Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County No. 06CEJ300085, Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21).
Seth Gorman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Hill, J., and Kane, J.
T.D. appeals following a 2008 permanency planning hearing (Welf. & Inst. Code, § 366.26) for her two minor children. The court denied her request to regain custody, selected legal guardianship as the children’s permanent plan, issued a detailed visitation order, and terminated the children’s dependency. According to appellant, the court: violated her due process rights by relying on her children’s “purported emotional distress” as it denied her modification request; improperly delegated its authority over visitation to the legal guardians; and wrongfully terminated the dependency. She also contends the court erred in 2006 when it determined 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
As this court observed in an earlier writ proceeding brought by appellant, “[a]t the heart of this case are two children so damaged by their mother’s behavior that they do not want to return to her custody and a mother who, despite technical compliance with a plan for reunification, cannot provide her children the safety and stability they require.” (T[.]D. v. Superior Court (Mar. 28, 2008, F054640) [nonpub. opn. p. 2.].)
In June 2006, respondent Fresno County Department of Children and Family Services (department) detained then eight-year-old S. and five-year-old P. from appellant’s custody due to their deplorable living conditions. There was no electrical power or running water. The home was cluttered and dirty with rotten food, clothes, and trash. In addition, appellant smoked marijuana in the children’s presence and allowed them access to drug paraphernalia. Appellant’s marijuana use and the family’s substandard living conditions were well known to the department who received numerous referrals of suspected child neglect over the years. The children’s father did not live with them but, according to the older child, knew of their circumstances. He had his own problems as he abused methamphetamine.
In turn, the department initiated dependency proceedings under section 300, subdivision (b) based on both parents’ substance abuse problems, appellant’s chronically unsafe and unsanitary housing, and her exposing the children to her marijuana use in the home as well as the father’s failure to protect the children. The department alleged and the Fresno County Superior Court would later find true that there was a substantial risk the children would suffer serious physical harm or illness: as a result of the parents’ failure or inability to adequately supervise or protect the children; by the parents’ willful or negligent failure to provide the children with adequate food, clothing, shelter, or medical treatment; and by the parents’ inability to provide regular care for the children due to the parents’ mental illness, development disability or substance abuse.
At the outset, the trial court ordered the department to refer the parents for a parenting course, substance abuse evaluations, and random drug testing. The parents as well as the children also received court-ordered referrals for mental health evaluations. Notably, it appears from the record that the father never made an appearance in these proceedings although he did have some early contact with the social worker. In particular, he eventually claimed Cherokee Indian heritage.
In her substance abuse evaluation, appellant admitted a 29-year history of marijuana use and 12 years of drinking alcohol to intoxication. She also described persecutory delusions, causing the evaluator to suspect she suffered either a delusional disorder or schizophrenia. She described being manipulated by music being played in the mall. She perceived the music as a form of governmental mind control designed to steal and molest children. She also reported that the government placed cameras in the trees to spy on people and that the cameras were killing the birds. She stated she was arrested and involuntarily committed after she pulled the power cords from under a building at a construction site. At the time, she believed the construction site was a front for either terrorists or child molesters and they were fitting the location for a massive bombing of poor people to steal their children to molest.
The evaluator recommended outpatient drug treatment for appellant as well as a psychological evaluation to determine her suitability for outpatient treatment. In light of appellant’s delusions, it was also recommended visits with the children be closely monitored. This would lead to a therapeutically-supervised visitation order.
In November 2006, the trial court adjudged the children dependents, removed them from parental custody, and ordered a plan of reunification that added a psychological evaluation to the services already ordered. The court also ordered reasonable supervised visitation between petitioner and the children. The court did not order services for the father, concluding services for him would not benefit the children. (§ 361.5, subd. (a).) It also found ICWA did not apply to these proceedings.
Appellant was later diagnosed with a moderate delusional disorder with paranoid features. Her evaluating psychologist recommended a medication evaluation, individual therapy, and drug treatment. The psychologist cautioned appellant might not develop a high degree of insight as to her own psychological problems, but medication and treatment may change that.
She thereafter began dual-diagnosis substance abuse treatment and completed all phases of the program. She regularly attended 12-step meetings, consistently tested negative for drugs and, by all reports, was motivated to maintain sobriety and to get her life back on track. She also completed a parenting class. However, as predicted, appellant did not show much insight into her problems or her parenting and had not progressed to unsupervised visits with the children.
Contact with appellant also took an emotional toll on the children. S., who had been in therapy since the summer of 2006, was fearful of returning to appellant’s custody. S. reported nightmares and fear of being emotionally and physically abused by appellant. Appellant adamantly opposed recommended psychotropic medication for S.’s diagnosed ADHD, medication which the court nonetheless ordered. It vastly improved S.’s behavioral and emotional functioning. In addition, P., who initially did not require individual therapy, was referred for therapy in the spring of 2007 because he was becoming increasingly clingy and anxious. During therapy, P. shared his fear of returning to appellant’s custody because she yelled, threw things, and hit him with a wooden spoon.
After 18 months of reasonable reunification services, the trial court found appellant made insufficient progress and return of the children to her custody would create a substantial risk of detriment to their physical and emotional well-being. Thus, it terminated services and set the case for permanency planning. Appellant unsuccessfully sought writ relief from this court, challenging the trial court’s detriment finding and decision to terminate reunification services.
In April 2008, the department submitted its “366.26 WIC Report” in which it recommended a plan of legal guardianship without dependency jurisdiction for the children. The children were not likely to be adopted at this point. Meanwhile, their foster parents, with whom the children had been placed for a year, were committed to becoming their legal guardians. They loved the children and believed the children were attached to the foster family. The foster parents were also open to adoption and could see themselves adopting the children at a later time. The children were happy in the foster parents’ home and wished to remain there. The department also recommended that the court reduced supervised visits between the children and appellant to once a month based on reports received from the children’s therapists.
The younger child’s clinician wrote P. remained fearful of being in appellant’s care due to her past behaviors including yelling, throwing things, and hitting him with a wooden spoon. He had difficulty trusting that appellant would keep him safe. At times he seemed ambivalent about whether he wanted to return to appellant’s care. However, he was consistent in his fear of being separated from his sister. His anxiety seemed to be decreasing as he grew aware he would not be returning to appellant’s care and would remain with his sister and his foster parents. He acknowledged his visits with appellant were fun but he did not like having to go so often. Because P. had completed his treatment goals and made progress, the clinician was terminating his therapy.
The therapist for the older child, S., described her as “a victim already traumatized by [appellant’s] role and influence.” According to the therapist, there was a significant risk of continuing stress and traumatization should S. be forced to have contact with appellant. The therapist supervising the visits confirmed that S. was reluctant to fully engage appellant during visits. She was somewhat guarded and avoidant in her interactions.
In the meantime, appellant submitted a petition (§ 388) asking the court to return custody of the children to her and terminate their dependency. She had character references she wished to submit. She also declared she soon would be working full-time at a summer water park and was attending adult school. In addition, she had a two-bedroom apartment equipped with “running water, electricity and septic.” The kitchen was also fully stocked with food.
Appellant believed it would be better for the children to be returned to her care because she had been a good mother and was not a detriment to the children in any way. She loved them, did not physically abuse them and did not yell at them anymore. She also believed the children would benefit from being around her.
The court eventually conducted a combined hearing on appellant’s section 388 petition and the issue of permanency planning in August 2008. In the interim, an investigator for the children’s counsel separately interviewed the children and their foster mother.
According to the investigator’s report, the children wanted their foster parents to become their legal guardians. The children were happy in the foster home and believed their foster parents loved them. When asked if they wanted to continue seeing appellant, the children replied yes but asked if they had to attend all the visits. Told that the department’s recommendation was once-a-month, supervised visits, the children said that would be okay. Yet again, they asked if they had to attend all the scheduled visits. They did not want to be forced to attend visits with appellant. Sometimes they did not want to see her although they could not explain why.
The foster mother disclosed the children were doing well at home and in school. The children were no longer attending therapy. However if she noticed a decline in their behavior she would ask that the therapy sessions resume. Otherwise, she had no concerns.
At the combined hearing in August 2008, appellant testified reiterating the statements made in her petition. In particular, when asked why she believed it would be in the children’s best interests to be returned to her care, appellant testified:
“Because I am a good mother and I have always been a good mother. Even if I yelled sometimes when they were out of line I taught my kids right from wrong, taught them to tell the truth, taught them about honest, taught them manners, taught them respect, taught them morals. I have always been hard working always and always taken care of the kids. Came home and made dinner. I haven’t been down the street doing drugs or anything or abandoned them and left them and went and did drugs or anything. No, I went to work. I was home every single night making dinner not just putting something in the microwave. I made good quality dinners and I have been the one comforting them when they cried. I have been the one staying up late to wrap Christmas presents, put toys in their Christmas stockings, put the dollar under the pillow for the tooth fairy. I’ve been the one staying up making Easter, Christmas and Thanksgiving. I have been momma. I am momma and yeah I did yell a little bit but I know we have to do our chores first then we play but I have always told my kids what’s right what’s wrong. I’ve told them to tell the truth and I have taken care of my kids. You know I stopped Sherri from being molested twice because I am on top of things and I watch my kids very closely. I don’t know if that’s in any of these reports but yes I did. I’m always right there watching my kids every single step of the way. Always.”
Appellant added she did not yell anymore and had learned to be a better parent.
Appellant’s 18-year-old daughter also testified. She believed family reunification services had benefitted her mother because she no longer yelled and knew more about how to discipline a child. The teenager also testified appellant had always been a great homemaker and that their home was clean when she and her younger siblings were removed two years earlier.
Finally, appellant called a friend of hers as a witness. The friend who was also appellant’s co-worker and neighbor described appellant’s abstinence and work ethic. She believed appellant was very gentle and concerned towards children.
Following closing arguments, the court denied appellant’s section 388 petition. It found appellant failed to prove it would be in the children’s best interests to grant her petition. It also found it was not likely the children would be adopted and to remove the children from the foster parents’ care would be detrimental to the children’s emotional well-being. The court in turn selected legal guardianship as the appropriate permanent plan for the children as well as appointed the foster parents as the children’s legal guardians with letters of guardianship to issue. The court further ordered monthly, supervised visits and twice-monthly telephone contact with the proviso that a visit would be detrimental and thus should not occur if either child manifested any type of agitation or distress at the prospect of a visit. Finally, the court terminated its dependency jurisdiction while retaining jurisdiction over the children as wards of the guardianship.
DISCUSSION
I. Denial of Section 388 Petition
To overcome her failure to produce evidence that it would be in the children’s best interests for her to resume custody, appellant tries to point the blame at the trial court and the department. Appellant contends the trial court and the department entirely relied on the children’s emotional distress in rejecting her section 388 petition. This was error according to appellant. In her view, the department should have filed a subsequent petition (§ 342) to assert such emotional distress as a jurisdictional basis under section 300, subdivision (c), thereby giving her notice that the department claimed a new basis for jurisdiction, independent from her neglect of the children (§ 300, subd. (b)). The trial court in turn should have given her the opportunity to be heard on such a subsequent petition through new jurisdictional and dispositional hearings. Having failed to comply with section 342, the trial court and the department allegedly violated appellant’s due process rights to notice and the opportunity to be heard. While we commend appellate counsel on the creativity of his argument, we nonetheless conclude it is meritless in that obfuscates the law and the facts in this case.
Section 342 provides:
Despite 18 months of reasonable reunification services, the trial court could not return the children to appellant’s custody. (§ 366.22, subd. (a).) Although she participated and essentially completed court-ordered reunification services, the trial court found she made too little actual progress. In particular, appellant could not implement sufficient parenting skills. In addition, the trial court found the children had a reasonable fear of physical injury and unstable living conditions, if returned to appellant’s care, as well as a reasonable fear of appellant’s failure to protect and inability to consistently apply the lessons she learned in reunification services. Thus, the trial court properly found, pursuant to section 366.22, subdivision (a), that return of the children would create a substantial risk of detriment to their safety, protection, or physical well-being and most significantly their emotional well-being. We previously affirmed this decision in our review of appellant’s extraordinary writ petition and that decision is now final. (T[.]D. v. Superior Court, supra, F054640 .)
Having consequently terminated services for appellant and set a permanency planning hearing, the trial court had to provide the children stable, permanent homes either by way of adoption, legal guardianship or long-term foster care. (§ 366.26, subds. (b) & (c)(1).) Return to appellant’s custody was neither an option nor an issue for the trial court to resolve at the permanency planning hearing.
Although appellant could petition to modify the court’s previous order for the children’s out-of-home placement, it was her evidentiary burden to persuade the court to grant her the relief she sought. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43.) She had to establish changed circumstance or new evidence (§ 388, subd. (a)) as well as show the proposed change, i.e. an order returning custody, was in the best interests of the children. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Here, the trial court found there had been a change with respect to appellant’s circumstances, employment, and living situation. However, it could not find those changes sufficiently supported a proposition that the requested change was in the best interests of the children. Specifically, according to the trial court, there was no showing that the children’s trust issues, their fear issues, and their agitation at the thought of return or even increased visits with appellant had been resolved. We would add that there was no independent showing that appellant had learned to implement sufficient parenting skills since the court terminated services.
Appellant essentially ignored these issues in her effort to persuade the court to modify its earlier order. At best, she and her adult daughter testified that she (appellant) no longer yelled. She failed to establish, however, that the children’s lack of trust in her parenting and their fear of her no longer existed as of the permanency planning hearing. Also, given the timing of her section 388 petition, it was incumbent on appellant to show the children’s need for permanency and stability would be advanced by an order returning custody to her. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) This too she failed to establish. Having failed in her burden of proof, appellant was not entitled to an order returning custody of the children to her. (Ibid.)
Indeed, even on appeal, she assumes in this argument that she successfully completed reunification. However, she did not.
In any event, there was no cause to file a subsequent petition under section 342 in this case and consequently no basis for appellant’s due process argument. A subsequent petition is filed when jurisdiction has been established and the petitioner alleges new or independent facts or circumstances, other than those sustained in the original petition, warranting continuation of jurisdiction. (In re Victoria C. (2002) 100 Cal.App.4th 536, 542, citing § 342; In re Barbara P. (1994) 30 Cal.App.4th 926, 933.) Typically, subsequent petition proceedings arise when, after a court has exercised dependency jurisdiction on one ground under section 300, evidence of an altogether different problem emerges which is sufficient to state the child is a person described by another subdivision of section 300. (E.g. In re Javier G. (2006) 137 Cal.App.4th 453 [original jurisdiction due to parent’s inappropriate discipline of one child and risk of similar abuse to siblings; subsequent petition based on siblings’ sexual molestation of the disciplined child while under parent’s supervision]; In re Lukas B. (2000) 79 Cal.App.4th 1145 [original jurisdiction due to mother’s substance abuse and filthy home; subsequent petition based on father’s sexual abuse of the children]; Cynthia C. v. Superior Court (1999) 72 Cal.App.4th 1196 [original jurisdiction due to stepfather’s physical abuse; subsequent petition due to mother’s later abandonment and emotional abuse of the child].)
In this case, the children’s distress, lack of trust and fearfulness towards appellant were neither new facts nor unrelated to appellant’s poor parenting, as alleged in the sustained section 300, subdivision (b) petition. Instead, they were a manifestation of appellant’s neglect and the original basis for dependency. (In re Joseph B. (1996) 42 Cal.App.4th 890, 902-903, discussing In re Venita L. (1987) 191 Cal.App.3d 1229, 1242.)
II. Visitation
Appellant contends the trial court unlawfully delegated its authority and discretion to the children or their guardian regarding whether visits will occur. She relies on the portion of the court’s order that a visit not be accomplished “if either child manifests any type of agitation or distress [verbal or otherwise] at the prospect of a visit.” In her view, the court violated the separation of powers doctrine (In re James R. (2007) 153 Cal.App.4th 413, 443) and rendered her right to visitation illusory (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505). As discussed below, we disagree with appellant’s assessment of the court’s order.
The Legislature has made clear its intent to require juvenile courts to make visitation orders in legal guardianships, as well as in long-term foster care placements. (In re S.J. (2008) 167 Cal.App.4th 953, 962, quoting In re M.R. (2005) 132 Cal.App.4th 269, 274 & citing § 366.26, subd. (c)(4)(C).) There exists an exception to this requirement, however, in the event “the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).)
In this case, the trial court issued a detailed visitation order. First, the court ordered visits between appellant and her children to occur once a month for up to two hours. Those visits would be supervised by the guardian or some other third party approved by the guardian. In addition, the court ordered supervised telephone contact up to twice a month for a maximum of 15 minutes per contact. Due to appellant’s history of discussing the case with the children, the court further authorized the guardian to terminate any visit at which there was inappropriate discussion.
At this point, the children’s attorney asked that the visits with appellant be unforced. This request led to a discussion between the court and counsel as to the court’s authority. The court concluded by issuing the order appellant now disputes:
“I’ll order that [a] visit not be accomplished if either child manifests any type of agitation or distress at the prospect of a visit and that’s either verbally or otherwise.”
However, the court did not stop there, as appellant would have us assume. The court added:
“I don’t think it’s appropriate to not have a visit because of a scheduling conflict, for example. However, if either of the children does not wish to visit because of agitation, an emotional reaction at the prospect of a visit[,] the visit is not to be accomplished finding based on the state of the record and the comments the Court made previously about the trust and security issues still present in the case from what’s been presented that visiting under those circumstances would be detrimental to the children. (Emphasis added.)
Although appellant overlooks the court’s detriment finding, we do not. Having found visits would be detrimental when either child manifested any type of agitation or distress at the prospect of a visit, the trial court properly complied with its duty under section 366.26, subdivision (c)(4)(C). It neither improperly delegated away its authority nor issued an illusory order. Rather, the court exercised its authority in setting the terms for visitation.
III. Court’s Decision to Terminate Its Dependency Jurisdiction
Appellant also criticizes the court’s decision to terminate its dependency jurisdiction. She acknowledges the court’s discretion, once it established a legal guardianship for the children, to either continue jurisdiction over them as dependents of the juvenile court or terminate its dependency jurisdiction while retaining jurisdiction over them as wards of the legal guardianship, as authorized by section 366.4. (§ 366.3, subd. (a).) Nonetheless, she complains the court abused its discretion because in her view continued dependency was warranted to oversee visitation.
Having not asked the trial court to so exercise its discretion, appellant has forfeited her claim of error on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) If the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. On appeal, we do not permit the silent parent to argue that the juvenile court erred in not being psychic. (Ibid.)
Appellant urges us to overlook her lapse under the authority of In re K.D. (2004) 124 Cal.App.4th 1013, 1018-1019 (K.D.). She also cites K.D. in support of her abuse of discretion argument. As discussed below, K.D. does not advance either of appellant’s claims.
In K.D., a juvenile court ordered legal guardianship and terminated jurisdiction for an adoptable child after finding it was in the child’s best interest to maintain the parental bond with his mother (fmr. § 366.26, subd. (c)(1)(A)). (K.D., supra, 124 Cal.App.4th at p. 1017-1018.) It also ordered at least twice a year supervised visits. (Id. at p. 1018.) On appeal, the mother argued the juvenile court should have maintained jurisdiction. Even though she waived her argument for failing to raise in the juvenile court, the appellate court exercised its discretion to consider the issue because it concluded the order terminating dependency jurisdiction was fatally inconsistent with the juvenile court’s best interest finding and visitation order. The K.D. court proceeded to hold that because the juvenile court found it was in the child’s best interest to preserve his bond with the mother, the juvenile court was obligated to retain dependency jurisdiction and hold periodic review hearing to oversee visitation. (K.D., supra, 124 Cal.App.4th at p. 1019.)
K.D. has no bearing on this appeal. The trial court’s order terminating its dependency jurisdiction was not fatally inconsistent with any of its other findings. Thus, appellant’s argument against appellate forfeiture fails.
In addition, the trial court never found it was in the children’s best interest to preserve the parent/child relationship with appellant. Indeed, as previously discussed, the trial court found visitation was even detrimental under certain circumstances. Although the trial court did find an exception to adoption, it was not the parent/child relationship exception, now contained in section 366.26, subdivision (c)(1)(B)(i). Rather, the trial court found pursuant to section 366.26, subdivision (c)(1)(B)(iv): the children were living with a foster parent who was unwilling or unable to adopt due to exceptional circumstances but who was willing and capable of providing a stable and permanent environment for them; and the removal of the children from the foster parent would be detrimental to the children’s emotional well-being.
This finding appears to have been unnecessary given that the court first found the children were not adoptable. (§ 366.26, (c)(1).) In any event, the court’s additional finding in no way advances appellant’s claim of error.
IV. ICWA
Last, appellant challenges for the first time the trial court’s November 2006 determination that ICWA did not apply to the children’s dependency. She raises a series of purported errors and also seeks our consideration of new evidence to support her claim of prejudice. As discussed below, appellant has forfeited her appellate complaint and we will deny her motion to take additional evidence. Nonetheless, given the trial court’s continuing jurisdiction over the children (see § 366.4), there appears to be nothing in the law which would foreclose appellant from petitioning the trial court to reopen the ICWA issue based on this additional evidence.
A.
After vehemently denying any Native American heritage for the first two months following the children’s detention, the father in August 2006 reported his paternal grandfather was half Cherokee and his paternal grandfather and father had registered with the Cherokee tribe in Tenkiller, Oklahoma. Both of these relatives were deceased. The father also stated his brothers had enrollment numbers but he did not know if he had an enrollment number.
Within days, the department served a completed “NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDINGS FOR AN INDIAN CHILD,” along with a copy of the petition, on the three federally-recognized Cherokee tribes, the Bureau of Indian Affairs (BIA), and each parent. The record contains, in addition to the notice, signed return receipts from each one of these recipients. Each of the three tribes responded in writing to the effect that the children were not covered by ICWA. The BIA responded in writing acknowledging its receipt and deferring to the tribes.
After the court continued its dispositional hearing to November 2006, the department served a second notice on two of the three Cherokee tribes, the BIA, and each parent. The record contains, in addition to the second notice, signed return receipts from each one of these recipients. At the November 2006 dispositional hearing, the court considered the department’s noticed motion to declare ICWA inapplicable. Appellant’s counsel acknowledged receipt of the motion and submitted the matter without comment. Having reviewed the motion and all the attached documents, the court granted the department’s motion and found the children were not Indian children as defined in ICWA.
B.
Appellant submits a figurative laundry list of complaints about the department’s efforts to give notice and its motion to the court. In large part, she focuses of the department’s spelling of the father’s last name. According to her, the department misspelled the father’s last name in its original ICWA notice. The father’s last name ends with the letters “ent” while the original notice added an “a” so that the name ended with the letters “eant.” Although the department correctly spelled the father’s last name in its second notice, appellant nonetheless criticizes that effort as well. The department did not alter its spelling of the last name of the father’s male ancestors in the second notice. Also, the department sent the second notice to the Cherokee Nation and Eastern Band of Cherokee Indians, but not the United Keetoowah Band. In addition, appellant complains the department should have indicated somehow to the second notice’s recipients and the court that the second notice was amended or provided different information. According to appellant, the department should have pointed out to the court that the negative tribal responses were based on the first notice with the incorrect spelling of the father’s last name. She also contends the department should have affirmatively established it adequately fulfilled its duty to inquire and gather information about the father’s claim of Cherokee Indian heritage and should have contacted the BIA or the Cherokee Nation for assistance.
C.
Appellant has waived her ICWA complaints for appellate purposes. The trial court’s November 2006 finding that ICWA did not apply was part of its dispositional order which was reviewable by way of appeal. (§ 395; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) However, she did not appeal and the court’s dispositional findings and orders have long since become final. Thus, the time to raise her ICWA compliance issues has passed. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).) In 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.
To the extent appellant claims to have additional information regarding the father’s Indian heritage, the forum in which to present such evidence is not this court. It is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) We conduct our review based on the record before the trial court as of the time it rendered its decision. (Ibid.) Although Code of Civil Procedure section 909 authorizes an appellate court to make findings of fact on appeal, the authority should be exercised sparingly and, absent exceptional circumstances, no such findings should be made. (In re Zeth S., supra, 31 Cal.4th at p. 405.) There being no exceptional circumstances presented, we will deny appellant’s motion to take additional evidence.
DISPOSITION
The orders denying appellant’s section 388 petition, establishing the legal guardianship, setting the terms for visitation, and terminating dependency jurisdiction are affirmed. Appellant’s motion to take additional evidence is denied.
“In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations. “All procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section.”
Section 300, subdivision (c) provides a child becomes within the jurisdiction of the juvenile court if:
“[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. No child shall be found to be a person described by this subdivision if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.”