation in a second or successive appeal.
In sum, a juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child‘s Indian status. (
Notwithstanding our holding today, we emphasize that social services departments and juvenile courts should inquire about a child‘s Indian status early in the proceedings and should provide notice at the soonest possible opportunity. Notice must be provided “where the court knows or has reason to know that an Indian child is involved” (
CONCLUSION
For the reasons above, we reverse the judgment of the Court of Appeal and remand for further proceedings not inconsistent with this opinion.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
I agree with the Court of Appeal in this case and In re Pedro N. (1995) 35 Cal.App.4th 183. As with all child dependency matters, issues concerning the Indian Child Welfare Act (ICWA;
Mother Ashlee R. could have, and should have, raised the issue under the ICWA by appeal after the January 2012 jurisdictional and dispositional hearing, but she did not do so. In child dependency cases, it is settled in California that a parent must appeal an issue at the earliest opportunity or forfeit the right to raise the issue later. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) The reason for this rule is compelling. It is necessary to fulfill the state‘s role as parens patriae to protect and care for children who cannot protect and care for themselves. “Childhood is fleeting and ‘[i]t is axiomatic, of course, that the longer children remain in foster homes, the more difficult it is to find families willing to adopt them.’ ” (In re Heather B. (1992) 9 Cal.App.4th 535, 558, quoting In re Laura F. (1983) 33 Cal.3d 826, 837, fn. 10.) ” ‘Permitting a parent to raise issues
In various contexts, this court has explained and emphasized the critical importance of reasonably prompt resolution of a child‘s placement, especially after reunification efforts have failed, as they have in this case. “After reunification efforts have failed, it is not only important to seek an appropriate permanent sоlution — usually adoption when possible — it is also important to implement that solution reasonably promptly to minimize the time during which the child is in legal limbo. A child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child. [Citation.] Courts should strive to give the child this stable, permanent placement, and this full emotional commitment, as promptly as reasonably possible consistent with protecting the parties’ rights and making a reasoned decision.” (In re Celine R. (2003) 31 Cal.4th 45, 59.) After reunification efforts have failed, ” ’ “[t]he overriding concern . . . is to provide a stable, permanent home in which a child can develop a lasting emotional attachment to his or her caretakers.” ’ ” (In re Jasmon O. (1994) 8 Cal.4th 398, 421.) “Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “[L]engthy and unnecessary delay in providing permanency for children [is] the very evil the Legislature intended to correct.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Once reunification efforts have failed, “it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.)
This is not just the courts’ view. It is the Legislature‘s. “In considering the minor‘s interests, the court shall give substantial weight to a minor‘s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (
These abstract policy concerns become concrete in this case. If mother had appealed the ICWA issue in Januаry 2102, as she should have, the appeal could have been resolved before the April 2013 hearing at which the court terminated mother‘s parental rights and cleared Isaiah W. for final adoption. In that event, the court could have considered any questions under the ICWA, including any tribe‘s position, and considered all of the alternatives at that time. If there were no ICWA issue, Isaiah could have been finally adopted when he was a year and a half old, and he could then have received and given a full, permanent emotional commitment. Instead, mother waited another year and a half. Isaiah is now four and a half years old, and he is still in legal limbo and still awaiting final adoption and the full emotional commitment that goes with it. Under the majority‘s holding, the wait for Isaiah and many other dependent children will be much longer than if we require the ICWA issue to be appealed at the earliest opportunity.
Isaiah is paying a high price, and other children will continue to pay a high price, due to the majority‘s permitting mother to make this delayed ICWA claim. The delay “may not seem a long period of time to an adult, [but] it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate.” (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Nor does childhood wait for the appellate process.
California law provides ample opportunity to raise and litigate issues under the ICWA. (Maj. opn., ante, at pp. 6-7; see In re Shane G. (2008) 166 Cal.App.4th 1532, 1538-1539.) The trial court here investigated and made a prompt ruling, and, as noted, mother could have appealed that ruling when it was made. The majority cites nothing in the ICWA suggesting Congress wanted to prohibit a state from imposing reasonable time limits within which a parent may appeal ICWA issues. Rather, as the Court of Appeal here noted, ” ‘Congress‘s intent to not cause unnecessary delay in dependency proceedings is evidenced by the [ICWA] provision allowing a hearing on the termination of parental rights within a relatively short time, 10 days, after the [Secretary of the Interior] or tribe receives ICWA notice. (
Additionally, as the Pedro N. court noted, “[h]ad the Congress intended to permit a parent to allege an ICWA violation at any point in the proceedings, it could well have so stated. Indeed, in another portion of the ICWA (
Indeed, prompt resolution of ICWA issues furthers the act‘s purposes and the interests of the tribe involved. The purpose behind requiring notice and permitting the tribe to intervene is to allow the court to consider a placement consistent with the ICWA such as, potentially, a placement within the tribe. This purpose is important. But, to fully effectuate this purpose, the juvenile court should consider such an alternative placement as soon as possible, not belatedly. Requiring the parent to appeal the ruling when made would generally permit the court to consider the tribe‘s interests at the same time it considers other possible placements.
Here, if mother had appealed the ICWA issue in January 2012, and if it was then determined that Isaiah was an Indian child and the tribe was notified, the tribe could have urged its interests at the April 2013 hearing, and the court could have decided what to do at that time, when Isaiah was merely a year and a half old. Instead, permitting mother to belatedly raise the issue much later will mean that Isaiah will be at least five or six years old when any tribe is notified. In that event, the tribe would be placed in the difficult position of having to urge that a child be removed from a long-standing foster care relationship — often a relationship that promises to become permanent through adoption — and placed within a tribe with individuals with whom the child has no emotional connection. A tribe should not be placed in that position.
We have noted “evidence that the child will suffer long-term, serious emotional damage if a bond with foster parents is severed.” (In re Jasmon O., supra, 8 Cal.4th at p. 421.) As the Court of Appeal here emphasized, “in California, the courts have held that” a child‘s constitutional interest in stability “includes the ‘right to a reasonably directed early life, unmarred by unnecessary and excessive shifts in custody.’ ” (Quoting In re Arturo A. (1992) 8 Cal.App.4th 229, 241, fn. 6.) As the Court of Appeal also stated, we should not adopt a rule
The majority stresses that the court‘s duty under the ICWA is a continuing one. I agree. Whenever the court receives reason to believe the child is, or might be, an Indian child, it must act accordingly. But the continuing duty does not mean the court must continually investigate, week after week, year after year, whether the child might be an Indian child. Here, the court investigated the question at the outset, and made its ruling in January 2012. Mother could have challenged the ruling at that time. No one suggests anything new occurred after that date to trigger a duty of further investigation or notification. If, after the January 2012 hearing, something had happened to necessitate action under the ICWA, I agree that mother could have challenged аny subsequent ruling or failure to act after that something had occurred. In that situation, mother could not have challenged in January 2012 the court‘s later action or inaction. But here, all of mother‘s arguments are based on the information and record as it existed in January 2012. Mother could have made those arguments at that time.
I agree with the majority that parents may not waive a tribe‘s rights. We have no occasion to decide a tribe‘s rights if and when it receives notice belatedly and had no previous opportunity to intervene. But parents may waive their own rights to appeal an ICWA issue. Mother had no obligation ever to appeal on this ground. Certainly, if a tribe is not given notification, and a parent does not raise this issue on appeal, the tribe is not likely to learn that a potential Indian child is involved in the dependency proceeding. But this circumstancе is not due to California‘s appellate time limits. Neither the ICWA nor our state statutes require notification of all possible tribes of all dependency matters, and the tribes no doubt would not want to be inundated by such notifications. Because nothing compels a
The majority appropriately — but toothlessly — emphasizes that tribes should receive notice under the ICWA “at the soonest possible opportunity.” (Maj. opn., ante, at p. 15.) Requiring a parent to appeal an ICWA issue at the soonest possible opportunity furthers this policy. Allowing a parent to delay the appeal harms this policy. Accordingly, I dissent.
CHIN, J.