Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Fresno County. Super. Ct. No. 07CEJ300026, Jane Cardoza, Judge.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Cornell, J., and Kane, J.
OPINION
J.R., Jr., appeals from a July 2008 order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his children. He contends the court erred 14 months earlier when it found the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply to the children’s dependency. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In May 2007, the Fresno County Superior Court adjudged appellant’s four children juvenile dependents (§ 360, subd. (d)) and removed them from parental custody. The court previously determined the children came within its jurisdiction under section 300, subdivision (b), due to the parents’ neglect and substance abuse. At the May 2007 dispositional hearing, the court also made its finding that ICWA did not apply. Appellant did not appeal. (§ 395, subd. (a)(1); In re Eli F. (1989) 212 Cal.App.3d 228, 233 [the court’s disposition constitutes its judgment and is appealable].)
We have summarized the record on this issue in our Discussion.
Despite six months of reasonable reunification services, both parents failed to participate in the court-ordered treatment plan. This led the court to terminate reunification services and set a hearing (§ 366.26) to select and implement permanent plans for the children (setting order). Although the setting order was reviewable by way of an extraordinary writ proceeding (§ 366.26, subd. (l)) and the superior court’s clerk gave the parents written notice of their remedy, neither parent sought extraordinary writ review of the setting order.
At a July 2008 permanency planning hearing, the court found each of the children adoptable and terminated parental rights.
DISCUSSION
At the outset of these dependency proceedings, appellant claimed Cherokee and Choctaw heritage. A social worker later attempted to contact appellant at his residence for more information. Although appellant was not at home, his father was. Appellant’s father (the children’s paternal grandfather) indicated he was not sure about their Native American heritage. However, the children’s paternal grandfather had heard he had Cherokee and Choctaw heritage through his father. The paternal grandfather provided his father’s name, approximate date of birth and birthplace.
Respondent Fresno County Department of Children and Family Services (department) in turn prepared and served a “Notice of Involuntary Child Custody Proceedings for an Indian Child” (JV-135) upon the three federally recognized Cherokee tribes, the three federally recognized Choctaw tribes, and the Bureau of Indian Affairs (BIA). The completed JV-135 served on March 15, 2007, (March 15 JV-135) included the identifying information regarding the children’s paternal great-grandfather.
On April 5, 2007, the department filed its March 15 JV-135 and proofs of service and receipts with the court. As of then, all six tribes and the BIA had received the March 15 JV-135. On the same date, the department also filed with the court responses it received from two of the six tribes stating the children were ineligible for enrollment as well as from the BIA. Those early tribal responses were from the United Keetoowah Band of Cherokee Indians and the Mississippi Band of Choctaw Indians.
On April 10, 2007, the court exercised its dependency jurisdiction over the children and set the case for a May 1, 2007, dispositional hearing. Consequently, the department prepared a new JV-135 form to give notice of the May 1st hearing. The department served the new form on April 12, 2007, (April 12 JV-135) on the four remaining tribes from whom the department had yet to receive responses to its March 15 JV-135. The April 12 JV-135, a copy of which the department later filed with the court, did not include any information about the children’s paternal great-grandfather.
Certified mail receipts disclosed the four remaining tribes received the April 12 JV-135 between April 16 and 17, 2007. The department later filed with the court the negative responses it received from the four remaining tribes. The Jena Band of Choctaw Indians sent a single response dated April 10. The Cherokee Nation sent two responses, one dated April 10 and the other dated April 19, each of which made reference to the paternal great-grandfather’s name and approximate date of birth. The Eastern Band of Cherokee Indians sent a separate response dated April 16 for each child. The Choctaw Nation of Oklahoma sent a single response dated April 26.
When it prepared its disposition report for the May 1, 2007, hearing, the department had yet to receive responses from Eastern Band of Cherokee Indians and the Choctaw Nation of Oklahoma. Thus, at the start of the May 1 hearing, the department’s attorney asked the court for a brief continuance. The attorney explained the “actual 60 days in regards to the ICWA was not up yet and I know that there is not a motion before the Court.” According to the attorney’s calculation, the 60 days would run May 15, 2007. When no one challenged the attorney’s request, the court found good cause to continue and continued the hearing in progress to May 22, 2007.
The 60 days to which the attorney referred relates to section 224.3, subdivision (e)(3). According to this provision, the court may determine ICWA does not apply if proper and adequate notice has been provided and neither a tribe nor the BIA has provided a determinative response within 60 days after receiving notice.
The department thereafter filed a motion to be heard May 22, 2007, to declare ICWA inapplicable to the children’s dependency in light of the negative responses it had received from the Cherokee and Choctaw tribes. At the May 22 hearing, the department’s attorney stated the 60 days had expired on May 15, 2007, as well as summarized each of the negative responses received from the tribes. The attorney concluded by asking the court to find ICWA was inapplicable in this case. Each attorney, including appellant’s, “submitted” when the court inquired of them. The court then found ICWA was not applicable to this case.
For the first time and in his appeal from the termination order, appellant contends the court’s ICWA finding was erroneous. While he acknowledges the March 15 JV-135 was accurate, he argues only four of the six tribes responded based on the March 15 JV-135. He speculates the last two tribes to respond did so based solely on the April 12 JV-135, which omitted the information about the paternal great-grandfather.
Appellant’s contention is fatally flawed on two grounds. First, the court’s 2007 ICWA finding has long been final and thus is no longer subject to this court’s review. Alternatively, appellant’s contention is premised on speculation, which is not a basis for our review.
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 criticizes our holding, citing other appellate court rulings, including In re Marinna J. (2001) 90 Cal.App.4th 731 (Marinna J.). The Marinna J. court disagreed with Pedro N. on the 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. (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].) The fact that appellant is foreclosed from complaining in this court in no way prevents him or anyone else, for that matter, from directly contacting an Indian tribe regarding possible tribal membership.
Even so, we note the facts in the pending case are so different from those in Marinna J. as to make it distinguishable and its analysis inapplicable to this case. The appellate court in Marinna J. made a point of explaining there was no record that the department sent notice of the proceedings either to any of the identified tribes in which the children could be members or to the BIA. (Marinna J., supra, 90 Cal.App.4th at p. 739.) Further, it observed the Marinna J. trial court made no effort to assure compliance with the ICWA notice requirements. It was thus under those circumstances that the appellate court would not invoke the waiver doctrine. (Ibid.)
The present case is altogether different. Here it is undisputed the six Cherokee and Choctaw tribes received proper notice in the form of the March 15 JV-135. Thereafter, when the court set the dispositional hearing for May 1, the department complied with ICWA in that it re-noticed the four tribes, from whom it had yet to hear, as to the May 1 hearing date. Although the April 12 JV-135 did not contain the paternal great-grandfather’s identifying information, the department had already provided that information in the March 15 JV-135.
Alternatively, we observe that appellant’s argument is meritless because it relies on nothing more than speculation that the last two tribes to respond did so based solely on the second notice, the April 12 JV-135. Appellant overlooks his burden to affirmatively show error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) He also overlooks the scope of our appellate review. All evidentiary conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
We add if appellant or his trial counsel seriously questioned whether the last two tribes to respond did so based solely on the April 12 JV-135, it was incumbent on appellant or his trial counsel to raise this concern in the trial court. There were two distinct opportunities for appellant or his trial counsel to do so, when the department requested a continuance based on its calculation of the 60 days from the March 15 JV-135 and when the department formally made its motion to declare ICWA inapplicable. Instead, trial counsel did not challenge the department’s calculation and submitted on the department’s motion.
DISPOSITION
The order terminating parental rights is affirmed.