IN RE ISAIAH W.Appellant’s Opening Brief on the MeritsCal.January 12, 2015 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re ISAIAH W., Civil No. $221263 The Juvenile Court Law. ) ) A Person Coming Under ) ) ) ) LOS ANGELES COUNTY DEP’T OF ) Court of Appeal No. B250231 CHILDREN AND FAMILY SERVICES,) Superior Court No. CK91018 Respondent, SUPREME COURT v. FILED ASHLEER. (Mother), JAN 1 2 2015 Petitioner and Appellant. N e e N e e N e N Y N e N e N e N L Frank A. McGuire Clerk AN REVIEW FROM THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION TWO OPENING BRIEF ON THE MERITS Patti L. Dikes, Bar No. 131775 9116 E. Sprague Avenue #473 Spokane Valley, Washington 99206 (619) 559-2557 dikes131775@gmail.com Attorney for Petitioner/Appellant Ashlee R. by appointment of the California Supreme Court IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re ISAIAH W., Civil No. $221263 A Person Coming Under The Juvenile Court Law. LOS ANGELES COUNTY DEP’T OF Court of Appeal No. B250231 CHILDREN AND FAMILY SERVICES, Superior Court No. CK91018 Respondent, Vv. ASHLEER. (Mother), Petitioner and Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) REVIEW FROM THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION TWO OPENING BRIEF ON THE MERITS Patti L. Dikes, Bar No. 131775 9116 E. Sprague Avenue #473 SpokaneValley, Washington 99206 (619) 559-2557 dikes131775@gmail.com Attorney for Petitioner/Appellant Ashlee R. by appointment of the California Supreme Court Table of Contents Table of Authorities 2.0.0... 0.eeeees iit Statement of Specified Issue to be Briefed .............. 0000 c eee eee 1 Factual and Procedural Background ............ 00... c cece eee 2 ATQuMeENt0cceee eet n nee ene eees 8 THE COURT OF APPEAL’S DECISION TO BAR REVIEW OF A PARENT’S CLAIM ON APPEAL FROM AN ORDER TERMINATING PARENTAL RIGHTS THAT FEDERAL AND STATE ICWA NOTICE PROVISIONS WERE VIOLATED BY THE PARENT’S FAILURE TO TIMELY APPEAL THE ISSUE IS PRECLUDED BY FEDERAL PREEMPTION AND FAILS TO PROTECT THE INTERESTS OF INDIAN CHILDREN AND TRIBES ......... 8 A. Federal Preemption Precludes the Application of California’s Time Limits and Forfeiture Doctrine to an Appeal of ICWA Notice Violations .................0000 8 1. The United States Congress Enacted ICWA to Impose More Stringent Procedural and Substantive Safeguards to State Child Custody Proceedings Involving Indian Children in Recognition That No Resource MoreVital to Indian Tribes than Their Children, and the United States Has a Direct Interest in Protecting Indian Childten 2.0.0...ccccee ee 9 2. Notice to the Indian Tribe Is a Key Componentofthe Congtessional Goal to Protect and Preserve Indian Tribes and Families 2.0.00... cece ec eee eens 11 3. Federal Preemption Precludes Division Three’s Decision to Place a California Rule of Court and the Forfeiture Doctrine Over and Against this State’s Compliance with ICWA oo...ccceee eee 15 a. Federal preemption precludes permitting California’s court rule on appellate time frames and forfeiture doctrine to obstruct the purpose and objectives of Congress under ICWA «1...eee 15 b. Federal preemption precludes California from evading compliance with ICWA notice requirements, as Division Three’s decision would allow, simply because its noncompliance is not exposed until a parent raises the issue for the first time in an appeal from an order terminating parental rights ..... 19 B. The Generally-Accepted Rule in Dependency Cases Is That the Forfeiture Doctrine Does Not Bar Consideration of ICWA Notice Issues on Appeal ......... 26 C. Division Three’s Application of California’s Time Limits and Forfeiture Doctrine in this Appeal Fails to Protect the Interests of Indian Children and Tribes ............... 31 D. The Forfeiture Doctrine Should Not Apply Where,as Here, This Is a Parent’s First Appeal ...............0..00. 38 Conclusion ......0...0 0.0... cece eee cee en een eeeeeenneeees 42 Certification of Word Count ...... 0.0... ce cece teen cece 43 il Table of Authorities UNITED STATES SUPREME COURT CASES California Coastal Comm'n v. Granite Rock Co. (1987) 480 U.S. 572 ......... 16 Crosby v. National Foreign Trade Counal (2000) 530 U.S. 363 ..........00-. 18 Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 30 ...... passim Shaw v. Delta AirLines, Inc. (1983) 463 U.S. 85 2.0.0... eeeJeec ee eee. 17 CALIFORNIA STATE SUPREME CASES In re S.B. (2004) 32 Cal.4th 12872.0.0.16 In re WB. (2012) 55 Cal.4th 30 2...eeeee 12, 13, 14 Jeune v. Supercor Court (2005) 35 Cal.4th 935 2.0... eee 17, 23 Viva! Internat. VoieforAnimals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929 2...eeeeee 17-18 CALIFORNIA COURT OF APPEAL CASES Adoption ofHannah S. (2006) 142 CalApp.4th 988 .............00.. 36, 41 County ofSan Diego v. San Diego NORML (2008) 165 Cal.App.4th 798 .. 17, 18 Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 ............. passim Hicks v. E.T. Lett &Assoc. (2001) 89 CalApp.4th 496 .............0.0.. 24 In re A.G. (2012) 204 Cal.App.4th 1390 2.0...eee 14 In re Alice M. (2008) 161 Cal.App.4th 1189 ...............0.0.. 26, 35, 40 In re Alicia $. (1998) 65 CalApp.4th 79 20.0...eee 21, 33 In re Amber F. (2007) 150 Cal.App.4th 1152 .................00.08. 39, 40 In re Antoinette S. (2002) 104 CalApp.4th 1401 ........0...0.0.0000000, 9, 35 In re Autumn K. (2013) 221 CalApp.4th 674 ..............0000000000. 14 In re Barbara R. (2006) 137 CalApp.4th 941 ......0...0000000.. 36, 38, 41 In re B.R. (2009) 176 Cal.App.4th 773.2... 0c e cece cece cece eeeees 29, 30 ill In re Christan P. (2012) 207 Cal.App.4th 1266.02.00. eee eee 20 In re Desiree F. (2000) 83 Cal.App.4th 460 ............... 11, 18, 20-21, 33 In re Francisco W. (2006) 139 CalApp.4th 695 2.0.2.0... 00. eee 36 In re Gary P. (1995) 40 Cal.App.4th 875 2.0...eeeeee 32 In re Gerardo A. (2004) 119 Cal.App.4th 988 2.0.0.0... eee eee 31 In re Isatah W. (2014) 228 Cal.App.4th 981, 983 (Isaiah W.), superseded by grant of review, Oct. 29, 2014, $221263 .......... sence passim In reJack C. (2001) 192 Cal.App.4th 967 2.0...eee eee eee 36 In reJonathon S. (2005) 129 Cal.App.4th 334 2.0.0.0... ee eee eee 28, 33 In re Joseph P. (2006) 140 Cal.App.4th 1524 0.0.2...eee. 31 In re Julian B. (2000) 82 Cal.App.4th 1337.2... 0.0...ee eee 14 In re Justen S. (2007) 150 CalApp.4th 1426 .................00.. 26, 27, 35 In re Kahlen W. (1991) 233 Cal.App.3d 1414 ............. 10, 11, 12, 24, 29 In re Kristin H. (1996) 46 CalApp.4th 1635 22...eee. 22 In re MarinnaJ. (2001) 90 Cal.App.4th 731 ............2..... 26, 27, 28, 29 In re Matthew Z. (2000) 80 Cal.App.4th 545 2.0.2... ee. 9 In re Nikkz R. (2003) 106 CalApp.4th 844 ........02........0.. 12, 28, 30 | In re N.M. (2008) 161 Cal.App.4th 253 2.0.39 In re Paul W. (2007) 151 Cal.App.4th 37 2.0...eee. 32 In re Pedro N. (1995) 35 Cal.App.4th 183 ................005. 6, 27, 28, 30 In re Riva M. (1991) 235 Cal.App.3d 403 2.0.2... cece ce eee eee 33 In re Suzanna L. (2002) 104 CalApp.4th 223 ....... 0.0... eee eee eee 30 In re X.V. (2005) 132 Cal.App.4th 794.000.0000. eee eee 39, 40 In re Z.W. (2011) 194 Cal.App.4th 5420...26, 30, 39 Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406 ................. 35 Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807 0.0...eeeeee 24 Iv CONSTITUTIONAL PROVISIONS United States Constitution article VJ, clause 2 2...cceee eens 17 FEDERAL STATUTES Federal Indian Child Welfare Act 25 U.S.C. §§1901, et seq. 2.eeeee 2, 8 25 US.C. 91901 2...ceceeee ees 10, 31 25 US.C.§ 1902 2...ceceeee e ees 9 25 US.C. § 1903 20.cccence eens 32 25US.C. 9 1911 2.ceceeens 21, 32 25 US.C. 919120.eects 36, 40, 41 25 US.C. § 1914 2.2eeeeee 20, 21, 22, 33, 36 STATE STATUTES Welfare and Institutions Code Section 200, et seq. 6... eeeeee eee eee eee 22 Section 224 oo...eeeeee een eee nas 9,13 Section 224.1 oo...ceceteen eens 32 Section 224.2 ooceeee e eee eens 11 Section 224.3 oo...eeneen tenes 35 Section 224.4 2...eceee eee nas 32, 33, 36 Section 224.5 2.ectnee een ene 13 Section 300 2...ceeeet eee e eens 2 Section 366.26 2.0... ccc cece eee .....3, 20, 28, 42 Section 395 2...ceeeee eees 15 RULES OF COURT Rule 5.481 2.0...eeeete eee ees 12 Rule 8.406 2.0...cccence cent t een eees 15 Rule 8.520 2.20...cececece nett tenn nes 1 LEGISLATIVE HISTORY Assem. Com. on Judiciary, Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as amended June 14, 2006............... 13 Senate Bill No. 678 (2005-2006 Reg. Sess ....... 2.22... ec cece 12, 13 Sen. Appropniations Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as amended Aug. 22, 2005 .............. 13 Sen. Judiciary Com., Analysis of Sen. Bill No. 678 (2005— 2006 Reg. Sess.) as amended Aug. 22, 2005 2.2...eeeeee eens 13 Stats. 2006, ch. 838,91...00ceceeee 13 vi Statement of Specified Issue to be Briefed This Court’s order granting review specifies one issue to be briefed and, pursuant to California Rules of Court, rule 8.520(b), this brief will contain arguments on the following issue, and related issues fairly included within it: Doesa parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act was unnecessaty preclude the parent from subsequently challenging that finding more than year later in the course of appealing an order terminating parental rights? Factual and Procedural Background Appellant and Petitioner Ashlee R. is the mother ofthe subject child, Isatah W. In November 2011, Isaiah was born with a positive toxicology for marijuana and exhibited withdrawal symptoms. (In re Tsatah W. (2014) 228 Cal.App.4th 981, 983 (Isaiah W.), superseded by grant of review, Oct. 29, 2014, $221263.) Respondent Los Angeles County Department of Children and Family Servicesfiled a petition under Welfare and Institutions Codesection 300, subdivision (b), alleging that parental drug use placed Isaiah at risk of harm. (Ibid) At the detention hearing, mothertold the juvenile court that she might have American Indian ancestry and the court ordered the departmentto investigate whether Isaiah might be an Indian child under the Indian Child Welfare Act, 25 U.S.C. §§1901, et seq. (CWA). (Isatah W., supra, 228 Cal.App.4th at p. 983.) The departmentinterviewed maternal relatives and reported to the court that a maternal grandfather might have Blackfoot ancestry and a maternal great-great-grandmother may have been part of a Cherokeetribe. (Id. at p. 984.) Atthejurisdictional and dispositional hearing in January 2012, the juvenile court reviewed the department’s report and erroneously concluded there was no “reason to know”that Isaiah was an Indian Child as defined under ICWA. (Isaiah W., supra, 228 Cal.App.4th atp. 984.) Accordingly, the court did not order the department to provide notice to any tribe or the Bureau of Indian Affairs. (Ibid) The juvenile court adjudged Isaiah a dependentchild and ordered him placed in foster cate. (Isaiah W., supra, 228 Cal.App.4th at p. 984.) The court ordered the department to provide reunification services to the parents and ordered motherparticipate in counseling and drug testing. ([bzd.) Mother did not appeal that order. (Ibid) The parents failed to regain custody and, in September 2012, the juvenile court terminated the parents’ reunification services and set a hearing under section 366.26 to select and implement a permanentplan for Isaiah. (Isaiah W., supra, 228 Cal.App.4th at p. 984.) In November 2012, the departmentplaced Isaiah with a prospective adoptive family. (Ibid.) In April 2013, the juvenile court selected adoption as the permanentplan for Isaiah and terminated parentalrights. (Isaiah W., supra, 228 Cal.App.4th at p. 984.) At that hearing,the court repeatedits prior finding that there was no reason to know Isaiah was an Indian child. (Ibzd.) In June 2013, mother filed a notice of appeal. 3 In her opening brief filed November18, 2013, mother contended the juvenile court erred in finding it had no “reason to know”Isaiah was an Indian Child, and in failing to order the department to comply with ICWA notice requirements. (Appellant’s Opening Brief (AOB) pp. 16- 32; Isatah W., supra, 228 Cal.App.4th at p. 984.) She pointed outthat, because the determination of a child's Indian statusis up to thetribe, the juvenile court needs only a suggestion of Indian ancestry to trigger the ICWA notice requirement. (AOBpp. 1, 16-19.) The Indian status of the child need not be certain to invoke the notice requirement. (AOB pp. 23, 31.) Information provided by motherandherrelatives suggestive of Indian ancestry with specific tribes through specifically- named ancestors wassufficientto trigger ICWA notice requirements. (AOBpp,1, 19-28.) On April 3, 2014, after the parties had completedtheir briefing, the Second District Court of Appeal, Division Three, requested supplemental briefing on whether mother was foreclosed from raising on appeal from the order terminating her parental rights the juvenile court’s failure to order notice be provided under the Indian Child Welfare Act at disposition. (In re Isaiah W. (B250231), unpub. order dated April 3, 2014.) The court noted in its request for supplemental 4 briefing that mother did not raise on appeal the issue of ICWA notice until a year and three months after the jurisdictional and dispositional order whenthe juvenile court evaluated the department’s report about the child’s possible Indian ancestry and decided not to order notice to any tribe or the Bureau of Indian Affairs. (In re Isaiah W. (B250231), unpub. order dated April 3, 2014.) On Apnil 15, 2014, respondent filed a supplemental letter brief arguing the forfeiture doctrine applied. (Respondent’s Supplemental Letter Brief (SLB), pp. 1-4.) Mother’s supplemental letter brief, filed April 18, 2014, pointed out that the generally-accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration ofICWA notice issues on appeal; the notice requirements serve the interests of the Indian tribes irrespective of the position of the parents and cannot be waived by the parent. (Appellant’s SLB, p. 2.) Under the generally-accepted rule adopted by almost every other appellate district and division in this State, a parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court but also on appeal, even where, unlike this case, no mention was madeoftheissue in the juvenile court. (Appellant’s SLB,p. 2.) Nevertheless, in a unpublished decision issued April 29, 2014, Division Three rejected this generally-accepted rule in favor of reviving a much-criticized and rejected 1995 decision, In re Pedro N. (1995) 35 Cal.App.4th 183, which applied the forfeiture doctrine. (In re Isaiah W. (April 29, 2014, No. B250231), unpub. opn.) The court held that ICWA did not authorize a parentto delay in challenging a trial court’s determination on the applicability of ICWA and mother was foreclosed from raising ICWA notice complianceissues from the order terminating her parental rights. (I[bzd.) On May14, 2014, respondentfiled a request to publish the opinion. On May 19, 2014, appellant filed a request to publish the opinion. On May 15, 2014, Division Three found good cause and,onits own motion, granted a rehearing on the matter. (In re Isaiah W. (May 15, 2014, No. B250231), unpub. order.) On August 8, 2014, Division Three issued a published opinion once again holding the time limits to appeal and the forfeiture doctrine applied to preclude review ofviolations of ICWA notice requirements. (Isaiah W., supra, 228 Cal.App.4th at p. 986.) The court reasonedthat, to allow a parent unlimited time within which to raise an ICWAchallenge 6 would violate the child’s constitutional right to a stable and permanent home. ([id.) The court purported to limit its application of time frames and forfeiture by claiming it was “only addressing the tights of mother, notthe rights of a tribe under the ICWA.” (Id. at p. 988.) On September 15, 2014, appellantfiled a petition for review. On October 29, 2014, this Court granted review. (In re Isaiah W., supra, 228 Cal.App.4th 981, review granted on specified issue October 29, 2014, 5221263, see 2014 Cal. LEXIS 10484.) Argument THE COURT OF APPEAL’S DECISION TO BAR REVIEW OF A PARENT’S CLAIM ON APPEAL FROM AN ORDER TERMINATING PARENTAL RIGHTS THAT FEDERAL AND STATE ICWA NOTICE PROVISIONS WERE VIOLATED BY THE PARENT?’S FAILURE TO TIMELY APPEAL THE ISSUE IS PRECLUDED BY FEDERAL PREEMPTION ANDFAILS TO PROTECT THE INTERESTS OF INDIAN CHILDREN AND TRIBES The decision by Division Three of the Second District Court of Appeal’ to bat review of a parent’s claim on appeal from an order terminating parental rights that federal and state ICWA notice provisions were violated by the parent’s failure to timely appeal the issue is precluded by federal preemption andfails to protect the interests of Indian children and tribes. A. Federal Preemption Precludes the Application of California’s Time Limits and Forfeiture Doctrine to an Appeal ofICWA Notice Violations Federal preemption precludesthe application of California’s appellate time limits and forfeiture doctrine to an appeal raising violations of the notice requirements under the Indian Child Welfare Act, 25 U.S.C. §§ 1901, et seq. (CWA). " Division Three is one of eight divisions in the Second Appellate District Court of Appeal. @www.courts.ca.gov) 8 1. The United States Congress Enacted ICWA to Impose MoteStringent Procedural and Substantive Safeguards to State Child Custody Proceedings Involving Indian Children in Recognition That No Resource More Vital to Indian Tribes than Their Children, and the United States Has a Direct Interest in Protecting Indian Children ICWAis a federal law passed by the United States Congtess which “recognized ‘there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members oforare eligible for membership in an Indian tribe.’ (25 U.S.C. § 1901(3).)” Un re Antoinette S. (2002) 104 Cal.App.4th 1401, 1407. Accord Welf. & Inst. Code § 224, subd. (a)(1); Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 30, 35.) Congress passed ICWA to cure “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption orfoster care placement, usually in non-Indian homes.” (Massessippi Choctaw Indian Band v. Holyfield, supra, 490 U.S.at p. 32.) ICWAis a federal law enacted 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; In re Matthew Z. (2000) 80 Cal.App.4th 9 545, 551.) “In passing the Act, Congress identified two important, and sometimes independent,policies. The first, to protect the interests of the Indian child. The second, to promotethe stability and security of Indian tribes and families.” (Iv re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421, citations omitted.) This Federal act is directed at the child custody proceedingsin all 50 states because Congress believed thestates had failed to recognize and protect “the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian homes and communities.” (25 U.S.C. § 1901(5); Masstssippi Band ofChoctaw Indiansv. Holyfield, supra, 490 US. at p. 36.) Therefore, Congress designed ICWA to make both the placement and adoption of children in non-Indian homessubject to more stringent procedural and substantive safeguards. (Missesseppi Band ofChoctaw Indians v. Holyfield, supra, 490 U.S.at p. 36.) "The ICWA presumesit is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of thetribe to preserve its future generations, a most important resource. [Citation.] Congress has concludedthestate courts have not protected these interests and drafted a statutory scheme intended to afford needed protection." (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 10 253; In re Destree F. (2000) 83 Cal.App.4th 460, 469.) 2. Notice to the Indian Tnbe Is a Key Componentof the Congressional Goal to Protect and Preserve Indian Tribes and Families “Notice is a key componentof the congressional goal to protect and preserve Indian tribes and Indian families.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Under ICWA,if there is reason to believe that the child that is the subject of the dependencyproceedingis an Indian child, ICWA requires notice to the child's Indian tribe of the proceeding and ofthe tribe's right of intervention. (25 U.S.C. § 1912(a); see also Welf. & Inst. Code, § 224.2, subd. (b).) Theright ofa tribe to intervene would be meaningless without notice. Notice requirements are intended to ensure the child's Indian tribe will have the opportunity to intervene andassert its rights in the proceedings. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) “The ICWA notice requirement is not onerous. ‘Compliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies.”” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254; In re Desiree F., supra, 83 Cal.App.4th at p. 475.) 1] “The determination ofa child's Indian statusis up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106 Cal.App.4th 844,848; see rule 5.481(a)(5)(A); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258 [providing exhaustive analysis of the issue and concluding the “minimal showing” required to trigger notice under the [CWAis merely evidence “suggest[ing]” the minor “may” be an Indian].) “Given the interests protected by the [ICWA], the recommendationsofthe [federal] guidelines, and the requirements of our court rules, the bar is indeed very low to trigger ICWA notice.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 [finding father's suggestion that child “might” be an Indian child because paternal gteat-grandparents had unspecified Native American ancestry was enough to trigger notice].) “Notice ensuresthe tribe will be afforded the opportunity to assert its rights under [ICWA]irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W., supra, 233 Cal._App.3d at p. 1421.) This Court described in In” re W.B. (2012) 55 Cal.4th 30 how,“fi]n 2006, with the passage of Senate Bill No. 678 (2005-2006 Reg. Sess.) 12 (Senate Bill No. 678), the Legislature incorporated ICWA's requirements into California statutory law. (Stats. 2006, ch. 838, § 1, p. 6536.)” (55 Cal.4th at p. 52.) As this Court stated, “The primary objective of Senate Bill No. 678 was to increase compliance with ICWA.” (Ibid) Our State Legislature adopted Welfare and Institutions Code section 224 through 224.6 “to encouragefu// compliance with ICWA by codifying its requirements into state law. (Sen. Judiciary Com., Analysis of Sen. Bill No. 678 (2005— 2006 Reg. Sess.) as amended Aug. 22, 2005, pp. 1, 6; Sen. Appropriations Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as amended Aug. 22, 2005, p. 1; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 678 (2005-2006 Reg.Sess.) as amended June 14, 2006, p. 6.)” (x re W.B,supra, 55 Cal.4th at p. 55, emphasis added.) Because “courts and county agenciesstill had difficulty complying with ICWA 25 yearsafter its enactment,” it was believed that “codification of the Act's requirements into state law would help alleviate the problem. (Sen. Judiciary Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as amended Aug. 22, 2005,p. 6.)” (In re W.B., supra, 55 Cal.4th at p. 52.) This Court has recognized that “It is undisputed thatall dependency proceedings must be conducted in compliance with ICWA. 13 (In re W.B., supra, 55 Cal.4th at p. 58, emphasis added,citing as an example, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) Even so, as this case demonstrates, noncompliance continues. Recent judicial decisions reflect ongoing concern over noncompliance with ICWA. For example, in the case of In re Autumn K. (2013) 221 Cal.App.4th 674, the court expressed, “Despite extensive case law and many other writings on the subject, dependency courts and social services departments continue to ignore the dictates of the [ICWA], often failing to provide proper notice of a dependency proceeding involving an Indian child (see, e.g., In re_A.G. (2012) 204 Cal.App.4th 1390, 1396-1397 [139 CalRptr.3d 727]) and, in other instances, disregarding the substantive mandates ofthelaw(see, e.g., In re Julkan B. (2000) 82 Cal.App.4th 1337, 1349-1351 [99 Cal. Rptr. 2d 241]).” (221 Cal.App.4th at pp. 700-701.) Without notice, no enforcement of ICWA will occur. Without enforcement of the Act, there is not the protection for Indian children and tribes in state child custody proceedings Congress intended byits enactment. 14 3. Federal Preemption Precludes Division Three’s Decision to Place a California Rule of Court and the Forfeiture Doctrine Over and Against this State’s Compliance with ICWA By applying California’s time frames to appeal and the doctrine of forfeiture to bar review of violations of ICWA notice requirements, Division Three’s decision in this appeal directly conflicts with this Federal law. Thus, federal preemption precludes the placement of a California rule of court and its forfeiture doctrine over and against this State’s compliance with ICWA because it would obstruct the purpose and objectives of Congress. California may not evade compliance,as Division Three’s decision would allow, simply because its noncompliance is not caught until a parent whoraises the issue for the first time in an appeal from an order terminating parental rights. a. Federal preemption precludes permitting California’s court rule on appellate time frames and forfeiture doctrine to obstruct the purpose and objectives of Congress under ICWA Section 395, subdivision (a)(1), of the California Welfare and | Institutions Code provides that a judgmentin a dependent proceeding may be appealed in the same manneras any final judgment. California Rules of Court, rule 8.406(a)(1), states that an appeal must befiled within 60 days after the rendition of the judgmentor order being 15 appealed. Theforfeiture doctrine states that a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not makein the trial court. (Im re S.B. (2004) 32 Cal.4th 1287, 1293.) This Court has held that dependency matters are not exempt from this tule. ([bid.) However, as this Court also held, application of the forfeiture rule is not automatic and forfeiture may be excused in cases presenting an important legal issue. ([bzd. [holding the forfeiture doctrine did not apply to preclude the mother’s challenge to a visitation order notwithstanding her failure to object to it in the juvenile court because the issue of delegating visitation authority is an importantlegal issue].) Division Three’s application of this State’s court rule on appellate time frames and California’s forfeiture doctrine stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of this Federal act. As such, its actions are superceded by ICWA’s preemption ofstate law in this regard. (See Cakfornia Coastal Comm'n v. Granite Rock Co. (1987) 480 U.S. 572, 581 [state law is pre-empted to the extent it conflicts with federal law].) 16 Federal preemption ofstate law under the supremacyclause of the United States Constitution,article VI, clause 2, “may beeither express or implied, and ‘is compelled whether Congress' commandis explicitly stated in the statute's language or implicitly containedin its structure and purpose.” (Shaw v. Delta Air Lines, Inc. (1983) 463 U.S.85, 95.) “Principles of preemption have beenarticulated by numerous courts.” (County ofSan Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 818.) “ ‘State law that conflicts with a federal statute is “ “without effect.’” (Jeone v. Superior Court (2005) 35 Cal.4th 935, 949.) “The purpose of Congressis the ultimate touchstone” ’ of preemption analysis.” (Ib:d.) This Court has identified “four species of federal preemption: express, conflict, obstacle, and field.”? (Viva! Internat. VoiceforAnimals v. * This Court described the four species of federal preemption as follows: “First, express preemption arises when Congress “define[s] explicitly the extent to which its enactments pre-emptstate law. | [Citation.] Pre-emption fundamentally is a question of congressional intent, [citation], and when Congress has madeits intent known through explicit statutory language, the courts’ task is an easy one.’ [Citations.] Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. [Citations.] Third, obstacle preemption arises when ‘ “under the circumstancesof[a] 17 Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935-936.) Relevant here, obstacle preemption arises when “under the circumstances of[a] particularcase, [the challenged state law] stands as an obstacle to the accomplishmentand execution ofthe full purposes and objectives of Congress.” (Id. at p. 936.) If the purpose of a Federal act cannot otherwise be accomplished—fits operation within its chosen field else must be frustrated and its provisions be refused their natural effect—thestate law mustyield to the regulation of Congress within the sphere of its delegated power. (Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 373; County ofSan Diego v. San Diego NORML, supra, 165 Cal.App.4th at pp. 821-822.) Our state courts have recognized that “[t]he courts of this state mustyield to governing federal law”in juvenile dependency appeals involving ICWA issues. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” ’ [Citations.] Finally, field preemption, ie., ‘Congress’ intent to pre-emptall state law in a particular area, applies “where the schemeoffederal regulationis sufficiently comprehensive to make reasonable the inference that Congtess “left no room” for supplementary state regulation.’ [Citation.]” (Viva! Internat. VoiceforAnimals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935-936, fn. omitted.) 18 The purpose and objective of the federal ICWA trumps California’s ability to apply its time limits and forfeiture doctrine to parental appeals of ICWA notice violations. b. Federal preemption precludes California from evading compliance with ICWA notice requirements, as Division Three’s decision would allow, simply because its noncomplianceis not exposed until a parentraises the issue for the first time in an appeal from an order terminating parental rights Rather than acknowledging federal preemptionin this area, Division Three instead impermissibly carves a major exception out of full compliance with ICWAfor California. To this intermediate appellate court, if a parent does not appeal violations of ICWA notice requirements within California’s time frames, no relief will be given. Simply because it is a parent who exposesthis State’s noncompliance for the first time in an appeal from an order terminating parental rights, the decision permits California to evade compliance with the notice provisions in ICWA. Federal preemption precludes such a result. Thedecision in this appeal permits California to evade compliance with the notice provisions in ICWA under circumstancesfor which the Act, nor California’s statues incorporating the Act, do not expressly or implicitly provide and which undermine the purpose of the 19 federal and state ICWA laws. Nowhere in ICWAis there a time when a state need no longer comply with any provision, including the notice provisions, of the Act. Nowhere in California’s statutory laws incorporating ICWAis there a time or circumstance when compliance with the Act expires. Nevertheless, the decision in this appeal effectively declares that California can evade compliance with ICWAifit does not to get caught violating the Act, or its own laws incorporating the Act, before the parent raises the issue of noncompliance in an appeal from an order terminating parental nghts under Welfare and Institutions Codesection 366.26. If Congress wanted to provide California, or any other state, with such an exception,it would have included one in ICWA. It did not. To the contrary, the time frameto raise ICWAerroris limitless. An order terminating parental rights and any subsequent adoption orderlacks finality because ICWA allows an Indian child, the child’s parent, and the tribe, to petition to invalidate an orderat any time, even after an adoption has beenfinalized. (25 U.S.C. § 1914; Welf. & Inst. Code § 224.4; Mississippi Band ofChoctaw Indians v. Holyfield, supra, 490 U.S.at pp. 53-54; In re Christan P. (2012) 207 Cal.App.4th 1266, 1281-1282; In re 20 Desiree F. (2000) 83 Cal.App.4th 460, 473; In re Alicia S. (1998) 65 Cal.App.4th 79, 82.) An order terminating parental rights, and even a final decree of adoption, maybe invalidated by a violation of the notice provisions. (25 U.S.C. § 1914.) Division Three attempts to justify its decision by asserting that the provision in ICWA which confers standing upon a parent claiming an ICWAviolation to petition to invalidate a state court dependency action “doesnot state that a parent may claim an ICWA violation at any point in the proceeding.” (In re Isatah W., supra, 228 Cal.App.4th at p. 987, referring to 25 U.S.C. § 1914.) It points to another provision which authorizes a tribe to intervene in a dependency action “at any pointin the proceeding” which makes no mention of a parent. (Ibid, referring © to 25 U.S.C. § 1911(c).) From the absence of such language, Division Three noted, the Pedro N. court concluded Congress did not intend to preempt, in the case of appellate review, state appellate time irames. (Ibid.) Such faulty reasoning cannot stand. First, the absence ofexplicit language naming parents in the provision authorizing intervention at any point (25 U.S.C. § 1911(c)) fails to support a conclusion that Congress did not intend to preemptstate appellate time frames with the provision 2] authorizing a parent to petition to invalidate an order terminating parental rights or an adoption decree (25 U.S.C. § 1914). The right to intervene in a state dependency proceedingis different from the night to petition to invalidate an order entered in violation of ICWA. The reasoning of Division Three, and the Pedro N. case, mistakenly depends on the conflation ofthese distinct rights. The parent need not be mentionedin a provision authorizing intervention in a child custody proceeding as Congress reasonably understood the patent is already and necessarily a party to the proceeding.’ (See generally, Welf. & Inst. Code § United States Constitution,article VI, clause 2 § 200 et seq.; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1642.) The ICWA provision authorizing both the parent and the tribe the rightto petitionto invalidate an order terminating parental rights whichviolates the Act does not differentiate between the parent and the ° If, for some inexplicable reason, a parent is not already a party to the child custody proceeding, or more specifically here, the dependency proceeding, the provision authorizing a tribe to intervene “at any point”also authorizes “Indian custodians”to intervene “at any point.” (25 U.S.C. § 1911().) ICWA defines an “Indian custodian” as any Indian person whohas legal custody of an Indian child.” (25 U.S.C. § 1903(6).) This definition wouldatleast include the Indian parent of an Indian child who haslegal custody evenif physical custody has been removed. Inthis case, this child’s Indian heritage comes from his maternal side and mother qualifies as an Indian custodian entitled to intervene “at any point” underthis provision of ICWA. 22 tribe in granting that right. (See 25 U.S.C. § 1914.) Nor doesthat provision explicitly state that right may be exercised by either the parent or the tribe “at any time.” (See 25 U.S.C. § 1914.) Irregardless, the United States Supreme Court has declared that the belated discovery of non-compliance with the ICWA’s notice requirements will result in the invalidation of an order terminating parental rights and any subsequent adoption decree after more than three years later. (25 U.S.C. § 1914; Welf. & Inst. Code § 224.4; Mississippt Band ofChoctaw Indians v. Hobjfield, supra, 490 U.S. at pp. 53-54.) In that case, the invalidation was sought by an Indiantribe. (Mississippi Band ofChoctaw Indians v. Holyfield, supra, 490 U.S. at pp. 53-54) However, no statutory groundscan justify differential treatment of a parent’s right to seek redress ofICWA notice violations. Neither the ICWAprovision authorizing intervention nor the provision authorizing a petition to invalidate an order for noncompliance with the Act serve to defeat federal preemption in this appeal as Division Three suggests. Furthermore, as this Court has articulated, the “ultimate touchstone”of any preemption analysis is “[t]he purpose of Congress.” (Jeune v. Superior Court (2005) 35 Cal.4th 935, 949.) Statutes are not to be tead in isolation, but rather must be construed with related statues and 23 considered in the context of the statutory framework as a whole. (Restdential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807, 821; Hecks v. HT. Lett &Assoc. (2001) 89 Cal.App.4th 496, 505.) As discussed supra, Congress enacted ICWAto protect Indian children and tribes by imposing more stringent procedural and substantive safeguards on state child custody proceedings and notice is “a key componentof the congressional goal to protect and preserve Indian tribes and Indian families.” (In re Kab/en W. (1991) 233 Cal.App.3d 1414, 1421.) States are wholly dependent uponthe parents to identify Indian children whoare the subjects of their child custody proceedings. The parent serves as the conduit for triggering ICWA notice. Without notice having been providedto the tribe, the parent is also the avenue by which violations ofICWA procedural and substantive violations are raised at the appellate level, even belatedly. One wonders whatalternative avenue for appellate review of ICWA notice violations Division Three could possibly have in mind. Mostcertainly, neither the lower trial courts nor the county agencies would appeal their own ICWA errors. 24 Consequently, for better or worse, protecting the rights of Indian children and tribesis inextricably bound upin the ability of a parent to raise ICWA notice errors at any time. Unless the parentis heard at any time,the tribe will not be protected and Indian children will not be reunited with Indian families and their tribe. The entity that suffers by denying appellate rights to the parent of an Indian child is the tribe and the human being that suffers most is the Indian child. Limiting the time frame toraise error frustrates the purposes and objectives of ICWA. To limit the time when parents can raise error effectively limits the time when the Indian child and thetribe can raise error. To cut off the parent is to cut off the tribe and render meaningless the provision authorizing the tribe to intervene at any time and invalidate an order terminating parental rights at any time. Such a result constitutes a direct assault on Congressional purpose and intent under ICWAandis precluded by federal preemption. The United States Supreme Court has ruled that the mandate of ICWA must be followed, even when the consequences of reversing an adoption decree issued three years earlier causes the “considerable pain” of separating children from their adoptive parents. (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 53.) Nothing can be 25 allowed to defeat the purposes of ICWA. (Mississippi Band ofChoctaw Indians v. Holyfield, supra, 490 U.S. at pp. 53-54.) The decision in this appeal creates an exception to compliance with ICWA for this State which runs contrary to the structure and purpose of the Act and must be reversed as precluded by federal preemption. B. The Generally-Accepted Rule in Dependency CasesIs That the Forfeiture Doctrine Does Not Bar Consideration ofICWA Notice Issues on Appeal “The generally accepted rule in dependencycasesis that the forfeiture doctrine does not bar consideration of ICWAnotice issues on appeal. (See, e.g., Iz re MarinaJ. (2001) 90 Cal.App.4th 731, 739 [109 Cal.Rptr.2d 267] (Marinna J.).)” (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195; In re Z.W. (2011) 194 Cal.App.4th 54, 63 [“Generally, the forfeiture doctrine does not bar consideration of ICWAnoticeissues notraised in the juvenile court.) “The notice requirements serve the interests of the Indian tribes“irrespective of the position of the parents” and cannot be waived by the parent. [Citation.] A parent ina dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was madeof the issue in the juvenile court.” (In re Justin S. 26 (2007) 150 Cal.App.4th 1426, 1435.) Departing from the generally-accepted rule, the decision by Division Three of the Second District follows the 1995 case of In re Pedro N. (1995) 35 Cal.App.4th 183. (sazah W., supra, 228 Cal.App.4th at pp. 985-987.) In that case, the Fifth District held that a parent was untimely in raising the issue of the juvenile court noncompliance with ICWA notice requirements “as she could have made such a challenge at the dispositional hearing butfailed to do so” and therefore had forfeited the right to raise the issue on appeal from an order terminating her parental rights. (35 Cal.App.4th at pp. 189-191.) Since then, however, the Pedro N. decision has beencriticized and rejected by other appellate districts. For example, in In re Marinna J. (2001) 90 Cal.App.4th 731, the Sixth District questioned the conclusion reached in Pedro N. and observedthat “it would be contrary to the terms of the Act to conclude,as the court did implicitly in In re Pedro N., supra, 35 Cal.App.4th 183, that parental inaction could excuse the failure of the juvenile court to ensure that notice under the Act was provided to the Indian tribe namedin the proceeding.” (90 Cal.App.4th at p. 739.) Instead, the Marinna J. court concludedthat, “where the notice requirements of the Act were violated and the parents did notraise that 27 claim in a timely fashion, the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal. . . To the extent In re Pedro N., supra, 35 Cal.App.4th 183, 41 Cal.Rptr.2d 819 reached a different result, we respectfully disagree with it.” (Iz re MarinnaJ., supra, 90 Cal.App.4th at p. 739.) The court reversed the order terminating parental rights in that case and remandedthe matter for notice to be provided. (Id at p. 740.) Ali three divisions of the Fourth District have expressly rejected the Pedro N. decision. (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 [Division One]; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342 [Division Two]; In re Nikki R. (2003) 106 Cal.App.4th 844, 849 [Division Three].) This Court cited the Dwayne P. decision in In re W.B. (2012) 55 Cal.4th 30 in affirming the mandate that all dependency proceedings must be conducted in compliance with ICWA. (55 Cal.4th at p. 58.) In Dwayne P. v. Superior Court (2002) 103 Cal_App.4th 247, the court held in a writ proceeding challenging the scheduling of a selection and implementation hearing under section 366.26that the parents could raise ICWA notice issues even though they did not appeal the jurisdictional and dispositional order in which the juvenile court 28 addressed the ICWAissue, and they never raised the issue at the juvenile court. (103 Cal.App.4th at pp. 253, 260,citing I” re MarinnaJ. (2001) 90 Cal.App.4th 731, 739.) The court 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 noticeitself 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 andtribes despite the parents' inaction.” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 261, citing In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425.) The Dwayne P. court included broad language, such as “[b]ecause the court's duty continues until proper noticeis 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 andfinality, the parents’ inaction should not be allowed to defeat the laudable purposes of the ICWA.” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th atp. 261.) In In re B.R. (2009) 176 Cal.App.4th 773, the First District explicitly rejected the department’s claim that a mother waived the issue 29 of ICWA notice on appeal from an order terminating her parental rights byfailing to raise it earlier. (176 Cal-App.4th at p. 779.) In discussing the case of Pedro N., the B.R. court stated it agreed with the view taken in MarnaJ., “which questioned the conclusion reached in Pedro N. and observed that‘it would be contrary to the terms of the [[CWA] to conclude ... that parental inaction could excusethe failure of the juvenile court to ensure that notice ... was providedto the Indian tribe named in the proceeding.” (In re B.R., supra, 176 Cal.App.4th at p. 779.) The B.R. court affirmed the decision in Dwayne P., which “rejected Pedro N. and held that the juvenile court had a sua sponte duty to ensure compliance with ICWA notice requirements since notice is intended to protect the interests of Indian children and tribes despite the parents! inaction.” (In re B.R., supra, 176 Cal.App.4th at p. 779, also citing In re Nikki B. (2003) 106 Cal.App.4th 844, 848; In re Suzanna L. (2002) 104 Cal.App.4th 223, 231-232.) The Third District, while not discussing the Pedro N. decision, has also held that the forfeiture doctrine does not bar consideration of ICWA notice issues not raised in the juvenile court. (See, e.g., In re Z.W. (2011) 194 Cal.App.4th 54, 63-67.) The Fifth District itself has distinguished the rule in Pedro N. undercertain circumstances,including 30 two cases which involved an appeal was taken from an order terminating parental rights. (See, e.g., I” re Gerardo A. (2004) 119 Cal.App.4th 988, 993 [finding no forfeiture from failing to appeal an earlier ICWA ruling under Pedro N. because the departmentfailed to perfect notice until later and the parent had not received discovery of information concerning the other parent’s Indian heritageor the earlier ruling prior to the termination hearing}; In re Joseph P. (2006) 140 Cal.App.4th 1524, 1529 [distinguishing Pedro N. and finding no forfeiture because the parent challenged the court’s decision not to reopen the ICWAissue at the termination hearing rather than the earlier ICWA finding].) Division Three of the Second District’s decision conflicts with published opinions from almost every other appellate district. It constitutes a marked departure from this great weight of well-reasoned authority. C. Division Three’s Application of California’s Time Limits and Forfeiture Doctrine in this Appeal Fails to Protect the Interests of Indian Children and Tribes The departure from the generally-accepted rule by Division Three’s decision in this appeal must be rejected as bad law because the application of the timelimits and forfeiture doctrine fails to protect the 31 interests of Indian children andtribes. It potentially means that an Indian tribe may never receive notice that its children ate subjects in a juvenile dependency proceeding in California. ‘The tribe thus lacks the ability to protect its children, the most valuable resource thetribe has and the very purpose for which Congress enacted ICWA. (25 U.S.C. § 1901(3).) It also means that an Indian child will not be identified as such andlose the rights, benefits, and protections that come with being recognized as an Indian child. Ensuring full compliance with ICWAis of such significance that the ususal rules do not apply. For example, ICWA provides that the ordinary principles of legal standing do not apply. Generally, only an agerieved party may appeal an adverse judgmentanda patty lacks standing to raise issues affecting another person’s interests. (In re Paul W. (2007) 151 Cal.App.4th 37, 55; In re Gary P. (1995) 40 Cal.App.4th 875, 876.) ICWA,however, allows a non-Indian parentto raise error. (25 U.S.C. §§ 1903(9) [Parent” for purposes of ICWA proceedings means “any biological parent. .. of an Indian child”], 1911(c) [any Indian child, patent or tribe maypetition to invalidate the proceedings upon a showing the ruling violated any of the provisions of ICWA]; §§ 224.1, 32 subd.(c), 224.4, subd. (a)(5)(G)Q@); In re Jonathan S. (2005) 129 Cal.App.4th 334; In re Riva M. (1991) 235 Cal.App.3d 403, 411, fn. 6.) And,as discussed supra, the time frameto raise ICWAerroris limitless. An order terminating parental rights and any subsequent adoption order lacks finality because ICWAallows an Indiantribe to petition to invalidate an order at any time, even after an adoption has been finalized. (25 U.S.C. § 1914; Welf. & Inst. Code § 224.4; Mississippi BandofChoctaw Indians v. Hobjfield, supra, 490 U.S.at pp. 53-54; In re Christian P. (2012) 207 Cal.App.4th 1266, 1281-1282; In re Desiree F. (2000) 83 Cal.App.4th 460, 473; In reAca S. (1998) 65 Cal.App.4th 79, 82.) Thedecision in this case recognizes the controversial nature ofits decision (In re Isaiah W., supra, 228 Cal.App.4th at pp. 986, 988), but its rationale for adopting Pedro N. is faulty. Division Three reasonedin its decision that, to allow a parent unlimited time within which to raise this challenge would violate the child's constitutional right to a stable and permanent home. (Id. at p. 986.) Such reasoning falls short under the overriding mandate of ICWA compliance. While a laudable goal, Division Three’s concern for protecting a child’s interest in stability and permanency has been 33 rejected by the United States Supreme Coutt asa justification for limiting the time within to appeal an ICWA noticeviolation. In Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 30, the United States Supreme Court invalidated an adoption decree issued three years earlier because it was entered in violation of ICWA. (490 US.at p. 53.) The Supreme Court recognized that separation of the children from their adoptive parents “would doubtless cause considerable pain.” (Ibid) The Court refused to allow this fact defeat the purposes of ICWA,stating that, had the mandate of the ICWA been followed, “much potential anguish might have been avoided.” (Mississippt Band ofChoctaw Indians v. Holyfield, supra, 490 U.S. at pp. 53- 54.) The decision by Division Three purports to limit its application of time frames and forfeiture by claiming it was “only addressing the rights of mother, notthe rights of a tribe under the ICWA.” (In re Isaiah W., supra, 228 Cal.App.4th at p. 988.) Nevertheless, its resolutionis illusory. In essence, Division Threeis asserting that, if a parent does not appeal violations of ICWA notice requirements within California’s time frame, no recourse exists for notice violations. Foreclosing a parent’s 34 review of the juvenile court’s noncomplianceis not the answer. It is crucial to note that ICWA places no burden on the parents of an Indian child whatsoever. “The responsibility for compliance with the ICWA falls squarely and affirmatively on the court and the [department].” (Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410,citing § 224.3, subd. (a); In re Antoinette S. (2002) 104 CalApp.4th 1401, 1409.) No statutory support or persuasive policy basis exists for shifting the burden ofICWA compliance to the child's parents. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) In reality, the parent whose child is the subject of the dependency proceeding is the originating source of information the subject ofthat ptoceeding may be an Indian child. And,the parentis typically the procedural conduit through whicha violation of ICWAis raised on appeal, even belatedly. Neither the courts nor the county agencies can reasonably be expected to appeal their own ICWAerrors. Indeed, the entire ICWAstatutory schemetypically hinges on parental participation in the enforcement of the Act’s notice requirements. The decision by Division Three, however,placesits aversion to its perception of any form of parental benefit, andits aversion to any delay in the finality of an order for permanence whatsoever, evenif that 35 delay might promotethe bestinterests of a not-yet-recognized Indian child and the child’s tribe, over the importance of compliance with federal and statutory ICWA laws. Yet, the Federal act itself mandates that belated discovery of non-compliance with the ICWA’snotice requirementswill result in the invalidation of an order terminating parental nights and any subsequent adoption decree. (25 U.S.C. § 1914; Welf. & Inst. Code § 224.4; Massissippi Band ofChoctaw Indians v. Holyfield, supra, 490 US.at pp. 53-54.) Undercase law providing for a limited reversal of an order terminating parental nights with directions for the reinstatement of the termination order once compliance with the notice provisionsis accomplished(see,e.g., In re Jack C. (2001) 192 Cal_App.4th 967, 988; In re Francisco W. (2006) 139 Cal.App.4th 695, 706), parental benefit is de minimus at best unless the child turns out to be an Indian child. If the child is found to be an Indianchild, then the parent rightfully is legally entitled to benefit from each and every substantive provision in ICWA(see 25 U.S.C. § 1912, subds. (b)—(f); Adoption of Hannah §. (2006) 142 Cal.App.4th 988, 997-1000), not to mention the benefits which would then flow to the child. (Cf. In re Barbara R. (2006) 137 Cal.App.4th 941, 947[referring to the benefits conferred upon 36 members of the Sycuan Band of the Kumeyaay Nation].) If the child is found not to be an Indianchild, onlya slight delay in the finalization of the termination order occurs. That notwithstanding, any consequential, token benefit a parent gains from serving as the whistleblower for noncompliance, beit incidental or significant, fails to detract from the importance of ensuring compliance. More importantly, for all intents and purposes, Division Three’s conclusion that a dilatory parent can foreclose review of ICWA compliancein effect addresses and ignores the federal andstate right of the tribe to notification. If the tribe has no notice of that dependency proceeding is pending,the tribe lacks anyability to exerciseits rights protect its children. (Dwayne P. ». Superior Court (2002) 103 Cal.App.4th 247, 253 [“Of course, the tribe’s right to assert jurisdiction over the proceeding or to intervene in it is meaninglessif the tribe has no notice that the action is pending.”].) As such, the tribe is effectively deniedits rights under the Isaiah W. decision. Furthermore, an Indian child entitled to all of the benefits of the ICWA’s provisions from the inception ofthe case, even if the child’s tribe does not otherwise object or intervene on her or his behalf, and the child may gain significant tribal benefits such as a possible “monthly 37 financial stipend, funding for higher education, medical and dental coverage, and a home onthe reservation.” (Cf. In re Barbara RB. (2006) 137 Cal.App.4th 941, 947 [referring to the benefits conferred upon members of the Sycuan Band of the Kumeyaay Nation].) An Indian child received none ofthese benefits without being recognized under ICWA,and that will not happen without ensuring compliance with notice provisions. Therefore, contrary to the conclusion of Division Three,its application of California time frames forfiling an appeal andits forfeiture doctrine does in fact “address” the rights of the tribe. Its decision detrimentally affects the rights of the tribe and the Indian child. Whenthe department and the lower court fail to ensure compliance with ICWA,it falls upon the appellate courts to doso. Mothet’s appeal serves as the conduit and any benefit shegains,be it incidental or significant, fails to detract from the importance of ensuring compliance with ICWA. The decision in this appeal constitutes bad law for failing to protect the interests of Indian children andtribes. D. The Forfeiture Doctrine Should Not Apply Where,as Here, This Is a Parent’s First Appeal Appellant urges this Court to adopt the generally-accepted rule in dependencycases that the forfeiture doctrine does not bar consideration 38 of ICWAnotice issues on appeal. Federal preemption precludes any limitation on a parent’s ability to raise notice issues on appeal. That notwithstanding, the forfeiture doctrine should not apply especially where,as here, this is mother’s first appeal. A parents first appeal is distinguishable from cases which have created an exception to the general rule against forfeiture as a way of balancing the child’s interest in permanency andstability against the tribes’ rights under ICWA. Some courts have held that, “When a case is remandedto the juvenile court for the putpose of curing ICWA notice defects and the parent is represented by counsel at the postremand compliance hearing and counsel raises no objection to new ICWA notices, an exception to the general rule against forfeiture may apply.” (In re Z.W. (2011) 194 Cal.App.4th 54, 63, citing In re XV. (2005) 132 Cal.App.4th 794; In re Amber F. (2007) 150 Cal.App.4th 1152; In re N.M. (2008) 161 Cal.App.4th 253.) Balancing the child’s interest in permanencyandstability against the tribes’ rights under the ICWA may require a different result in such a case. (In re Z.W., supra, 194 Cal.App.4th at p. 63.) Courts applying this reasoning perceivethat allowing parents to raise notice issues on second appeal after failing to raise those issues in 39 the juvenile court at the postremand compliance hearing “opens the door to gamesmanship,a practice that is particularly reprehensible in the juvenile dependency arena.” (In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; In re XV. (2005) 132 CalApp.4th 794, 804-805.) Thus, courts have applied the forfeiture doctrine to certain second appeals. (But see In re Adce M. (2008) 161 Cal.App.4th 1189, 1197 [“We find no statutory support or persuasive policy basis for shifting the burden of ICWA complianceto the child's parents, even if ICWA wasraised in a prior appeal’’].) This is the first appeal of ICWA issuesin this case. Indeed,this is the first appeal of any kind in this case. Thus, as was the case in B.R., this is “not a case in which a forfeiture may be found because the parents haveraised a series of ICWAissues in successive appeals after failing in each instanceto raise the issue in the trial court.” (In r B.R., supra, 176 Cal.App.4th at p. 779,citing In re X.V. (2005) 132 Cal.App.4th 794, 804-805.) Motherhasnotraised this issue as a game, but ratherin an effort to preserve herrights and the rights of her son. A finding a child is an Indian child under the ICWA automatically triggers certain procedural requirements and safeguards. (See 25 U.S.C. § 1912, subds. (b)—(f).) 40 Should notice on remand reveal that Isaiah is an Indian child, mother would beentitled to receive “active efforts” from the departmentto prevent the breakup of the Indian family and the department would have to produce evidence,including testimony of a qualified expert witness, to support a determination beyond a reasonable doubtthat the continued custody of the child by mother waslikely to result in serious emotional or physical damageto the child. (25 U.S.C. § 1912(d); Adoption ofHannah S. (2006) 142 Cal.App.4th 988, 997-1000.) In addition, Isaiah would beentitled to all of the benefits of the ICWA’s provisions and may gain other significant tribal benefits. (Cf. In re Barbara R. (2006) 137 Cal.App.4th 941, 947 [referring to the benefits of a “monthly financial stipend, funding for higher education, medical and dental coverage, and a homeon thereservation” conferred upon members of the Sycuan Band of the Kumeyaay Nation].) Therefore, even it this Court decides to impose sometype oflimit on a parent’s ability to appeal violations of ICWA’s notice requirements, any such limit should not be applied to this first appeal by mother. 4] Conclusion This Court should reverse the Court of Appeal’s decision because it is precluded by federal preemption anditfails to protect the interests of Indian children and tribes. Alternatively, this Court should hold the forfeiture doctrine does not apply especially where, as here, this is mother’s first appeal. Appellant respectfully requests that this Court reverse the decision and remandthis case with directions that the order terminating her parental rights be reversed, at least conditionally, until the court ensures notice under ICWA has been provided, before determining whether other ICWA provisions apply and conducting a new section 366.26 hearing. DATED):January 8, 2015 Respectfully submitted, Patti L. Dikes Attorney for Appellant Ashlee R. 42 Certification ofWord Count I certify that the foregoing brief on the merits complies with California Rules of Court, rule 8.204(c) and contains 6414 words, including footnotes, according to the word count feature ofWord Perfect X4, the computer program usedto preparethebrief. Executed on January 8, 2015, at Spokane Valley, California. VedtLdhe Patti L. Dikes 43 Patti L. Dikes, Bar No. 131775 9116 E. Sprague Avenue #473 Spokane Valley, Washington 99206 Case Number: $221263 Declaration of Service by Mail I, Patti L. Dikes, declare that: I am over 18 years of age, employed in the County of San Diego, California, in which county the within-mentioned mailing occurred, and not a party to the subject cause. My business addressis 9116 E. Sprague Avenue #473, Spokane Valley, Washington. I served Opening Brief on the Merits in Case No. 221263 of which a true and correct copy of the documentfiled in the cause is affixed, by e-submission on this Court’s website: http://www.courts.ca.gov, and by placing a copy thereof in a sepatate envelope for each addressee named hereafter, addressed to each such addressee respectively as follows: Court ofAppeal, State of California Second Appellate District, Division Two Ronald Reagan State Building 300 S. Spring Street, 2" Floor, N. Tower Los Angeles, California 90013 Clerk of the Superior Court Juvenile Court Appeals Desk 201 Centre Plaza Drive Monterey Park, California 91754 California Appellate Project 520 S. Grand Ave., 4° Floor Los Angeles, California 90071 Helen Yee P.O. Box 5818 Santa Monica, CA 90409 Ashlee R. (Appellant Mother) Tiffany Marie Rodriguez Los Angeles Dependency Lawyers 1000 Corporate Center Drive Suite 430 Monterey Park, CA 91754 Office of County Counsel Edelman's Children Court 201 Centre Plaza Dr., Ste 1 Monterey Park, CA 91754 Kineta Shorts Law Office of Katherine Anderson 1000 Corporate Center Drive, Ste. 410 Monterey Park, California 91754 Each envelope was then sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Spokane Valley, Washington, on January 8, 2015. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 8, 2014, at Spokane Valley, Washington. / MdtlAbe Patti L. Dikes
