as: 132 Cal.App.4th 794, 33 Cal.Rptr.3d 893)
of Appeal, Fourth District, Division 1, California.
re X.V. et al., Persons Coming Under the Juvenile Court
Diego County Health and Human Services Agency, Plaintiff and Respondent,
V. et al., Defendants and Appellants.
re X.V., a Minor, on Habeas Corpus.
Linda M. Fabian, San Diego, under appointment by the Court
of Appeal, for Defendant and Appellant and for Petitioner Anthony
William Hook, under appointment by the Court of Appeal, for
Defendant and Appellant and for Petitioner Nancy D.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County
Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff
and Respondent and for Respondent.
Kathleen Mallinger, under appointment by the Court of Appeal, for
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 251, 126 Cal.Rptr.2d 639 (Dwayne
this court held in a first
review pertaining to notice under the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901
et seq.) that the parents' failure to object at the
juvenile court did not constitute waiver or otherwise preclude appellate
review. We relied on the court's continuing sua sponte duty
throughout dependency proceedings to ensure the requisite
notice is given and the protections the ICWA affords Indian
tribes and Indian children. In a previous appeal in this
case, in accordance with Dwayne
we conditionally reversed a judgment terminating the parental rights of
Anthony V. and Nancy D. to their daughter, X.V., and
remanded the matter to the juvenile court for the limited
purpose of complying with ICWA notice requirements. (In
re X.V., 2004
WL 2189583 (Sept. 30, 2004, D044169) [nonpub. opn.].)
The principal question here is whether the parents--despite their failure
to raise any objection at the special hearing on remand
devoted to the adequacy of ICWA notices to the Bureau
of Indian Affairs (BIA) and numerous Indian tribes-- may raise
the issue again on appeal. We hold as an apparent
matter of first impression that forfeiture principles preclude a second
appellate review in such a case, as further delay harms
the paramount interests of dependent children in permanence and stability.
The purposes of the ICWA are indeed commendable, but we
do not believe Congress envisioned or intended successive
appeals on ICWA notice issues when, given a proper objection,
they could easily be resolved during proceedings on remand for
the specific purpose of determining whether proper notice was given.
On the parents' appeals, we affirm the judgment of termination
of their parental rights to X.V. To the extent Anthony
purports in his appeal to challenge the judgment terminating parental
rights to his son, A.V., we dismiss the
appeal for untimeliness. We also deny the parents' petition for
Nancy joins in Anthony's petition for habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2002 the Agency took X.V., then five months
old, into protective custody and filed a petition on her
behalf under Welfare and Institutions Code, [FN2] section 300, subdivisions
(a) and (b). The petition alleged X.V. was at *799
risk because she witnessed domestic violence between the parents and
they have a history of drug abuse. Anthony advised the
Agency he had Sioux and Blackfeet heritage but was not
a registered member of a tribe. The Agency did not
notify the BIA or any Indian tribe of the proceedings,
but at the detention hearing the court nonetheless found the
All statutory references are to the Welfare and Institutions Code
unless otherwise specified.
In May 2002 the court made a true finding on
the petition, removed X.V. from parental custody and ordered family
reunification services. In August 2002 Nancy gave birth to a
boy, A.V. She was incarcerated at the time for spousal
and assault with a deadly weapon. The following month, the
court declared A.V. a dependent child and placed him in
In X.V.'s case, the court terminated reunification services at the
18- month date in **896
October 2003 and scheduled a permanency planning hearing under section
366.26. Anthony had tested positive for drugs, but denied substance
abuse, and Nancy was unwilling to live separately from him.
In April 2004 the court terminated the parents' rights to
X.V. and selected adoption as the preferred permanent plan. Nancy
appealed the judgment, and she, X.V. and the Agency stipulated
to reversal because the Agency did not comply with ICWA
notice requirements. We conditionally reversed the judgment and instructed the
court to direct the Agency to provide proper ICWA notice
to the BIA and any appropriate tribes. We also ordered
the court to reinstate the judgment if, after receiving notice,
no tribe intervened. (In
re X.V., 2004
WL 2189583 (Sept. 30, 2004, D044169) [nonpub. opn.].)
At a hearing in October 2004 the court ordered the
Agency to provide proper ICWA notice. An Agency social worker
interviewed the paternal grandmother, and she reported possible Cherokee, Sioux
and Blackfeet heritage. The Agency sent separate notices for each
child to the BIA, fifteen Sioux tribes, three Cherokee tribes,
the Prairie Island Community and the Blackfeet tribe.
On November 4, 2004, the court held A.V.'s permanency planning
hearing. The court found ICWA notice was given as required
by law, A.V. is not an Indian child
and ICWA is inapplicable. The court terminated parental rights to
A.V. The parents did not attend the hearing or raise
any objection through their counsel to the ICWA findings. Further,
they did not appeal the judgment.
On December 15, 2004, the court held a special hearing
on the ICWA issue in X.V.'s case. The parents did
not attend, but they were each represented by counsel. The
paternal grandmother, maternal grandparents and other relatives *800
attended. Four tribes had responded that X.V. was not eligible
for enrollment, and the BIA stated it could not determine
on the information provided that X.V. is an Indian child
within the meaning of the ICWA. The court found notice
was given in accordance with the ICWA, X.V. is not
an Indian child and the ICWA is inapplicable. The court
asked whether there was any objection to the findings, and
X.V.'s counsel and Nancy's counsel stated they had no objection.
Anthony's counsel said nothing at the hearing. The court reinstated
the previous judgment terminating parental rights to X.V.
we note that in his appeal Anthony purports to challenge the termination
of his parental rights to both X.V. and A.V.
[FN3] Anthony, however, did not timely appeal the November 4, 2004, judgment
terminating his rights to A.V. He appealed the December 15, 2004, judgment,
naming both X.V. and
A.V., but it pertains only to the termination of parental rights to X.V.
Nancy's notice of appeal of the December 15, 2004, judgment
does not name A.V. Nancy joined in Anthony's opening and
reply briefs and filed her own reply brief. We reject
the Agency's contention Nancy's appeal is improper because she joined
in Anthony's briefing. (Cal. Rules of Court, rule 13(a)(5); In
re Harmony B.
(2005) 125 Cal.App.4th 831, 835, 23 Cal.Rptr.3d 207; In
re Alyssa F.
(2003) 112 Cal.App.4th 846, 850, 6 Cal.Rptr.3d 1; In
re Brittany K.
(2002) 96 Cal.App.4th 805, 808, 117 Cal.Rptr.2d 813.)
A judgment terminating parental rights is appealable under section 395,
and our jurisdiction to review such a judgment is contingent
on a timely notice of appeal. **897
re Jonathon S.
(2005) 129 Cal.App.4th 334, 340, 28 Cal.Rptr.3d 495.) Accordingly, we
lack jurisdiction to review the court's judgment terminating parental rights
to A.V. and we dismiss Anthony's appeal as to him.
and Nancy contend in their appeals that the termination of
their parental rights to X.V. must be reversed because of irregularities
in the ICWA *801
notices. The record on appeal does not reveal the problems, and
thus the parents also petition for a writ of habeas corpus pertaining
to both X.V. and A.V. and submit supporting evidence.
The Agency contends a writ of habeas corpus is not
an appropriate means of raising an ICWA notice issue, and
it is particularly inappropriate as to A.V. because Anthony did
not timely appeal the judgment terminating his parental rights to
A.V. Given our holding in the Agency's favor on the
merits, however, we are not required to reach the procedural
Anthony submitted a declaration by the paternal grandmother, which stated
she told the social worker in September 2004 that her
mother, Velia S., told her she had Blackfeet, Sioux and
Cherokee Indian heritage from her father, Jesus Mendoza. The paternal
grandmother further stated she told the social worker that her
paternal great-great-grandmother, Trudy Little, was half Cherokee. The Agency's ICWA
notices, however, referred to Velia as "Delia" and to Jesus
Mendoza as "Jesse" Mendoza, and as to Little stated the
"family believes she was 3% Cherokee."
The printed form the Agency used to send notice to
the Indian tribes stated that
if Cherokee ancestry from Oklahoma was alleged, "the name of
a relative must be provided who might have been enrolled
in the final roll prepared in 1906 by the Dawes
Commission (referred to as the '1906 Final Roll')," and if
Cherokee ancestry from another state was alleged, to prove descendency
"one must be related to a person listed on the
Roll of 1924 for the Eastern Band of Cherokees." The
form asked, "Do you know the name of any Indian
relative that was alive in 1906 or 1924 and might
have been listed on either the 1906 Final Roll or
the Roll of 1924?," to which the Agency checked the
box marked "Unknown." The paternal grandmother's declaration stated the social
worker did not ask her whether any of the relatives
she mentioned were alive in 1906 or 1924.
The Agency contends "California courts should draw the line someplace,"
and thus the parents may not challenge the adequacy of
ICWA notice a second time when they failed to raise
any objection at the special hearing on remand. Whether the
parents may raise the issue again at this stage of
the proceedings is a question of law.
"In 1978 Congress enacted the ICWA to 'protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families.' (25 U.S.C. § 1902.)
The ICWA recognizes that ' "the tribe has an
interest in the child which is distinct from but on
a parity with the interest of the parents." ' [Citation.]
'The ICWA presumes it is in the best interests of
the child to retain tribal ties and cultural heritage and
in the interest of the tribe to preserve its future
generations, a most important resource. [Citation.] **898
Congress has concluded the state courts have not protected these
interests and drafted a statutory scheme intended to afford needed
protection.' [Citation.]" (Dwayne
103 Cal.App.4th at p. 253, 126 Cal.Rptr.2d 639.)
The notice requirements of the
ICWA are intended to ensure the tribe will have the opportunity to assert
its rights to intervene in juvenile dependency proceedings irrespective
of the position of the parents or state agency. (In
re Kahlen W. (1991)
233 Cal.App.3d 1414, 1421, 285 Cal.Rptr. 507.) The ICWA provides
that when the court knows or has reason to know an Indian child is involved,
the agency must notify the child's tribe, or if the tribe is unknown,
the BIA, as agent for the Secretary of the Interior. (25 U.S.C.
§ 1912(a); 25 C.F.R. § 23.2 (2002).) The
notice must include all known names of the child's biological parents,
maternal and paternal grandparents and great-grandparents. (25 C.F.R.
§ 23.11(d) (2003).) In In
re Louis S. (2004)
117 Cal.App.4th 622, 631, 12 Cal.Rptr.3d 110, the court held that notices
containing misspelled and incomplete names, among other problems, were
As this court held in In
re Karla C.
(2003) 113 Cal.App.4th 166, 178, 6 Cal.Rptr.3d 205, the ICWA
notices, return receipts and responses of the BIA and tribes
must be filed in the juvenile court. "No foster care
placement of termination or parental rights proceeding shall be held
until at least ten days after receipt of notice by
the ... tribe or the [Bureau]." (25 U.S.C. § 1912(a).)
this court held in a writ proceeding challenging the scheduling
of a selection and implementation hearing under section 366.26 that
the parents could raise ICWA notice issues even though they
did not appeal the jurisdictional and dispositional order in which
the juvenile court addressed the ICWA issue, and they never
raised the issue at the juvenile court. (Dwayne
103 Cal.App.4th at pp. 253, 260, 126 Cal.Rptr.2d 639, citing
re Marinna J.
(2001) 90 Cal.App.4th 731, 739, 109 Cal.Rptr.2d 267.) We explained
that "[w]hen the court has reason to know Indian children
are involved in dependency proceedings ... it has the duty
to give the requisite *803
notice itself or ensure the social services agency's compliance with
the notice requirement. [Citations.] In our view, the court's duty
is sua sponte, since notice is intended to protect the
interests of Indian children and tribes despite the parents' inaction."
re Dwayne P., supra,
at p. 261, 126 Cal.Rptr.2d 639, citing In
re Kahlen W., supra,
at p. 1425, 285 Cal.Rptr. 507.) We included broad language
such as "[b]ecause the court's duty continues until proper notice
is given, an error in not giving notice is also
of a continuing nature and may be challenged at any
time during the dependency proceedings," and "[t]hough delay harms the
interests of dependent children in expediency and finality, the parents'
inaction should not be allowed to defeat the laudable purposes
of the ICWA." (Dwayne
at p. 261, 126 Cal.Rptr.2d 639.)
P., however, concerned
the parents' first
appellate challenge to the adequacy of ICWA notice, whereas this case
concerns the parents' second
challenge after they ignored the ICWA issue at the special hearing on
remand for the specific purpose of assessing the adequacy of notice. "A
decision is authority only for the point actually passed on by the court
and directly involved in the case. General expressions in opinions
that go beyond the facts of the case will not necessarily control the
outcome in a subsequent suit involving **899
different facts." (Gomes
v. County of Mendocino
(1995) 37 Cal.App.4th 977, 985, 44 Cal.Rptr.2d 93; Chevron
U.S.A., Inc. v. Workers' Comp. Appeals Bd.
(1999) 19 Cal.4th 1182, 1195, 81 Cal.Rptr.2d 521, 969 P.2d 613.)
It is undisputed that on the first appeal we remanded
this case for the specific and sole purpose of affording
proper notice under the ICWA; on remand the juvenile court
ordered the Agency to give proper notice; the Agency obtained
information on Indian heritage from the paternal grandmother and sent
ICWA notices to the BIA and numerous tribes, and the
ICWA notices, return receipts and responses were filed with the
court; the parents did not appear at either the November
4, 2004, hearing in which their rights to A.V. were
terminated or the December 15, 2004, hearing in which their
rights to X.V. were terminated, but each was represented by
counsel; and, neither parent raised any objection to the adequacy
of the ICWA notices. At the December 15 hearing Nancy's
attorney expressly consented to court's ICWA findings. Further, a number
of relatives appeared at the December 15 hearing, including the
paternal grandmother, and none of them raised any ICWA issue.
Surely the parents' counsel, had they any interest in the
matter, could have shown the ICWA notices to the paternal
grandmother to see if the information she gave the Agency
was accurately stated.
The parents do not raise an ineffective assistance of counsel
A "reviewing court ordinarily will not consider a challenge to a ruling
if an objection could have been but was not made in the trial court. [Citation.]
The purpose of this rule is to encourage parties to bring errors to
the attention of the trial court, so that they may be corrected.
[Citation.] [¶] Dependency matters are not exempt from
this rule." (In
re S.B. (2004) 32 Cal.4th
1287, 1293, 13 Cal.Rptr.3d 786, 90 P.3d 746.) [FN6]
The appellate court has discretion to excuse forfeiture, but it should
be exercised rarely and with special care. (In
re S.B., at p. 1293,
13 Cal.Rptr.3d 786, 90 P.3d 746.) Because juvenile dependency proceedings
"involve the well-being of children, considerations such as permanency
and stability are of paramount importance. (§ 366.26.)" (Ibid.)
re S.B., supra,
32 Cal.4th at page 1293, footnote 2, 13 Cal.Rptr.3d 786,
90 P.3d 746, the court explained: "Although the loss of
the right to challenge a ruling on appeal because of
the failure to object in the trial court is often
referred to as a 'waiver,' the correct legal term for
the loss of a right based on failure to timely
assert it is 'forfeiture,' because a person who fails to
preserve a claim forfeits that claim. In contrast, a waiver
is the ' "intentional relinquishment or abandonment of a known
In balancing the interests of Indian children and tribes under
the ICWA, and the interests of dependent children to permanency
and stability, we conclude the parents have forfeited a second
appeal of ICWA notice issues. At this point,
X.V. has been in the dependency system for nearly three
and a half years, during which she has had several
placements. In April 2004 the court found X.V. was adoptable,
but because of the earlier appeal and remand for proper
ICWA notice, her permanent placement has been substantially delayed. A.V.
has been in the dependency system his entire life, and
he has had four caretakers.
We are mindful that the ICWA is to be construed
103 Cal.App.4th at p. 257, 126 Cal.Rptr.2d 639), but we
are unwilling to further prolong the proceedings for another round
of ICWA notices, to which the parents may again object
on appeal. As a matter of respect for the children
involved and the **900
judicial system, as well as common sense, it is incumbent
on parents on remand to assist the Agency in ensuring
proper notice is given. Here, for instance, the inadequacies in
the notices, a misspelling and the apparent use of a
nickname, could easily have been rectified at the juvenile court
given a timely objection. Moreover, Congress's intent to not cause
unnecessary delay in dependency proceedings is evidenced by the provision
allowing a hearing on the termination of parental rights within
a relatively short time, 10 days, after the BIA or
tribe receives ICWA notice. (25 U.S.C. § 1912(a).)
We do not believe Congress anticipated or intended to require
successive or serial appeals challenging ICWA notices for the first
time on appeal. As the Agency notes, "[a]t some point,
the rules of error preservation
must apply or parents *805
will be able to repeatedly delay permanence for children through
numerous belated ICWA notice appeals and writs."
In their petition for writ relief, Anthony and Nancy also
contend reversal of the judgment terminating their parental rights is
required because they presented evidence that in early December 2004,
weeks after the Agency sent ICWA notices on remand, "information
came" to his mother that her great-great-grandfather was Choctaw Indian.
She did not share that information with the Agency, however,
and thus it was not required to notify the Choctaw
tribes before terminating parental rights. (In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1409, 129 Cal.Rptr.2d 15.)
In July 2004 the Agency placed X.V. and A.V. with
the maternal grandparents, who planned to adopt both children. In
December 2004 the maternal grandparents reported that Anthony and Nancy
took the children on an unauthorized visit and the Agency
learned Anthony was staying at their home. A relative reported
that when Anthony returned with the children he smelled of
alcohol and appeared intoxicated. The Agency removed the children and
placed them with a nonrelative prospective adoptive family. The paternal
previously cared for X.V. for more than two years during
the dependency, and she told the Agency she could be
considered a backup adoptive parent.
Anthony and Nancy complain that
removal of the children [FN7]
without a section 387 petition is reversible error, as the removal occurred
during the time their parental rights to X.V. were reinstated after the
first appeal. Section 387, subdivision (a) provides: "An
order changing or modifying a previous order by removing a child from
the physical custody of a parent, guardian, relative, or friend and directing
placement in a foster home ... shall be made only after noticed hearing
upon a supplemental petition."
Again, however, the parents' appeals pertain only to X.V.
Relatives attended the December 15, 2004, hearing regarding ICWA notice,
including the maternal grandparents and the paternal grandmother. Counsel *806
for X.V. advised the court, "I believe most of the
family members are more interested in what happened in the
case recently regarding [X.V.] and [A.V.] That will probably be
the subject of a detention hearing soon. They were removed
from maternal grandparents." The court asked counsel whether "[w]e'll be
getting a petition pursuant to section 387," and she responded,
"yes, you will be getting a 387 probably due tomorrow."
The court advised the relatives
the only matter then before it **901
was ICWA notice, and it was previously unaware of the
removal and expected a petition under section 387 to "elevate
the level of placement." The paternal grandmother addressed the court,
asserting X.V. should be placed with her pending a hearing
on a petition. X.V.'s counsel suggested that the social worker
notify the grandparents of a hearing, and the court found
that a sensible solution as it wanted to "make sure
they have the opportunity to be present."
County counsel, however, advised the court the Agency did not
plan to file a section 387 petition, and a petition
was unnecessary "because we were removing from an adoptive relative."
County counsel said he advised one of the grandmothers there
would be no such hearing.
After the hearing, the Agency submitted to the court a
form entitled "Change of Placement Same Level of Care/PCC Entry."
The court signed it on December 17, 2004.
The Agency contends the parents lack standing to object to
the lack of a section 387 petition because their parental
rights had been terminated and remand was for the sole
issue of ICWA notice. We do not reach that and
other procedural challenges, however, because Anthony and Nancy forfeited appellate
review by not objecting at the juvenile court to the
lack of a section 387 petition. At the December 15,
2004, hearing the parents' attorneys said nothing regarding the matter,
even when County Counsel said the Agency did not plan
to file a petition. Further, there is no suggestion that
the parents' counsel later sought a special hearing to address
the matter when the Agency did not file a petition.
The parents may not stand idly by and raise the
issue for the first time on appeal.
In March 2005 the court granted the paternal grandmother's application
for de facto parent status, which may have given her
appellate rights (In
re Miguel E.
(2004) 120 Cal.App.4th 521, 539, 15 Cal.Rptr.3d 530), but time
to appeal the December 15, 2004, judgment had expired and
no one requested a special hearing on the section 387
matter from which an appeal may have been taken. The
paternal grandmother and other relatives have no standing here, and
they have not asserted any such right.
The appeal is dismissed insofar as it concerns A.V. The
judgment terminating parental rights to X.V. is affirmed and the
petition for writ of habeas corpus is denied.
WE CONCUR: HALLER and IRION, JJ.