Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06JD0023, George L. Orndoff, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Peter D. Moock, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Levy, J., and Cornell, J.
Robert G. appeals from a 2007 order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his daughter, G. Appellant contends the court erred when, in 2006, it determined the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) 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
Parental neglect, triggered by a combination of drug abuse and domestic violence, brought 14-month-old G. to the attention of respondent Kings County Human Services Agency (Agency) in March 2006. The agency also discovered the parents had older children who had been adjudged dependents in Imperial County and with whom the parents failed to reunify. In September 2005, those children were adopted by the maternal grandmother. Consequently, in March 2006, the agency took G. into protective custody and initiated the underlying dependency proceedings (§ 300, subds. (b) & (j)).
At a March 15, 2006, detention hearing, the mother’s trial counsel informed the court: “My client tells me she has -- she has some native American Indian, I believe Cherokee [sic].” The court also learned from county counsel that the Agency had provided ICWA forms to the mother, as well as mailing-notification forms to each parent. The court in turn ordered the parents to fill out the forms and return them to the Agency. In its findings, the court added that ICWA might apply in this matter. It also postponed its jurisdictional/dispositional hearing for ICWA noticing requirements.
Appellant denied any Indian heritage.
The record is silent regarding whether the mother complied with the court’s order as it pertained to ICWA.
A social worker later met face to face with the mother. She believed her American Indian heritage originated on her father’s side of the family. She apparently gave the social worker the names of her parents as well as the fact they divorced when she was 12. The mother also explained her family “pretty much disowned her.” Since the maternal grandmother adopted the mother’s older children, they did not talk to each other. The mother also stated that because she did not have a good relationship with her family, she was not able to gather any more information.
The agency subsequently served notice, more than once, upon the three federally-recognized Cherokee tribes, the Bureau of Indian Affairs and the parents. Relevant to this appeal, the notices did not provide any information regarding G.’s maternal grandparents or great-grandparents.
The court eventually conducted its jurisdictional/dispositional hearing in late June 2006. It sustained an amended petition, adjudged G. a dependent, and removed her from parental custody as well as ordered reunification services for both parents. During the hearing, county counsel asked the court to find the ICWA did not apply. She represented:
“Your honor, we are requesting that the Court finds it does not apply. We have sent notices for the hearing. The earliest one was sent April 3rd, 2006. We have received no response claiming that the [G.] is an Indian child with respect to any tribe. So we are asking in light of the passage of six more than 60 days that the Court find that ICWA does not apply.”
The court responded:
“I am prepared to find that ICWA does not apply. Does anyone disagree with that and believe that the child is an Indian child? Okay. Then I’ll go ahead and find that the Indian Child Welfare Act does not apply to [G.].”
Over the subsequent six months, the parents failed to regularly participate in and make substantive progress in their court-ordered treatment plans. Consequently, in early 2007, the court terminated services as to both parents and set a section 366.26 hearing to consider a permanent plan of adoption. Appellant filed a writ petition challenging the court’s decision, which this court rejected. Notably, he did not raise the issue he alleges in this appeal.
At a June 2007 hearing, the court found G. adoptable and terminated parental rights. Her prospective adoptive parents were paternal relatives.
DISCUSSION
For the first time, appellant challenges the court June 2006 decision that ICWA did not apply. He criticizes the agency for not including identifying information about the mother’s parents in its notice and in turn is critical of the court. He assumes both maternal grandparents adopted the other children in Kings County and, given that the agency had information about the proceedings, it could have acquired identifying information about the grandparents for ICWA purposes. It appears appellant is mistaken; the mother’s parents apparently divorced when she was a child and it was her mother, not her father with the alleged Indian heritage, who adopted the children in Imperial County proceedings. In any event, the problem for appellant is that the court’s 2006 dispositional finding and order have long been final.
In In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (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 urges us to revisit our Pedro N. holding because of other appellate decisions disagreeing with our approach. One example is In re Marinna J. (2001) 90 Cal.App.4th 731, in which the appellate court disagreed with our Pedro N. holding,on a theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes. On this point, we differ. This court did not foreclose a tribe’s rights under ICWA on account of a parent’s appellate waiver. (In re Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [where this court reversed the denial of a tribe’s motion to intervene after a final order terminating parental rights and invalidated actions dating back to the outset of the dependency and taken in violation of ICWA].)
We also note in this case appellant was served with a copy of the notice submitted to tribes and the Bureau of Indian Affairs and was in court at the dispositional hearing when the court addressed the ICWA issue. However, he and the mother neither voiced any objection to nor appealed from the court’s ruling. Rather, he waited until now, once his rights were terminated, to object. We are confident appellant, by his silence until now, has waived his right to complain.
DISPOSITION
The order terminating parental rights is affirmed.