Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 07CEJ300190-1, 2, 3, 4. Jane A. Cardoza, Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Biggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian Acting P.J., Wiseman, J., and Kane, J.
INTRODUCTION
Appellant, N.A., appeals from the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 setting a permanent plan of guardianship for her children. Appellant contends the department of children and family services (department) failed to make a proper inquiry of her children’s Indian ancestry pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901, et seq.). We reject her contention and affirm the juvenile court’s judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEEDINGS
On July 25, 2007, a petition was filed pursuant to section 300 for appellant’s four children, M.V., H.V., O.H., and N.H. The petition did not indicate that any of the children were members of a federally recognized Indian tribe. A social worker’s report prepared for the detention hearing in July 2007 stated that the ICWA did not apply. At the conclusion of the detention hearing on July 27, 2007, the court found a prima facie showing had been made that the children came within the provisions of section 300. The court ordered them removed from the parents’ custody and that appellant receive reunification services. During the proceedings, the parents did not raise the applicability of the ICWA.
The social worker’s report for the jurisdiction hearing was filed on October 19, 2007, the date of the jurisdiction hearing. The social worker’s report noted the ICWA did not apply. During the jurisdiction hearing, there was no discussion of the ICWA or any family history of Indian ancestry. The court found the first three allegations of the petition true and dismissed a fourth allegation without prejudice.
At the conclusion of the disposition hearing on December 7, 2007, the court found the ICWA did not apply to the children. The court ordered supervised visits between appellant and the children and granted her further reunification services. Appellant did not seek review of the juvenile court’s findings after the disposition hearing.
A status review report by the social worker was filed on May 7, 2008. The report noted the ICWA did not apply. The appellant continued to receive reunification services. The social worker recommended reunification services to appellant be terminated.
A status review report was filed on November 17, 2008, the date set for the 12-month status review hearing. On November 17, 2008, appellant testified at the status review hearing that she no longer wanted to participate in services. Appellant stated that she was relinquishing her parental rights out of frustration. Appellant continued with services even though she did not wish to do so any longer. The court terminated appellant’s reunification services, but permitted her continued visitation with two of the children.
Appellant did file a writ with this court after her reunification services were terminated in November 2008. In case No. F056538, filed March 17, 2009, we found no error and affirmed the juvenile court’s findings. Appellant only challenged the juvenile court’s orders denying her reunification services.
On May 20, 2009, the juvenile court denied appellant’s petition pursuant to section 388 for modification of the court’s earlier order terminating her access to services. The court, however, did not terminate appellant’s parental rights, finding that she had maintained regular visitation with her children and they would benefit from a continuing relationship with her. The court found guardianship for the children to be the appropriate permanent plan for them. Appellant filed a timely notice of appeal on June 24, 2009.
DISCUSSION
Appellant argues the ICWA notice was insufficient as a matter of law because a proper inquiry of parental Indian ancestry was never conducted by the department. For the first time in this action, appellant challenges the court’s findings on December 7, 2007, that the ICWA did not apply in this case. Respondent contends the court’s ruling concerning the ICWA has long been final and appellant cannot complain at this late stage that the ICWA has been violated. Because we agree with respondent that appellant’s contention is untimely, we do not reach respondent’s alternative contention that appellant suffered no prejudice from the court’s ruling.
In Pedro N. (1995) 35 Cal.App.4th 183 at pp. 185, 189 (Pedro N.), we held that a parent who fails to timely challenge a juvenile court’s action regarding the ICWA is foreclosed from raising the ICWA notice issues in a subsequent appeal once the court’s ruling is final. The proper time to raise such issues is after the disposition hearing. The juvenile court’s rulings and findings at the disposition hearing are appealable upon a timely notice of appeal. We noted in Pedro N. that the parent there was represented by counsel and failed to appeal the juvenile court’s orders from the disposition hearing. (Pedro N., supra, 35 Cal.App.4th at p. 189-190.)
In the instant action, the juvenile court’s ICWA finding was made at the disposition hearing on December 7, 2007. Appellant waited to challenge the adequacy of the ICWA notice for her children until she filed her appeal from the ruling at the hearing on her section 388 petition and the section 366.26 hearing on May 20, 2009.
Appellant was represented by counsel throughout these proceedings. The original petition notified appellant and her counsel that the provisions of the ICWA had been found inapplicable to the children. Appellant and her counsel lodged no objection to the social worker’s observations or to the social worker’s recommendation in the jurisdiction and early status review reports that the ICWA did not apply.
The other parties also failed to raise any issue concerning the ICWA.
The juvenile court’s dispositional findings and orders on December 7, 2007, are final and no longer subject to attack by appellant. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-191.) Appellant was entitled to file a writ pursuant to sections 366.26, subdivision (l) and 395 from the disposition orders issued on December 7, 2007. Appellant failed to do so.
Appellant argues at length that this case is similar to In re J.N. (2006) 138 Cal.App.4th 450, 460-461 (J.N.). In J.N., our court found that there was a failure to make an adequate inquiry pursuant to the ICWA. (Ibid.) There is an essential procedural difference between J.N. and this case. The parent challenging deficiencies in compliance with the ICWA in J.N. was seeking appellate review in our court after a disposition hearing. The parent did not wait until a later stage of the proceedings to seek appellate review. (Id. at p. 456.) Thus, our holding in Pedro N. was inapplicable to J.N. Our holding in Pedro N., however, is fully applicable here.
Appellant neither voiced any objection to the juvenile court nor filed a writ from that court’s ruling at the disposition hearing. Appellant waited until now to object and by her silence has forfeited her right to complain.
DISPOSITION
The judgment is affirmed.