Filed 11/30/23 In re E.M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re E.M. et al., Persons Coming 

Under the Juvenile Court Law.

B318653

(Los Angeles County

Super. Ct. No. DK21526A–B)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.T.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Stephanie Davis, Juvenile Court Referee. 

Affirmed.
2

Donna P. Chirco, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, Sarah Vesecky, Deputy County 

Counsel, for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

A.T. (mother) appeals from a juvenile court order selecting 

a permanent plan of legal guardianship for children E.M. and 

A.M. Mother’s sole contention is that the order, issued pursuant 

to Welfare and Institutions Code section 366.26,1 must be 

reversed because the Los Angeles County Department of 

Children and Family Services (DCFS) failed to give notice of the 

hearing to the Fernandeño Tataviam Band of Mission Indians 

(the tribe or Tataviam tribe). The Tataviam tribe is not a 

federally recognized tribe. Although mother concedes the Indian 

Child Welfare Act (ICWA) does not apply in this case, she asserts 

notice was required under section 306.6, which permits the 

juvenile court to allow a non-federally recognized tribe limited 

participation in dependency proceedings. We conclude mother

forfeited her argument by not raising it below, and, even if not 

forfeited, we would conclude her claim fails on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

In light of the limited issue mother raises on appeal, we 

provide only a brief summary of the background of this case.

E.M. came to the attention of DCFS in May 2016, after it

received a report that mother and father had engaged in domestic 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise noted.
3

violence in front of E.M., who was then five years old. DCFS 

opened an investigation. In June 2016, mother tested positive for 

methamphetamine, amphetamine, and marijuana. Father tested 

positive for marijuana. The parents agreed to participate in

voluntary family preservation services. In February 2017, 

mother again tested positive for methamphetamine. She also

failed to comply with the plan for voluntary services.

In March 2017, DCFS filed a section 300 petition on behalf 

of E.M., based on the parents’ domestic violence and substance 

abuse. The court removed E.M. from mother, but he remained in 

father’s care. In May 2017, the court sustained the petition and 

declared E.M. a dependent of the court. The court allowed E.M. 

to remain in father’s custody and ordered services for both 

parents. The same month, mother and father had a second child, 

A.M.

Both parents were incarcerated in July 2017 due to father’s 

hit-and-run accident that caused the death of a child. Although 

mother was not involved in the accident, she told DCFS that she 

was arrested for “hiding” father.

In August 2017, DCFS filed a section 342 petition on behalf 

of E.M. and a section 300 petition on behalf of A.M. The 

section 342 petition alleged there was no one to care for E.M. 

because both parents were incarcerated. The section 300 petition 

alleged A.M. was at risk of harm due to the parents’ prior 

domestic violence and substance abuse. The juvenile court 

detained both children.

In October 2017, DCFS reported father had been sentenced 

to 25 years in prison and mother to three years of probation. The 

adjudication and disposition hearings were continued multiple 

times. In November 2018, the juvenile court sustained portions 
4

of the pending section 300 and 342 petitions, declared A.M. a 

dependent of the court, ordered E.M. to remain a dependent of 

the court, and removed both children from the parents’ custody. 

DCFS eventually placed the children with paternal great aunt, 

D.M. The juvenile court denied father reunification services 

pursuant to section 361.5, subdivision (e)(1). In July 2019, the 

juvenile court terminated mother’s reunification services and set 

a section 366.26 hearing.

In November 2019, DCFS filed a section 366.26 report 

recommending that the court appoint D.M. as the children’s legal 

guardian and terminate jurisdiction. After several continuances, 

the court eventually held a section 366.26 hearing for both 

children on February 14, 2022.2 Father did not appear, but 

indicated through counsel that he agreed with the plan of legal 

guardianship with D.M. Mother objected to legal guardianship 

and to monitored visitation. The court found that although the 

children were adoptable, an exception to adoption applied 

because the children were living with a relative who was 

unwilling or unable to adopt them but was willing to provide 

them a home through guardianship. D.M. was selected as the

legal guardian.

2 The juvenile court took the section 366.26 hearings off 

calendar after father’s successful appeal of the jurisdiction and 

disposition orders as to A.M., and after mother filed a section 388 

petition to change court orders. In father’s appeal, we reversed 

the juvenile court’s order asserting dependency jurisdiction over 

A.M., due to the court’s failure to appoint counsel for father 

despite his numerous requests. (In re Andrew M. (2020) 46 

Cal.App.5th 859.) The juvenile court reset the section 366.26 

hearings after conducting new jurisdiction and disposition 

hearings in A.M.’s case.
5

ICWA and Section 306.6 Background

At the detention hearing in March 2017, father filed an 

ICWA-020 Parental Notification of Indian Status form indicating 

he had no Indian ancestry as far as he knew. The court found 

ICWA did not apply as to father. Mother also filed an ICWA-020

Parental Notification of Indian Status form, which indicated she 

was or may be a member of, or eligible for membership in, the 

Tataviam tribe. Mother’s counsel told the court he had spoken 

with the secretary of the tribe, which was in the process of 

seeking federal recognition, but was not yet a federally 

recognized tribe. The court ordered DCFS to notice “appropriate 

federal and tribal agencies of this matter to determine whether or 

not this case falls under ICWA.” DCFS sent notice pursuant to 

ICWA to the Bureau of Indian Affairs, the Secretary of the 

Interior, and the tribe.

In April 2017, DCFS interviewed maternal grandmother, 

who reported she was registered with the tribe. Maternal 

grandmother told DCFS she had registered E.M. and was waiting 

to receive his registration number. She also reported mother was 

not enrolled in the tribe and had not obtained her registration 

number as an adult. Mother confirmed she was not registered or 

enrolled.

Attached to A.M.’s section 300 petition was an ICWA-010

Indian Child Inquiry form. The form stated that on July 28,

2017, maternal aunt told DCFS she “will enroll” A.M. in the tribe. 

The detention report states that on that same date, maternal 

aunt said “she has registered [A.M.] into the Tataviam tribe.”

In September 2017, DCFS filed a jurisdiction and 

disposition report indicating the Tataviam tribe is not federally 

recognized. The same month, DCFS provided an ICWA-030 form
6

notice to the Bureau of Indian Affairs, Secretary of the Interior, 

and Tataviam tribe of the October 2017 jurisdiction and 

disposition hearings.

In October 2017, DCFS reported it had received a letter 

from the Tataviam tribe. The letter stated the tribe “is not a 

federally recognized [t]ribe,” but is “state recognized,” and the 

children “are descendants of a member [of] the [t]ribe” and “an 

individual who is on [the] California Judgment Roll.” The letter 

indicated that while the “minors are not presently enrolled 

members of the tribe,” they could be enrolled with the submission 

of applications, copies of the minors’ birth certificates, and a copy 

of mother’s birth certificate.

At the June 22, 2018 adjudication hearing, a representative 

from the Tataviam tribe, Pamela Villaseñor, appeared. Due to 

the illness of minor’s counsel, the court continued the hearing to 

August 1, 2018.

The tribe did not appear at the August 1, 2018, hearing. 

However, the court continued the proceedings to September 18,

2018, due to court congestion. The court indicated the tribe had

asked to participate in the adjudication hearing, so it ordered 

DCFS to notify the tribe of the new hearing date.3

On September 18, 2018, the court again continued the 

adjudication hearing due to court congestion. The court signed 

an attorney order requiring DCFS “to notice and provide reports 

to Pamela Villasenor of the Tataviam Tribe,” and to “make best 

efforts to provide minors’ long form birth certificates to Tataviam

3 It is unclear when or how the tribe made this request. The 

record does not include any document from the tribe requesting 

notice or an oral request in any of the transcribed proceedings.
7

tribe.” The court continued the adjudication hearing to

November 20, 2018.

On November 20, 2018, DCFS filed a last minute 

information report indicating that on November 19, DCFS had emailed E.M.’s birth certificate and a copy of the detention reports

to Villaseñor, and notified her of the hearing scheduled for the 

next day. Villaseñor did not appear at the November 20 hearing. 

At the hearing, the court concluded ICWA did not apply, but

found the children may be eligible for membership in the 

Tataviam tribe.

In November 2019, Villaseñor appeared in court for the 

section 366.26 hearing. She stated her name for the record but 

did not ask to be heard or make any further statements. The 

court continued the hearing to January 24, 2020, and announced

that at that time “we should be able to proceed with the legal 

guardianship.” A tribal representative did not appear at the

January 24, 2020, hearing, at which time the court again

continued the section 366.26 hearing.

Two years later, in February 2022, the court proceeded 

with the section 366.26 hearing and ordered legal guardianship 

as the permanent plan. The tribe was not present. The court 

again found that ICWA did not apply.

Mother timely appealed from the court’s February 2022

order.

DISCUSSION

Mother contends the juvenile court erred in ordering a 

permanent plan of legal guardianship without first providing

notice to the tribe under section 306.6. DCFS asserts that 

mother forfeited this argument by not raising it below. DCFS

also argues section 306.6 does not apply and did not require 
8

further notice, and any error was harmless.4 We find no error 

and affirm the order.

I. Section 306.6

“Section 306.6 was enacted as a part of a comprehensive 

reorganization of statutes relating to application of the [ICWA]. 

[Citation.] The requirements of the ICWA apply only to federally 

recognized tribes. (25 U.S.C. § 1903(8).) Section 306.6 permits 

the court in a dependency action to allow a tribe which is not 

federally recognized to appear in the proceeding and present 

information to the court.” (In re A.C. (2007) 155 Cal.App.4th 282, 

286 (A.C.).) Under the statute, a tribe “may” participate in a 

juvenile dependency proceeding “upon request of the tribe.”

(§ 306.6, subd. (a).) The tribe may “upon consent of the court: [¶] 

(1) Be present at the hearing. [¶] (2) Address the court. [¶] 

(3) Request and receive notice of hearings. [¶] (4) Request to 

examine court documents relating to the proceeding. [¶]

(5) Present information to the court that is relevant to the 

proceeding. [¶] (6) Submit written reports and recommendations 

to the court. [¶] (7) Perform other duties and responsibilities as 

requested or approved by the court.” (§ 306.6, subd. (b)(1)–(7).)

Tribal participation under section 306.6 is thus

discretionary. Section 306.6, subdivision (d) explains that the 

provision “is intended to assist the court in making decisions that 

are in the best interest of the child by permitting a tribe in the 

circumstances set out in subdivision (a) to inform the court and 

parties to the proceeding about placement options for the child 

4 DCFS additionally contends that mother lacks standing to 

challenge errors in notice to the tribe and the tribe forfeited any 

opportunity to participate in the proceedings. Because we affirm 

on other grounds, we do not reach these arguments.
9

within the child’s extended family or the tribal community, 

services and programs available to the child and the child’s 

parents as Indians, and other unique interests the child or the 

child’s parents may have as Indians.”

“By its terms, the statute does not require that any notice 

be sent to a nonrecognized tribe. (§ 306.6.) Further, the statute 

specifically does not apply either notice provisions found in the 

ICWA or provisions in state law implementing notice provisions 

of the ICWA to this situation. (§ 306.6, subd. (d).)” (A.C., supra,

155 Cal.App.4th at pp. 286–287.)

II. Mother Forfeited Her Claim of Error

Mother did not raise any claim of error regarding notice to 

the tribe in the juvenile court. At the February 2022 section 

366.26 hearing that is the subject of this appeal, she only objected 

to the plan of guardianship and to monitored visitation.

While a parent may generally raise a claim of insufficient 

notice to a tribe under ICWA for the first time on appeal (In re 

Isaiah W. (2016) 1 Cal.5th 1, 13–14 (Isaiah W.)), mother concedes

ICWA is inapplicable here. However, using ICWA cases as an 

analogy, she claims that a parent’s failure to object to defects in 

notice under section 306.6 does not forfeit the argument. We 

disagree.

In ICWA cases, “the primary parties protected . . . are the 

Native American tribes . . . . Thus, the law allows a parent to 

raise failure to comply with ICWA on appeal, even if the issue 

was not raised in the trial court, because ‘[t]he parent is in effect 

acting as a surrogate for the tribe in raising compliance issues on 

appeal.’ [Citation.]” (In re A.R. (2022) 77 Cal.App.5th 197, 204.) 

However, even in an ICWA case, “[o]nce the child’s tribe has 

appeared and has not asked, on its own behalf, that any prior 
10

actions be invalidated, this rationale does not apply. The parent 

has an independent right to invalidate prior actions, but there is 

every reason to hold that this can be waived.” (In re S.B. (2005) 

130 Cal.App.4th 1148, 1159 (S.B.).)

Even if mother may challenge the lack of notice to a nonfederally recognized tribe on appeal—an issue we do not decide—

we see no reason to disregard the standard rules of appellate 

forfeiture in this case. As in S.B., the tribe appeared in the 

proceedings and has not asked at any point that any prior actions 

be invalidated. This is not a case in which the tribe failed to 

receive any notice of the proceedings and was therefore wholly 

unaware of them. (Isaiah W., supra, 1 Cal.5th at pp. 13–14

[tribe’s right to intervene or assert jurisdiction over child is 

“ ‘meaningless if the tribe has no notice that the action is 

pending’ ”], italics added.)

“ ‘As a general rule, a party is precluded from urging on 

appeal any point not raised in the trial court. Any other rule 

would permit a party to play fast and loose with the 

administration of justice by deliberately standing by without 

making an objection of which he is aware. [Citation.]’ 

[Citation.]” (S.B., supra, 130 Cal.App.4th at pp. 1158–1159.) 

Further, “[i]n dependency proceedings, as elsewhere, a litigant 

forfeits an appellate argument by failing to raise it before the 

trial court.” (In re D.P. (2023) 92 Cal.App.5th 1282, 1292.) 

Mother has forfeited her claim.

III. Mother Has Not Established Section 306.6 Applies

Even if mother did not forfeit her argument, we would

conclude that her claim lacks merit. The parties agree the 

Tataviam tribe is not a federally recognized tribe and therefore 

notice to the tribe was not mandated by federal law or state law 
11

applicable in ICWA cases. (In re K.P. (2009) 175 Cal.App.4th 1, 

6.) Mother instead asserts that notice was required under section 

306.6. Because mother has not met her burden of establishing 

the predicate factual basis for section 306.6 to apply, we reject 

her claim.

As noted above, section 306.6 applies in “a dependency 

proceeding involving a child who would otherwise be an Indian 

child, based on the definition contained in [ICWA], but is not an 

Indian child based on status of the child’s tribe . . . .” (§ 306.6, 

subd. (a).) ICWA defines “ ‘Indian child’ ” as “any unmarried 

person who is under age eighteen and is either (a) a member of 

an Indian tribe or (b) is eligible for membership in an Indian 

tribe and is the biological child of a member of an Indian tribe.” 

(25 U.S.C. § 1903(4).)

There is no evidence that either E.M. or A.M. is a member 

of the tribe. Maternal grandmother said she had “registered” 

E.M. in April 2017, and maternal aunt said she had or would 

enroll A.M. in July 2017. However, as of October 2017, the tribe 

indicated neither child was an enrolled member. While the tribe 

stated that both children were eligible for enrollment, there is no 

evidence they subsequently became enrolled members. Similarly, 

there is no evidence the children are the biological children of “a 

member of an Indian tribe.” (25 U.S.C. § 1903(4).) Maternal 

grandmother informed DCFS that mother was not enrolled with 

the tribe and mother confirmed she was not registered or 

enrolled.5

5 We further note that the tribe’s letter to DCFS did not 

indicate that either the children or mother are members of the 

tribe, despite their lack of enrollment or registration. Instead, 
12

Accordingly, mother has not established the children meet 

the definition of Indian child in Title 25 United States Code

section 1903(4), such that section 306.6 applies. (Jameson v.

Desta (2018) 5 Cal.5th 594, 609 [“trial court judgment is 

ordinarily presumed to be correct and the burden is on an 

appellant to demonstrate, on the basis of the record presented to 

the appellate court, that the trial court committed an error”].)

IV. Mother Has Not Shown Prejudicial Error

Finally, even assuming section 306.6 was otherwise 

applicable, we would find mother has failed to establish any 

prejudicial error.

Section 306.6 did not mandate notice to the Tataviam tribe 

of the section 366.26 hearing. (A.C., supra, 155 Cal.App.4th at 

p. 287.) At most, the tribe was permitted to request and receive 

notice of hearings, with the court’s consent. Yet, there is no 

evidence that the tribe requested any further participation or 

notice of hearings, other than what it received.

The only indication in the record that the tribe made any 

request of the court is the court’s statement at the continued 

adjudication hearing on August 1, 2018, that the tribe wanted to 

participate in the adjudication hearing. The court ordered DCFS 

to notify the tribe of the continued adjudication hearing,

scheduled for November 20, 2018, and DCFS provided notice. 

When the tribe later appeared before the court on November 26, 

2019, it did not request notice of any future hearings, or to 

otherwise participate in the proceedings.

the letter indicated the children are “descendants of a member in 

the [t]ribe,” and that to enroll the children, the tribe would “need 

to see linkage of their maternal grandmother [L.G.].”
13

Mother cites no legal authority to support her claim that 

DCFS or the court was required to do more than it did to notice 

the tribe under section 306.6. Indeed, section 306.6,

subdivision (d) explicitly states, “This section shall not be 

construed to make [ICWA], or any state law implementing 

[ICWA], applicable to the proceedings . . . .” Therefore, as the 

court in A.C. recognized, “It is apparent that in enacting section 

306.6, the Legislature had in mind the notice and substantive 

provisions of the ICWA but specifically chose not to require any 

notice beyond that already required by the ICWA, i.e., notice to 

federally recognized Indian tribes. It is not our province to insert 

language into a statute the Legislature chose to omit. (Code Civ. 

Proc., § 1858.)” (A.C., supra, 155 Cal.App.4th at p. 287.) 

Section 306.6 does not require DCFS or the court to provide 

notice to a tribe where, as here, there is no evidence the tribe 

requested notice.

Moreover, mother has not established she (or the tribe) 

suffered prejudice by any error such that reversal would be 

warranted. (S.B., supra, 130 Cal.App.4th at p. 1162 [harmless 

error standard applies to review of claims of failure to comply 

with a state standard above what ICWA requires].) The tribe 

sent a letter to DCFS and appeared twice before the court. 

However, the tribe did not provide any information to the court

other than how the children could be enrolled. When the tribe 

appeared in court for the section 366.26 hearing in November 

2019, the court announced that it would likely choose

guardianship as the permanent plan. The tribe did not object or 

provide any relevant information to persuade the court 

otherwise. Over two years later, the court ordered a permanent 

plan of guardianship.
14

There is no evidence that, at any time, the tribe had 

information to provide to the court about placement options or 

programs available to mother or the children. Further, there is 

no indication that, had the tribe appeared at the section 366.26 

hearing, it would have provided any new or pertinent information

to assist the court, or that it would have advocated for a 

permanent plan other than legal guardianship with the children’s 

relative. Mother has not established that the lack of specific 

notice to the tribe of the February 2022 section 366.26 hearing 

was prejudicial.
15

DISPOSITION

The juvenile court order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

EGERTON, J.