Filed 3/1/16 In re F.T. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

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

STANISLAUS COUNTY COMMUNITY                                                                F072329
SERVICES AGENCY,
                                                                                 (Super. Ct. No. 516454)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
STEPHANIE H.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
         Roshni Mehta, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John P. Doering, County Counsel, and Carrie Stephens, Deputy County Counsel,
for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
                                     INTRODUCTION
       Appellant Stephanie H. (mother) appeals from the Welfare and Institutions Code1
section 366.26 order terminating her parental rights to her daughter, F.T., born in
September 2011. Mother’s sole claim is that the juvenile court erred when it found that
the Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq. (ICWA)) did not apply because
the finding was not supported by adequate inquiry or notice on the part of the juvenile
court and the Stanislaus County Community Services Agency (department). Mother did
not appeal from the order finding ICWA inapplicable and asks this court to reconsider its
holding in In re Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.). We decline to do so
and affirm.
                       FACTS AND PROCEDURAL HISTORY
       Since mother does not challenge the juvenile court’s jurisdictional finding,
dispositional ruling, or findings supporting its decision to select adoption as the
permanent plan and terminate parental rights, a detailed summary of the evidence
supporting these rulings is unnecessary. The department detained F.T. in October 2012
after she was brought to the emergency room for unexplained injuries, including a near
drowning, bruises, and lacerations, for the fifth time in a period of four months. The
department petitioned on October 26, 2012, pursuant to section 300 to have F.T. declared
a dependent of the juvenile court.
       The petition filed by the department included a completed Indian Child Inquiry
Attachment form (ICWA-010(A)) which contained a mark in the box next to the
statement, “The child may have Indian ancestry.” Mother completed a Parental
Notification of Indian Status form (ICWA-020) stating she may have Cherokee and




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


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Navajo ancestry. The father also completed an ICWA-020 form, stating he had no
known Indian ancestry.
       A completed Notice of Child Custody Proceedings for Indian Child, form ICWA-
030, was completed by the department, giving notice of the jurisdiction and disposition
hearing. That form indicated that F.T. might have Cherokee ancestry; no mention of
Navajo ancestry is made on the form. The completed form was served on mother, the
father, the Bureau of Indian Affairs (BIA), the Secretary of the Interior (Secretary), the
Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, and the
Eastern Band of Cherokee Indians. An amended form ICWA-030 was filed and served
on the same tribes, the BIA, and the Secretary.
       The combined jurisdiction and disposition report filed November 15, 2012, notes
that F.T. may have Indian ancestry because mother reported having Cherokee and Navajo
ancestry.
       A jurisdictional hearing was held January 31, 2013. The juvenile court found that
F.T. came within the provisions of section 300, subdivision (b). The disposition hearing
was held on that same day, F.T. was declared a dependent, and mother was offered
reunification services. Mother was informed by the juvenile court that she had a right to
file an appeal and that if she had any questions about her appeal rights, to “discuss those
with your attorney.”
       On May 28, 2013, a second amended ICWA-030 was filed and this second
amended ICWA-030 was served on the Cherokee Nation of Oklahoma, the Navajo
Nation, and the Ramah Navajo School Board, as well as the BIA and the Secretary.
       The status review report filed May 31, 2013, reflects the responses from the tribes.
The Cherokee Nation of Oklahoma requested additional information, which was
provided. The Eastern Band of Cherokee Indians and the United Keetoowah Band of
Cherokee Indians responded that F.T. was not an Indian child. The Navajo Nation and
the Ramah Navajo School Board had not yet responded.

                                             3.
       At the section 366.21, subdivision (e) hearing held on June 26, 2013, mother was
present with her attorney. The juvenile court found that proper notice had been given and
that the ICWA did not apply to F.T. The juvenile court informed mother that she had the
right to appeal if she had “any objections” and that she had “60 days in which to file the
appeal.”
       Services were offered to mother for 12 months; a 12-month review report was
filed by the department. At the 12-month review hearing on December 12, 2013, services
were ordered continued for mother. At the 18-month review hearing, services were
continued for mother. On September 26, 2014, F.T. was returned to mother’s care.
       On February 27, 2015, a first amended section 387 petition was filed. The section
387 petition alleged that while placed with mother, F.T. had obtained bruises on her body
five different times, including on the side of her head and her jawline. It also was alleged
that mother had: (1) been receiving services since October 2012; (2) minimally engaged
in services; (3) failed to provide a safe sleeping environment for F.T.; (4) been told
numerous times to clean the home in which F.T. and mother were living; and (5) missed
multiple appointments for services for F.T., including doctor’s appointments. A social
worker had also reported the smell of marijuana in the home during a visit.
       At the detention hearing on the section 387 petition, F.T. was detained. A
contested jurisdiction hearing concluded on April 16, 2015. The allegations of the
section 387 petition were found true. F.T. was placed back into the foster home in which
she had lived, prior to being returned to mother. The foster parents indicated a desire to
adopt F.T.; they also had F.T.’s younger half-sister in their home. At the section 366.26
hearing on August 6, 2015, the juvenile court terminated mother’s parental rights.
       Mother filed a notice of appeal from the order terminating parental rights on
September 16, 2015. The sole issue raised in the appeal is that the juvenile court’s
finding that ICWA does not apply is not supported by substantial evidence.



                                             4.
       On December 29, 2015, the parties filed a “Stipulation to Immediate Limited
Remand” with this court. In the stipulation, they agree to an immediate remand of this
case to the juvenile court to provide ICWA notice to the Cherokee Nation, the United
Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Navajo
Nation, the Ramah Navajo School Board, and the Colorado River Indian Tribes. It
appears to contemplate that the judgment terminating parental rights is set aside, to be
reinstated if the tribes respond that F.T. is not an Indian child, but reinstatement is only
after mother is provided an opportunity to be heard.
       By order filed December 31, 2015, this court deferred ruling on the parties’
stipulation pending consideration of the appeal on the merits.
       In a letter dated January 11, 2016, the department notified this court it would not
file a respondent’s brief.
                                       DISCUSSION
       Mother argues the juvenile court’s finding that the ICWA did not apply requires
reversal and remand because the finding is not supported by substantial evidence. The
department apparently agrees with mother’s position on appeal, because it stipulated to a
limited remand of this case. For reasons stated below, we do not accept the department’s
concession and affirm.
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
determine if the child is an Indian child. (Ibid.; see also In re Desiree F. (2000) 83

                                              5.
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
       Mother contends the juvenile court’s finding that the ICWA did not apply was not
supported by proof of proper notice or inquiry to all relevant Indian tribes. Mother
acknowledges that she failed to appeal from prior orders of the juvenile court’s finding
that the ICWA was inapplicable to F.T. Mother requests that we revisit and overrule our
opinion in Pedro N., supra, 35 Cal.App.4th 183, 185, 189, which applies waiver and
forfeiture to parents who wait until the termination of parental rights to first make an
ICWA challenge.
       In Pedro N., supra, 35 Cal.App.4th at pages 185 and 189, we held that a parent
who fails to challenge a juvenile court’s action timely regarding the ICWA is foreclosed

                                              6.
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, 35 Cal.App.4th at pp. 189-190.)
       In the instant action, the juvenile court’s finding that the ICWA was inapplicable
to F.T. was made at the hearing conducted June 26, 2013. At that hearing, the court had
before it the amended ICWA-030 and the social study report noting that the Cherokee
Nation of Oklahoma had requested, and been provided, further information; both the
Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians
had responded that F.T. was not an Indian child; and the Navajo Nation and the Ramah
Navajo School Board had not yet responded.
       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 made its finding after some tribes, the three Cherokee tribes, had
received notice 60 days or more prior to the hearing, but the Navajo tribes had not.
       Mother was present at the June 26, 2013 hearing with her counsel and was advised
of the need to appeal if she had any objections to the juvenile court’s findings and orders.
She was at all times in these proceedings represented by counsel. Mother never filed an
extraordinary writ or an appeal until parental rights were terminated.
       There were multiple status review hearings and other hearings where mother had
an opportunity to raise the ICWA issue after disposition and before termination of
parental rights. When the section 366.26 hearing was scheduled, mother was required to
file a writ in order to challenge any findings or orders leading to the setting of the section



                                              7.
366.26 hearing, including any issues regarding an ICWA finding; she 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. 1022.) 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. Mother waited until the end of
the proceedings when her parental rights were terminated to object to the juvenile court’s
earlier rulings finding the ICWA inapplicable to this case, and by her prior silence, has
forfeited her 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.)
       To the extent mother 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. We decline mother’s invitation to revisit our holding
in Pedro N. 2
       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


2      The California Supreme Court has granted review in In re Isaiah W. (2014) 228
Cal.App.4th 981 (review granted 10/29/14 and depublished (S221263)) to consider
whether a parent who did not appeal an earlier finding on ICWA was foreclosed from
raising an ICWA issue in an appeal from a termination of parental rights.


                                              8.
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 that there is no evidence
in the record that any tribe responded and claimed F.T. as eligible for protection under
ICWA. Should any tribe so indicate, its rights under 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 mother has forfeited her right to complain of any alleged defect in
compliance with the ICWA.
       We reject the parties’ stipulation. F.T. has been in the dependency system since
2012; a family was ready and willing to adopt F.T. and provide her a stable, loving home
as of August 6, 2015; and adoption procedures were initiated. 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 F.T. when mother failed
to act for a period of two years after the finding that ICWA did not apply was made by
the juvenile court. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-190.)
                                       DISPOSITION
       The “Stipulation to Immediate Limited Remand” is denied. The order terminating
parental rights is affirmed.




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