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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

In re E

. M

. et al. , Person s Coming Under the Ju venile Court Law. B 318653

(Los Angeles County Super. Ct. No. DK21526 A

– 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 Counse l, 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 t ribe )

. The Tataviam trib e 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 u nder 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 conclud e 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 . I n June 2016, mother tested positive for
metha mphetamine, 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 3 42 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. T he
ad judication and disposition hearings were continued multiple
times. I n November 2018, the juvenile court sustained portions4

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 cour t denied father reunificat ion 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 app oint D.M. as the children’s legal guardian and terminate jurisdiction. After several continuances,

t he 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 the m 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 heari ngs 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 f orm 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 f orm, 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
seek ing federal recognition

, but was not yet a federal ly 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. an d 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 petiti on was an ICWA

- 010 Indian Child Inquiry f orm. The form stated that on July 28,
2017
, m aternal aunt told DCFS she “will enroll ” A.M. in the tribe. The detention report states that on that same date

, maternal
aunt sai d “she has registered [A.M.] into the Tataviam tribe.” In September 2017, DCFS filed a jurisdiction and
dis position report indicating the Tataviam tribe i s not federally recognized. The same month, DCFS provided an ICWA

- 030 form6

notice to the Bureau of Indian Affairs , Secretary of the In terior,
and Tataviam tri be of the October 2017 jurisdiction and disposition hearings

. In October 2017, DCFS reported it had received a letter from the Tataviam tribe

. The letter state d the tribe “is not a federally recognized [t] ribe ,” but i s “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 Villase ñ or, appeared

. Due to the illness of minor’s counsel, t he court continued the hearing to August 1, 2018. The tribe did not appear a t the August 1, 2018
, hearing

. H owever, 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 t ribe of the new hearing date. 3 On September 18, 2018
, the court again continued the adjudication hearing due to court congestion

. T he court signed an attorney order requiring DCFS “to notice and provide reports
to Pam e la 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 e

mailed E.M.’s birth certificate and a copy of the detention reports
to Villase ñ or , and notified her of the hearing scheduled for the next day

. Villase ñ or did not appear at the November 20 hearing

. At th e hearing, the court concluded ICWA did not apply

, but found the children may be eligible for membership in the
Tataviam tribe.
I n November 2019, Villase ñ or 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 2 4, 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 tri be 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 require8

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 a s 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 makin g 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 t ribal 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. ” “B y its terms, the statute does not require that any notice
be sent to a non recognized 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 F orfeited H er C laim 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, u sing 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 su rrogate 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 prior10

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)
13 0 Cal.App.4th 1148, 1159 ( S

. B

. ) .) Even if mother may challenge the lack of notice to a non

federally 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 i n which the tribe failed to
receive any notice of the proceedings and was therefore wholly unaware of them. ( Isaiah W

. , supra , 1 Cal. 5 th at pp. 13

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

“ ‘meaningless if the tribe has no notic e that the action is pending’ ”], italics added. ) “ ‘ A s 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. 4 th at pp. 1158

– 1159.)
Furt her, “ [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 fed eral law or state law11

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 fact ual basis for section 306.6 to apply

, we reject
her claim

. As noted above, s ection 306.6 applies in “a dependency proceeding involving a child who would otherwise be an Indian child, based on the de finition 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. i s a member of the tribe. M aternal grandmother said she had “regi stered” 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 a n enrolled member. While the tribe stated that both children were eligible for enrollment , t here is no evidence they subsequently became enrolled members. Similarly

, there is no evidence the children are the biological child ren 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 member s of the tribe, despite t he i r 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. ( J ameson 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 erro r”]

. )
IV. Mother Has Not Shown Prejudic ial Error Finally, e ven 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, t here is no evidence that the tribe requested any further participation or notic e 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 no tify 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 partici pate in the proceedings.

the letter indicated the children a re “descendants of a member in
t he [t]ribe ,” and that to enroll the children

, the tribe would “need to see linkage of their maternal grandmother [L.G.].”13 Mother cite s 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, s ection 306.6, subdivision (d) explicitly states, “T his 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, “I t is apparent that in enacting section 306.6, the Legislature had in mind the notice and substanti ve 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. 4 th 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, t he tribe did not provide any information to the co urt other than how the children could be enrolled. W hen 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 a ny relevant information to persuade the court
otherwise . Over two years later, the court ordered a permanent plan of guardianship

.14 T here 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, t here is
no indication that

, had the tribe appeared at the section 366 .26 hearing

, it would have provided any new or perti nent 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 36 6 .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

.