San Bernardino County Department of Children's Services v. Mischelle A.

[1332]Opinion

McKINSTER, J. Mischelle A., defendant and appellant (hereafter mother), appeals from the trial court’s order under Welfare and Institutions Code section 366.26 selecting guardianship as the permanent plan for her 14-year-old daughter, E.H. The only issue in this appeal is whether the evidence supports the trial court’s finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) does not apply. We conclude the evidence is sufficient to support the finding and therefore will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Resolution of the issue mother raises in this appeal does not require a detailed recitation either of the facts or of the procedural history of this case. Those details are set out in mother’s opening brief. For our purposes it is sufficient to note that mother has seven children by four different fathers and has been involved intermittently in the dependency process since 1991 due to numerous ongoing issues, including a history of substance abuse. This appeal is from a dependency proceeding initiated in January 2003, with respect to six of mother’s children who at that time were minors. In a previous appeal in this same dependency proceeding, mother challenged the trial court’s postpermanency planning order modifying visitation. We affirmed. (In re J.G. (July 28, 2005, E037162) [nonpub. opn.].)

In this appeal, mother challenges the sufficiency of the evidence to support the trial court’s finding at the permanency planning hearing that the ICWA does not apply and thus ordering guardianship as the permanent plan for E.H. The facts pertinent to the ICWA issue are that the Department of Children’s Services (DCS) filed a Welfare and Institutions Code section 3001 petition with respect to E.H. and five of her siblings in January 2003. In the report for the detention hearing dated January 17, 2003, the social worker noted that the ICWA might apply because E.H.’s ancestry at that time was unknown. At the detention hearing, the trial court ordered the parents “to reveal membership in an Indian tribe.” Mother was represented by an attorney at that hearing although she did not personally appear.

The social worker filed an amended petition on February 10, 2003. In the detention report on that amended petition, the social worker stated that the ICWA did not apply. The social worker repeated that statement in a subsequent report dated April 9, 2003. In a fourth addendum report prepared for ffie contested jurisdiction hearing, the social worker recommended that the