But, "[w]hen a case is remanded to the juvenile court for the purpose of curing ICWA notice defects and the parent is represented by counsel at the postremand compliance hearing and counsel raises no objection to new ICWA notices, an exception to the general rule against forfeiture may apply." (In re Z.W. (2011) 194 Cal.App.4th 54, 64 (Z.W.); see also In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; X.V., supra, 132 Cal.App.4th at p. 804.) "Balancing the minor's interest in permanency and stability against the tribes' rights under ICWA may require a different result in such a case." (Z.W., supra, at p. 64.)
( In re X.V. (2005) 132 Cal.App.4th 794 [ 33 Cal.Rptr.3d 893] ( X.V.); In re Amber F. (2007) 150 Cal.App.4th 1152 [ 58 Cal.Rptr.3d 874] ( Amber F.); In re N.M. (2008) 161 Cal.App.4th 253 [ 74 Cal.Rptr.3d 138] ( N.M.).) Balancing the minor's interest in permanency and stability against the tribes' rights under ICWA may require a different result in such a case.
The Department argues, however, that this general principle should not apply when the issue of ICWA compliance was raised in a prior appeal. Citing In re X.V. (2005) 132 Cal.App.4th 794 [ 33 Cal.Rptr.3d 893] ( X.V.) and In re Amber F. (2007) 150 Cal.App.4th 1152 [ 58 Cal.Rptr.3d 874] ( Amber F.), the Department contends that appellant forfeited any argument regarding proper ICWA notice because she failed to object at the hearing on remand. In essence, the Department's position is that at some point the burden must be placed on the parents to establish that their child is an Indian child.
But, "[w]hen a case is remanded to the juvenile court for the purpose of curing ICWA notice defects and the parent is represented by counsel at the postremand compliance hearing and counsel raises no objection to new ICWA notices, an exception to the general rule against forfeiture may apply." (In re Z.W. (2011) 194 Cal.App.4th 54, 64 (Z.W.); see also In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; X.V., supra, 132 Cal.App.4th at p. 804.) "Balancing the minor's interest in permanency and stability against the tribes' rights under ICWA may require a different result in such a case." (Z.W., supra, at p. 64.)
Because father failed to assert this challenge below, he has forfeited it on appeal. (In re Amber F. (2007) 150 Cal.App.4th 1152, 1156 (Amber F.).) In any event, the challenge also fails on the merits because SSAs inquiry on remand showed the person through whom father claimed Cherokee heritage, i.e., his biological father, L.N., specifically denied any Indian ancestry.
, an exception to the general rule against forfeiture may apply." (In re Z.W. (2011) 194 Cal.App.4th 54, 64; see also In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; In re X.V. (2005) 132 Cal.App.4th 794, 804.) It is unclear to what extent these ICWA notice cases apply.
Had mother and father assisted the Agency in addressing their concerns, or raised their concerns in the juvenile court, the Agency and juvenile court could have addressed the concerns without further delaying permanency for the minor. (In re Amber F. (2007) 150 Cal.App.4th 1152, 1156.) "At some point, there must be finality to the ICWA noticing process."
The Bureau maintains the issue was forfeited. While acknowledging forfeiture generally does not apply to ICWA notice requirements, it contends Mother's actions here—"in not responding to requests for information and her acquiescence to the juvenile court's finding that there is no reason to believe [minor] is an Indian child"—"rise to the level of gamesmanship" the court found in In re Amber F. (2007) 150 Cal.App.4th 1152 (Amber F). In Amber F., the Court of Appeal had previously reversed the juvenile court's order terminating the mother's parental rights for "defective notice" under ICWA.
With regard to this preliminary issue, we conclude that, even if Mother did waive this issue by her failure to appeal from the October 10, 2006 order, we must still reach the merits, because Mother argues that counsel was ineffective for failing to challenge the court’s October 10, 2006 order. We note that, in two cases, In re Amber F. (2007) 150 Cal.App.4th 1152 and In re X.V. (2005) 132 Cal.App.4th 794, our colleagues in the Fourth District have held that when a parent has “ample opportunity to review and correct the many documents involved in the second round of notices [and fails] to object to errors below, she has forfeited her right to do so on appeal.” (In re Amber F., supra, 150 Cal.App.4th at p. 1156.)
The parties may not object to the adequacy of ICWA notice on appeal if they failed to raise a proper objection at the special hearing after a remand. ( In re Amber F. (2007) 150 Cal.App.4th 1152, 1156 [ 58 Cal.Rptr.3d 874] ["At this juncture, allowing [appellant] to raise these issues on appeal for the first time opens the door to gamesmanship, a practice that is particularly reprehensible in the juvenile dependency arena."]; In re X.V. (2005) 132 Cal.App.4th 794, 804 [ 33 Cal.Rptr.3d 893] ["We are mindful that the ICWA is to be construed broadly . . ., but we are unwilling to further prolong the proceedings for another round of ICWA notices, to which the parents may again object on appeal . . ." (citation omitted)]; see In re S.B. (2004) 32 Cal.4th 1287, 1293 [ 13 Cal.Rptr.3d 786, 90 P.3d 746] ["a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court"].