IN RE: MADISON B. et al. (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Daniel B. (father) appeals from orders terminating his parental rights (Welf. & Inst.Code, § 366.26) to his two daughters, Madison B. and Kaylee M.¹ He contends the juvenile court erred at earlier stages of the dependency proceedings, which this court should now review.   Father argues the juvenile court abused its discretion when it set the section 366.26 hearing by not ordering respondent Stanislaus County Community Services Agency (agency) to conduct a bonding study between him and the older of the two children.   He also claims that when the children's mother stated she believed she had Indian ancestry but did not know which tribe, the juvenile court failed to ensure an additional Indian heritage inquiry was made of the maternal grandmother.   On review, we affirm.

PROCEDURAL AND FACTUAL HISTORY

In October 2009, the juvenile court adjudged three-year-old Madison and infant Kaylee dependent children and, as part of its disposition, removed them from parental custody with reunification services for both parents.   Kaylee had tested positive for methamphetamine following her birth.   The children's mother, who also tested positive for methamphetamine, had both a significant mental health and substance abuse history.   Father knew that the mother suffered from these problems, but he nevertheless allowed her to care for Madison while he was at work.   Consideration was given first to leaving the children in father's care, provided the mother did not live with them.   However, the children were detained from both parents when father also tested positive for methamphetamine.

Indian Ancestry Inquiry

The children's mother made her first court appearance at a September 3, 2009 hearing.   During that hearing, the following dialogue occurred:

“THE COURT:  And do you have any Native American ancestry in your background?   That would be Indian tribes.

“THE MOTHER:  I believe so.   I don't have any documents at this time.

“THE COURT:  Do you know what tribes that might be?

“THE MOTHER:  No, ma‘am.

“THE COURT:  All right.   Then I am going to direct that the Agency is to provide proper notice pursuant to [the] Indian Child Welfare Act.” 2

At a continued hearing in October 2009, the court found proper notice pursuant to the Indian Child Welfare Act (ICWA) had been given.   As of that time, the agency had served a form “NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD” by certified mail upon the Department of the Interior and the Bureau of Indian Affairs (BIA) as well as both parents.   In its notice, the agency declared “Unknown” in spaces provided for the children's, their mother's, the children's maternal grandparents' and the children's maternal great-grandparents' tribe or band.   Neither parent challenged the juvenile court's proper notice finding by way of appeal from the court's October 2009 dispositional order.

Reunification Period

As of April 2010, when the court conducted a six-month review hearing, the agency reported the following.   In response to the agency's notice, the BIA replied that the family had provided insufficient information substantiating any federally recognized tribe.   Meanwhile, the mother had not participated in any of her services and the agency no longer knew her whereabouts.   Father participated in a parenting program and regularly visited the children.   Otherwise, he did not regularly participate or make substantive progress in his court-ordered services.   The children were in a concur

rent home and their foster parents were willing to adopt them if reunification failed.   In light of these circumstances, the agency recommended the court terminate reunification services for both parents at the six-month review hearing, and set a section 366.26 hearing.

In response, father claimed there was a substantial probability the children could be returned to his custody within another six months, so that the court should provide him with additional services.   During the contested six-month review hearing, a social worker volunteered that she observed during supervised visitation a strong bond between the older child, Madison, and father.   Father's attorney argued, based on this evidence that continued services would be in Madison's best interest.

Setting Order and Bonding Study Request

At the April 2010 hearing's conclusion, the juvenile court found the parents neither regularly participated nor made substantive progress in court-ordered services.   The court also rejected father's substantial probability of return argument.   The court expressly stated it did not find that it would be in Madison's best interest to be further disappointed by a father who refused or failed to engage in services and reunify.   As a result, the court terminated services for both parents and set a section 366.26 hearing to select and implement a permanent plan for the children.   It also found there was no reason to believe that the children were Indian children;  therefore, the provisions of ICWA did not apply.

Father's attorney then asked:

“ ․ that a bonding study be ordered for Madison and her father.   Given the report 3 and the testimony of the Agency social worker, it seems there is a clear bond and relationship between this father and Madison that needs to be addressed [at the section 366.26 hearing] regarding whether or not termination of parental rights is appropriate.”

Hearing no opposition, the court responded:

“At this time, the Court is going to order that Madison is to be made available for any bonding studies that the father wishes to arrange through his attorney.   And this is not an expense paid for by the Agency, but rather if father's counsel wishes to make those arrangements.” 4

Father's attorney neither objected to nor sought any clarification regarding the court's order.   The record is silent regarding any subsequent bonding study.

Writ Proceedings

Father's attorney filed a notice of intent to file an extraordinary writ petition challenging the juvenile court's setting order.   However, after counsel received and reviewed the court record, she advised this court in writing that she would not be filing a petition because she did not find any arguable issues to raise.   This court, in turn, granted father leave to file his own writ petition, which he did.   He argued the juvenile court erred in finding there was not a substantial probability that the children could be returned to his custody after another six months of reunification services.   He raised no other issue.   On our review, this court concluded substantial evidence supported the juvenile court's decision.  (F059928, D.B. v. Superior Court.) ⁵

Permanency Planning

The agency later reported the children were likely to be adopted and recommended the court terminate parental rights.   Father made one last attempt, by filing a modification petition (§ 388), to persuade the court to order more reunification services, if not placement of the children in his care.   At a combined section 388 and section 366.26 hearing conducted in July 2010, the court denied father's petition as a case of “too little too late.”   In response, father's counsel asked the court to find that termination would cause the children detriment because their relationship with him was beneficial to them.   The court found that father had not met his burden of proof.   Having found the children were adoptable, the court terminated parental rights.

DISCUSSION

I. Order on Bonding Study Request

Father contends the juvenile court abused its discretion at the April 2010 review hearing by failing to order the agency to conduct a bonding study at its expense between him and Madison.   As discussed below, father has forfeited his opportunity to raise this argument.

Father made his bonding study request, and the juvenile court issued its order on that request, at the same hearing that the court made its order setting the section 366.26 permanency planning hearing.   All orders issued at a hearing at which a setting order is entered are subject to the bar of section 366.26, subdivision (l ).  (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022-1023.)  Section 366.26, subdivision (l ) requires that:

“(1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:

“(A) A petition for extraordinary writ review was filed in a timely manner.

“(B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.

“(C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.

“(2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.”  (Italics added.)

Although father filed a petition for extraordinary writ review, he did not challenge the juvenile court's order on his bonding study request.   Consequently, section 366.26, subdivision (l ) bars our review of the order on this appeal from the subsequent order terminating parental rights.  (In re Anthony B., supra, 72 Cal.App.4th at pp. 1022-1023.)

Father does not acknowledge the bar of section 366.26, subdivision (l ).   Rather, he argues “it can be assumed he was unaware of the issue and his rights and legal remedies” and therefore “no basis to conclude he could reasonably have been expected to complain about it in his earlier extraordinary writ [petition].”   We disagree.

Not only is father's argument speculative, it ignores the record.   Father was undoubtedly aware of the bonding issue, as well as his rights and legal remedy.   He testified he had a “real big bond” with Madison.   He was present when his attorney argued the importance of the bond, as well as when his attorney made the bonding study request and the court issued its order.   In addition, the court personally advised father at that hearing of his writ remedy if he disagreed with the findings and orders the court made that day.   Father also had the benefit of court-appointed counsel with whom to consult.   Although that attorney found no arguable issues to raise by way of writ petition, it did not stop father from challenging the juvenile court's decision, albeit on another ground.

Father relies on In re S.D. (2002) 99 Cal.App.4th 1068, 1082, to support his claim that there was no basis to conclude he could have been reasonably expected to complain about the court's order in his extraordinary writ petition.   However, that decision is so distinguishable from this matter that it is of little value here.   The appellate court in In re S.D., supra, permitted belated review of a jurisdictional finding because the parent's failure to raise the issue was the direct result of ineffective assistance of counsel.  (Id. at p. 1071.)   The parent's trial attorney failed to recognize and assert a fatal defect in the petition, which undermined the very basis for dependency jurisdiction.  (Id. at p. 1077.)

However, father does not claim that his trial counsel was ineffective for not contesting the court's order on the bonding study request in the writ proceeding.   No doubt this is because whether to order a bonding study is a discretionary matter with the trial court.  (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)   There is no requirement in statutory or case law that a court must secure a bonding study.  (Ibid.) There was also no showing made to compel the court's exercise of discretion in the manner father now claims.

Father further argues “due process would not be satisfied if the waiver rule is applied.”   However, he fails to establish how the juvenile court's order amounted to “some defect that fundamentally undermined the [dependency] statutory scheme” or goes “beyond mere errors that might have been held reversible had [it] been properly and timely reviewed.”  (In re Janee J. (1999) 74 Cal.App.4th 198, 208-209.)

Accordingly, we conclude the bar of section 366.26, subdivision (l ) applies in this case so that father has forfeited his argument over the court's order on his earlier bonding study request.

II. ICWA

Father also contends the juvenile court should have ensured that the agency made a further inquiry about the mother's claim of Indian ancestry.   Assuming the agency did not make a further inquiry, particularly of the maternal grandmother, father claims the juvenile court erred.   He relies on section 224.3, subdivision (c), which in relevant part states:  if the court or social worker knows, or has reason to know, that an Indian child is involved, the social worker is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents and extended family members to gather information for assistance in identifying and contacting tribes.

We consider father's claim specious.   The agency's notice reveals the agency had conducted a further inquiry, given its inclusion of the names and, in some cases, other identifying information of maternal relatives, going back to the children's maternal great-grandparents.   The fact that the tribe(s) remained unknown in the notice does not necessarily mean the agency did not make a further inquiry.

In any event, whether the juvenile court should have ensured that the agency made a further inquiry is forfeited by father's failure to timely raise the issue either by appealing the dispositional order, which included the court's finding that proper notice under ICWA was given (§ 395;  Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812), or challenging the court's finding at the six-month review hearing that ICWA did not apply in his petition for extraordinary writ review (§ 366.26, subd. (l )).  (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).)   In Pedro N., 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.   While father argues we should reconsider our holding due to its impact on a tribe's rights, we decline to do so.   In Pedro N., we specifically held we were only addressing the rights of the parent, not those of a tribe.  (Pedro N., at p. 185.)

DISPOSITION

The orders terminating parental rights are affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Father previously filed with the court a parental notification of Indian status form in which he declared he had no Indian ancestry as far as he knew..  FN2. Father previously filed with the court a parental notification of Indian status form in which he declared he had no Indian ancestry as far as he knew.

FN3. It is unclear to what “report” counsel was referring.   Nowhere in its report for the status review hearing did the agency describe or characterize the relationship between father and Madison.   The agency's preceding report filed in December 2009 also did not describe or characterize the relationship between father and Madison.   The agency's disposition report prepared in September 2009 did contain these statements:  “[t]he father clearly has a bond with Madison and it is apparent that they love each other very much[;]” the visits have been going well, but become challenging when ending because Madison is very close to her father.   She keeps wanting her father to take her home[;]” and “Madison is extremely bonded to Mr. B[.] and it would be very unfortunate to see [him] fail to reunify with her.”.  FN3. It is unclear to what “report” counsel was referring.   Nowhere in its report for the status review hearing did the agency describe or characterize the relationship between father and Madison.   The agency's preceding report filed in December 2009 also did not describe or characterize the relationship between father and Madison.   The agency's disposition report prepared in September 2009 did contain these statements:  “[t]he father clearly has a bond with Madison and it is apparent that they love each other very much[;]” the visits have been going well, but become challenging when ending because Madison is very close to her father.   She keeps wanting her father to take her home[;]” and “Madison is extremely bonded to Mr. B[.] and it would be very unfortunate to see [him] fail to reunify with her.”

FN4. The clerk's minute order for this hearing states “Request for bonding study granted provide[d] father pays.”   On appeal, father argues the minute order and the court's order according to the reporter's transcript are in conflict..  FN4. The clerk's minute order for this hearing states “Request for bonding study granted provide[d] father pays.”   On appeal, father argues the minute order and the court's order according to the reporter's transcript are in conflict.

FN5. We have taken judicial notice of the writ proceedings, at father's request.  (Evid.Code, § 452, subd. (d)(1).).  FN5. We have taken judicial notice of the writ proceedings, at father's request.  (Evid.Code, § 452, subd. (d)(1).)