Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 27718 of Merced County. Harry L. Jacobs, Commissioner.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
INTRODUCTION
Appellant, L.M., appeals from the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights. Appellant contends the department of human services (department) failed to adequately notify all Indian tribes pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901, et seq.). Appellant also contends we should overrule our opinion holding that a parent is subject to forfeiture of this contention where he or she fails to file a writ proceeding raising the issue after a disposition hearing. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185, 189 (Pedro N.).) We reject both contentions and affirm the juvenile court’s judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEEDINGS
On September 24, 2007, a petition was filed pursuant to section 300 for A.N. who was two years old. The father, J.L., and the mother, L.M., allegedly failed to protect A.N. because J.L. was arrested for being a felon in possession of ammunition; L.M. was under the influence of a controlled substance; the residence smelled of sewage and contained mold; there were exposed electrical wires; there was inadequate food, water or electricity in the residence; both parents were chronic drug users; A.N. was dirty and her front teeth were rotten; and there was an incidence of domestic violence between the parents. A combined jurisdiction/disposition hearing began on October 25, 2007, but was continued when the juvenile court learned J.L. had possible Indian heritage.
J.L. is A.N.’s alleged father.
On November 1, 2007, the department sent notice pursuant to the ICWA to eleven Indian tribes, the Bureau of Indian Affairs (BIA), and to the parents. None of the tribal notices included the designated tribal representative for receiving the ICWA notice. One tribe, the Mescalero Apache, did not execute and return the request for a return receipt. The remaining tribes and the BIA all executed return receipt cards. Most of these were received by the department between the fourth and the seventh of November 2007. The White Mountain Apache Tribe and the Yavapai-Apache Tribe responded that A.N. was not eligible for tribal membership. No other tribes responded.
The social worker’s report for the jurisdiction/disposition hearing set forth that L.M. stated her mother was one-half Cherokee but did not know if she was registered with a tribe. J.L. reported he believed he had Cherokee ancestry through his father. J.L.’s sister reported their father was Apache. The department’s proposed order to the juvenile court was that the ICWA did not apply. On December 10, 2007, L.M. was present at the hearing but J.L. did not attend. Both parents were represented by counsel. At the conclusion of the hearing, the juvenile court found the allegations of the petition true, ordered services to the parents, and found the ICWA did not apply.
On January 14, 2009, a petition was filed for A.L., who was just under four months old and the child of J.L. and L.M. The petition expressly stated the social worker made an inquiry pursuant to the ICWA. Page 5 of the petition stated both parents were asked about Indian ancestry for A.L. and refused to cooperate with the social worker. The petition set forth that at the jurisdiction/disposition hearing on December 10, 2007, the court found the ICWA did not apply to A.N.
At the detention hearing on January 21, 2009, the juvenile court found the ICWA did not apply. No objection was lodged to the court’s finding. Although both parents were initially present before the detention hearing, they left before the hearing started. Both parents were represented by counsel.
The social worker’s report for A.L.’s jurisdiction/disposition hearing stated the ICWA did not apply and set forth a recommended finding by the juvenile court that the ICWA did not apply. Because reunification services had been terminated as to A.N. on February 4, 2009, the social worker recommended that no services be provided for A.L. pursuant to section 361.5, subdivision (b)(10). Both parents were present and represented by counsel at the February 11, 2009, jurisdiction/disposition hearing. The hearing was continued to March 3, 2009. Neither parent appeared for the hearing on March 3, 2009. The juvenile court continued the matter for one day.
On March 4, 2009, counsel for both parents indicated they had been in contact with their clients, but neither parent was present at the hearing. The court found the parents had been given proper notice of the hearing, found the allegations of the petition true, and denied reunification services to the parents. In its written order, the court found the ICWA did not apply, informed the parents that its disposition order was appealable under section 395, and ordered notice to the parents of their right to file a writ petition. The court ordered notice to the parents with Judicial Council Forms JV-820 and JV-825. The judicial council forms were mailed to each parent. Although J.L. filed two notices of intent to file a writ petition, he did not follow through with either petition to this court. (J.L. v. Superior Court, F057019 (dismissal order) & (J.L. v. Superior Court, F057284 (dismissal order).)
On July 9, 2009, the juvenile court terminated the parents’ parental rights to both A.N. and A.L. Neither parent raised the question of notice to the tribes pursuant to the ICWA. Appellant filed her notice of appeal with the superior court on September 4, 2009.
DISCUSSION
Appellant argues ICWA notice was insufficient as a matter of law because proper tribal representatives were not identified in the notices and the juvenile court made its finding that the ICWA was inapplicable less than 60 days after notices were sent to the tribes in violation of section 224.3, subdivision (e)(3). For the first time in this action, appellant challenges the court’s findings on December 10, 2007, and March 4, 2009, that the department complied with requirements of ICWA. Respondent contends the court’s ruling concerning ICWA has long been final and appellant cannot complain at this late stage that ICWA has been violated. We agree with respondent and reject appellant’s contention as untimely. We reject appellant’s further request that we overrule our opinion in Pedro N.
In Pedro N., supra, 35 Cal.App.4th 183 at pp. 185, 189, we held that a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues in a subsequent appeal once the court’s ruling is final. 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 p. 189-190.)
In the instant action, the juvenile court’s ICWA finding was made at the disposition hearing for A.N. on December 10, 2007, and for A.L. on March 4, 2009. Appellant waited to challenge the adequacy of ICWA notice for each of her daughters until she filed her appeal from the ruling in the section 366.26 hearing on September 9, 2009.
The juvenile court initially ruled the ICWA was not applicable to A.L. during the January 21, 2009, detention hearing. The court’s ruling then was not reviewable by this court at that time. The juvenile court, however, restated its ICWA finding and ruling in its order at the conclusion of the disposition hearing. We find, therefore, that appellant had the opportunity to seek writ review of the juvenile court’s ICWA ruling after the disposition hearing.
Appellant was represented by counsel throughout these proceedings. Although appellant failed to appear at A.L.’s disposition hearing on March 4, 2009, she was sent notice of her right to seek writ review with this court at that time. The petition filed in A.L.’s case notified appellant and her counsel that the provisions of the ICWA had been found inapplicable to A.N. and appellant and J.L. were uncooperative with the social worker concerning this issue. Appellant, J.L., and their respective counsel lodged no objection to the social worker’s observations or to the social worker’s recommendation in the jurisdiction/disposition report for A.L. that the ICWA did not apply.
The juvenile court’s dispositional findings and orders on December 10, 2007, and March 4, 2009,are final and no longer subject to attack by appellant. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-191.) We therefore do not reach her contentions concerning the validity of notice to the tribes or the juvenile court’s finding concerning the ICWA in December 2007 which occurred prior to the lapse of 60 days after the department sent notice to the tribes.
Appellant argues she was not able to file an appeal from the disposition orders denying her reunification services because there was a referral for a permanency planning hearing pursuant to section 366.26. Appellant was entitled, however, to file a writ pursuant to sections 366.26, subdivision (l) and 395 from the disposition orders issued on December 10, 2007 for A.N. and on March 4, 2009 for A.L. Appellant acknowledges she was given notice by mail after the March 4, 2009, disposition hearing of her right to file a writ proceeding. Appellant failed to do so.
Appellant asks us to overrule Pedro N. citing other decisions, such as In re Nikki R. (2003) 106 Cal.App.4th 844 and In re Marianna J. (2001) 90 Cal.App.4th 731, which disagree with Pedro N. These cases, and others, rely on the theory that Pedro N. is inconsistent with the protections ICWA affords to the interests of Indian tribes. We are not persuaded by these other authorities because our decision in Pedro N. does not foreclose a tribe’s rights under ICWA due to a parent’s appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [we reversed denial of tribe’s motion to intervene after final order terminating parental rights and invalidated actions dating back to outset of dependency and taken in violation of ICWA].) In so ruling, 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 appellant has forfeited her personal right to complain of any ICWA violation and decline appellant’s invitation to revisit our holding in Pedro N.
Appellant neither voiced any objection to the juvenile court nor filed a writ from that court’s ruling for either of her children. Despite having two opportunities to challenge the court’s findings concerning the ICWA, appellant waited until now to object and by her silence has waived her right to complain.
DISPOSITION
The judgment is affirmed.