Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Modesto County Nos. 509495, 509496, & 509497, Nancy B. Williamson, Commissioner.
Nicole A. Williams, under appointment by the Court of Appeal, for Defendants and Appellants.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Dawson, J., and Kane, J.
OPINION
INTRODUCTION
Appellant, J.M., appeals from the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 creating legal guardianship. Legal guardianship was ordered for three of appellant’s five children. Appellant contends that the social services agency (agency) failed to notify all Indian tribes pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.; ICWA). The issue of proper notice pertains only to K.A., M.A., and L.A. We will affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
The other two children, who have a different father, are not subject to this appeal.
FACTS AND PROCEEDINGS
K.A., M.A., and L.A. are the children of appellant, and their presumed father, K. On January 28, 2008, this court issued an opinion in case No. F054125 denying appellant’s extraordinary writ to vacate the orders of the juvenile court terminating her reunification services at a 12-month review hearing and setting the matter for a section 366.26 hearing.
In our first opinion, we noted that in September 2006, the agency removed petitioner’s five children from her custody because of her drug use and general neglect. The three children subject to this appeal suffer serious medical conditions. K. was not involved with the children at the time of their removal, but initially expressed interest in taking custody.
The juvenile court ordered the children detained and set a mid-October 2006 jurisdiction/disposition hearing (hearing).
The hearing was continued and conducted in November 2006. The juvenile court exercised dependency jurisdiction, ordered the children removed from petitioner’s custody, and ordered reunification services for petitioner as well as for K. The services plan included twice monthly sibling visitation.
Reunification services were provided over the next 12 months. Neither K. nor appellant made any effort to complete any aspect of their reunification plan. At the 12-month review hearing in October 2007, at which neither petitioner nor K. appeared, the juvenile court terminated their reunification services as to K.A., M.A., and L.A. and set a section 366.26 hearing to consider a permanent plan of adoption. The only issue appellant raised in the writ proceeding was her contention that the trial court erred in terminating reunification services. Appellant made no challenge to the juvenile court’s earlier finding that the agency complied with the ICWA.
The section 366.26 report indicated that all three children had been placed together in a foster home since June 15, 2007. The children were all doing well and their medical needs were being met. Although the current foster family was committed to providing permanence for the children, the family was not ready to adopt them. The foster family, however, was willing to enter into guardianship of the children. The social worker recommended guardianship for the children.
Neither appellant nor K. appeared at the section 366.26 hearing conducted on February 6, 2008. The court found by clear and convincing evidence that the children were adoptable, but there was a compelling reason not to terminate appellant’s parental rights because the children were with foster parents who were unwilling or unable to adopt them. The court appointed the foster parents as the children’s legal guardians.
ICWA NOTICE
On September 25, 2006, K. executed a statement under penalty of perjury that he had no Indian ancestry as far as he knew. During the detention hearing that same day, however, K. said he had Cherokee ancestry. K.’s grandmother, the children’s great-grandmother, confirmed this but did not know which Cherokee tribe. Appellant said she believed she had ancestry from the Blackfoot tribe.
The social worker contacted K.’s grandmother again on October 2, 2006 and obtained information concerning Indian ancestry. Given the social worker’s notice to Choctaw tribes, it appears that the grandmother indicated Choctaw ancestry rather than Cherokee ancestry. The mother indicated possible Comanche heritage as well as Blackfoot heritage. When the social worker talked to both parents on October 3, 2006, they stated that they were unaware of Indian heritage but gave the social worker the names of relatives who might know.
The social worker’s notations of the contact with the grandmother do not specify which tribe the grandmother identified.
The social worker sent notices pursuant to the ICWA to the Jena Choctaw Band, the Bureau of Indian Affairs, the Choctaw Nation of Oklahoma, the Mississippi Band of Choctaw Indians, the Blackfeet Tribe, and the Comanche Nation of Oklahoma. At the disposition hearing on November 7, 2006, the court found that proper notice had been given pursuant to ICWA. No party to the proceeding objected to this finding.
DISCUSSION
For the first time in this entire action, appellant challenges the court’s finding on November 7, 2006, that the agency complied with requirements of ICWA. Appellant criticizes the department for failing to notice any Cherokee tribe. 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, especially since she failed to raise this point in her prior writ petition before this court. We agree with respondent and reject appellant’s contention as untimely.
In In re Pedro N. (1995) 35 Cal.App.4th 183, 185, 189 (Pedro N.), 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. In this case, the time to raise such issues was at the dispositional phase, after the May 21, 2007, disposition hearing, not now. The juvenile court’s rulings at the disposition hearing were appealable. (Pedro N., supra, 35 Cal.App.4th at p. 189.) In Pedro N., as in the instant action, the juvenile court’s ICWA finding was made at the disposition hearing but the parent waited, as did appellant, to challenge the adequacy of ICWA notice much later in an appeal from the ruling in the section 366.26 hearing. Appellant appeared at the disposition hearing represented by counsel. The court indicated that it had read and considered the department’s reports. Appellant did not challenge the department’s assertion or the court’s ruling that the agency had complied with ICWA. The juvenile court’s dispositional findings and orders on November 7, 2006 are final and no longer subject to attack by appellant. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-191.)
To the extent appellant cites other decisions, such as In re Nikki R. (2003) 106 Cal.App.4th 844, which disagreed with our Pedro N. holding on a theory that it is inconsistent with the protections ICWA affords to the interests of Indian tribes, we are not persuaded. We do 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 [we reversed denial of the 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.
Appellant neither voiced any objection to the juvenile court nor appealed from that court’s ruling. Rather, she waited until now to object. We are confident appellant, by her silence until now, has waived her right to complain.
DISPOSITION
The judgment is affirmed.