IN RE ISAIAH W.

Appellant’s Petition for Review

Cal.September 17, 2014

S$ 221263 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT NO. In re ISALAH W., ) Court of Appeal No. B250231 A Person Coming Under ) The Juvenile Court Law. ) ) ) LOS ANGELES COUNTY DEPARTMENT) Superior Court No. CK91018 OF CHILDREN AND FAMILY SERVICES,) ; SUPREME COURT FILED SEP 17 2014 Respondent, Vv. ASHLEER.(Mother), Petitioner and Appellant. Frank A. McGuire Clerk R e N e e e e e Deputy APPEAL FROM THEJUVENILE COURT OF LOS ANGELES COUNTY HONORABLEJACQUELINEH. LEWIS, JUDGE PETITION FOR REVIEW AFTER THE PUBLISHED DECISION OF THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE, HOLDING THAT, ON DIRECT APPEAL FROM A POSTJUDGMENT ORDERTERMINATING PARENTAL RIGHTS, REVIEW OF A PARENT’S CLAIM THAT THE NOTICE PROVISIONS OF THE FEDERAL AND STATE ICWAWERE VIOLATEDIS FORECLOSED BYTHE PARENT?’S FAILURE TO HAVE TIMELY APPEALED FROM THEJUVENILE COURT’S JUDGMENT OR PREJUDGMENT FINDING THAT ICWA DID NOT APPLY Patti L. Dikes, Bar No. 131775 9116 E. Sprague Avenue #473 Spokane Valley, Washington 99206 (619) 559-2557 Attorney for Petitioner/Appellant Ashlee R. by appointment of the Court ofAppeal under the Appellate Defenders, Inc., independent case program IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT NO. In re ISALAH W., ) Court ofAppeal No. B250231 A Person Coming Under ) ) ) The Juvenile Court Law. ) LOS ANGELES COUNTY DEPARTMENT) Superior Court No. CK91018 OF CHILDREN AND FAMILY SERVICES,) Respondent, Vv. ASHLEER. (Mother), Petitioner and Appellant. e e e e e e e e N e e e N e N L APPEAL FROM THEJUVENILE COURT OF LOS ANGELES COUNTY HONORABLEJACQUELINE H. LEWIS, JUDGE PETITION FOR REVIEW AFTER THE PUBLISHED DECISION OF THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE, HOLDING THAT, ON DIRECT APPEAL FROM A POSTJUDGMENT ORDER TERMINATING PARENTAL RIGHTS, REVIEW OF A PARENT’S CLAIM THAT THE NOTICE PROVISIONS OF THE FEDERAL AND STATE ICWAWERE VIOLATEDIS FORECLOSED BY THE PARENT’S FAILURE TO HAVE TIMELY APPEALED FROM THE JUVENILE COURT’SJUDGMENT OR PREJUDGMENT FINDING THAT ICWA DID NOT APPLY Patti L. Dikes, Bar No. 131775 9116 E. Sprague Avenue #473 Spokane Valley, Washington 99206 (619) 559-2557 Attorney for Petitioner/Appellant Ashlee R. by appointment of the Court ofAppeal under the Appellate Defenders, Inc., independent case program Table of Contents Table of Authorities 2.0.0... 0 ccece cece eeeenees il Petition for Review ....0. 00.0ceect e ene eeenees J Issue Presented ......... 0... cece ccc eee cece ee cbeeeenencee 3 WHETHER, ON DIRECT APPEAL FROM A POSTJUDGMENT ORDER TERMINATING PARENTAL RIGHTS UNDER WELFARE AND INSTITUTIONS CODE SECTION 366.26, REVIEW OF A PARENT?’S CLAIM THAT THE NOTICE PROVISIONS OF THE FEDERAL INDIAN CHILD WELFARE ACT AND CALIFORNIA ICWA WERE VIOLATED IS FORECLOSED BY THE PARENT’S FAILURE TO HAVE TIMELY APPEALED FROM THE JUVENILE COURT’S JUDGMENT OR PREJUDGMENTFINDING THAT ICWA DID NOT APPLY? Grounds for Review ....... 0.0... c ccc cece cence cette eeeeeee 4 Necessity for Review... 0.0.0...ceceeee eee e eae 10 Conclusion... 0...cece eee e ene seen eennees 18 Certification ofWord Count ...........0 000 c cece ccc cence ee eees 19 Court ofAppeal Opinion ....... 0.0... c cece eee eee Exhibit A ‘Table of Authorities UNITED STATES SUPREME COURT CASES Cakfornia Coastal Comm'n v. Granite Rock Co. (1987) 480 U.S. 572 2.0.2.2... 15 Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 30 . 12, 14, 15, 16 CALIFORNIA SUPREME COURT CASES In re AbbigailA., teview granted September 10, 2014, S220187 .......... 10 In re S.B. (2004) 32 Cal.4th 1287 2...eeeeee 11 In re W.B. (2012) 55 Cal.4th 30 0...ee eee eee. 10, 11, 12, 13 People v. Simon (2001) 25 Cal.4th 1082 ........... 0. eee eee eee 11 CALIFORNIA INTERMEDIATE APPELLATE COURT CASES Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 ......... 5, 6, 7, 8, 17 In re A.A. (2008) 167 Cal.App.4th 1292 2...eeeeee 11 In re Aaron B. (1996) 46 Cal.App.4th 843 ...........rn11 In re Akaia S. (1998) 65 Cal.App.4th 79 0...eee nee 14 In re Antoinette S. (2002) 104 Cal.App.4th 1401 ..... 0... eee ee, 12 In re B.R. (2009) 176 CalApp.4th 773 2.0...eee eee 7 In re Bridget R. (1996) 41 Cal.App.4th 1483 2.0.2.0... 0. eee eee, 10 In re Christian P. (2012) 207 Cal.App.4th 1266 ....................005. 14 In re Desiree F. (2000) 83 CalApp.4th 460 ..........0.0. 00.00.0008. 14,15 In re Gerardo A. (2004) 119 Cal.App.4th 988 2.0.0.0... 2 eee eee eee 8 In re Isaiah W. (2014) 228 Cal.App.4th 981 2.0.0.0... eee. passim In re Jonathon S. (2005) 129 Cal.App.4th 334 2.02.00... eee eee ee. 5, 14 In re Joseph P. (2006) 140 CalApp.4th 1524 2.0.0...eee 8 In re Kahlen W. (1991) 233 CalApp.3d 1414 22.0.0... 2 eee eee. 6, 13 In re MarinnaJ. (2001) 90 Cal.App.4th 731 ........0000. 0.000000. 5, 6, 7, 8 In re Nikki B. (2003) 106 Cal.App.4th 844 ....... 0... eee 5,7 ii In re Pedro N. (1995) 35 Cal.App.4th 183 ..............0000005. 5, 7, 8, 15 In re Riva M. (1991) 235 Cal.App.3d 403 22.0.0... ccc eee eee 14 In re Suzanna L. (2002) 104 Cal.App.4th 223 2.0.0.0... 0c eee cece 7 In re ZW. (2011) 194 Cal.App.4th 54 20...cece ce aes 8 FEDERAL STATUTES Indian Child Welfare Act 25 US.C. §§ 1901, et seq. 2... eee eee 4,10, 18 25 U.S.C. § 190103) 2.ccccc eens 12 25 US.C. § 19033) 2...cecence eens 14 25 U.S.C. § 19039) 2.cceee eens 14 25 US.C.§ 1911 2.ccccece eens 14 25 US.C.§ 1912 20ccceens 13 25 US.C.9 1914 ooccccece eee 14 STATE STATUTES Welfare and Institutions Code Section 224, et seq. 2... eee ccc cece eee eee 4,10 Section 224 2...ccccence c ene eee 12 Section 224.1 2...ceceeens 14 Section 224.2 0.ceecee eee e eee ene 13 Section 224.4 20...cece ele eee eee ee 14 Section 226 22...cenceeens 12 RULES OF COURT Rule 8.500 2.0...cecent eee e ete eeeneees 4 LEGISLATIVE HISTORY Senate Bill No. 678 (2005-2006 Reg. Sess.) ........ 0... e eee eee ee 12 Sen. Judiciary Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg.Sess.) as amended Aug. 22,2005 1.0.0... cece ene eens 13 iii SUPREME COURT NO. In re ISAIAH W., ) Court of Appeal No. B250231 A Person Coming Under ) ) ) The Juvenile Court Law. ) LOS ANGELES COUNTY DEP’T OF ) Superior Court No. CK91018 CHILDREN AND FAMILY SERVICES,) Respondent, v. ASHLEER. (Mother), Petitioner and Appellant. APPEAL FROM THEJUVENILE COURT OF LOS ANGELES COUNTY HONORABLEJACQUELINEH. LEWIS,JUDGE PETITION FOR REVIEW AFTER THE PUBLISHED DECISION OF THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE, HOLDING THAT, ON DIRECT APPEAL FROM A POSTJUDGMENT ORDER TERMINATING PARENTAL RIGHTS, REVIEW OF A PARENT’S CLAIM THAT THE NOTICE PROVISIONS OF THE FEDERAL AND STATE ICWAWERE VIOLATED IS FORECLOSED BY THE PARENT’S FAILURE TO HAVE TIMELY APPEALED FROM THE JUVENILE COURT’S JUDGMENT OR PREJUDGMENTFINDINGTHAT ICWA DID NOT APPLY TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEFJUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Ashlee R. petitions for review following the published decision of the Court of Appeal, Second Appellate District, Division Three, In re Isaiah W. 1 (2014) 228 Cal.App.4th 981, filed August 8, 2014. A copy of the full opinion, which includes an order certifying the decision for publication, is attached to this petition as Appendix “A.” Issue Presented WHETHER, ON DIRECT APPEAL FROM A POSTJUDGMENT ORDERTERMINATING PARENTAL RIGHTS UNDER WELFARE AND INSTITUTIONS CODE SECTION 366.26, REVIEW OF A PARENT’S CLAIM THAT THE NOTICE PROVISIONS OF THE FEDERAL INDIAN CHILD WELFARE ACT AND CALIFORNIA ICWAWERE VIOLATED IS FORECLOSED BY THE PARENT?’S FAILURE TO HAVE TIMELY APPEALED FROM THE JUVENILE COURT’S JUDGMENT OR PREJUDGMENTFINDING THAT ICWA DID NOT APPLY? Grounds for Review California Rules of Court, rule 8.500(b)(1), states this Court may review a Court of Appeal decision,“[w]hen necessaty to secure uniformity of decision or to settle an important question of law.” With the decision issued by the Second Appellate District, Division Three, in this case, a clear split of authority has been established as to whether, on direct appeal from a postjudgmentorder terminating parental rights under Welfare and Institutions Code section 366.26, review of a parent’s claim that the notice provisions of the federal Indian Child Welfare Act, 25 US.C. §§ 1901, et seq., and California ICWA, Welfare and Institutions Code sections 224,et seq., were violated is foreclosed by the parent’s failure to have timely appealed from the juvenile court’s judgment or prejudgment finding that ICWA did not apply. | This issue has been percolating in the intermediate appellate courts since 1995 anda clearsplit of authority exists among the differentdistricts. The Fifth District held in 1995 that a parent was untimely in raising the issue of the juvenile court noncompliance with ICWA notice requirements “as she could have madesucha challenge at the dispositional heating butfailed to do so”and therefore had forfeited the rightto raise the issue on appeal from an " Research has revealed a plethora of unpublished decisions on this issue which indicate conflict exists not only between butalso within districts. 4 order terminating her parental rights. (In re Pedro N. (1995) 35 Cal.App.4th 183, 189-191.) Since then, the Pedro N. decision has beencriticized and rejected. For example, in In re MarinnaJ. (2001) 90 Cal.App.4th 731, the Sixth District held that “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 excusethe 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 MarinnaJ. court concludedthat, “where the notice requirements of the Act were violated and the parents did notraise that 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.” (In re MarinnaJ., supra, 90 Cal.App.4th at p. 739.) The court reversed the order terminating parental rights in that case and remanded the matter for notice to be provided. (Id at p. 740.) All 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].) 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 undersection 366.26 that the patents could raise ICWA noticeissues even though they did not appeal thejurisdictional and dispositional order in “which the juvenile court addressed the ICWA issue, and they never raised the issue at the juvenile court. (103 Cal_App.4th at pp. 253, 260, citing In re MannaJ. (2001) 90 Cal.App.4th 731, 739.) The court explained that “[w]hen the court has reason to know Indian children ate involved in dependency proceedings ... it has the duty to give the requisite 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.” (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 propernotice 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 harmsthe interests of dependent children in expediency andfinality, the parents' inaction should not be allowed to defeat the laudable purposes of the ICWA.” (Dwayne P. ». Superior Court, supra, 103 Cal.App.4th at p. 261.) In In re B.R. (2009) 176 Cal.App.4th 773, the First District explicitly rejected the department’s claim that a mother waivedthe issue of ICWA notice on appeal from an order terminating her parental rights by failing 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 MarinnaJ., “which questioned the conclusion reached in Pedro N. and observedthat ‘it would be contrary to the terms of the [ICWA] to conclude ... that parental inaction could excusethe failure of the juvenile court to ensure that notice ... was providedto the Indian tribe namedin the proceeding.” (In re B.B., 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 intendedto protect the interests of Indian children andtribes despite the parents' inaction.” (In re B.B., supra, 176 Cal.App.4th at p. 779,also citing In re Nikki R. (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 ofICWA notice issues not taised 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 therule in Pedro N. under cettain circumstances, including two cases which involved an appeal was taken from an order terminating parental rights. (See, e.g., In re Joseph P. (2006) 140 CalApp.4th 1524, 1529 [distinguishing Pedro N. and finding no forfeiture because the parent challenged the court’s decision notto reopen the ICWAissue at the termination hearing rather than the earlier ICWA finding]; In 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 heritage or the earlier ruling prior to the termination hearing].) Now,in this case, Division Three of the Second District has revived Pedro N. and held that a parent is foreclosed from raising the issue now on appeal becauseshefailed to timely appeal from the ICWA finding in the juvenile court’s dispositional order. (In re Isaiah W. (2014) 208 Cal.App.4th 981, 988.) The Isaiah W. court then certified for publication its decision after recognizing that other cases, such as MarinnaJ. and Dwayne P. have disagreed with Pedro N. (In re Isaiah W., supra, 228 Cal.App.4th at p. 986.) Given split of authority which exists on this issue, this Court has grounds for reviewing the Court of Appeal’s decision in this case. Necessity for Review Review is necessary to secure uniformity of decision regardingthis state’s compliance with the Indian Child Welfare Act, 25 U.S.C. §§ 1901, et seq. ICWAor the Act), and its ownstatutes incorporating the Act (Welf & Inst. Code §§ 224, et seq.). There is a pressing need for state-wide consistency on this important issue. (Cal. Rules of Ct., rule 8.500(b)(1).) This Court has previously denied review in other ICWAcases(see, e.g., In re Bridget R. (1996) 41 Cal.App.4th 1483, review denied May 15, 1996, $052021 [regarding the existing Indian family criterion]), but has more recently granted review to examine the California and federal ICWAstatutes, and the related California Rules of Court (see In re WB. (2012) 55 Cal.4th 30, 58 [invalidating the rule of court applying ICWA procedures in delinquency ptoceedings involving criminal conduct because the statute chose to employ ICWAdefinition, which excludes such proceedings from its reach]; In re AbbigailA., teview granted September 10, 2014, S220187 [regarding whether, whena child has been foundto beeligible for tribal membership, the juvenile court must treat the child as an Indian child and apply the substantive provisions of ICWA or whether formal registration required). Thus, Court has recognized ICWAas sufficiently important for review and discussedits vital application to juvenile dependency proceedingsin 10 deciding its application to juvenile delinquency proceedings. (In re W_B., supra, 55 Cal.4th at pp. 42-60.) California’s application of the time frames for direct review by appeal andits forfeiture doctrine to ICWAis of equal importance. The application of California’s time frames for direct review by appeal and the forfeiture doctrine is not a new issue. (People ». Stmon (2001) 25 Cal.4th 1082, 1097-1103 [discussing forfeiture in civil actions and noting a numberof criminal cases in the previous decade in which the Court discussed the basic rationale of the forfeiture doctrine].) This Court’s decision in In re S.B. (2004) 32 Cal.4th 1287 established the application of the forfeiture doctrine in juvenile dependency cases. (32 Cal.4th at p. 1293; In re Aaron B. (1996) 46 Cal.App.4th 843.) In an appeal by an Indian tribe which had intervened in a juvenile dependency case, an appellate court held that the tribe had forfeited certain legal arguments whichit had failed to raise before the trial court. (Iu re_A_A. (2008) 167 Cal.App.4th 1292, 1323.) However, the conflict over its application to noncompliance with ICWA notice provisions in a parent’s appeal from an order terminating parental rights had been circulating amongthe various intermediate appellate courts for almost 20 years and the emerging conflict is now at a critical juncture with the published decision in Ix re Isaiah W. This split of authority 11 means that a review of ICWAerrors are permitted or foreclosed depending on the appellate district in which the violation occurs. The need for uniformity is necessary to prevent unequal review. “Congress has 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 membersoforareeligible for membership in an Indian tribe.’ (25 U.S.C. § 1901(3).)” (In re Antoinette $. (2002) 104 Cal.App.4th 1401, 1407. Accord Welf. & Inst. Code § 224, subd. (a)(1); Mississippi Band ofChoctaw Indians v. Holjfield (1989) 490 U.S. 30, 35.) Congress passed ICWA to cure “abusive child welfare practices that resulted in the separation oflarge numbers of Indian children from their families andtribes through adoption ot foster care placement, usually in non-Indian homes.” (Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. at p. 32.) “In 2006, with the passage of Senate Bill No. 678 (2005-2006 Reg. Sess.) (Senate Bill No. 678), the Legislature incorporated ICWA's requirements into California statutory law.” (Stats. 2006, ch. 838, § 1, p. 6536.)” (In re W.B., supra, 55 Cal.4th at p. 52.) Our State Legislature adopted Welfare and Institutions Code section 224 through 224.6 “to encourage full compliance with ICWA bycodifying its requirements into state law. 12 [Citations omitted]” (x re W.B, supra, 55 Cal.4th at p. 55.) This Court stated in W.B., “The primary objective of Senate Bill No. 678 was to increase compliance with ICWA.” (Idid.) Because “courts and county agencies still had difficulty complying with ICWA 25 years afterits 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.Ath at p. 52.) Under ICWA,if there is reason to believe that the child thatis the subject of the dependency proceedingis an Indian child, ICWA requires notice to the child's Indian tribe of the proceeding and of thetribe's right of intervention. (25 U.S.C. § 1912(a); see also Welf. & Inst. Code, § 224.2, subd. (b).) “Notice is a key componentofthe congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA]irrespective ofthe position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) The application of the forfeiture doctrine under Division Three’s decision in this appeal potentially means that an Indian tribe may never receive notice that its children are subjects in a juvenile dependency 13 proceeding in California. Thetribe thuslacksthe ability to protectits children, the most valuable resource the tribe has and the very purpose for which Congtess enacted ICWA. (25 U.S.C. § 1903(3).) Ensuring full compliance with ICWAis of such significance that the ususal rules do not apply. For example, ICWA provides that the ordinary principles of standing do not apply; ICWA allows a non-Indian parent to 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, parent or tribe may petition to invalidate the proceedings upon a showing the ruling violated any of the provisions of ICWA]; §§ 224.1, subd. (c), 224.4, subd. (a)(5)(G)(@); In re Jonathan S. (2005) 129 Cal.App.4th 334; In re Riva M. (1991) 235 Cal.App.3d 403,411, fn. 6.) And, the time frame to raise ICWAerroris limitless. An order terminating parental rights and any subsequent adoptionorderlacksfinality because ICWA allows an Indian tribe to petition to invalidate an orderat any time, even after an adoption has been finalized. (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 Christian P. (2012) 207 Cal.App.4th 1266, 1281-1282; In re Desiree F. (2000) 83 Cal.App.4th 460, 473; In re Alicia S. (1998) 65 Cal.App.4th 79, 82.) 14 California, by applying its state time frame of 60 daysto file for direct review by appeal and by applying the doctrine of forfeiture, is at odds with ICWA. Its actions are superceded by ICWA’s preemption ofstate law in this regard. (See Cahfornia Coastal Comm'n v. Granite Rock Co. (1987) 480 U.S. 572, 581 [state law is pre-empted to the extentit actually conflicts with federal law]; In re Desiree F., supra, 83 Cal.App.4th at p. 469 [recognizing “[t]he courts of this state must yield to governing federal law.” in juvenile dependency appeals involving ICWAissues].) The decision in this case recognizes the controversial nature ofits decision (In re Isazah W., supra, 228 Cal.App.4th at pp. 986, 988), butits 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 rightto a stable and permanent home. (Id. at p. 986.) Such reasoning falls short under the overriding mandate ofICWA compliance. In Maissesseppi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 30, the United States Supreme Court invalidated an adoption dectee issued three years earlier becauseit was entered in violation of ICWA. (490 U.S. at p. 53.) The Supreme Court recognized that separation of the children from their adoptive parents “would doubtless cause considerable pain.” (Ibid) 15 The Court refused to allow this fact defeat the purposes of ICWA,stating that, had the mandate of the ICWAbeen followed, “much potential anguish might have been avoided.” (Maéssissippi Band ofChoctaw Indians v. Holyfield, supra, 490 US. 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, not the rights of a tribe under the ICWA.” (In re Isaiah W., supra, 228 Cal.App.4th at p. 988.) Nevertheless, its resolutionis illusory. Foreclosing a partent’s review of the juvenile court’s noncomplianceis not the answer. In reality, the parent whosechild is the subject of the dependency proceedingis the originating source of notification to the tribe that the subject of that proceeding may be an Indian child. And,the parentis typically the procedural conduit through whicha violation of ICWAis raised on appeal. Certainly, neither the courts nor the county agencies would appeal their own error. Any benefit a parent gains from raising the issue, be it 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 ofICWA compliance in effect addresses and ignores the federal andstate right of thetribe to notification. If the tribe has no notice of that dependency proceedingis 16 pending,thetribe lacks anyability to exerciseits rights protect its children. (Dwayne P. v. Supercor Court (2002) 103 Cal.App.4th 247, 253 [“Ofcourse, the tribe’s right to assert jurisdiction over the proceedingor to intervenein it is meaningless if the tribe has no notice that the action is pending.”].) As such, the tribe is effectively denied its rights under theline of authority expressed in the Isazah W. decision. After the decision in this appeal, whichitself recognizes that this right has been inconsistently recognized throughout the state, uncertainty exists as to whether, on direct appeal from a postjudgmentorder terminating parental rights, review of a parent’s claim that ICWA notice provisions were violated is foreclosed by the parent’s failure to have timely appealed from the judgment or postjudgment finding that ICWA did not apply. Thus, review by this Court is needed to secure uniformity of decision on a state-widebasis. 17 Conclusion For the foregoing reasons, review is required to correct the Court of Appeal’s erroneousdecision that, on direct appeal from a postjudgment order terminating parental rights under Welfare and Institutions Codesection 366.26, review of a parent’s claim that the notice provisions of the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901, et seq., and California ICWA were violated is foreclosed by the parent’s failure to have timely appealed from the juvenile court’s judgmentor prejudgmentfinding that ICWA did not apply. DATED:September 15, 2014 Respectfully submitted, Patti L. Dikes Attorney for Petitioner Ashlee R. 18 Certification ofWord Count I certify that the foregoing brief complies with California Rules of Court, rule 8.504(d) and contains __3250__ words, including footnotes, according to the word count feature ofWord Perfect X4, the computer program used to prepare the brief. Executed on September 15, 2014 at Spokane Valley, Washington. mILAbod atti L. Dikes 19 APPENDIX A Filed 8/8/14 Opnfiled after rehearing CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION THREE In re ISAIAH W., A Person Coming Under B250231 the Juvenile Court Law. (Los Angeles County LOS ANGELES COUNTY Super. Ct. No. CK91018) DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ASHLEER., Defendant and Appellant. APPEAL from orders of the Superior Court ofLos Angeles County, Jacqueline H. Lewis, Judge. Affirmed. . Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens,Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent. Ashlee R. (mother) appeals from the order terminating her parental rights to the now two-year-old Isaiah W. She contendsthat the juvenile court erred in finding that the Indian Child Welfare Act ICWA)did not apply. We hold that mother failed to timely appeal the juvenile court’s order. FACTUAL AND PROCEDURAL BACKGROUND In November 2011, Isaiah was born with a positive toxicology for marijuana and exhibited withdrawal symptoms. The Department of Children and Family Services (Department) filed a petition alleging that mother’s and father’s illicit drug use placed Isaiah at risk of harm.’ At the detention hearing,the juvenile court removed Isaiah from his parents’ care and ordered reunification services for them. Mothertold the juvenile court that she may have American Indian ancestry, and the court ordered the Departmentto investigate mother’s claim. The Department interviewed maternal relatives and reported to the court that maternal grandfather may have had Blackfoot ancestry and maternal great-great-grandmother may have been part of a Cherokeetribe. Atthe jurisdictional and dispositional hearing on January 20, 2012,the juvenile court reviewed the Department’s report and concludedthat there was no “reason to know”that Isaiah was “an Indian child as defined under ICWA.”’ Accordingly, the court did not order that the Department provide notice to any tribe or the Bureau of Indian Affairs. Neither mother nor father objected or argued that the ICWA was applicable. The court adjudged Isaiah a dependent and ordered him placedin foster care. The court ordered the parents to participate in counseling and drugtesting. Motherdid not appealthat order. 1 Fatheris not a party to this appeal. Motherdid not attend her scheduleddrugtests or drug treatment program. Although shevisited with Isaiah on a weekly basis, she never remainedfor the full two hours scheduled for the visits. Father only visited Isaiah two or three times. On September 12, 2012, the juvenile court terminatedthe parents’ reunification services andset a hearing on the termination ofparentalrights. On November 5, 2012, the Departmentplaced Isaiah with a prospective adoptive family. On April 10, 2013, the juvenile court terminated mother’s andfather’s parental rights. At the hearing, the court repeated its prior finding that there was no reason to knowIsaiah was an Indian child. On June 5, 2013, mother appealed from the termination ofparentalrights. CONTENTIONS Mother contendsthe juvenile court erred in findingthatit had no “reason to know”Isaiah wasan Indian child, andin failing to order the Department to comply with the ICWA’s notice requirements. DISCUSSION: The ICWA “protect[s] the best interests of Indian children and[] promote[s] the stability and security of Indian tribes and families by the establishment ofminimum Federal standards for the removal of Indian children from their families and the placementof such children in foster or adoptive homes which will reflect the unique values of Indian culture ....” (25 U.S.C. § 1902.) “In general, the ICWAapplies to any state court proceeding involving the foster care or adoptive placementof, or the termination ofparentalrights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.)” (In re Jonathon S. (2005) 129 Cal-App.4th 334, 338.) An “Indian child” is defined as a child whois “either (a) a memberof an Indian tribe or (b)is eligible for membership in an Indian tribe andis the biological child of a memberof an Indian tribe.” (25 U.S.C. § 1903(4).) The ICWAprovides that “where the court knowsor has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings andoftheir right of intervention. If the identity or location of the parentor Indian custodian and the tribe cannot be determined, such notice shall be given to the | Secretary [of the Interior] in like manner .... No foster care placement or termination of parental rights proceeding shall be held until at least ten daysafter receipt of notice by the parent or Indian custodian and the tribe or the Secretary ....” (25 U.S.C. § 1912(a).) Here, mother argues the court had “reason to know”that Isaiah was an “Indian child,” and, thus, should have ordered the Department to comply with the ICWA’s notice requirements. This argumentrelates to the court’s dispositional order of January 2012. At that point, all of the information provided by mother and herrelatives about their American Indian heritage was before the juvenile court, and the court considered the Department’s report onits investigation into mother’s heritage. Therefore, according to mother’s argument, because the Department should have provided notice under the ICWA,it was error for the juvenile court to proceed withits disposition ofremoval and foster care placement. Instead, the court should have continued the dispositional hearing until at least ten days after the Department had served notice on the identified tribes or Secretary of the Interior. (See 25 U.S.C. § 1912(a).) We reject mother’s argument. Mother hadthe right to appeal the juvenile court’s orderat the dispositional hearing. She did not do so, and only challengedthe court’s failure to provide notice under the ICWAapproximately one and a half years later which wasafter the court terminatedparental rights. However, the juvenile court’s dispositional findings and orders had becomefinal 60 daysafter the court’s announcementofthe order. (Cal. Rules of Court, rule 8.406(a)(1).) “Appellate jurisdiction to review an appealable order is dependentupona timely notice of appeal. [Citation.]” (Jn re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) “An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.” (Jn re Pedro N. (1995) 35 Cal.App.4th 183, 189.) Here, because motherfailed to timely appeal from the ICWAfindingin the juvenile court’s dispositionalorder, “she is foreclosed from raising the issue now on appeal from the order terminating her parental rights.” ([bid.; see also In re Elizabeth G,, supra, 205 Cal.App.3d at p. 1331.) Although cases such as Jn re Marinna J. (2001) 90 Cal.App.4th Bi and Dwayne P. v. Superior Court (2002) 103 Cal-App.4th 247 have disagreed with Pedro N., we are not persuaded by their reasoning. Those casesheldthat “parental inaction” cannot “excusethe failure of the juvenile court to ensure that notice under the Act wasprovidedto the Indian tribe named in the proceeding.” (dn re Marinna J, supra, 90 Cal.App.4th at p. 739; see also DwayneP., supra, 103 Cal.App.4th at p. 261.) Wedecline to adopt the implied conclusion in Marinna J. and DwayneP. that thereis no time limit on a parent’s rightto raise the issue of ICWA compliance. To allow a parent unlimited time within whichto raise this challenge would violate the child’s constitutional right to a stable and permanent home. (See Jn re Jasmon O. (1994) 8 Cal.4th 398, 421.) Children havea constitutional interest in stability, ibid., and in California, the courts have held that this includes the “right to a reasonably directed early life, unmarked by unnecessary and excessive shifts in custody... .” (In re Arturo A. (1992) 8 Cal.App.4th 229, 241, fn.6.) Accordingly, in the context of dependency proceedings, “where a child has formed familial bonds with a de facto family with whom the child was placed owing to a biological parent’s unfitness [citation] . . . and whereit is shown that the child would be harmed by any severance of those bonds, the child’s constitutionally protected interests outweigh those of the biological parents.” Un re Bridget R. (1996) 41 Cal.App.4th 1483, 1506, superseded by statute on another groundasstated in Jn re Santos Y. (2001) 92 Cal.App.4th 1274, 1311-1312.) In accordance with these principles, we adopt Pedro N.’s conclusion that the ICWAdoesnotauthorize a parent to delay in challenginga trial court’s determination on the applicability ofICWA until after the disputed decisionis final. (In re Pedro N,, supra, 35 Cal.App.4th at p. 190.) In Pedro N., the mother informedthe juvenile court at the detention hearing for her two children that she was “a full-blooded memberofthe MonoIndian Tribe.” (Jn re Pedro N., supra, 35 Cal.App.4th at p. 186.) The Department sent [CWAnotice to the Bureau of Indian Affairs, and the Bureau respondedthatit needed the identity of the reservation or rancheria with which the motherwasassociated in order to confirm the family’s tribal membership. (Jd. at p. 187.) When county counsel raised this issue at the disposition hearing, the mother volunteered the name “ ‘North Fork.’ ” (Jbid.) However, there was no further discussion regarding ICWA notice and the juvenile court removed the children from the mother’s care at the conclusion of the hearing. (Jbid.) After reunification efforts with the motherfailed, the court terminated her parental rights. (/d. at p. 185.) The mother appealed from the order terminating her parental rights and arguedthat the Department had given inadequate notice under the ICWA.(Ibid.) The Pedro N. court held that the mother was foreclosed from raising ICWA compliance issues because she did not raise this challenge until approximately two years after the juvenile court’s decision not to proceed under the ICWA.(Jd. at p. 189.) The court also found that Congress did not indicate an intent to permit a parent to delay in raising an ICWAviolation until after the disputed action is final. (/d. at p. 190.) The court cited to an ICWAprovisionthat “confers standing upon a parent claiming an ICWAviolation to petition to invalidate a state court dependency action,” and notedthat this provision does notstate that a parent may claim an ICWAviolation at any pointin the proceeding. (Ibid.[citing to 25 U.S.C. § 1914].) In fact, in another provision the ICWA doesauthorizea tribe to intervene in a dependencyaction “at any pointin the proceeding.” (25 U.S.C. § 1911(c).) Accordingly, the Pedro N. court concludedthat, “We assume from the absence ofsuch languagein [the provision authorizing a parentto raise ICWAviolations], that the Congress did not intend to preempt, in the case of appellate review,state law requiring timely notices of appeal from a parent who appeared in the underlying proceedings and who had knowledgeofthe applicability of the ICWA.” (in re Pedro N., supra, 35 Cal.App.4th at p. 190.) “Congress’s intent to not cause unnecessary delay in dependency proceedingsis evidenced by the [ICWA]provision allowing a hearing on the termination ofparental rights within a relatively short time, 10 days, after the [Secretary ofthe Interior] or tribe receives ICWAnotice. (25 U.S.C. § 1912(a).)” Un re XV. (2005) 132 Cal.App.4th 794, 804.) Such anintent is supported by the maxim that “[b]ecause juvenile dependency proceedings ‘involve the well-being of children, considerations such as permanencyandstability are ofparamount importance. (§ 366.26.)’ [Citation.]” (Ibid.) In X.V., the parents of a dependentchild filed two appeals, each time challenging the Department’s failure to provide adequate notice under ICWA. Thecourt, on the first appeal, remanded the matter for the limited purpose of complying with ICWA notice requirements, and, on the second appeal, held that “the parents ha[d] forfeited a second appeal ofICWAnotice issues.” (In re X.V., supra, 132 Cal.App.4th at p. 804.) The court reasoned that, “[b]alancing the interests of Indian children andtribes under the ICWA,andtheinterests of dependentchildren to permanency andstability,” there must be a limit to a parent’s ability to “delay permanencefor children” through “numerous belated ICWA notice appeals and writs.” (Id. at pp. 804-805.) The principles enunciated in XV. support our conclusion that a dependentchild’s interest in permanency andstability requires that there be a time limit to a parent’s right to raise the issue ofICWA compliance. In addition, we do not believe Congress intended to authorize a parent to wait for over a year before challenging trial court’s decision on the applicability of the ICWA. Accordingly, we conclude that mother has forfeited her right to raise a challenge to the juvenile court’s finding that the ICWA did not apply here. However, we notethat, as in Pedro N., we are only addressing therights of mother, notthe rights of a tribe under the ICWA. (In re Pedro N., supra, 35 Cal.App.4th at p. 191; see also 25 U.S.C. § 1902 [the ICWAprotects the interests of Indian children, their families and Indian tribes].) DISPOSITION The orders of the juvenile court are affirmed. CERTIFIED FOR PUBLICATION KITCHING,J. WE CONCUR: KLEIN,P.J. ALDRICH,J. Patti L. Dikes, Bar No. 131775 Case Number: B250231 9116 E. Sprague Ave. #473 Spokane Valley, Washington 99206 Declaration of Service by Mail I, Patti L. Dikes, declare that: I am over 18 years of age, employedin the County of Spokane, Washington,in which county the within-mentioned mailing occurred, and not a party to the subject cause. My business address is 9116 E. Sprague Ave. #473, Spokane Valley, Washington 99206. I served the Petition for Review in Case No. B250231 of whicha true and correct copy of the documentfiled in the causeis affixed, by e- submission as B250231_PR_Ashlee R.pdf on this Court’s website: http://www.courts.ca.gov In addition, I served by placing a copy thereof in a separate envelope for each addressee namedhereafter, addressed to each such addressee respectively as follows: Court ofAppeal, State of California Ashlee R. (Appellant Mother) Second District, Division Three Ronald ReaganState Building Tiffany Marie Rodriguez 300 S. Spring Street, 2" Flr, N. Tower Los Angeles Dependency Lawyers Los Angeles, California 90013 1000 Corporate Center Drive Suite 430 Monterey Park, CA 91754 Clerk of the Superior Court Juvenile Court Appeals Desk Office of County Counsel 201 Centre Plaza Drive Edelman's Children Court Monterey Park, California 91754 201 Centre Plaza Dr., Ste 1 Monterey Park, CA 91754 California Appellate Project 520 S. Grand Ave., 4" Floor Kineta Shorts Los Angeles, California 90071 Law Office of Katherine Anderson 1000 Corporate Center Drive, Ste. 410 Helen Yee Monterey Park, California 91754 P.O. Box 5818 Santa Monica, CA 90409 Each envelope was then sealed and with the postage thereonfully prepaid deposited in the United States mail by me at Spokane Valley, Washington, on September 15, 2014. I declare under penalty of perjury that the foregoingis true and correct. Executed on September 15, 2014, at Spokane Valley, Washington. RettLfhibey’ Patt: L. Dikes