Opinion
A147446
02-27-2017
In re Z.J., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. T.G., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1401183)
I. INTRODUCTION
T.G. (mother) appeals from a juvenile court order dismissing a dependency case pertaining to her five-year-old son Z.J., and granting sole physical and legal custody of Z.J. to his father, A.J. (father). Mother contends that (1) she was denied her due process right to an impartial judge; (2) her visitation order must be corrected to reflect the court's oral ruling; and (3) the dependency case must be reinstated pending compliance with the Indian Child Welfare Act (ICWA). We reject these contentions and affirm the judgment.
II. STATEMENT OF FACTS
A. Background
In November 2014, Z.J. and his three sisters were removed from mother's home based on evidence of severe physical and emotional abuse. (In re N.J. (May 12, 2016) 2016 Cal.App. Unpub. Lexis 3505, pp. *1-*3 (N.J.).) The Contra Costa County Children and Family Services Bureau (the Bureau) alleged jurisdiction over Z.J.'s siblings under Welfare and Institutions Code section 300, subdivisions (a) [causing serious physical harm], and (b) [failure to protect]. Z.J.'s petition alleged jurisdiction under section 300, subdivisions (b) [failure to protect], and (j) [abuse of a sibling]. (Id. at p. *4.) The abuse allegations were alleged solely against mother. The Bureau alleged that father and the fathers of Z.J.'s siblings placed their children at risk by failing to ensure there was adequate supervision in mother's home and by failing to protect them from mother's inappropriate physical discipline. (Id. at pp. *4-*5.)
We take judicial notice of N.J., a prior decision by this court affirming jurisdiction and disposition orders in this case. (Evid. Code, § 459.)
In January 2015, the juvenile court exercised jurisdiction over Z.J. and his siblings, finding that all of the petition allegations were true. (N.J., supra, 2016 Cal.App. Unpub. Lexis 3505 at pp. *19-*20.) By that time, the juvenile court had denied mother's request to represent herself; appointed a guardian ad litem for mother over her objection; and rejected mother's in propria persona "Peremptory Challenge" alleging that the Honorable Rebecca C. Hardie was biased against her. (Id. at pp. *8-*19.)
On May 28, 2015, the juvenile court adjudged Z.J. a dependent of the juvenile court. (N.J., supra, 2015 Cal.App. Unpub. Lexis 3505 at p. *16.) The court's orders included that Z.J. was to be removed from mother's physical custody and placed in father's physical custody; the Bureau was to provide services to both parents; and mother was to receive weekly supervised visitation. (Ibid.)
B. The Present Appeal
The orders at issue in this appeal were made at the conclusion of a six-month status review hearing in Z.J.'s case. The review began in September 2015 but was not completed until January 2016. Mother did not personally appear during this part of the juvenile court proceeding, but she was represented by her counsel and guardian ad litem.
1. The Bureau Report
In a September 2015 status review report, the Bureau recommended that the court terminate reunification services to mother; dismiss the dependency case; and grant sole legal and physical custody to father. The Bureau reported that since the last review hearing, father had demonstrated his ability to be a good parent to Z.J. and to provide him with a safe and stable home. Meanwhile, mother had refused to participate in court-ordered services or to communicate with the Bureau regarding her lack of participation.
The only service mother participated in was supervised visitation. However, she was often late or failed to attend altogether, causing inconvenience to the Bureau and father's family. The Bureau attempted to refer mother to an outside agency to supervise visits but that referral was terminated because of mother's refusal to cooperate with the agency. The Bureau resumed responsibility for supervising the visits on August 20, 2015, and between that date and September 10, mother had already missed two scheduled visits.
2. The September 28, 2015 Hearing
At the review hearing, the Bureau submitted the matter on its reports. Z.J.'s counsel did not dispute the Bureau's recommendations, but sought assurance that father understood that he had an obligation to Z.J. to always keep mother "at arm's length." Counsel's concern stemmed from the fact that father had been identified as the father of mother's newborn baby. Z.J.'s counsel did not believe father would behave inappropriately, but mother was "really [a] wildcard," and it was important for father to understand that if mother had contact with Z.J. outside the parameters of the court orders, the dependency could be reestablished. Therefore, counsel requested that the court make specific orders about the length and frequency of visits and order that supervision be provided by a professional agency.
Father's counsel requested that the dependency be terminated that day. Father had not been previously consulted about the need for a professional to supervise visits. He told the court that his father had attempted to supervise some visits, but it was never clear what was expected of him. Father's counsel added that he was in a difficult position because Z.J. said he wanted to see mother, but father did not want to do anything to jeopardize his safety. The court responded that mother was "still his mother," but expressed concern that there was no indication mother had done anything to address the issues that resulted in the dependency. The court described mother's past behavior as "incredibly violent, completely inappropriate," and stated that mother had also demonstrated "very disturbing behavior" during the dependency proceedings. The court went on to express concern that the Bureau had not taken steps to protect mother's new baby. The court asked whether father understood his rights as "a parent and father" to seek custody of the baby, and it encouraged father to assert his rights because it believed the baby was "at substantial risk of harm in light of mother's violence and abusive behavior with children."
Father told the court that he had not seen the baby since she was born in January because he did not want to do anything to jeopardize his relationship with Z.J. Father explained: "I understand the situation. I know how she is. I don't mind doing the visits with her because she knows not to play games with me, but I would only do it for [Z.J.]. And if I can get around to trying to see my daughter then I will once this case is vacated."
When the social worker reported that the Bureau had not opened an investigation about whether to take action with respect to mother's new baby, the court gave this response: "I'm curious about that since the reason why mother and the children are before the court is because she beat the children with an implement. It was completely inappropriate and was incredibly violent, and she's being prosecuted as a result of that behavior, and I believe that proceeding is ongoing based on what I see in this file. . . . So I'm a little surprised that the Department would leave a helpless infant in her care."
The court then turned to mother's counsel who confirmed that she was contesting the Bureau's recommendations and requesting a contest. Accordingly, the matter was continued until November 4, 2015.
3. The Judicial Bias Claim
On the morning of November 4, the status review was continued again after mother filed a "Statement Challenging Judge Rebecca C. Hardie Under C.C.P. § 170.3(c)(1)." The statement consisted of a declaration by mother's counsel, Michelle Cronin, who summarized the procedural history of the case and also averred to the following relevant facts: (1) mother believed that Judge Hardie could not be impartial and should be disqualified; (2) prior to the six-month status review, mother gave birth to a baby girl, and believed that Z.J.'s father was the father of her new baby; (3) at the September 28 hearing, Judge Hardie "demonstrated a predisposition" against mother by discussing with father his option to seek family law custody of the new baby, and by expressing concern regarding the safety and well-being of the baby while she was in mother's custody.
Cronin further stated that mother's challenge of Judge Hardie was timely. Acknowledging that she first became aware of the facts constituting the basis for disqualification at the September 28 hearing, Cronin claimed she did not have time to discuss this matter with mother or the guardian ad litem before she left for a prescheduled vacation which she took from October 7 until October 24, 2015.
On November 13, 2015, the court filed an order striking mother's statement requesting disqualification of Judge Hardie under section 170.3 of the Code of Civil Procedure (section 170.3). First, Judge Hardie found that mother's statement was not timely because she waited five weeks to file it. There was no explanation as to why Cronin could not have filed the statement before leaving for vacation or immediately upon her return, and the fact that the statement was filed on the day of the continued hearing was evidence of an intent to delay. Second, the court concluded that the statement on its face disclosed no legal basis for disqualification as mother's subjective belief that the judge was biased was insufficient as a matter of law.
At the conclusion of its order, the court stated: "The parties are reminded that this determination of [the] question of disqualification is not an appealable order and may be reviewed only by a writ of mandate from the Court of Appeal sought within 10 days of notice to the parties of the decision. In the event that a timely writ is sought and an appellate court determines that an answer should have been timely filed, such an answer is filed herewith. [Citation.]."
The referenced answer, which was attached to the order, was a seven-page verified pleading in which Judge Hardie outlined the pertinent facts and denied allegations that she was biased against mother.
4. The January 21, 2016 hearing
At the continued review hearing, the Bureau offered additional evidence of its efforts to engage mother in services. The Bureau's counsel also provided a brief report regarding the pending criminal case. Mother was charged with four misdemeanor counts of child cruelty and a jury trial was anticipated.
Z.J.'s counsel provided a summary of a recent visit to father's home and reported that she had "absolutely no concerns in regard to [Z.J.] staying with [father]," stating that "He's very bonded to his dad and it's a very good home."
Mother's counsel cross-examined the social worker about the Bureau reports, and renewed her objection to all recommended findings and proposed orders. Mother's counsel also made the following specific objections: (1) the Bureau failed to confirm the validity of the address it used to provide mother with notices of the hearings; (2) there was a pending appeal of the jurisdiction and disposition findings; (3) mother was entitled to share custody; (4) supervised visits were not required and if they were ordered, the court should specify times and places to avoid ambiguity.
At the conclusion of the hearing, the court made two preliminary observations. First, the visitation order would need to be more specific than simply leaving arrangements to the parents; and second, mother had absented herself from this case for quite some time, not just by refusing to appear in court but also by failing to engage in any services to address the issues that led to the dependency. Then the court made the following rulings:
"I am going to grant father sole legal and physical custody, given the fact that mother has opted out of these proceedings and has not even engaged in the very basic service of visitation and maintaining her relationship with the child. [¶] I have many concerns for this child, and I believe to allow mother to share legal custody with father would, quite frankly, be detrimental to the child. [¶] So for those reasons I am granting him sole legal and physical custody. I am ordering mother shall have two hours one time per month supervised visitation by a professional supervisor to be paid for by the mother. Father is responsible for transporting the child to and from the visits, and it may be either father or his designee to provide that transportation."
Pursuant to requests by both sides for more specification regarding visitation, the court stated: "What I will do is 2 hours one time per month on the first weekend of each month, provided mother gives father 72 hours notice, written notice of the visits."
On the minute order for the January 21, 2016 hearing, the court hand-wrote the following visitation order: "visitation to occur on the first weekend of each month. Mother to give father 72 hours written notice of visit. Transportation to/from visits to be provided by father or his designee. (see JV-200/JV-205 attached)."
The JV-205 visitation form attached to the court's minute order also contained a handwritten order which stated that visitation would be "2 hours 1 time per month on the first weekend of each month provided Mother gives Father 72 hours written notice in advance of the visit."
III. DISCUSSION
A. Judicial Bias
Mother contends that "reversal per se" is "required" because Judge Hardie was neither fair nor impartial. Mother raised this issue below in the form a section 170.3 challenge. On appeal, mother characterizes the issue as a violation of her due process right to an impartial trial judge.
Section 170.3, subdivision (d) (section 170.3(d)) states: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court's order determining the question of disqualification."
Here, the record shows that Judge Hardie explicitly advised mother that she needed to file a writ in order to challenge the denial of her section 170.3 statement. Mother declined to pursue that option. Nor did she raise the issue again during the remainder of the juvenile court proceedings. Thus, we conclude that mother has forfeited her claim of judicial bias.
Mother contends that she may have forfeited her section 170.3 challenge, but she did not forfeit her due process right to an impartial judge. As support for this argument, mother cites People v. Peyton (2014) 229 Cal.App.4th 1063, 1073 (Peyton). Peyton was an appeal from a judgment based on a jury verdict. The appellate court described the appellant as the "poster boy for sidetracking," and identified his primary diversionary tactic as attempting to disqualify the trial judge. (Id. at pp. 1067-1068.) The record showed that, in addition to several unsuccessful challenges under section 170.3, appellant filed a motion to disqualify the judge under Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868 (Caperton), alleging that constitutional due process guaranteed him the right to an impartial decision maker. The trial court summarily denied the Caperton motion, finding that the factual allegations were absurd and that defendant was merely attempting to make another section 170.3 motion. (Peyton, at pp. 1071-1072.) The appellate court affirmed this ruling, finding that the Caperton motion was part of the "appellant's 'game plan' to jettison" the trial judge; was filed in bad faith; and did not implicate any concerns which could form the factual basis for a due process violation. (Id. at p. 1073.)
Mother's reliance on Peyton is misplaced for two independent reasons. First, while the Peyton court entertained an appeal of the order denying a Caperton motion, it did not review orders denying the appellant's statutory disqualification motions because appellant had forfeited his writ remedy. (Peyton, supra, 229 Cal.App.4th at p. 1073.) In this case, mother did not make a nonstatutory judicial disqualification motion of any kind. Thus, applying the Peyton court's reasoning, mother's decision to forfeit her writ remedy precludes any appellate review of her judicial bias claim because she never made a nonstatutory judicial disqualification motion in the lower court.
Second, the Peyton court recognized that section 170.3(d) applies to all statutory judicial disqualification motions, even those that " 'appear to codify due process grounds for relief. . . .' [Citation.]" (Peyton, supra, 229 Cal.App.4th at p. 1073.) Thus, the court held that a nonstatutory due process motion must be supported by a showing of a probability of actual bias on the part of the trial judge. (Ibid.; see also People v. Freeman (2010) 47 Cal.4th 993, 1006.) In this case, mother fails to make that showing. Specifically, the juvenile court's concern about the safety of mother's new baby was based on the evidence that led to the dependency of mother's other children. It was not evidence that the court was biased against mother. Mother repeatedly contends there was other evidence of bias, but she fails to substantiate this contention with any concrete evidence.
In her reply brief, mother contends that People v. Brown (1993) 6 Cal.4th 322 (Brown) establishes that a due process claim of judicial bias can be asserted for the first time on appeal. Brown was an appeal in a death penalty case in which the Supreme Court confirmed or announced the following rules: First, "[e]ven in a capital case, the denial of a statutory judicial disqualification motion is not subject to interlocutory appeal; instead, all litigants who seek to challenge denial of a statutory judicial disqualification motion are relegated to writ review as described in section 170.3(d)." (Id. at p. 335.) Second, "[i]n order to give maximum effect to the Legislature's clear intent that disqualification challenges be subject to prompt review by writ [citation], . . . a litigant may, and should, seek to resolve such issues by statutory means, and . . . his negligent failure to do so may constitute a forfeiture of his constitutional claim." (Id. at p. 336.) Third, a defendant in a death penalty case who did seek writ relief as required by section 170.3(d), but whose request for relief was summarily denied, may "assert on appeal, based on facts alleged in his unsuccessful disqualification motion under [section 170.1], a constitutional due process claim that the judge who presided over his hearing was not impartial. [Citations.]" (Ibid., fn. omitted.)
Assuming the principles summarized in Brown, supra, 6 Cal.4th 322 apply in a dependency case, they do not assist mother here. Mother did not seek writ relief as required by section 170.3(d), and thus may not bring a constitutional due process claim of judicial bias for the first time on appeal. Furthermore, and in any event, mother's claim fails on its merits because she has not shown that Judge Hardie was probably biased against her.
B. The Visitation Order
Mother contends that the written exit orders must be "corrected" to conform to the court's actual ruling at the conclusion of the review hearing. According to mother, the hearing transcript reflects that the court gave her the ability to unilaterally dictate what day and time during the first weekend of the month her visit will take place. However, mother argues, this "detail" was inadvertently omitted from the written orders of the court.
During the review hearings, all counsel appeared to agree that the court should establish specific parameters about when mother's monthly visits would occur. However, contrary to mother's contention, the court did not express any desire for mother to dictate those details. Rather, the court acknowledged that father should not have to leave entire weekends unscheduled while mother decided whether or not she wanted a visit with Z.J. Thus, the court ruled that mother would have to provide 72 hours' written notice of her intent to exercise her right to visit Z.J. during the first weekend of the month. That triggering event—i.e., the provision of written notice—is explicitly included in the court's written orders. Therefore, mother has failed to substantiate her claim that any correction or amendment is necessary.
C. ICWA
Mother contends that Z.J.'s dependency must be reinstated because the juvenile court violated its duty to ensure that the Bureau complied with the ICWA by providing notice of these dependency proceedings to the Pamunkey Indian tribe.
1. Background
In November 2014, mother gave notice of her potential heritage in the Choctaw Indian tribe in Mississippi. In January 2015, mother told the social worker that "her mother was of 'Autoticenious ancestry,' but refused to give [the] worker any more information" or to complete an ICWA form.
In May 2015, the Bureau reported that mother had not submitted any information to substantiate her claim of an affiliation with the Choctaw tribe. Mother had produced documents which appeared to claim kinship to "Princess Pocahontas of the Pamunkey Tribe" on behalf of herself and/or her daughter T.C. However, the Bureau reported, the Pamunkey tribe was not a federally recognized tribe and mother's documents were of questionable authenticity.
At the May 28, 2015 disposition hearing, the Bureau submitted documentation that ICWA notices were provided to and received by the following organizations: The Pacific Region Director of the Board of Indian Affairs (BIA); the U.S. Secretary of the Interior; the Choctaw Nation of Oklahoma; the Jena Band of Choctaw Indians; and the Mississippi Band of Choctaw Indians. The notices stated mother was not sure of her Choctaw ancestry and that she did not have an ancestry number or any other information about her affiliation, but she was "positive she had Pamunkey ancestry." Based on this evidence, the court found that Z.J. was not an Indian child.
At the September 28, 2015 session of the status review hearing, mother's counsel argued that proceedings needed to be continued until the Bureau produced evidence that it provided ICWA notice to the Pamunkey tribe. Mother's counsel reasoned that this ICWA notice obligation was triggered in July 2015 when the Pamunkey became a federally recognized tribe. The Bureau's counsel argued that ICWA notice is only required when there is a risk the dependent child will be placed in foster care. Because there was no risk that Z.J. would be placed in foster care and no issue of removal from the parent, the Bureau argued that the ICWA issue was "absolutely moot." Without addressing the merits of this dispute, the juvenile court ordered the Bureau to provide the Pamunkey tribe with notice of these proceedings if an address for notice was available.
As best we can determine, the issue of ICWA notice was never formally addressed after the September 2015 session of the status review. Nor does the record show that the Pamunkey tribe was provided with ICWA notice of Z.J.'s dependency case.
2. Analysis
Mother contends that Z.J.'s dependency case must be reinstated until the Bureau provides the Pamunkey tribe with ICWA notice of this case. We disagree.
The ICWA states: "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify . . . the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or the Secretary." (25 U.S.C. § 1912(a), italics added.)
"By its own terms, [the ICWA] requires notice only when child welfare authorities seek permanent foster care or termination of parental rights; it does not require notice anytime a child of possible or actual Native American descent is involved in a dependency proceeding." (In re Alexis H. (2005) 132 Cal.App.4th 11, 14, italics omitted (Alexis H.).) "When authorities remove a child of Native American descent from his home, [the ICWA] promotes foster care or adoption by a Native American family in the hope of preserving tribal culture. If, however, authorities do not move the child to another family, the purpose does not come into play. [Citations.]" (Id. at p. 15; see also In re J.B. (2009) 178 Cal.App.4th 751, 758-759 [relying on Alexis H. to hold "ICWA does not apply to a proceeding to place an Indian child with a parent"], italics omitted.)
Applying this pertinent authority, we conclude that the ICWA does not require the Bureau to provide the Pamunkey Indian Tribe with notice of Z.J.'s dependency case. We find nothing in this record to suggest that the Bureau ever contemplated seeking a permanent foster home placement for Z.J. or an order terminating the parental rights of either father or mother. The recommended disposition was to place Z.J. with father with family maintenance services, to provide mother with visitation, and to set this case for "an early review at three months to discuss vacating and dismissing the case if appropriate." Furthermore, despite the absence of any concrete evidence that Z.J. had Indian ancestry, the Bureau provided ICWA notices prior to disposition. To be clear, mother did raise a new ICWA issue at the six-month review based on the recent federal recognition of the Pamunkey tribe. However, by that time, the court was in the process of ruling on a recommendation to terminate dependency jurisdiction of Z.J. and award sole custody of the child to father.
Mother relies on In re Jennifer A. (2002) 103 Cal.App.4th 692 (Jennifer A.), which held that ICWA notice requirements applied notwithstanding placement with the noncustodial parent. In that case, the child was removed from mother, temporarily placed in emergency shelter care and then in foster home care, before being ordered placed with the father. At the disposition hearing, the agency recommended that the child remain in foster care. (Id. at pp. 697-698.) Under those circumstances, the court explained, "the issue of possible foster care placement was squarely before the juvenile court. In advance of the dispositional hearing, [the agency] filed a report recommending . . . foster home care. [The agency] asks us to fixate on the result of the proceedings, i.e., the order that Jennifer be placed in the custody of her father, rather than on the possibility that the court could have ordered continued foster home care. . . . [¶] . . . [¶] . . . Jennifer was temporarily placed in a foster home and [the agency] was seeking to have the temporary placement continue. Jennifer had been removed from her custodial parent, her mother, who could not have Jennifer returned upon demand. The notice provisions of 25 United States Code section 1912(a) apply in involuntary proceedings of this nature." (Id. at pp. 700-701.)
Jennifer A. illustrates that the ICWA applies when the child welfare agency seeks foster care placement or adoption for an Indian child. The present case is materially different from Jennifer A. because (1) the Bureau did comply with ICWA notice requirements prior to disposition notwithstanding the fact that it did not seek a foster care placement for Z.J.; (2) by the time the Pamunkey became a federally recognized tribe, Z.J. was already living with father; and (3) when the issue of giving the Pamunkey tribe ICWA notice was raised during the status review hearing, the court was in the process of deciding whether to follow the Bureau's recommendations to terminate dependency jurisdiction, and to award sole custody to father. Thus, in direct contrast to the facts of Jennifer A., supra, 103 Cal.Appp.4th at page 700, the "issue of possible foster care placement" was not "squarely before the juvenile court," if, indeed, it ever had been.
In her reply brief, mother acknowledges that the Bureau and juvenile court were not "required to provide notice to the Pamunkey tribe at the time of the dispositional proceedings because the tribe was unrecognized at that time." However, mother contends that when the Pamunkey tribe became federally recognized the ICWA came back into play even though the Bureau was not recommending an out-of-home placement at that time because (1) the court did not have to follow the Bureau's recommendation; and (2) the court expressed substantial concern about whether father was complying with his duty to protect Z.J. from mother. Mother's first point is irrelevant because nothing in this record suggests that the juvenile court ever contemplated rejecting the Bureau's recommendations or placing Z.J. in permanent foster care. Mother's second contention is factually erroneous. The juvenile court expressed concern that mother posed a danger of harm to all of her children, but it did not question whether father was complying with his duty to protect Z.J. from mother.
Mother contends that characterizing an ICWA notice requirement as moot is inconsistent with our state Supreme Court's recent decision in In re Isaiah W. (2016) 1 Cal.5th 1 (Isaiah W.). Isaiah W. was an appeal from an order terminating mother's parental rights. The issue before the Supreme Court was whether mother was precluded from challenging a juvenile court ruling that the ICWA did not apply to her child's case because she had not challenged this finding in her prior appeal from the dispositional order. (Id. at pp. 5-6.) The Isaiah W. court held: "Because IWCA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may challenge a finding of ICWA's inapplicability in an appeal from the subsequent order, even if she did not raise such challenge in an appeal from the initial order." (Id. at p. 6.)
Isaiah W. is legally and factually inapposite. This is not an appeal from an order terminating parental rights and the issue before us is not whether mother forfeited a claim that the ICWA was violated. Rather, the issue in this case is whether there is any ICWA violation to correct. As we have already found, the Bureau and court did comply with the ICWA during the dispositional proceedings. Furthermore, although the Bureau and court did have ongoing duties under the ICWA while Z.J. was under the dependency jurisdiction of the juvenile court, the record does not demonstrate those duties were violated. When the new ICWA notice issue arose in this case, the court was in the process of ruling on recommendations to terminate this dependency case and award sole legal and physical custody to father. Thus, assuming for purposes of this appeal that there was an actual controversy about whether Z.J. is an Indian child, the ICWA notice requirements did not re-surface in this case because no party was "seeking the foster care placement of, or termination of parental rights, to an Indian child." (25 U.S.C. § 1912(a).)
IV. DISPOSITION
The judgment terminating this dependency case and the appealable orders embraced therein are all affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.