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Filed 5/10/22 In re J.T. CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

In re J.T., a Person Coming Under the Juvenile Court Law. C094266

YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v. K.P. et al., Defendants and Appellants. (Super. Ct. No. JV2019261)

This is the second appeal filed by appellants K.P. ( mother ) and A.T. (father) after
termination of their parental rights. (Welf. & Inst. Code, § 366.26.) 1 In the previous appeal, this court accepted the parties’ joint application and stipulation for a reversal and conditionally reversed and remanded for limited proceedings to ensure compliance with

1 Undesignated statutory references are to the Welfare and Institutions Code.2

the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). In this appeal from the juvenile court’s orders reinstating the orders terminating their parental rights and freeing the minor for adoption, mother and father again contend the juvenile court and the Yolo County Health and Human Services Agency (Agency) failed to comply with the requirements of ICWA. Because mother and father failed to object in the juvenil e court

on specific grounds asserted in this appeal , their claim s are forfeited . We will affirm the orders terminating parental rights.
BACKGROUND The minor’s half sibling A.E. was removed from mother’s care in 2015 due to
substance abuse by mother and th e half sibling’s father . ( In re A.E. (Feb. 26, 2018, C084468 [nonpub. opn.].) The initial orders terminating parental rights as to the minor’s half sibling were conditionally reversed and remanded for further ICWA compliance related to mother’s claim of Indian ancestry. ( Ibid .)
The minor in this case, J.T., was previously removed from mother and father’s

care upon his birth in July 2016, during the pendency of his half sibling ’s appeal as a result of mother and father’s substance abuse . ( In re A.E. , supra , C084468 .) At that time, mother reported she had Blackfeet and/or Cherokee ancestry and father reported he may have Indian heritage but did not know with what tribe. Th e Agency completed an
ICWA

- 030 form and n otic ed the Blackfeet tribe , the three C herokee tribes , and the Bureau of Indian Affairs ( BIA ) . On September 13, 2017, the juvenile court found ICWA did not apply. Thereafter, on August 15, 2018, the Cherokee Nation 2 sent a letter to the Agency repor t ing that it had examined the tribal records and neither the minor nor his

2 Although it is sometimes known as the Cherokee Nation of Oklahoma, the tribe’s letterhead and name in the Federal Register is “Cherokee Nation” and that is the name used by th e Agency and the tribe. (84 Fed.Reg. 20408 (May 9, 2019); 85 Fed.Reg. 24015 (Apr. 30, 2020).)3

half sibling A.E. were Indian children. In that case, f ather’s reunification services were terminated , mother was awarded legal and physical custody of J.T. , and d ependency jurisdiction was terminated in November 201 8.
A new section 300 petition was filed on behalf of minor J.T. on August 6, 2019, again based on mother and father ’ s ongoing substance abuse and on mother’s loss of parental rights as to the minor’s half sibling

. The minor was detained

. The Agency

attac hed an ICWA

- 010 form to the petition reflecting that in July 2016, mother had
indicated she may have Blackfeet and/or Cherokee ancestry and father was unsure if he had Indian ancestry. At the detention hearing , the Agency noted that the juvenile court had prev iously, in September 2017, made findings that ICWA did not apply, and requested that mother and father fill out new ICWA forms. The juvenile court told
mother and father they needed to complete the forms. The juvenile court also asked if
there was “ [ a ] nything new on ICWA?” Mother’s counsel responded “no.” Father’s counsel did not respond. The juvenile court stated, “This is a no n

- ICWA child. I want
the documentation though, okay?” On August 7, 2019, mother signed an ICWA

- 020 form denying she had any Indian ancestry. Father signed a form indicat ing he “may have Indian ancestry” but did not

name any tribes or bands. The August 7, 2019 order s indicat e the juvenile court found
ICWA did not apply. Prior to the section 366.26 hearing, county counsel advised the social worker to re

notice the tribes. The Agency sent ICWA

- 030 forms containing mother’s familial
information to the Blackfeet, Cherokee , and Apache tribes, as well as the BIA. T he Cherokee Nation responded by e

- mail that it h ad previously determined J .T. w as not an Indian child in 2018 and , without any new information to research, th e 2018
determination would remain. All of the remaining tribes either responded that the min or was not an Indian child or failed to respon d

. The Agency asked t he juvenile court to find
that ICWA did not apply.4

On June 24, 2020, the juvenile court addressed ICWA , asking if any counsel had

an objection to the recommendation that it find ICWA did not apply. Mother and father’s counsel did not object and the juvenile court again found the minor was not an Indian
child

. The contested section 366.26 hearing took place on July 24, 2020 , after which the juvenile court found ICWA did not apply, terminated parental rights , and freed the minor for adoption. Mother and father appealed.
After mother and father’s opening briefs were filed, the parties jointly applied for a reversal of the orders terminating parental rights and immediate issuance of the remittitur based upon a joint declaration and stipulation that the Agency and the juvenile court failed to comply with the inquiry and notice requirements of ICWA

. This court accepted the stipulation of the parties to reverse the orders terminating parental rights and
remand ed t he case to the juvenile court for further proceedings to address compliance with the requirements of ICWA . Specifically, this court directed the juvenile court “ to conduct further proceedings limited to the issue of compliance with the provisions of [ICWA ]

. If the juvenile court concludes that inquiry and notice has occurred and the minor is not an Indian child, the orders terminating parental rights shall be reinstated. If, after proper notice to the tribes, the juvenile court determines [ICWA] applies because the minor is an Indian child, the juvenile court shall schedule a new hearing pursuant to Welfare and Institutions Code section 366.26 and proceed in accordance with the Act. ” Remittitur issued on December 4, 2020. In response to the stipulation f or reversal, the Agency in terviewed father and six of the paternal relatives and family friends

. Vicky T., t he mother of father’s older children , reported that father’s biological mother had die d when she was 40 years old and that father was raised by his stepmother. Vicky T. completed DNA research on the children
she shared with father and learned , through Ancestry, that the paternal grandmother5

might have Cherokee Nation ancestry. Vicky T. provided the Agency with the name of
th e paternal grandmother, her date of birth , and her approximate date of death. The paternal aunt also reported that, as a child, her family traveled through
Bakersfield and she and her siblings were warned not to go to the window at night because the people from the Tehachapi tribe would come down from the mountain and speak to the maternal great

- grandfather. The aunt agreed to speak to some older relatives about possible Indian ancestry. The Agency’s social worker completed a new ICWA

- 030 form containing t he new
information about father’s family members. Having determined the Te hachapi tribe is not a federally recognized tribe, the Agency served the notice on the Tejon tribe because
their ancestral homeland include d the Tehachapi mountains. The Agency als o served the
form on the Cherokee Nation and the BIA.
At the January 21, 2021 post

- remand hearing, father’s counsel reported that father’s biological great

- grand father was a member of the Tehachapi tribe, which is
associated with the Tejon tribe , and that father would provide the information he gathered
to the social worker

. The Agency requested, and the juvenile court agreed, to have father provide that inform at ion on the record. Father provided t he name of his gr andmother and great

- grandfather, both deceased, and promised to provide birth dates to the social
worker. The juvenile court ordered father to provide the birth dates within three days and
the matt er was continued to March 18, 2021

. In an updated report, the Agency reported the Tejon tribe had responded on February 3, 2021 , that neither father nor the minor were member s of the tribe. Th at same day, th e Agency s erved updated notice on the Tejo n tribe with the newly acquired
information abo ut father’s grandmother and great

- grandfather, but no additional response
was received. The Agency also provided the newly acquired information about father’s grandmother and great

- grandfather to the Cherokee Nation via e

- mail. The Cherokee
Nation replied via e

- mail that neither the parents nor the minor were members and the6

minor is not an Indian child in relation to the Cherokee Nation , but the tribe had not sent

an “official notification” of such

. Via a series of exchanges, t he social worker was informed an official response would be generated once the notice was fully researched and processed

. The juvenile court continued the matter to April 29, 2021 , so the tribe could provide its “ official word” or “official letter.” On Ap ril 16, 2021, the social worker sp o ke to the Cherokee Nation eligibility supervisor to inquire about the formal response . The supervisor said the tribe was behind on processing requests and she expect ed it would be done before April 22, 2021

. At the April 29, 2021 hearing, the juvenile court noted the Cherokee Nation had provided
unofficial notice that the minor is not an Indian child but had not indicated they were still conducting further inquiries th emselv es

. Counsel for mother and father argued the juvenile court should wait for the official confirmation letter before making its final ICWA findings. The juvenile court stated it was still uncertain whether the Cherokee Nation had completed its revie w but had not yet issued a formal letter, or whether there
was still some further level of review

. It continued the matter to May 27, 2021 , to give
the Cherokee Nation more time to send a formal letter

. At the May 27, 2021 hearing , the juvenile court not e d it had received that day an

e

- mail from the eligibility supervisor for the Cherokee Nation indicating that the minor is
not an Indian child. 3 The juvenile court further noted there was nothing in the e

- mail indicating any further review was anticipated. The Agenc y took the position that there was no requirement a tribe’s response be in any particular form and t h e e

- mail was the official notification for which they had been waiting. The juvenile court asked for

3 The e

- mail read: “ As this child has been previously determined to not be an ‘I ndian child ’ and we have not processed any new notices received, I am only assuming the identifying information for the child and parents have not changed. If that is so, then our determination that [J.T.] is not an Indian child will remain and Cherokee Nation is not authorized to participate in any hearings where there is no In dian child.”7

comment from mother and father’s counsel . Mother’ s counsel stated she “would just object that ICWA has been satisfied here. We are here on appeal and we ’ ve been waiting
for sort of an official letter. I would suggest that this e

- mail isn ’ t really much more tha n what we ’ ve already had. The [juvenile c ourt ] has been waiting for sort of the official
notification. That ’ s always been the basis for the continuance previously. [ ¶] So I would

-- I would disagree that this is sufficient and I w ould a sk the [juvenile court] to again
continue and wait for official notification. ” Father’s counsel responded, “I would join the position of the mother and [mother’s counsel] for the same reasons. As I understood it,

we were waiting for some sort of formal notification from the Tribe. As I also understood, the Agency has a very similar e

- mail to the last time we appeared in court,
and the [juvenile c ourt ] continued the matter in hopes we would have something

more formal as far as notification from the Tribe . [¶] Based on that, I would object to
the e

- mail sufficing as proper ICWA notice

. . . . ”
The juvenile court explained that the reason it continued th e proceedings for further word was not because the response had to be in a specific form, but because it
unders tood the tribe anticipated providing some further official notice. Thus, the juvenile
court had believed it was premature to proceed when the tribe was indicating more of a response was coming. But the juvenile court found the most recent e

- mail to have “all the hallmarks of finality,” so the juvenile court would accept it as the tribe’s
determination that the minor is not eligible. The juvenile court found ICWA inquiry and notice provisions had been fulfilled, found the minor not to be an Indian child, and reinstated the orders terminating parental rights. Mother and father appealed.
DISCUSSION In this appeal, mother and father contend we must again rever se the termination of parental rights based on compliance with ICWA . T h ey argue there was (1) in adequa te inquir y as to father’s relatives , (2) a failure to provide post

- remand ICWA notice containing additional information about father’s family to the United Keetoowah Band of8

Cherokee or the Eastern Band of Cherokee , (3) impro per notice and information to the
Cherokee Nation , (4) a lack of clarity in the Cherokee Nation’s e

- mail response , ( 5 ) inadequate timing of the notice to the Tejon tribe , and (6) a failure by the Tejon tribe to provide a response to the updated info rmation it received

. H owever, mother and father did not assert these specific arguments in the juvenile court. In the context of this second appeal after remand for ICWA compliance, their
claims are forfeited. It is true that in general, the forfeiture doctrine does not bar consideration of ICWA inquiry and notice issues not raised in the juvenile court. “ ‘The notice requirements serve the interests of the Indian tribes “irrespective of the position of the
par ents” and cannot be [forfeit]ed by the parent.’ [Citation.] A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juven ile court.” ( In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.) Nevertheless, where, as here, a case is remanded to the juvenile court for the sole purpose of curing ICWA inquiry and notice defects , the parent s are represented by counsel at the post

- rema nd compliance hearing , and counsel does not raise the specific objections in the juvenile court that are subsequently asserted on appeal, an exception to the general rule applie s and a second round of appellate atta ck s on ICWA compliance is not permitted. Congress did not intend to allow successive appeals raising issues for the first time in the appellate court. ( In re X.V. (2005) 132 Cal.App.4th 794, 804

- 805.) At some point the rules of error preservation must apply to avoid delay of permanence for
chi ldren. ( I

bid .)
The previous appeal resulted in a stipulated reversal for the express purpose of

a llow ing for inquiry and notice with respect to father’s claim of possible Indian ancestry. The parties were represented by counsel on remand. They were well informed via the Agency’s reports, copies of notices and e

- mail s, and oral reports and discussions in court,9

about the inquiry made of the relatives, the tribes being notified and the manner thereof , the information shared with those tribes , and the t iming and wording of the responses
received. Yet , even though the juvenile court provided the parties with ample opportunity to raise any concerns with respect to the inquiry and notice on remand, the only objection made was one not raised on appeal

-- th at the Cherokee Nation had not provided its response in a formal letter but had instead submitted an e

- mail determination.
None of the contentions of error or alleged inadequac ies mother and father now raise on appeal were raised by the parties in the juv enile court. This is the minor’s second time in the dependency system , where he has spent nearly his entire life. “A s a matter of respect for the children involved and the judicial system, as well as common sense, it is incumbent on parents on remand t o assist the Agency in ensuring proper notice is given. ” ( In re X.V. , supra , 132 Cal.App.4th at
p. 804 .) Had mother and father assisted the Agency in addressing their concerns, or
raised the ir concerns in the juvenile court , the Agency and juvenile court could have
addressed the concerns w ithout further delaying permanency for th e minor. ( In re
A mber F

. ( 2007) 150 Cal.App.4th 1152, 1156.) “At some point, there must be finality to the ICWA noticing process.” ( In re Z.W. (201 1) 194 Cal.App.4th 54, 67.) Allowing parents to raise inquiry and notice issues on second appeal after failing to raise those issues in the juvenile court at the post

- remand compliance hearing would further prolong the proceedings to the detriment of the child. ( In re A mber F ., at p. 1156; In re X.V. , at
p. 804; In re N.M. (2008) 161 Cal.App.4th 253, 269

- 270 .) Numerous cases have held that, where a matter has been remanded for ICWA notice error, the parties may not object to the adequacy of ICWA notice on a new appeal if they failed to raise a proper objection at the hearing after remand. ( In re A mber F ., supra , 150 Cal.App.4th at p. 1156; In re X.V. , supra , 132 Cal.App.4th at p. 804; In re
N.M. , supra , 161 Cal.App.4th at pp. 269

- 270 ; In re Z.W. , supra , 194 Cal.App.4th at
p. 67 .) Appellants have provi ded no reason they shoul d be ex empted from th e10

requirement they first raise their ICWA notice and inquiry concerns in the juvenile court
before making such c hallenges in a succes sive appeal.
DISPOSITION The orders terminating parental rights are affirmed.

/S/ MAURO, J.

We concur:

/S/ RAYE, P. J.

/S/ HOCH, J.