Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 27772. Harry L. Jacobs, Commissioner.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
INTRODUCTION
Appellant, C.P., appeals from the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights. Appellant contends that the Merced County Human Services Agency (agency) failed to obtain adequate information from family members to send to Cherokee Indian tribes and therefore failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901, et seq.). We will affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEEDINGS
A dependency petition was filed pursuant to Welfare and Institutions Code section 300 on February 4, 2008, alleging T.T., the mother of J.P., failed to protect her child by using drugs, failing to provide a place to live, and permitted another adult to physically discipline J.P., who was then 21 months old. J.P. was detained on February 6, 2008. J.P.’s father, appellant, was incarcerated in jail at the time of the detention and sentenced on February 11, 2008, to prison for two years. On February 1, 2008, appellant told a social worker he did not believe his family had any Native American heritage.
On February 25, 2008, a social worker wrote a letter to appellant explaining there was an upcoming jurisdiction/disposition hearing. The letter requested information including whether appellant held J.P. out in the community as his son and if he had any Native American heritage. The social worker asked appellant to list the names and birthdates of the parents and grandparents from whom he traced his Native American heritage.
Appellant responded to the social worker’s letter with a letter dated February 29, 2008. Appellant claimed paternity of J.P., stating a DNA test showed a 99.9 percent match. Appellant further stated he had some Cherokee heritage on his father’s side of the family. The agency sent notice to three Cherokee tribes, the Department of the Interior, and the Bureau of Indian Affairs (BIA) in March 2008. The notice referenced appellant, his father, and J.P.’s mother. Two tribes replied there did not appear to be any Native American ancestry in appellant’s family.
At the combined jurisdiction/disposition hearing on April 30, 2008, reunification services were offered to the child’s mother. Services to appellant were bypassed because appellant failed to reunify with an older child in 2003 and services to appellant were terminated then (§ 361.5, subd. (b)(10)). Services were also not offered to appellant because he was incarcerated and would not be released until after the mandatory time limits for reunification had expired (§ 361.5, subd. (e)(1)).
In preparation of the six-month review hearing, the agency sent ICWA notices to three Cherokee tribes, the Secretary of the Interior, and the BIA. The one Cherokee tribe that had not responded to the earlier ICWA notice responded that J.P. was not registered or eligible and it would not intervene in the dependency action.
The six-month review hearing finally took place on January 14, 2009. Appellant was not present. The court found by clear and convincing evidence that reasonable services had been provided to the mother and terminated further reunification services. The court found the ICWA did not apply. The court set the matter for a hearing on the termination of parental rights. Appellant was sent written notice of his right to pursue a writ petition to challenge the orders of the juvenile court. Appellant did not file a writ petition after the January 14, 2009, hearing.
On May 4, 2009, the juvenile court terminated the parents’ parental rights. Neither parent raised the question of notice pursuant to ICWA. Although appellant filed a petition for modification of prior orders of the juvenile court prior to the termination hearing, he did not raise the issue of whether the agency complied with the ICWA.
ICWA NOTICE
Appellant contends that the social worker failed to comply with the provisions of the ICWA because the agency did not follow through with an investigation and interviews of appellant’s relatives concerning their potential Native American ancestry. For the first time in this entire action, appellant challenges the court’s finding at the January 14, 2009, review hearing terminating reunification services, that the agency complied with requirements of ICWA. Respondent contends the court’s ruling concerning ICWA has been final and appellant has forfeited his right to complain at this late stage that ICWA has been violated. 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 January 14, 2009, 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 a hearing from which appellant could have filed a writ petition for review in this court pursuant to California Rules of Court, rule 8.452. Like the parent in Pedro N., appellant waited to challenge the adequacy of the ICWA notice until much later in an appeal from the ruling in the section 366.26 hearing.
The social worker’s report set forth the recommendation that the ICWA did not apply and that appellant was not of American Indian heritage. Appellant did not challenge the department’s assertion or the court’s ruling that the department had complied with the ICWA. Appellant was given written notice of his right to file a writ petition after the disposition hearing. The juvenile court’s dispositional findings and orders on January 14, 2008, 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 relies on a case such as In re Marinna J. (2001) 90 Cal.App.4th 731, 737-739, which disagreed with our Pedro N. holding on the theory it is inconsistent with the protections and procedures afforded by the ICWA to the interests of Indian Tribes, we are not persuaded (see also In re Nicole K. (2007) 146 Cal.App.4th 779, 783-785 and In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413-1414). We decline appellant’s invitation to revisit our holding in Pedro N.
We further note that we do not foreclose a tribe’s rights under ICWA due to a parent’s appellate forfeiture or 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 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 his personal right to complain of any ICWA violation.
Notice was given in the instant action to the three Cherokee tribes, the BIA, and the Department of the Interior. Appellant’s complaint is that the agency did not more extensively interview family members to provide additional family history not already supplied by the appellant himself. (See § 224.3.) Thus, the issue here does not entail the complete absence of notice to applicable tribes.
Appellant neither voiced any objection to the juvenile court nor appealed from that court’s ruling at any stage of the proceedings. Rather, he waited until now to object. We find appellant, by his silence until now, has waived and forfeited his right to complain about the agency’s alleged noncompliance with the ICWA.
DISPOSITION
The judgment is affirmed.