Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK55072, Sheri Sobel, Juvenile Court Referee.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
Denise Z., born in 2002, and Dennis Z., born in 2003, were declared dependents of the court in May 2004 and were removed from the custody of Carolyn Z. (mother). As mother was enrolled in the Comanche Nation (the tribe), the dependency court found that the children are Indian children and proceeded in accordance with the requirements of the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. §§ 1901-1963). Mother failed to reunify with the children. On May 2, 2007, after considering an ICWA expert’s declaration, and finding beyond a reasonable doubt that return to mother was likely to cause serious physical or emotional damage to the children, pursuant to section 1912(f) of title 25 of the United States Code, the dependency court terminated parental rights pursuant to Welfare and Institutions Code section 366.26.
The children’s father, Dennis Z., Sr., (father) is deceased. The children’s siblings are not the subject of this appeal.
For example, notices were sent to the tribe, and the tribe monitored the proceedings but did not intervene. (25 U.S.C. §§ 1911(c), 1912(a).) The tribe’s position was that the plan of adoption in paternal grandmother’s home was appropriate. An Indian expert expressed the opinion that continued care by mother was likely to result in serious emotional and/or harm to the children, mother’s parental rights should be terminated, and the children’s placement was in accordance with the ICWA’s placement preferences. (§§ 1912(f), 1915(a).)
Section 1912(f) of title 25 of the United States Code provides: “No termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”
Hereinafter, all statutory references will refer to the Welfare and Institutions Code, unless otherwise noted.
Mother appeals from the termination order. She contends the Indian expert’s declaration did not comply with the statutory requisites of the ICWA in that the expert did not interview a representative of the tribe or investigate whether adoption would interfere with the children’s tribal affiliation. She further contends the dependency court abused its discretion by failing to consider whether termination would “substantially interfere with the [children’s] connection to his or her tribal community or the [children’s] tribal membership rights,” which she argues was required by section 366.26, subdivision (c)(1)(F). We conclude mother forfeited the contentions.
Although in places framed as a substantial evidence issue, mother does not challenge the sufficiency of the evidence to support the finding that continued custody would result in serious physical and emotional damage to the children.
Section 366.26 subdivision (c)(1)(F) provides, in pertinent part, an exception to termination of parental rights when the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: “The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to: [¶] (i) Termination of parental rights would substantially interfere with the child’s connection to his or her tribal community or the child’s tribal membership rights.”
At the termination hearing, mother did not object to the Indian expert’s report or assert that the tribal membership benefit exception to termination of parental rights (§ 366.26, subd. (c)(1)(F)) applied. Normally, objections not raised in the trial court are forfeited. (E.g., In re S.B. (2004) 32 Cal.4th 1287, 1293 [“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. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.”].)
We note that the party asserting an exception to termination of parental rights has the burden to prove the exception. (See In re Valerie A. (2007) 152 Cal.App.4th 987, 1007 [the party asserting that a beneficial sibling relationship is an exception to termination, under section 366.26. subdivision (c)(1)(E), has the burden to prove the exception].)
Mother contends we should not find a forfeiture on these issues because she was not “fully advised of the requirements of the act and . . . knowingly, intelligently, and voluntarily waived them,” as required by California Rules of Court rule 5.664(m)(2) (formerly rule 1439(m)(2)). Mother misconstrues rule 5.664(m)(2). It does not apply to her contentions. Rule 5.664(m) provides: “The court may not terminate parental rights to an Indian child unless there is proof beyond a reasonable doubt that continued custody by the parent . . . is likely to result in serious emotional or physical damage to the child. [¶] (1) The evidence must be supported by the testimony of a qualified expert witness. [¶] (2) . . . [F]ailure to object may waive the requirement of producing evidence of the likelihood of serious damage only if the court is satisfied that the party has been fully advised of the requirements of the act and has knowingly, intelligently, and voluntarily waived them.” By its terms, rule 5.664(m)(2) applies to a waiver of the requirement of evidence beyond a reasonable doubt that continued parental custody will cause serious damage to the child, supported by expert testimony. Mother does not contend that such evidence was not produced. Her contentions are that the expert failed to conduct a sufficient investigation and the dependency court failed to consider the tribal membership benefit exception to termination. Those contentions are not within the ambit of rule 5.664(m)(2) and may be forfeited without an advisement and waiver of rights.
Hereinafter, all references to rules are to the California Rules of Court.
We find no reason to exercise our discretion to excuse the forfeiture. The children have been in the system for three and a half years. Mother has a long history of drug abuse, violent behavior, and lack of a relationship with the children. It is not in their best interest to further delay permanency for them in order to find out whether the children’s application for enrollment in the tribe was completed. The tribe safeguarded its interest by monitoring the proceedings. The children were at all times represented by counsel, who was the children’s guardian ad litem, looking out for the children’s best interests. (See § 317, subd. (e); rule 5.662.) It is time for the children to move forward with their lives.
CONCLUSION
The order is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.