Filed 4/15/16 In re T.H. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re T.H., a Person Coming Under the Juvenile
Court Law.

TULARE COUNTY HEALTH AND HUMAN                                                             F072594
SERVICES AGENCY,
                                                                             (Super. Ct. No. JJV068484A)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
B.H.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza,
Judge.
         John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County
Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-

         *Before     Kane, Acting P.J., Detjen, J., and Smith, J.
                                     INTRODUCTION
        At a Welfare and Institutions Code1 section 366.26 hearing, the trial court adopted
a plan of guardianship for T.H. with a maternal great-aunt, granted visitation to father,
and dismissed the dependency. Father’s sole issue on appeal is that the trial court failed
to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) and that,
therefore, the order must be reversed. We disagree and affirm.
                         FACTS AND PROCEDURAL HISTORY
        Father is the biological father of T.H. J.H., mother, is the mother of T.H. and
T.H.’s two younger half-siblings, L.H. and G.H. The half-siblings have a different father
and are not the subject of this appeal.
        In 2013, mother and her male companion, Tommy, engaged in a violent
altercation in front of the children. Mother has a history of mental health problems,
including diagnoses of schizophrenia, Aspergers, depression, and bipolar disorder. A
section 300 petition was filed on behalf of the children in March 2013 in Los Angeles
County, but they were not adjudicated dependents of the juvenile court until May 27,
2014.
        On March 19, 2013, father was found to be the biological parent of T.H. Father
was represented by counsel. Father was incarcerated at the time, and the juvenile court in
Los Angeles ordered that father “receive[] services as an incarcerated parent.” The
children were placed with a maternal great-aunt in Lancaster. The jurisdiction and
disposition findings were not appealed.
        The section 366.21 status review report stated the ICWA did not apply. The report
recommended the case be transferred to Tulare County as mother and one of the other




        1Referencesto code sections are to the Welfare and Institutions Code unless
otherwise specified.


                                             2.
fathers resided in Tulare County. The children remained placed with the maternal great-
aunt. The section 366.21 findings were not appealed.
       The transfer-in report noted that mother had not seen her children since they were
detained. On December 16, 2014, the Tulare County Superior Court appointed counsel
for all parents, including father, who was not present. Father continued to be incarcerated
in San Diego County. It was recommended that visits between father and T.H. would be
detrimental as T.H. was now six years old and had never met father.
       At the continued transfer-in hearing on January 8, 2015, it was noted that, “at one
point mother had claimed in LA County that she had Indian heritage,” and the Tulare
County Health and Human Services, Child Welfare Services (hereafter department),
needed to get more information on the claim of Indian heritage. Mother stated her
grandmother told her that her mother was “Cherokee, something like that, I am not
sure .…” Mother also stated she was not a registered member of any tribe and did not
know of any family member who was a registered member of any Indian tribe.
       The maternal grandmother was at the January 8, 2015, hearing and told the
juvenile court that her “great grandmother Washington was Cherokee Indian and she was
raised on the plantation.” County Counsel responded that the department would send
ICWA notices and asked if anyone else in the family would have more information on
the Indian heritage. The grandmother replied, “No.” The juvenile court directed notice
be sent to “the Cherokee Nation.”
       The report for the section 366.21, subdivision (f), hearing reiterates the previous
finding that the ICWA does not apply. There are no ICWA forms or responses attached.
The report also states that father was released from prison on February 21, 2015; mother
reported she planned to marry father, but father claimed he was not in a relationship with
mother even though they lived together. The report recommended that services for both
parents be terminated and a section 366.26 hearing be set.



                                             3.
       The section 366.21, subdivision (f), hearing was held on April 30, 2015. Father
was present through his attorney, who requested a contested hearing. Mother also
requested a contested hearing. The contested section 366.21, subdivision (f), hearing was
set for May 28, 2015.
       Father appeared through counsel at the May 28, 2015, hearing. Father had not
visited T.H. because his parole officer would not allow him to leave Los Angeles County,
and father would not provide the social worker with the parole officer’s name to enable
her to arrange visits. The social worker offered to transport father for visits, but he was
only willing to visit on weekends when the social worker did not work. Father’s counsel
stated the only issue was visitation and submitted.
       The juvenile court noted that T.H. had been in the dependency system for about 19
months, and reunification services needed to be terminated unless the children could
safely be returned home. Father had completed the required parenting class but had
failed to complete the substance-abuse counseling and domestic-violence programs.
Father also tested positive multiple times for marijuana and, although he claimed he had a
medical marijuana prescription, had failed to produce one. Father had not visited with
T.H., as required by his case plan.
       The trial court ordered reunification services terminated and a section 366.26
hearing scheduled. The juvenile court directed that the parents be provided “with their
right to file a writ” and specifically ordered the information be given to father “so he can
exercise his rights on that.” No writ was filed.
       A section 366.26 hearing was scheduled for September 22, 2015. The report for
the hearing indicated the current caregiver, the maternal great-aunt, was not willing to
adopt, but was willing to be the permanent legal guardian. The children, including T.H.,
had been placed with the maternal great-aunt for almost two years, and the social worker
recommended a plan of legal guardianship.



                                             4.
       On September 18, 2015, mother filed a section 388 petition seeking return of the
children to her. The juvenile court scheduled the hearing on the section 388 petition for
the same date and time as the section 366.26 hearing. Neither parent was in court on
September 22; mother’s counsel requested a contested hearing on the section 388 petition
and the permanent plan.
       A response to the section 388 petition was filed by the department. Mother had
been interviewed again on September 25, 2015, about her Indian heritage and had
reported that she “has it on both her maternal and paternal side”; however, she only
provided information on the maternal family members. Mother did not show up for an
appointment with the department to sign the ICWA forms; the department had to go to
her home to get a signature. With the information provided, the forms were sent on
October 5, 2015, to the Blackfoot Tribe, Cherokee Nation, Bureau of Indian Affairs
(BIA), and Secretary of the Interior (Secretary).
       The contested hearing on October 6, 2015, was the first time father appeared in
person in court. The juvenile court first addressed the section 388 petition. T.H.’s
guardian testified via telephone. She stated that father sent T.H. cards when he was
incarcerated; however, father had made no attempt to contact T.H. after father’s release
from prison. The guardian was agreeable to having father visit T.H. as long as it was not
in her home. Several other witnesses, including mother, testified. Ultimately, the
juvenile court denied the section 388 petition.
       The juvenile court next turned to the section 366.26 hearing. Father’s counsel
stated that father was seeking visitation. The juvenile court noted the guardian had no
objection to visits, so long as it was not in her home. Father’s counsel responded, “[i]t
can be wherever is best” and submitted the matter. The juvenile court suggested once-
per-month visits, supervised; counsel for T.H. agreed, with the proviso the guardian be
able to increase visitation at her discretion.



                                                 5.
       County counsel noted that ICWA notices had been sent, but it was too soon to
have received responses. It was noted that neither father, mother, nor T.H. were enrolled
members of any tribe. County counsel also noted that the children were placed with a
maternal relative; parental rights were not being terminated; and legal guardianship, not
adoption, was the recommended permanent plan.
       The juvenile court decided to proceed with the relative guardianship and terminate
dependency proceedings. The juvenile court ordered monthly supervised visitation for
father, with the guardian having discretion to increase visits.
       At the October 6, 2015 hearing, no party raised an objection to proceeding before
responses to the ICWA notices could be received. Neither father nor mother offered any
further information or assertion of Indian heritage. No party requested a continuance of
the hearing in order to receive responses to the ICWA notices.
       Father filed a notice of appeal on October 23, 2015.
                                       DISCUSSION
       Father contends the juvenile court’s order must be reversed because: (1) the
department failed to make inquiry of him as required by the ICWA, therefore the ICWA
notices were inadequate; and (2) the ICWA notices were mailed only four days before the
section 366.26 hearing where the juvenile court adopted a plan of legal guardianship and
terminated the dependency.
I.     ICWA
       The ICWA was enacted to “protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the unique
values of Indian culture .…” (25 U.S.C. § 1902.) To achieve this purpose, the ICWA
requires notice be given to the child’s tribe “where the court knows or has reason to know
that an Indian child is involved .…” (25 U.S.C. § 1912(a).) The tribe’s response will

                                             6.
determine if the child is an Indian child. (Ibid.; see also In re Desiree F. (2000) 83
Cal.App.4th 460, 470 [“one of the primary purposes of giving notice to the tribe is to
enable the tribe to determine whether the child involved in the proceedings is an Indian
child.”].) An Indian tribe means a federally recognized Indian tribe. (25 U.S.C.
§ 1903(8).)
       State law imposes on both the juvenile court and the county welfare agency “an
affirmative duty to inquire whether a dependent child is or may be an Indian child.” (In
re Nikki R. (2003) 106 Cal.App.4th 844, 848; § 224.3, subd. (a); Cal. Rules of Court,
rule 5.481(a).) If the agency or the court “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” to facilitate the provision of notice. (§ 224.3,
subd. (c); see also In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.)
       The ICWA defines an Indian child as “a child who is either a member of an Indian
tribe or is eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe.” (In re H.B. (2008) 161 Cal.App.4th 115, 120, citing 25
U.S.C. § 1903(4).) The necessity of a biological tie to the tribe is underlined by the
ICWA definition of a “parent” as “any biological parent or parents of an Indian child .…”
(25 U.S.C. § 1903(9).)
II.    ICWA notice
       Father contends the juvenile court’s order must be reversed because the ICWA
notice was inadequate and the order was issued only a few days after ICWA notices were
sent to tribes, the BIA, and the Secretary. Father contends the department’s ICWA
inquiry was inadequate because the department failed to make inquiry of him as to his
Indian heritage.
       Father contends this appeal is the first opportunity to challenge the juvenile court’s
finding on the ICWA. In In re Pedro N. (1995) 35 Cal.App.4th 183 at pages 185 and 189
(Pedro N.), we held that a parent who fails to challenge a juvenile court’s action timely

                                              7.
regarding the ICWA is foreclosed from raising ICWA issues, once the juvenile court’s
ruling is final, in a subsequent appeal from later proceedings. The proper time to raise
such issues is after the disposition hearing. The juvenile court’s rulings and findings at
the disposition hearing are appealable upon a timely notice of appeal. We noted in Pedro
N. that the parent there was represented by counsel and failed to appeal the juvenile
court’s orders from the disposition hearing. (Pedro N., supra, at pp. 189-190.)
       In the instant action, the initial finding that the ICWA was inapplicable to T.H.
was made long before the section 366.26 hearing was held; it was made in Los Angeles
County before the transfer-in of the case to Tulare County; the jurisdiction and
disposition hearings were held in Los Angeles County. The report for the section 366.21,
subdivision (e), hearing and the report for the April 30, 2015, section 366.21,
subdivision (f), hearing repeat the finding that the ICWA does not apply to T.H. The
initial finding that ICWA did not apply was made in Los Angeles County in 2013, but no
appeal or writ was filed until 2015.
       Section 224.3, subdivision (e)(3), provides that the juvenile court may determine
the ICWA does not apply if proper notice has been provided and neither a tribe nor the
BIA has provided a determinative response within 60 days after receiving the notice.
Here, the juvenile court in Tulare County made its finding at the section 366.26 hearing
after notice had been given, but 60 days or more had not passed since the notices were
issued. This, however, was long after the Los Angeles County court had acted.
       Father appeared through counsel at the May 28, 2015, hearing and was advised of
the need to appeal if he had any objections to the juvenile court’s findings and orders. He
was at all times in these proceedings represented by counsel. Father never filed an
extraordinary writ or an appeal until after the section 366.26 hearing.
       There were multiple status review hearings and other hearings where father had an
opportunity to raise the ICWA issue after disposition and before the section 366.26
permanent plan hearing. When the section 366.26 hearing was scheduled, father was

                                             8.
required to file a writ in order to challenge any findings or orders leading to the setting of
the section 366.26 hearing, including any issues regarding an ICWA finding; he did not
do so. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1021-1022.)
       Section 366.26, subdivision l, “applies to all ‘issues arising out of the
contemporaneous findings and orders made by a juvenile court in setting a section 366.26
hearing.’” (In re Anthony B., supra, 72 Cal.App.4th at p. 1021.) Section 366.26,
subdivision l(2), provides that failure to file a writ petition for extraordinary writ review
within the period specified “shall preclude subsequent review by appeal of the findings
and orders made pursuant to this section.”
       Our holding in Pedro N. is fully applicable here. Father did not object during the
section 366.26 hearing or at any time prior to that hearing to a lack of ICWA inquiry or
proper ICWA notice. He waited until the end of the proceedings and after the
section 366.26 hearing to object to the juvenile court’s earlier rulings finding the ICWA
inapplicable to this case, and by his prior silence, has forfeited his right to complain about
any procedural deficiencies in compliance with the ICWA in the instant appeal. (Pedro
N., supra, 35 Cal.App.4th at pp. 185, 189-190.)
       We also note that, while father contends the department failed to make any inquiry
of him regarding ICWA, nowhere in his appellate brief does father assert that he has any
Indian heritage.
       To the extent father relies on cases such as In re Marinna J. (2001) 90 Cal.App.4th
731, 737-739 and Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261, cases
that disagreed with Pedro N., relying on the theory that Pedro N. is inconsistent with the
protection and procedures afforded by the ICWA to the interest of Indian tribes, we are
not persuaded.2



       2TheCalifornia Supreme Court has granted review in In re Isaiah W. (2014) 228
Cal.App.4th 981 (review granted Oct. 29, 2014, and depublished, case No. S221263) to

                                              9.
       We further note that Pedro N. does not foreclose a tribe’s rights under the ICWA
due to a parent’s forfeiture or waiver of the issue for failing to file a timely appeal when
procedurally entitled to do so at the conclusion of an earlier proceeding. (Pedro N.,
supra, 35 Cal.App.4th at pp. 185, 189-190; see In re Desiree F., supra, 83 Cal.App.4th at
pp. 477-478 [wherein we reversed juvenile court’s denial of tribe’s motion to intervene
after final order terminating parental rights and invalidated actions dating back to outset
of dependency that were taken in violation of ICWA].) We note there is no evidence in
the record that any tribe responded and claimed T.H. as eligible for protection under the
ICWA. Should any tribe so indicate, its rights under the ICWA are not foreclosed.
       In Pedro N., we held we were addressing only the rights of the parent to a
heightened evidentiary standard for removal and termination, not those of the tribe
(Pedro N., supra, 35 Cal.App.4th at p. 191) or, for that matter, the rights of the child. As
a result, we conclude father has forfeited his right to complain of any alleged defect in
compliance with the ICWA.
       T.H. was in the dependency system for at least two years before the section 366.26
hearing; he was placed with a maternal great-aunt; visitation was afforded father; and the
dependency was dismissed. A dependent child’s interest in permanency and stability
requires that we adhere to the provisions of section 366.26, subdivision l, and that there
be a time limit on a parent’s ability to raise the issue of ICWA compliance. We see no
reason to create instability for T.H. when father failed to act for a period of two years
after the finding that the ICWA did not apply was made by the juvenile court. (Pedro N.,
supra, 35 Cal.App.4th at pp. 185, 189-190.)




consider whether a parent who did not appeal an earlier finding on the ICWA was
foreclosed from raising an ICWA issue in an appeal from a termination of parental rights.


                                             10.
                                    DISPOSITION
      The order establishing a permanent plan of legal guardianship for T.H. and
dismissing the dependency action is affirmed.




                                          11.
