In re Marinna J

In In re Marinna J. (2001) 90 Cal.App.4th 731, the court held a parent's claim that ICWA notice requirements were violated was cognizable on appeal although she did not object during the hearing nor appeal the dispositional order in which the ICWA issue was addressed. The court held, given the information of Cherokee heritage in that case, the waiver doctrine could not be invoked to bar consideration of the notice error on appeal. The court ruled, "it would be contrary to the terms of the ICWA to conclude as the court did implicitly in In re Pedro N. (1995), that parental inaction could excuse the failure of the juvenile court to ensure that notice under the ICWA was provided to the Indian tribe named in the proceeding." (In re Marinna J., supra, 90 Cal.App.4th at p. 739.) The Court held the mother's claim the ICWA notice requirements were violated was cognizable on appeal of the order terminating her parental rights, although she never objected at the trial court and did not appeal the dispositional order in which the ICWA issue was addressed. ( Marinna J., supra, at p. 737.) The court held that given the information of the father's Cherokee Indian heritage, "it would be contrary to the terms of the ICWA to conclude, as the court did implicitly in . . . Pedro N., supra, 35 Cal. App. 4th 183, that parental inaction could excuse the failure of the juvenile court to ensure that notice under the ICWA was provided to the Indian tribe named in the proceeding." ( Marinna J., supra, at p. 739.) The Marinna J. court further explained: "Where the notice requirements of the ICWA were violated and the parents did not raise that claim in a timely fashion, the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal. Our conclusion is consistent with the protections afforded in the ICWA to the interests of Indian tribes . . . .Lacking proper notice, the proceedings in this case did not produce a valid termination of parental rights." ( Marinna J., supra, 90 Cal. App. 4th at p. 739.) In In re Marinna J. (2001) which holds that a parent's delay in challenging a violation of the ICWA notice requirements does not foreclose appellate review. In Marinna J., no notice was provided to either a tribe or the BIA despite the parents' claims that they had Indian heritage. The parents appealed from the order terminating their parental rights. The Agency argued the parents were foreclosed from raising a violation of the notice requirement because they had failed to raise the issue below and had failed to raise the issue on appeal from the disposition order. (Id. at p. 737.) The appellate court concluded it would be contrary to the terms of the ICWA to allow parental inaction to excuse the juvenile court from ensuring that notice under the ICWA is provided. (Id. at p. 739.) The notice requirement is intended to protect the interests of Indian tribes and Indian children and those interests cannot be waived by a parent.