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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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. 
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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 juvenile court 

on specific grounds asserted in this appeal, their claims 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 the 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. The Agency completed an 

ICWA-030 form and noticed the Blackfeet tribe, the three Cherokee 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 Nation2 sent a letter to the 

Agency reporting 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 the Agency and the tribe. (84 Fed.Reg. 20408 (May 9, 2019); 85 Fed.Reg. 24015 

(Apr. 30, 2020).)
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half sibling A.E. were Indian children. In that case, father’s reunification services were 

terminated, mother was awarded legal and physical custody of J.T., and dependency 

jurisdiction was terminated in November 2018.

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 

attached 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 previously, 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 non-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 indicating he “may have Indian ancestry” but did not 

name any tribes or bands. The August 7, 2019 orders indicate the juvenile court found 

ICWA did not apply.

Prior to the section 366.26 hearing, county counsel advised the social worker to renotice 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. The 

Cherokee Nation responded by e-mail that it had previously determined J.T. was not an 

Indian child in 2018 and, without any new information to research, the 2018 

determination would remain. All of the remaining tribes either responded that the minor

was not an Indian child or failed to respond. The Agency asked the juvenile court to find

that ICWA did not apply.
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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 

remanded the 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 for reversal, the Agency interviewed father and six of 

the paternal relatives and family friends. Vicky T., the mother of father’s older children, 

reported that father’s biological mother had died 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 grandmother 
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might have Cherokee Nation ancestry. Vicky T. provided the Agency with the name of 

the 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 the new 

information about father’s family members. Having determined the Tehachapi tribe is 

not a federally recognized tribe, the Agency served the notice on the Tejon tribe because

their ancestral homeland included the Tehachapi mountains. The Agency also 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-grandfather 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 information on the record. Father provided the name of his grandmother 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 matter 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 members of the tribe. That same 

day, the Agency served updated notice on the Tejon tribe with the newly acquired 

information about 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 the 
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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, the 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 April 16, 2021, the social worker spoke to the Cherokee Nation eligibility

supervisor to inquire about the formal response. The supervisor said the tribe was behind 

on processing requests and she expected 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 themselves. 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 review 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 noted 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 Agency took the position that there 

was no requirement a tribe’s response be in any particular form and the 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 ‘Indian 

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 Indian child.”
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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 than 

what we’ve already had. The [juvenile court] 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 would ask 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 court] 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 the proceedings for 

further word was not because the response had to be in a specific form, but because it 

understood 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 reverse the termination of 

parental rights based on compliance with ICWA. They argue there was (1) inadequate 

inquiry 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 of 
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Cherokee or the Eastern Band of Cherokee, (3) improper 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 information it received.

However, 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 

parents” 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 juvenile 

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 parents are represented by 

counsel at the post-remand 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 applies and a second round of appellate attacks 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 

children. (Ibid.)

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

allowing 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-mails, and oral reports and discussions in court, 
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about the inquiry made of the relatives, the tribes being notified and the manner thereof, 

the information shared with those tribes, and the timing 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 -- that 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 inadequacies mother and father now raise on 

appeal were raised by the parties in the juvenile court. 

This is the minor’s second time in the dependency system, where he has spent 

nearly his entire life. “As a matter of respect for the children involved and the judicial 

system, as well as common sense, it is incumbent on parents on remand to 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 their concerns in the juvenile court, the Agency and juvenile court could have 

addressed the concerns without further delaying permanency for the minor. (In re 

Amber F. (2007) 150 Cal.App.4th 1152, 1156.) “At some point, there must be finality to 

the ICWA noticing process.” (In re Z.W. (2011) 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 Amber 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 Amber 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 provided no reason they should be exempted from the
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requirement they first raise their ICWA notice and inquiry concerns in the juvenile court 

before making such challenges in a successive appeal.

DISPOSITION

The orders terminating parental rights are affirmed.

 /S/

MAURO, J.

We concur:

 /S/

RAYE, P. J.

 /S/

HOCH, J.