Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Nos. JD109923, JD109924, Kenneth C. Twisselman, II, Judge.
Roland Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J., and Levy, J.
Corina H. appeals from 2007 orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to two of her daughters. She contends the court erred in 2006 when it determined that the Indian Child Welfare Act (ICWA; 25 U.S.C. s1901 et seq.) did not apply. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In June 2006, the Kern County Superior Court adjudged two of appellant’s daughters, one-and-a-half-year-old C. and six-month-old A., dependent children and removed them from appellant’s custody. The court previously determined C. and A. came within its dependency jurisdiction under section 300, subdivisions (b), (f) and (j) based on appellant’s methamphetamine addiction and its negative effect on her ability to parent.
Dating back to at least the spring of 2001, when she gave birth to a daughter who tested positive for amphetamines, appellant has been unable to successfully combat her addiction despite, first, voluntary family maintenance services and, later, court-ordered family reunification services. Also, in the summer of 2001, appellant’s neglect caused the death of yet another of her children, R.R. He died as a result of the trauma inflicted when he was struck by a car appellant drove. By mid-2002, appellant failed to reunify with her then four remaining children. The court ultimately placed those children to their biological father and awarded him sole legal and physical custody.
Despite court-ordered services in 2006, appellant failed to reunify with C. and A. Consequently, in February 2007, the court terminated reunification efforts and set a section 366.26 hearing to select and implement a permanent plan for each of appellant’s daughters. The court gave appellant notice of her writ remedy as well. She did not exercise her rights by seeking writ review of the court’s decision. In November 2007, the court found the two young girls adoptable and terminated parental rights.
Relevant to appellant’s argument before this court, she claimed she might have Indian ancestry during the detention phase of C. and A.’s dependency. Specifically, on March 14, 2006, she signed a Judicial Council form, PARENTAL NOTIFICATION OF INDIAN STATUS (JV-130), stating as much followed by the word “NAV-APACHE.” At a detention hearing the same day, the following transpired:
“THE COURT: And you have signed this Indian status form stating you may have Indian ancestry. You put Navaho slash Apache.
“[APPELLANT]: I don’t know which is which. There is just rumors from my family.
“THE COURT: Well, do you have any reason to think that you may have some Indian ancestry?
“[APPELLANT]: Well, my grandpa is Indian. I know that much?
“THE COURT: On which side?
“[APPELLANT]: My mom’s side. On my mother’s side.
“THE COURT: Your mother’s father is Indian.
“[APPELLANT]: Yes.
“THE COURT: Is your mother still living?
“[APPELLANT]: I believe that she is deceased, your Honor.
“THE COURT: You what?
“[APPELLANT]: I believe she is dead.
“THE COURT: Is there someone in the family who would be able to get the social worker more information about your grandfather’s Indian status?
“[APPELLANT]: I don’t think so, because her twin sister also passed away.
“THE COURT: So, you don’t know of anyone else in the family that you could contact?
“[APPELLANT]: Well, like I told the worker, my uncle. I can try to get some information from him.
“[COUNTY COUNSEL]: Your Honor, according to the social worker the mom believes that she is Indian because she saw her grandfather in an Indian headdress, and that’s what makes her believe that she is Indian. The social worker did talk to her at length about who was available to get information from. And this is an experience worker. And it does not appear as if there is going to be enough information to be able to notify the approximately 26 Apache and Navaho tribes.
“I would ask the Court, based on the information received today, that we send notice to the BIA. And I think at that point that’s
“THE COURT: What information do you have about your grandfather being Indian besides seeing him in a headdress?
“[APPELLANT]: Actually, I don’t. She just asked me a question. She asked me if I were to have any kind of Indian -- if the kids had. I go I don’t know, I don’t know for sure, but as far as I was told from my family that my grandpa was Indian. That’s all I know.
“THE COURT: So you really don’t know which tribe.
“[APPELLANT]: No, I don’t.
“THE COURT: I am going to find based on the information before me that there is no – there’s not sufficient evidence to believe that the child is a member of any specific tribe. But I will direct the Department to notify BIA, and that will suffice in terms of satisfying the requirements of notice under ICWA.
“Counsel submit on that?
“[MINOR’S COUNSEL]: Submit.
“[APPELLANT’S COUNSEL]: Submit it.
THE COURT: So ordered.”
Approximately two weeks later, respondent Kern County Department of Human Services (department) served a Judicial Council form, “NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDINGS FOR AN INDIAN CHILD” (JV-135) upon appellant and the Bureau of Indian Affairs (BIA). Notably, the department checked a box marked “Tribe” as well as boxes marked “Parent” and “BIA” under the category “NOTICE TO.” On the last page of the form, the department listed only appellant and the BIA as those served with the notice. The BIA took no apparent action other than to acknowledge its receipt of the notice.
At the dispositional hearing conducted in June 2006, county counsel on behalf of the department asked the court to find that ICWA did not apply. Appellant’s trial counsel offered no opposition and submitted the issue. In turn, the trial court found there was proper notice and ICWA did not apply. At the conclusion of the June hearing, the court informed appellant of her right to appeal, a right of which she did not take advantage.
DISCUSSION
For the first time, appellant contends the trial court erred in June 2006 when it found that ICWA did not apply. She complains that the department should have served notice on all federally-recognized Navajo and Apache tribes. She also claims the department’s notice to the BIA was misleading in that the box marked “Tribe” was checked under the category “NOTICE TO.”
Having reviewed the record, we conclude appellant’s argument is untimely. The ICWA issue emerged at the outset of the proceedings and was thus reviewable by appeal from the trial court’s June 2006 dispositional order. (§ 395, subd. (a); Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812) However, appellant did not appeal nor, as we previously noted, did she seek writ review of the trial court’s February 2007 setting order. The court’s dispositional decision and six-month findings and orders have long been final. Consequently, the time for appellant to raise the ICWA compliance issue has passed. (§ 366.26, subd. (l); In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).) In Pedro N., this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.
Appellant tries to both distinguish Pedro N. and persuade us to revisit our holding in light of other appellate court rulings, such as Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 (Dwayne P.). In Dwayne P., an appellate court found an attorney’s remarks did not amount to a waiver of an alleged ICWA violation. Citing another decision out of this court, In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.), the Dwayne P. court quoted “[t]here is nothing either in the ICWA or the case law interpreting it which enables anyone to waive the tribe's right to notice and right to intervene in child custody matters.” (Dwayne P., supra, at pp. 257-258.)
Our decisions in Desiree F. and Pedro N. are not inconsistent nor is our Pedro N. decision inconsistent with the protection ICWA affords Indian tribes. In Desiree F., this court reversed the denial of a tribe’s motion to intervene after a final order terminating parental rights even though the birth parents had not sought review. In addition, while Pedro N. concluded the parent, by failing to make a timely challenge, waived her right to complain on appeal, we did not foreclose a tribe’s rights under ICWA due to the parent’s appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185.)
DISPOSITION
The orders terminating parental rights are affirmed.