IN RE ISAIAH W.

Respondent’s Answer Brief on the Merits

Cal.February 17, 2015

$221263 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re ISAIAH W., A Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENTOF CHILDREN AND FAMILY SERVICES, Respondent, Vv. ASHLEER. (Mother), Petitioner and Appellant. ANSWERBRIEF ON THE MERITS From a Decision of the Court of Appeal, Second Appellate District, Division Three On Appeal from the Judgmentofthe Superior Court Me Case No. 8221263 Court of Appeal, 2d District Case No. B250231 Los Angeles County Superior Court Case No. CK91018 SUPREME COURT FILED FEB 1 7 201 Frank A. McGuire “erk 9:E-FLITEETRE HT Deputy,2 / oRC \@.25(b) for the County of Los Angeles, Juvenile Division The Honorable Jacqueline Lewis, Commissioner Presiding MARK J. SALADINO County Counsel DAWYNR. HARRISON Assistant County Counsel TRACEYF. DODDS(109304) Principal Deputy County Counsel STEPHEN D. WATSON(272423) Deputy County Counsel 201 Centre Plaza Drive, Suite 1 Monterey Park, California 91754-2142 Telephone: (323) 526-6273 Facsimile: (323) 881-6594 E-mail: tdodds@counsel.lacounty.gov Attorneys for Respondent, Los Angeles County Department of Children and Family Service CHS.525434.1 $221263 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re ISAIAH W., A Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENTOF Case No. 8221263 CHILDREN AND FAMILY SERVICES, Court of Appeal, 2d District Respondent, Vv. ASHLEER.(Mother), Petitioner and Appellant. Case No. B250231 Los Angeles County Superior Court Case No. CK91018 ANSWERBRIEF ON THE MERITS From a Decision of the Court of Appeal, Second Appellate District, Division Three On Appeal from the Judgmentofthe Superior Court for the County of Los Angeles, Juvenile Division The Honorable Jacqueline Lewis, Commissioner Presiding CHS.525434.1 MARK J. SALADINO County Counsel DAWYN R. HARRISON Assistant County Counsel TRACEYF, DODDS(109304) Principal Deputy County Counsel STEPHEN D. WATSON (272423) Deputy County Counsel 201 Centre Plaza Drive, Suite | Monterey Park, California 91754-2142 Telephone: (323) 526-6273 Facsimile: (323) 881-6594 E-mail: tdodds@counsel.lacounty.gov Attorneys for Respondent, Los Angeles County Department of Children and Family Service TABLE OF CONTENTS Page STATEMENTOF SPECIFIED ISSUE TO BE BRIEFED...cece: 1 INTRODUCTION(00. cccccccccccccecceeeeeeeceseeeneeeneesesaeereeeesneseeesaesesesneeneeenaeeentees 2 COMBINED STATEMENTOF THE CASE AND FACTS......ceee 3 Proceedings in the Dependency Case 00... cceccseteeeeeeeterteneieererees 3 ARGUMENT ooiecccccccccccccsccccsssseseccseeeesecseeceneenesseesestesseseessssesesaeessssneesseesseeey 10 I, A PARENT'S FAILURE TO APPEAL FROM A JUVENILE COURT ORDER FINDING THAT NOTICE UNDER THE INDIAN CHILD WELFARE ACT WAS UNNECESSARY PRECLUDES A PARENT FROM SUBSEQUENTLY CHALLENGING THAT FINDING MORE THAN A YEAR LATER IN THE COURSE OF APPEALING AN ORDER TERMINATING PARENTAL RIGHTS. ooo. .cecceccceseeesseereeeeeeereeees 10 A. The Court of Appeal Correctly Ruled that It had Lost Jurisdiction to Review the Ruling of the Juvenile Court Regarding [CWA Rulings Due to the Parents’ Failure to File a Timely Appeal. ..... cc cececccssesesseseeseseseeseeseessaeeees 10 B. The Doctrine of Federal Preemption does not confer Jurisdiction on the Court of Appeal Where None EXIStS. .oecccccesssccccssesececesseecseeneesesseeeeeeesenseaeeeteessaseeseneasensaeeeeeees 16 C. The ICWA Does not Require the Court of Appeal extend its Jurisdiction, it Merely requires there Exist Some Mechanism to Address the ICWAissues, if need DO. oe cecccesecccessescceessseeeeseneeeeseneeeesseeeecesessasusesesseaeasenseesenseeeeeeas 19 D. Delaying ICWA Determinations Until an Appeal From the Orders Terminating Parental Rights Enervates the ICWA,and Requiring ICWAissues to be Resolved in a Timely Fashion Protects Both the Indian Family and the Tribes Rights. 0.0... eessecessseseesseesssesseeessecneensenseeasenees 23 CONCLUSION......cccccccccccccescecseecereesneesececseesaesesneeeeseasesasessesesesescaseneesasenees 27 CERTIFICATE OF WORD COUNT PURSUANT TO RULE8.360....... 28 CHS.525434.1 TABLE OF AUTHORITIES Page CASES Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280...cece 14 Adoption ofAlexander S. (1988) 44 Cal.3d 857 ..ccccsceiteeeteteeeetees 12,15 Bronco Wine Co. y. Jolly (2004) 33 Cal.4th 943 wo... ccecsesesesseeteeeeeees 16, 17 Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504 oeseeeret erences 16 Crosby v. National Foreign Trade Council (2000) 530 U.S. 373 oe 17 Doe v. Mann (9th Cir. 2005) 415 F.3d 1038 cc cceccccsesseeseeteeererseeneereeneties 26 Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247.0... 20 English v. General Electric Co. (1990) 496 U.S. 72 veecceseserseseeeeeerenteetes 16 Estate ofHanley (1943) 23 Cal.2d 120 .....cccccecsseseeeeseeceeseeetetseneesssens 13, 14 Faunce v. Cate (2013) 222 Cal.App.4th 166............. sesessenersteneenseeseenessnsenes 14 Hillsborough County y. Automated Medical Labs. (1985) 471 U.S. TOT veccessssescccsccsesecessscceseceeesscesecsaeeeeeseseeesecseeesseaseesecsssessensaseneeenees 16, 17 Hines v. Davidowitz (1941) 312 U.S. 52... eeesccecesessenseseeeaseneeennesenesseees 17 Hollister Convalescent Hosp. v. Rico (1975) 15 Cal.3d 660 ..........00 13, 15 In re Alyssa H. (1994) 22 Cal.App.4th 1249 0... ceecceeseteeeteeneeeeeneeeeees 12 In re Elizabeth G. (1988) 205 Cal.App.3d 1327.0... ccecceceeseeenees 9, 10, 12, 15 Inre Elizabeth M. (1991) 232 Cal.App.3d 553 oo. cccccceseereeteeeeeeeeens 12,15 Inre Isaiah W. (2014) 228 Cal.App.4th 981 woeeseeeereens 2,9, 10, 27 In re Jonathon S. (2005) 129 Cal.App.4th 334occcccceeeeereeeneesseneeens 19 In re Marinna J. (2001) 90 Cal.App.4th 731 occ ccceeccsssceeeeeeees 17, 19, 20 Inre Markaus V. (1989) 211 Cal.App.3d 1331 wc.cesesesseeseeseeeeeeeeees 12 Inre Meranda P. (1997) 56 Cal.App.4th 1143iceccseseeeeeeseeseeeneens 11 In re Nikki R. (2003) 106 CalApp.4th 844ccccecsssssserssesseeeeseserensenee 20 CHS.525434.1 ii Inre Pedro N. (1995) 35 Cal.App.4th 183 oo... cee eecseeeeeseeereeeees 9, 10, 12 Inre S.B. (2009) 46 Cal.4th 529 oiecee ce cnseeee cesses seeeeseeseenerenees 11,15 Inre Shane G. (2008) 166 Cal.App.4th 1532ccccceceeeseeee etter teeeees 24 Inre Sheila B. (1993) 19 Cal.App.4th 187cececes tencerceeeeseeeneeeneenes 11 Jevne v. Superior Court (2005) 35 Cal4th 935 oo. cccccececsesseeseeteeeeeteenecsens 16 Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450 0... 14 Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 73 Olszewski v. Scripps Health (2003) 30 Cal.4th 798.0... cccccceeseeterteeeeees 16 People v. Mazurette (2001) 24 Cal.4th 789 oc ccscccseteeeeeteeteeeeenenees 11, 14 People v. Simon (2001) 25 Cal.4th 1082 wo... cceceesessesteseeseeteeererseseneeasenens 21 Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831... ciceeeeeeeeee 13, 14 Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218 ..ecceeccesesseeteeeeteens 17 ‘Sommer v. Martin (1921) 55 CalApp. 603.0... eecccceseceesseeseneeeserteeennees 22 Van Beurden Ins. Servs., Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51 occccsccesceeneeeeeeteeenerees 13, 15 STATUTES 25 UVS.C., Section 190]... ccccecccccceesseteeeceeetteeeeesseeeeenesccesesustastsseanstesee 25 25 ULS.C., SeCtION 1902... ecccccecessscceseseeserncecsscsceceseeneeeesnaaeeeeeeseeseasenes 23 25 ULS.C., Section 1903...ce eecceescereedereeesssesssessssesseesssessseeecneseeeseeenes 23, 24 25 ULS.C., Section 1912...eeecerceeeeeetseeseeseetssessesssssesscersaeeesaeeseas 18, 23 25 U.S.C, SeCtION LOD4eeecereereceeeeeseessseteseneseessseseeseseeeeenuaeeegs 18, 26 WELFARE AND INSTITUTIONS CODE Section 224.1 vee eeeeccccccccsseccscesessscsssceeeceesssseeeseesssceesescssseseesseseeeeneeeeeraees 23, 24 Section 224.2 iccccccccccscccccccsessececsensesecsesseccssseeecsssneseecaseeecsuueeesecsenaneeeoeed 23, 25 Section 224.3 ooo. ceccccccecssssccncssscsscessssesecceeseeccessnensseseeeeeeeaaeeeeseeeeeeeeeeess 6, 24, 25 CHS.525434.1 iii Section 300 ......cccccccccccccecccseeseveeseesessecseesssssnseeeneeeceeeeeeiensierseeseeseeeceseeeeeeeeenes 3,5 Section 362.4 ooicccccccsccccccceccesccccesceeeseneeseeaeceecseeessseeseesseecsteeeeessneeesesteeeeesaeenegs 22 Section 364 oo.ccecccccccccsececesseccessecsseeeneeeeneecesecesseceseesensesnsssseeesseaeeeseesesieeteneeas 22 Section 366 o...eecccceccccccccecesseceeeceeecesneesseeceeeseeceesseeeeeeaeeeseeeeereneeeceeeneseeras passim Section 366.26 ......cccccccccccccscecceeeeesceeceeeeeeeeteeecessesessecsneseneeecseaeeseatenseeenas passim Section 388 vo..ceccccccccccscccccssseceeeecseesseeeessessecessesesseesteceiseesreeeesiaeenteesentenneeey 25 Section 395 v..ccccccscccecccccccessccssecenceseeeeeesessseeseesesessisesnsessseeesieeeeneereeeentenaa 11 Sedtion 366.23 ....ccccccccccccscsscccssececseceseceeneceneeessscsesasseseeeesesseeecieeeeresesaeeerterss 22 OTHER AUTHORITIES 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400; 6 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Reversible Error, § BT vcccccecceseceescccessscscececssseesecesscceeseseeseeasesaeceaecesassucesecesseseseeesesenseeneeeaees 21 RULES California Rules of Court, rule 5.481 oo...eeeececcesteeceeecerseeseeeeeeeeeereees 24 California Rules of Court, rule 8.406.........ccccecccsecetesereeseeeeeeeeateeeeees 12, 15 California Rules of Court, rule 8.520 .........cccceeeseeeseseseesenseeeeesteeeeeneeeetseees l California Rules of Court, rule 8.66 ..........c:ccsccccessreeessseeesessseeecesseeeesneeensaes 12 CONSTITUTIONAL PROVISIONS Cal. Const., art. VI, § 11 cece cee eeceseseesseseeeeeerecneessensesseesseenseneneneeeneesaseeenes 10 U.S. Const., art. VI, Cl. 2 .cccccccccecccecsseeeeseecesneseresseesseseeeeesaeeeeeeseseesneeessness 16 CHS.525434.1 iv IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re ISAIAH W., A Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENTOF Case No. 8221263 CHILDREN AND FAMILY SERVICES, Court of Appeal, 2d District Respondent, Case No . B250231 Los Angeles County Superior Court Case No. CK91018 Vv. ASHLEER.(Mother), Petitioner and Appellant. FROM A DECISION ON APPEAL FROM THE SUPERIOR COURT, LOS ANGELES COUNTY HONORABLE JACQUELINE LEWIS, COMMISSIONER ANSWERBRIEF ON THE MERITS TO THE HONORABLETANI CANTIL-SAKADYE, CHIEF JUSTICE, AND THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: STATEMENTOF 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: | CHS.525434.1 1 Doesa parent's failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act ("ICWA") was unnecessary preclude the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights? INTRODUCTION The Petitioner, Ashlee R. ("Mother"), Isaiah W.'s parent, contends that an appellate challenge to a juvenile court's ruling that the ICWA canbe madeat any time. Infact, she appealed findings madeat the jurisdictional/dispositional hearing in an appeal from the hearing that terminated her parental rights. The Court of Appeal ruled that by failing to file a timely appeal, she had, in fact, forfeited the issue in the Court of Appeal. She now arguesthat the ICWA preempts state law, and the IOWA can be raised on appeal at any pointin the proceedings. She is wrong. Thosecases holding that the ICWA canberaised in an appeal from the terminationofparentalrights are a deviation from well-established statutory and case law that limits the jurisdiction of an appellate court to matters raised in a timely notice of appeal. By permitting a challengeto the juvenile court's ICWA findings to languish months,even years,after the ruling deprives Indian families and children of the protection of the ICWA, as well as delaying permanencyfor those children. The issues concerning ICWAshould be raised and resolvedat the earliest possible timein the trial h o CHS.525434.1 court, and not be allowed lay dormantuntil trotted out at the appeal from termination of parental rights. COMBINED STATEMENT OF THE CASE AND FACTS Proceedings in the Dependency Case Mother and Father!are the parents of Isaiah, born November20, 2011. (i Clerk's Transcript? ["1CT"] 1.) Isaiah was detained from Mother on December5, 2011, and released to Father. On December8, 2011, the Los Angeles County Department of Children and Family Services ("Department") filed a petition pursuant to Welfare and Institutions Code” section 300 alleging Isaiah needed the protection of the juvenile court because of his parents’ drug use. (CT 1-4.) On December6, 2011, the social worker questioned Mother about American Indian ancestry. Mother provided no information thatthe child had AmericanIndian heritage. (1CT 5.) At the arraignment and detention hearing, held on December8, 2011, the juvenile court detained Isaiah from both parents and ordered that he be detained in shelter care until the next hearing. (1CT 53.) The ' Isaiah's fatheris not a party to this appeal. > The Clerk's Transcript is contained in two consecutively paginated volumes, designated as 1CT and 2CT. > All further statutory references are to the Welfare and Institutions Code, unless otherwise noted. CHS.525434.1 3 Department wasgivendiscretion to place Isaiah with anysuitablerelative. (1CT 59.) At the detention hearing, Father signed a Parental Notification of Indian Status form indicating he had no Indian ancestry as far as he knew. (1CT 50.) Mother, however, indicated on the Parental Notification of Indian Status form that she had Cherokee heritage through the maternal grandmother, Willie Mae E., and Blackfoot on "dad's side" through mother's paternal grandmother, Hilda Henders. (CT 51.) The juvenile court had Mother sworn in. The court asked Mother why she believed she had American Indian heritage. Mother stated: "What my family told me. . _. That I have Indian in my family. But when my grandmawasalive, she used to tell me she was a part Cherokee,if I'm not mistaken." (1 Reporter's Transcript’ ["1RT"] 3.) The court then asked Motherifthe grandmother wasregistered with any tribe and Motherreplied "Not that I know of." Motheralso testified that neither she nor any family members were registered with any tribe. (RT 3.) Thejuvenile court ruled, "At this point the Court has no reason to know the child would fall under the Indian Child Welfare Act, but I will * The Reporters Transcript is contained in two volumes. Volume 1 ("1RT") contains the transcript of the proceedings heard on December8, 2011 and January 20, 2012. Volume 2 ("2RT") containsthe transcript of the proceedings heard on January 9, 2013 and April 10, 2013. CHS.525434.1 4 order the Department- - the mother needsto fill out a full ICWA 30 form, including all names, addresses, and phone numbersofany relatives that might have more information. § The Department needsto do an investigation, provide that investigation to the Court in the PRCreport. The Court will determine whether or not I have reason to know,and then we'll make a determinationas to notice." (1RT 6.) The Department submitted a Jurisdiction/Disposition report for the January 20, 2012 court date, and recommended that reunification services be offered for both parents. (1CT 71, 99.) On thatdate, the juvenile court sustained an amendedsection 300 petition. (1CT 129.) Mother was orderedto enroll in and participate in a drug rehabilitation program with weekly drug testing. The court directed her to participate in a developmentally appropriate parenting program,andto engage in individual counseling to address the case issues. (ICT 68.) Father was ordered into drug testing, and if any test was positive for drugs, then he was to participate in a drug rehabilitation program. He wasalso ordered to participate in parenting classes and individual counseling. (ICT 68.) On January 20, 2012, the Department submitted a last Minute Information for the Court Report detailing the Department's investigation of Mother's alleged American Indian ancestry. (1CT 69.) Willie Mae, who Motherbelieved had Indian ancestry, was Isaiah's great great grandmother. CHS.525434.1 5 Her daughter, Thelma, was not registered with a tribe, nor was Thelma's daughter, Valerie, registered with a tribe. Valerie's daughter, Mother, was also not registered with a tribe. Valerie's father, Jessie, (Isaiah's great grandfather) might have had Blackfoot, but no one knows whether he was registered, as the maternal grandmotherandhersiblings never met him. (1CT 69.) After having considered the information, the juvenile court stated: The Department seemsto have done a thoroughreport, talked to all relatives that possibly had any informationas to American Indian heritage. Noneof the information has pointed to anyrelative actually having American Indian heritage and certainly none having — being registered or eligible for enrollment. Any possibility here is really too attenuated and remoteforit to suggest to this Court or — excuse me—forthis court to know that the child would fall under the Indian Child Welfare Act. (IRT 17-18.) The juvenile court indicated that pursuantto the definition of "reason to know" defined by section 224.3, subdivision (b), it had no reason to know that Isaiah was an Indian child. The court, however, ordered Mother to keep the Department, her attorney, and the court aware of any new | information relating to possible ICWAstatus. (RT 18.) Six monthslater, the Department reported that it did not know where Mother wasresiding. (1CT 158.) Immediately after the disposition hearing, Mother reported she had been accepted into a drug and alcohol CHS. 525434.1 6 rehabilitation program. She was terminated from that programless than a month later for non-attendance. (1CT 159.) The social worker gave Motherreferrals, and even scheduled an appointmentfor the parents at Prototypes, a drug rehabilitation program. The parents did not show upfor their appointment. Neither parent participated in drug testing. ({CT 160.) Father wasliving with the paternal grandmother, and was unemployed. (ICT 158.) Once he was released fromjail, he visited with Isaiah two or three times, but then stopped visiting altogether, stating he was busy. (1CT 160.) Hetold the social workerthat there was no point in drug testing, becausethe results wouldbe positive for marijuana, which he used daily for his back pain. (1CT 160.) | The social worker opined that it was unlikely that the parents would make any efforts in the future, and she recommended that the juvenile court terminate family reunification services and proceed with a permanentplan. (1CT 170.) Mother appeared for the six-month review hearing, and requested the matter be set for a contested hearing. (2CT 191.) However, Mother did not appear for the continued hearing, which was continued for notice to Father. (2CT 225-226.) Neither parent appeared for the next hearing, and the juvenile court terminated family reunification services andset the matter for a section 366.26 hearing. CHS.525434.1 7 Motherappearedforthe section 366.26 hearing. (2 RT 1.) However, Father's whereabouts were unknown, and the Department had not yet receivedall the results ofits due diligence inquiry. (2RT 2.) Mother requested that the maternal aunt, who had previously been homeless, be assessed for placementof Isaiah. (2RT 5.) However, Isaiah had been placed in an adoptive home. (2RT 3.) The matter was continued to give Father notice and for Mother's contest. (2CT 271-272.) The section 366.26 hearing went forward on April 10, 2013, sixteen- monthsafter Isaiah was detained from the parents. (2RT 6.) The Department movedinto evidencethe reports it had previously submitted to the juvenile court. (2RT 6-7.) Mother objected to the termination of parental rights, and stated that she wanted Isaiah placed with the maternal aunt. (2RT 8.) The court proceeded to terminate the parents' parental rights. (2RT 9.) For the April 10, 2013 section 366.26 hearing, the Department reported that the juvenile court had foundit had no reason to knowthat Isaiah was an Indian child as defined under the ICWA,and did not order notice to any tribe or the Bureaus of Indian Affairs. The parents had been ordered to inform the Department, counsel, and the court if they had any new information that had any bearing on their Indian status. (2CT 283.) At CHS.525434.1 8 that hearing, the court reiterated that it had no reason to know Isaiah was an Indian child. (2CT 10.) Motherfiled her Notice of Appeal on June 5, 2013. (2CT 320.) The Second District Court of Appeal ruled that Mother's appealof the juvenile court's findings regarding ICWAnotice was barred due to herfailure to file a timely notice of appeal. The Court stated: "Appellate jurisdiction to review an appealable orderis dependent upona timely notice of appeal. [Citation.]" (Un re Elizabeth G. (1988) 205 Cal.App.3d 1327.) "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." (In re Pedro N. (1995) 35 Cal.App.4th 183, 189.) Here, because mother failed to timely appeal from the ICWA finding in the juvenile court's dispositional order, "she is foreclosed from raising the issue now on appeal from the order terminating her parental rights." (/bid.; see also Jn re Elizabeth G., supra, 205 Cal.App.3d at p. 1331.) (in re Isaiah W. (2014) 228 Cal.App.4th 981, review granted and opinion superseded.) H// // HI Mf HI MH [if CHS.525434.1 9 ARGUMENT I. A PARENT'S FAILURE TO APPEAL FROM A JUVENILE COURT ORDER FINDING THAT NOTICE UNDER THE INDIAN CHILD WELFARE ACT WAS UNNECESSARY PRECLUDES A PARENT FROM SUBSEQUENTLY CHALLENGING THAT FINDING MORE THAN A YEAR LATER IN THE COURSE OF APPEALING AN ORDER TERMINATING PARENTAL RIGHTS. A. The Court of Appeal Correctly Ruled that It had Lost Jurisdiction to Review the Ruling of the Juvenile Court Regarding ICWA Rulings Dueto the Parents’ Failureto File a Timely Appeal. The Second District Court of Appeal ruled that Mother's appeal of the juvenile court's findings regarding ICWA notice was barred due to her failure to file a timely notice of appeal. The Court stated: "Appellate jurisdiction to review an appealable order is dependent upon a timely notice of appeal. [Citation.]" (Un re Elizabeth G. (1988) 205 Cal.App.3d 1327.) "An appeal from the most recent order entered in a dependency matter may not challenge prior orders for whichthestatutory time forfiling an appeal has passed." (In re Pedro N. (1995) 35 Cal-App.4th 183, 189.) Here, because mother failed to timely appeal from the ICWAfinding in the juvenile court's dispositional order, "she is foreclosed fromraising the issue now on appeal from the order terminating her parental rights." (/bid.; see also Jn re Elizabeth G., supra, 205 Cal.App.3dat p. 1331.) (In re Isaiah W. (2014) 228 Cal. App. 4th 981, review granted and opinion superseded.) The Court of Appeal wascorrect. Appellate courts in California derive their appellate jurisdiction from the California Constitution. (Cal. Const., art. VI, § 11.) The right to appeal, however, is defined bystatute. "It is settled that the right of appeal CHS.525434.1 10 is statutory and that a judgmentororder is not appealable unless expressly made soby statute." (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Dependency appeals are governed by section 395, which provides that "{a] judgment in a proceeding under [s]ection 300 may be appealedin the same manneras any final judgment, and any subsequent order may be appealed as anorderafter judgment.” (§ 395(a)(1); Jn re S.B. (2009) 46 Cal.4th 529, 531-532.) In dependencycases,the first hearing from which an appeal maybetakenis the disposition hearing. (Jn re S.B., supra, 46 Cal.4th at p. 532; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150; Jn re Sheila B. (1993) 19 Cal.App.4th 187, 196.) Disposition orders and "all subsequent orders are directly appealable without limitation," except for orders setting a hearing pursuant to section 366.26, whichare subject to review by extraordinary writ. (In re S.B., supra, 46 Cal.4th at p. 532; Jn re Meranda P., supra, 56 Cal.App.4th at p. 1150.) "A consequence ofsection 395 is that an unappealed disposition or postdisposition orderis final and binding and may notbe attacked on an appeal froma later appealable order.’ [Citation.]" Un re S.B., supra, 46 Cal.4th at p. 532.) "An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time forfiling an appeal has passed." (In re Elizabeth M. (1991) 232 CHS.525434.1 11 Cal.App.3d 553, 563, citing In re Elizabeth G., supra, 205 Cal.App.3dat p.1331.) The California Rules of Court establish the time limit to file a notice of appeal in dependencycases. "[A] notice of appeal mustbe filed within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.406(a)(1); See also In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1253-1254; In re Markaus V. (1989) 211 Cal.App.3d 1331, 1337.) "Except as provided in rule 8.66,° no court may extend the timeto file a notice of appeal. The superior court clerk must mark a late notice of appeal "Received [date] but notfiled,' notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appealto the district appellate court." (California Rules of Court, rule 8.406(c).) The notice of appeal is a prerequisite to the appellate court's power to entertain the appeal. (Adoption ofAlexander S. (1988) 44 Cal.3d 857, 864.) "Appellate jurisdiction to review an appealable order is dependent upona timely notice of appeal." (dn re Elizabeth G., supra, 205 Cal.App.3d at p. 1331.) "The time for appealing a judgmentis > California Rules of Court, rule 8.66, allows for an extensionofthe time to file a notice of appeal whenit is made necessary by reasons not applicable here, such as an earthquake,fire, or other public emergency. (California Rules of Court, rule 8.66.) CHS.525434.1 12 jurisdictional; once the deadline expires, the appellate court has no powerto entertain the appeal." (Van BeurdenIns. Servs., Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56, citing Hollister Convalescent Hosp. v. Rico (1975) 15 Cal.3d 660, 666.) "TT]he requirement as to the time for taking an appealis mandatory, and the court is without jurisdiction to consider one which has been taken subsequentto the expirationofthe statutory period." (Estate ofHanley (1943) 23 Cal.2d 120, 122.) "If it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal ofits own motion even if no objection is made." (dd. at p. 123.) "Conventional appeals have long been governed by the ‘fundamental precept that the timely filing of an appropriate notice of appealorits legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction." (Pressler vy. Donald L. Bren Co. (1982) 32 Cal.3d 831, 835, quoting Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3dat p. 670.) "The first step, taking of the appeal, is not merely a procedural one;it vests jurisdiction in the appellate court and terminates the jurisdictionof the lowercourt." (Estate ofHanley, supra, 23 Cal.2d at p. 123.) "Accordingly, in conventional appeals it has long been the rule that 'Tin] the absence of statutory authorization, neither the trial nor appellate courts may extend . . . the time for appeal, even to relieve against mistake, CHS.525434.1 13 inadvertence, accident, or misfortune. Nor can jurisdiction be conferred upon the appellate court by the consentorstipulation ofthe parties, estoppel, or waiver. If it appears that [an] appeal was not takenwithin the [statutory time], the court has no discretion but [to] dismiss the appeal . . . " (Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at p. 835, quoting Estate ofHanley, supra, 23 Cal.2dat p. 123; internalcitations anditalics omitted.) "An untimely notice of appeal is an ‘absolute bar’ to appellate jurisdiction. [Citation.] We have no jurisdiction to act on an untimely appeal and must dismiss the appeal without reaching the merits. [Citation.]" (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) "This court is without power to bestow jurisdiction on itself, nor may the parties create jurisdiction by consent, waiver, or estoppel." (Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450, 1455.) "Lack of jurisdiction in its most fundamentalorstrict sense meansan entire absence ofpowerto hear or determine the case, an absence of authority over the subject matter or the parties." (Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280, 288.) Thus, appellate court jurisdiction is a matter of law and dependent on a timely notice of appeal challenging an order within 60 days of the rendition of the order. (People v. Mazurette, supra, 24 Cal.4th at p. 792; Jn CHS.525434.1 14 re Elizabeth G. supra, 205 Cal.App.3d at p. 1331; Cal. Rules of Court, rule 8.406(a)(1).) Accordingly, an appellate court lacks jurisdiction to entertain a challenge to an order for whichthestatutory time for filing anotice of appeal had expired. (/n re S.B., supra, 46 Cal.4th at p. 532.; In re Elizabeth M., supra, 232 Cal.App.3d at p. 563.) As such, the Second District Court of Appeal's decision to apply the California appellate time frames was sound because a timely notice of appeal vests jurisdiction in the appeilate court and is an absolute prerequisite to the appellate court's power to hear the appeal. (Van BeurdenIns. Servs., Inc. v. Customized Worldwide Weather Ins. Agency, Inc., supra, 15 Cal.4th at p. 56; Adoption of Alexander S., supra, 44 Cal.3d at p. 864.) When a Court of Appeal disregards the applicable time period for filing a notice of appeal and endeavorsto entertain the appeal regardless,it exercises jurisdiction it does not have. (Van Beurden Ins. Servs., Inc.v. Customized Worldwide Weather Ins. Agency, Inc, supra, 15 Cal.4th atp. 56, citing Hollister Convalescent Hosp.v. Rico, supra, 15 Cal.3d at p. 666.) Withoutjurisdiction, the appellate court has no powerto hear the appeal and the appeal must be dismissed. By extending the appellate time frame to allow a parent to wait until the termination of parentalrights to assert a challenge to a two-year-old ICWAfinding, the appellate court not only CHS.525434.1 15 exercises powerit does not have,it inadvertently assists the parent in stalling that child's adoption. B. The Doctrine of Federal Preemption does not confer Jurisdiction on the Court of Appeal Where None Exists. The supremacyclause of the United States Constitution establishes a constitutional choice-of-law rule, makes federal law paramount, and vests Congress with the powerto preemptstate law. (U.S. Const., art. VI, cl. 2; Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407; Jevne v. Superior Court(2005) 35 Cal.4th 935.) There are four types of federal preemption: express, conflict, obstacle, andfield. (See Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 955.) 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 congressionalintent, [citation], and when Congress has madeits intent known through explicit statutory language, the courts' task is an easy one." (English v. General Electric Co. (1990) 496 U.S. 72, 78-79, accord, Jevne v. Superior Court, supra, 35 Cal.4th at p. 949, 28 CalRptr.3d 685, 111 P.3d 954.) Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. (Hillsborough County v. Automated Medical Labs. (1985) 471 U.S. 707, 713, Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815.) Third, obstacle preemption arises when" CHS.525434.1 16 ‘under the circumstancesof[a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution ofthe full purposesand objectives of Congress.'" (Crosby v. National Foreign Tirade Council (2000) 530 U.S. 373, 120 S.Ct. 2288, quoting Hines v. Davidowitz (1941) 312 ULS. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581; accord, Bronco Wine Co. v. Jolly, supra, 33 Cal.4th at p. 955.) Finally, field preemption,i.e., "Congress' intent to pre-empt all state law in a particular area," applies "where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress'left no room’ for supplementary state regulation." (Hillsborough County, at p. 713, 105 S.Ct. 2371, quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447.) In cases such as In re Marinna J. (2001) 90 Cal.App.4th 731, the Court of Appeal reasonedthat the federal act required there be a mechanism to review ICWAerrors. (Jd. at p. 739.) Mother likewise contends that the ICWA preemptsstate law, at least as far as the authority of the appellate law is concerned. (Mother's Opening Brief on the Merits ["MOB"] 8.) But they never indicate exactly what provision offederal law invalidates the California judicial system, at least as far as the ICWAis concerned. The federal statute mandating notice to Indian Tribesstates: CHS.525434.1 17 (a) In any involuntary proceeding in a State court, where the court knowsor has reason to know that an Indian childis involved, the party seeking the foster care placementof, or termination of parentalrights to, an Indian child shall notify the parent or Indian custodian and the Indianchild's tribe, by registered mail with return receipt requested, of the pending proceedingsandoftheir right of intervention.If the identity or location of the parent or Indian custodian andthetribe cannot be determined, such notice shall be givento the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian andthe tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian andthe tribe or the Secretary: Provided, That the parentor Indian custodianor thetribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. (25 USC § 1912.) The only federal statute contained in the ICWAdictating court proceedings is 25 United States Code section 1914. That section states: AnyIndian child who is the subject of any action for foster care placementor termination of parental rights underState law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court ofcompetentjurisdiction to invalidate such action upon a showingthat such action violated any provision of sections 1911, 1912, and 1913 ofthistitle. (25 U.S.C. § 1914, emphasis added.) Thus, the federal law dictates that a petition to right an ICWA wrong must beheard in a court of competent jurisdiction, it does not change the existing jurisdiction of state courts. An appellate court is not a "court of competent jurisdiction" for purposes of suchapetition. In In re Jonathon S. (2005) 129 Cal.App.4th CHS.525434.1 18 334, the court held that an appellate court, is not a "court of competent jurisdiction" within the meaning of the enforcementprovision of the ICWA because, among other reasons, "in many instances, a petition under the enforcement provision will require the resolution of disputed factual issues. Wearejust not the right kind of court." (/d. at p. 341.) "Any petition under the enforcement provision to invalidate an order in an open dependency [proceeding] mustbefiled in the juvenile court; only after the juvenile court renders an appealable ruling on the petition can we review the issues on appeal." (/d. at p. 342 [disagreeing with courts which have suggested that an appeal regarding an ICWAviolationis itself a petition under the Act's enforcement provision].) C. The ICWADoes not Require the Court of Appeal extend its Jurisdiction, it Merely requires there Exist Some Mechanism to Address the ICWAissues,if need be. Motherstates that the generally accepted rule in dependencycasesis that the forfeiture doctrine does not bar consideration ofICWA notices on appeal. (MOB 26.) But to the extent that existing case law confused the issue of forfeiture and lack of appellate jurisdiction, existing case law is wrong. ICWA,like any other issue, is subject to.the forfeiture rule. The early case ofIn re Marinna J., supra, 90 Cal.App.4th 731, stands for the general proposition that where notice requirements are CHS.525434.1 19 violated and parents do notraise that claim in a timely fashion, the waiver doctrine cannot be invoked. (/d. at p. 736.) In that case, the parents alleged Cherokeeheritage at the beginning of the case. There was no evidence the Agency noticed the Cherokee tribes. (/d. at p. 736.) The case proceededto the section 366.26 hearing where the juvenile court terminated parental rights. U/d. at p. 733.) At no point in the proceedings did the parents object to the finding ICWAdid not apply. The parents raised the issue for the first time on appeal, and the Court found the parents did not waive that issue because, without notice to the tribe, the tribe is unable to assert its rights under ICWA. (dn re Marinna J., supra, 90 Cal.App.4th 731, 736.) Similarly, the cases ofDwayneP.v. Superior Court (2002) 103 Cal.App.4th 247 and In re Nikki R. (2003) 106 Cal.App.4th 844 held the parent did not waive the issue of an ICWA noticing defect when they raised the issue for the first time on appeal from the termination of parentalrights. But other than a discussion of the mandatory nature of notice under the ICWA,noneofthe cases explain why a Court of Appeal would retain jurisdiction to review a final decision over the provisions of the ICWA, when it could not retain jurisdiction over any otherissue, including those detailing fundamental liberty interests, such as a parents liberty interest in a parental relationship. CHS.§25434.1 20 What the various Courts of Appeal have held is that ICWAis just too importantto allow a party's lack of diligence prevent its application. But they are incorrect, parents and children can and do waivethe protections of the ICWAall the time. If they do not inform the juvenile court of any American Indian heritage, any issues concerning the ICWA are forfeited. If they never appeal fromany ofthe orders or findings made by the trial court, any possible ICWAissuesare forfeited. Yet no one has proposed a rule stating that the Court of Appeal must sua sponte review every case in whichthetrial court finds it has no reasonto believe the children are Indian children in order to ensure that no parent has inadvertently waived an American Indian Tribe's rights under the IOWA. Nor has any Court of Appeal determinedthat the right to appeal ICWA issues is not bound by any time frame. The forfeiture rule generally applies in all civil and criminal proceedings. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400; 6 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Reversible Error, § 37.) The rule is designed to advanceefficiency and deter gamesmanship. As explained in People v. Simon (2001) 25 Cal.4th 1082, "'" 'The purpose of the general doctrine of waiver[or forfeiture] is to encourage a defendantto bring errors to the attention of the trial court, so that they may be corrected or avoided anda fair trial had... .'" [Citation.] "'No procedural principle CHS.$25434.1 21 is more familiar to this Court than that a constitutional right,’ or a right of anyother sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determineit.’ . . ." [Citation.] [] "The rationale forthis rule was aptly explained in Sommerv. Martin (1921) 55 Cal.App. 603 at page 610 [204 P. 33] ...: '"In the hurry ofthe trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts uponthe party the duty of looking after his legal rights and of calling the judge's attention to any infringementof them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." ' " [Citation.]' (Fn. omitted; [citations].)" (People v Simon, supra, 25 Cal.4th at p. 1103.) But the forfeiture rule presumesa final judgment andthe loss of jurisdiction in the trial court. In dependency,the juvenile court retains jurisdiction over the child until and adoptionis finalized, the childis returned to a parent or placed with a legal guardianship,or the child ages out of the system. (§§ 364, subd. (c), 362.4, 366.26, 366.23.) Evenif the Court of Appeal has lost jurisdiction over an issue, the juvenile court has not. CHS.525434.1 2? D. Delaying ICWA Determinations Until an Appeal From the Orders Terminating Parental Rights Enervates the ICWA,and Requiring ICWAissues to be Resolved ina Timely Fashion Protects Both the Indian Family and the Tribes Rights. Congress enacted the ICWA in 1978 in responseto a rising concern about the plight of Indian children, Indian families, and Indian tribes involvedin state child-welfare proceedings. (Mississippi Band ofChoctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) The legislation's purposeis to protect the best interests of Indian children and promote the stability and security of Indian tribes and families. (/bid.) In furtherance of these goals, the ICWAcontains procedural and substantive mandates. Procedurally, when there is reason to know child is Indian, Title 25 United States Code section 1912, subdivision (a), notice requirements are triggered and mandate that the Departmentnotify the relevanttribe(s) or the Secretary of the Interior of the proceedings in order to ascertain whetherthe child is an "Indian Child" as defined by the ICWA. (25 USC §§ 1902, 1903.) In 2007, California adopted identical language with regard to ICWAnotice requirements and the definition of "Indian Child." (§§ 224.1, subd. (a), 224.2, subd. (a).) "Indian Child" is defined under federal and California law as an unmarried person under the age of 18 whois either "(a) a member of an Indian tribe or (b) is eligible for membership in an Indiantribe andis the CHS,525434. 23 biological child of a memberof an Indian tribef.]" (25 U.S.C. § 1903(4).) The purpose of sending ICWA notice is to determine whetherachildis "Indian" as defined by the ICWA. This is important because the substantive portions of the ICWAapply to Indian children, but only those Indian children as defined by the ICWA - "children who are members of a tribe or eligible for membership and have a parent whois a tribal member." (See 25 U.S.C. §§ 1903(4), 1914-1916; § 224.1, subd. (a).) If the juvenile court "knowsor has reason to know that an Indian child is or may be involved," the agency is not required to send formal notice, but rather is required only to further investigate the child's Indian status. (Cal. Rules of Court, rule 5.481(a)(4).) "The circumstances that may provide probable cause for the court to believe the child is an Indian child include, but are not limited to, the following: [{] (A) A person having an interest in the child informs the court or the county welfare agency or provides information suggesting that the child is an Indian child; [{] (B) The residence ofthe child, the child's parents, or an Indian custodian ts in a predominantly Indian community; or [§] (C) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, suchas the Indian Health Service." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538-1539,citing § 224.3, subd. (b)(2), (3), internal quotation marks omitted.) CHS.525434.1 24 If these or other circumstances indicate a child may be an Indian child, the Department must further investigate the child's possible Indian status. (§ 224.3, subd. (c).) Ifthe investigation leads the Departmentorthe court to know or have reason to know the child is Indian, the ICWA notice mandates are triggered. (§§ 224.3, subd. (d), 224.2, subd. (a)(5)(A)-(G).) Because Indian families are afforded special protections, the [CWA envisions that they be identified at the beginning of any dependency proceeding. (§224.2, subd (d).) However, at any time in the case, if new information sheds light on the families' American Indian ancestry, the juvenile court shall revisit the issue. Section 224.2, subdivision (b) provides that notice shall be sent wheneverit is knownorthere is reason to knowthat an Indian child is involved, and for every hearing thereafter, — including, but not limited to, the hearing at which a final adoptionorderis to be granted, unless it is determined that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) does not apply to the case in accordance with section 224.3. (Emphasis added.) In addition, section 388 provides a vehicle for revisiting the findings in the juvenile court. Thus, any issues concerning the ICWAshould belitigated in the juvenile court before they can be Hl Hl Mf CHS.525434.1 25 considered on a timely appeal.° Asa last resort, the parties may resort to an action in federal court. (Doe v. Mann (9th Cir. 2005) 415 F.3d 1038.) The rule allowing ICWAissues to be determined in an appeal froma hearing to terminate parental rights encourages the practice of ignoring ICWAviolations for years while a dependency case creeps through the proceedings. In the calendar year 2014, of the 138 appeals decided in California concerning ICWA, 86 were appeals from the termination of parental rights.’ In 62 percent of the cases wherethe juvenile court's ICWA determination challenged, that challenge did not come until after the child was declared a dependent, removed fromhis/her parents, family reunification services terminated, and parentalrights terminated. Should a child actually be an Indian Child as defined bythe act, the child and the family will not have enjoyed any of the protections they are entitled to underthe act. The passageoftime in foster care for an Indian Child that wasnot afforded the protections of the ICWA cannot be undone. If ° Although section 366, subdivision (n), does deprive the juvenile court from changing an orderterminating parentalrights, it does not deprive the court jurisdiction to revisit ICWA concerns. And should the child in question actually be an Indian child, then 25 United States Code section 1914 would comeinto play. Thus, if any Californiastatute is preempted by the ICWA,it would be section 366.26, subdivision (n). 7 Those numbers are derived from ruling a search of ICWAcases on WestLawNext, then filtering for termination of parental rights, and then manually reviewing the cases to eliminate those in which parentalrights were not terminated, such as cases involving guardianships. CHS.525434.1 26 violations of the act are not challenged by either the parents' counsel or counsel for the children when such violations occur, and do not seek prompt appellate review, then counsel wasineffective. But there is a remedyin the trial court for violations of the ICWA. CONCLUSION For all the foregoing reasons, the Department requests that this Honorable court affirm the holding ofIn re Isaiah W., and rule that if an ICWAissue is not timely appealed, the Court of Appeal loses jurisdiction to review the decision of the juvenile court. DATED: February 6, 2015 Respectfully submitted, MARK J. SALADINO County Counsel Le TRACEY F. DODDS Principal Deputy County Counsel aie” STEPHEN D. WATSON Deputy County Counsel Attorneys for Respondent, Los Angeles County Department of Children and Family Services CHS.525434.1 27 CERTIFICATE OF WORD COUNT PURSUANT TO RULE8.360 The text of this brief consists of 6,254 words as counted bythe Microsoft Office Word 2010 program used to generatethis brief. DATED: February 6, 2015 CHS.525434.1 Respectfully submitted, MARK J. SALADINO County Counsel By 28 CL. TRACEY F. DODDS Principal Deputy County Counsel oo STEPHEND. WATSON Deputy County Counsel Attorneys for Respondent, Los Angeles County Department of Children and Family Services DECLARATION OF SERVICE (Mail) STATE OF CALIFORNIA, County of Los Angeles: LINDA C. KAPPELERstates: I am andat all times herein mentioned have been a citizen of the United States and a resident of the County of Los Angeles, over the age of eighteen years and not a party to nor interested in the within action; that my business address is 201 Centre Plaza Drive, Suite 1, City of Monterey Park, County of Los Angeles, State of California; that I am readily familiar with the business practice of the Los Angeles County Counsel for collection and processing of correspondence for mailing with the United States Postal Service; and that the correspondence would be deposited within the United States Postal Service that same dayin the ordinary course of business. That on February 9, 2015, I served the attached ANSWERBRIEF ON THE MERITS IN THE MATTER OF ISAIAH W., SUPREME COURTNO. 8221263, 2d JUVENILE NO. B250231, LASC NO. CK91018 uponInterested Parties by depositing copies thereof, enclosedin a sealed -envelope and placed for collection and mailing on that date following ordinary business practices in the United States Postal Service, addressed as follows: Patti L. Dikes, Esq. Stephanie Miller, Esq. 9116 East Sprague Avenue, #473 California Appellate Project Spokane Valley, Washington 99206 520 South Grand Avenue, 4th Floor (Counsel for Appellant, Ashlee R.) Los Angeles, California 90071 Kineta Shorts, Esq. Tiffany Rodriguez, Esq. LADL 1 LADL2 Law Office of Katherine Anderson Law Office of Marlene Furth 1000 Corporate Center Drive, Suite 410 1000 Corporate Center Drive, Suite 430 Monterey Park, California 91754 Monterey Park, California 91754 (Trial Counsel for Mother) (Trial Counsel for Father) Clerk of the Court Supreme Court of California 350 McAllister Street San Francisco, California 94102-7303 I declare under penalty of perjury that the foregoing is true and correct. Executed on February 9, 2015, at Monterey Park, California. LINDA C. KAPPELER CHS.525434.1 DECLARATIONOF SERVICE(Personal) STATE OF CALIFORNIA,County of Los Angeles: LINDA C. KAPPELERstates: I am employed in the County of Los Angeles, State of California, over the age of eighteen years and nota party to the within action. My business address is 201 Centre Plaza Drive, Suite 1, Monterey Park, California 91754-2142. On February 9, 2015, I personally served the attached ANSWERBRIEF ON THE MERITSIN THE MATTEROF ISAIAH W., SUPREME COURTNO.8221263, 2d JUVENILE NO. B250231, LASC NO. CK91018 to the persons and/or representative of the court as addressed below: For a party represented by an attorney, delivery was madeto the attorney orat the attorney's office by leaving the documents, in an envelope or packageclearly labeled to identify the attorney being served, with a secretary or an individual in chargeofthe office, between the hoursof 9:00 a.m. and 5:00 p.m. For the court, delivery was madeto the Clerk of the Superior Court by leaving the documentsin an envelopeor package,clearly labeled to identify the hearing officer being served, with the counterclerk in that office, between the hours of 8:30 a.m. and 4:30 p.m. Clerk of the Court Court of Appeal Second Appellate District Division Three 300 South Spring Street 2"4 Floor, North Tower Los Angeles, California 90013-1213 Honorable Jacqueline H. Lewis Helen H. Yee, Esq. Dept. 418 P.O. Box 3488 c/o Clerk of the Superior Court South Pasadena, California 91031 Edmund D. Edelman Children's Court (Trial Counsel for Minor(s)) 201 Centre Plaza Drive, Suite 3 Monterey Park, California 91754-2158 I declare under penalty of perjury that the foregoing is true and correct. Executed on February 9, 2015, at Monterey Park, California. LINDA C. KAPPELER CHS.525434.1