Filed 6/2/15 In re Makaila B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT In re MAKAILA B. et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DE PARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v. ROSEMARY B., Defendant and Appellant. F069961
(Super. Ct. Nos. 12CEJ300043-1, 12CEJ300043-2, 12CEJ300043-3)

OPINION

In re MAKAILA B. et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DE PARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v. MICHAEL N., Defendant and Appellant. F070031

APPEAL from orders of the Superior Court of Fresno County. Mary Dolas, Judge.2. Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Rosemary B. Carolyn S. Hurley, under appointment by the Court of Appeal , for Defendant and Appellant Michael N. Daniel C. Cederborg, County Counsel , and Amy K. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo- Father Michael N. (case No. F070031) and mother Rosemary B.’s (case No. F069961) 1 sole argument on appeal is that the order terminating their parental rights pursuant to Welfare and Ins titutions Code section 366.26 2 must be conditionally reversed because of alleged Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) inquiry
and notice errors. We affirm.
STATEMENT OF THE CASE AND FACTS A section 300 petition, filed on February 27, 2012, alleged that Makaila, age three, Michael, age 21 months, and Richard, age three months, were at risk of harm after their mother and father engaged in domestic violence (§ 300, subd. (b)) and mother was incarcerated (§ 300, subd. (g )). Mother and father had an extensive police history for domestic violence, and, in this instance, mother was arrested as the aggressor.

At the time the children were removed, fath er said he had possible Indian heritage, but in a form entitled, “Indian Child Welfare Act Inquiry Review,” completed that same

1 On this court’s own motion, the appeal s in case Nos. F069961 and F070031 are hereby ordered consolidated under case No. F069961 and all documents shall be filed in that case.

2 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.3. day, he stated neither he nor the children ha d any Indian ancestry. The detention report stated that, in a previous refe rral, mother had stated she had no Native American heritage. At the detention hearing on February 28, 2012, father was not present, but mother, who was, stated that she had possible Indian heritage. She completed the form “Parental Notification of Indian Ancestry” (ICWA-020), and checked the box which stated she may have “Yaqui” ancestry. She also checked th e box that stated “[o]ne or more of my parents, grandparents, or other lineal ances tors is or was a member of a federally recognized tribe,” a lthough she did not state which ancestor or which tribe. The jurisdiction report filed on March 20, 2012, stated that the department was currently gathering informati on from mother and father in order to complete the ICWA notices. Father was not present at jurisd iction. The allegation that mother was incarcerated was withdrawn; mother submitte d on the report and di sposition was set for April 2012. At disposition on April 10, 2012, father appeared and denied Indian ancestry in
court and on form ICWA-020. The hearin g was continued at the request of the department to account for a still outstanding ICWA response. On May 22, 2012, the department filed copies of the ICWA notice, which had been sent to the Pascua Yaqui tribe, the th ree federally recognized Cherokee tribes and the Bureau of Indian Affairs (BIA). The no tice included mother’s current address; date and place of birth; mother’s biological mothe r’s date and place of birth, and date and place of death; and under “Tribe or band, and location” for bo th her and her mother stated “Pascua Yaqui Tribal Council, Yaqui, Continen tal U.S. Indian Tribes.” For mother’s biological father it stated his name, place and da te of birth, and “Not Indian.” For father it listed current address; date and place of bi rth; father’s biologica l mother’s date and place of birth; and under “Tribe or band, an d location” for him and his mother stated “Eastern Band of Cherokee Indians, Cherok ee, Continental U.S. Indian Tribes[;] Cherokee Nation, Cherokee, Co ntinental U.S. Indian Trib es[;] United Keetoowah Band4. of Cherokee, Cherokee, Contin ental U.S. Indian Tribes.” 3 For father’s biological father
it stated “No information ava ilable.” There was also “No information available” for either mother or father’s gr andparents on either side. The department filed a response from the Pascua Yaqui tribe, dated April 12, 2012, stating the children were not eligible for membership “[b]ased upon the family information provided and the current enrollment re cords ....” The Cherokee Nation and
the United Keetowah Band stat ed the same. No response ha d been received as yet from
the Eastern Band of Cherokee Indians. 4 The BIA advised the department it was obliged to send notice directly to the tribes. Also on May 22, 2012, the department filed a motion to declare ICWA inapplicable. Both mother and father, through respectiv e counsel, submitted on the motion. The juvenile court found ICWA in applicable. Disposition was continued for a contested hearing. At contested disposition on July 5, 2012, mother was present, but father was not. The children were found to be dependents of the court and removed from mother and father’s custody. Reunification services we re ordered and a six-month review set for December 20, 2012. Mother f iled a notice of appeal from the July 5, 2012, disposition hearing. According to mother, the a ppeal was assigned cas e number F065539 and dismissed on January 11, 2013. At the six-month review on January 3, 2013, the juvenile court returned the
children to mother with 90 days of family maintenance services. The juvenile court

3 On appeal, father notes that, while he claimed Native American ancestry through the Cherokee tribe, he later stat ed he had no Indian ancestry, and therefore, notice to the Cherokee tribes are not addr essed in this appeal.
4 The response from the Eastern Band of Cherokee Indians was received right after the hearing, and filed with the juvenile co urt in advance of the contested disposition hearing. This tribe also report ed the children were not Indian children through the tribe.5. terminated services for father, who had been living out of stat e. Father had kept contact with the children via telephone. Review was set for April and June of 2013. On March 7, 2013, a section 387 supple mental petition was filed alleging that
father was at mother’s house and had unsupervised contact with the children. Mother had not had stable housing, living at four different locations si nce the beginning of December 2012. The petition stated that the child ren had no known Indian ancestry. The detention report stated that mother was excused from domestic violence
classes for excessive absences shortly after the children we re returned to her care. Mother had failed to take Richard, who was dete rmined to be eligible for special services, to several appointments. According to father, he came to help mother with child care. In February of 2013, mother had called the soci al worker and asked if Richard could be placed in foster care because she was having trouble finding housing for all three of the
children. Mother had b een asked to leave emergency housi ng due to lack of cooperation. Although there was a smell of mar ijuana in the home at a surprise visit, mother refused to test. The detention report stated that the ICWA did not apply. At jurisdiction/disposition on April 9, 2013 , mother was present, but not father. Mother submitted on the jurisdic tion/disposition repo rt which stated that the ICWA did not apply. Reunification services for mother were reinstated. The juvenile court found
that the children did not come within the provisions of the ICWA. The other previously scheduled hearings were vacated and an 18-month review set for August 2013. By the time of the 18-month review, moth er had still not progressed in services and visits were still supervised . She had a positive drug test and her participation in residential treatment was minimal. Despite stating that she would keep the minors from unauthorized contact with father, mother continued to minimize the nature of her relationship with father. At the October 17, 2013, review hearing, the juvenile court found it could not find significant progress for mother and there was s till a substantial risk of detriment to the6. children. Reunification services were te rminated and a section 366.26 permanent planning hearing set for February 13, 2014. Writ rights were mailed to father. Mother filed a notice of intent to file writ petition. Prior to the October 2013 review hearing, father’s counsel had filed a JV-180 section 388 modification petiti on requesting reunification serv ices. The petition stated
that father had been enrolle d in domestic violence clas ses since June of 2013 and attended parenting classes si nce August of 2013. At the contested section 388 hearing ev entually heard on November 7, 2013, father was not present. However, father filed a declaration stating he could not be present as he was out of state, but that he had attended all but one domestic violence class, completed parenting classes and was employed. The juvenile court denied the motion, finding insufficient change of circumstance and insufficient eviden ce that the best
interests of the children would be served. Father appeared at the initial section 366.2 6 hearing February 13 , 2014, stating he had finished services. The hearing was continued for further assessment of the permanent plan, as maternal relatives were denied placement and the current care providers only wish ed to adopt the y oungest child. By the time the section 366.26 report was filed on May 14, 2014, the children were in a new placement and adjusting well. According to the repo rt, all three children were found to be generally adopta ble, as well as specifically adoptable, as they were in a home willing to provide permanency. On August 7, 2014, after testimony from mother, father, and Makaila, the juvenile
court terminated mother and fa ther’s parental rights, find ing that neither had met the burden of proving that a beneficial bond ex isted and that continuation would outweigh the benefits of adoption. Mother and fa ther both appealed from that order.7. DISCUSSION Mother and father argue that the juvenile court and department failed to comply with the inquiry and notice requirements of the ICWA, requiring conditional reversal of the order terminating parental rights. Mother and father contend that the 2012 notice sent by the department to the various tribes and BI A was inadequate. In their view, although the department provided information it rece ived, it failed to so licit or include any information about mother’s gr andparents (children’s matern al great-grandparents), who mother identified as being members of a trib e. Mother and father also contend the juvenile court erred in failing to inquire on the applicability of the ICWA at the time the supplemental section 387 petiti on was filed in 2013. Respond ent contends the juvenile court’s rulings concerning ICWA have long been final and mother and father cannot complain at this late state that ICWA has been violated. We agree with respondent and reject mother and father’s cont entions as untimely. We also reject mother and father’s further request that we overrule our opinion in In re Pedro N. (1995) 35 Cal.App.4th 183, 189 ( Pedro N. ).
In Pedro N., supra, 35 Cal.App.4th at pages 185 an d 189, we held that a parent who fails to timely challenge a juvenile c ourt’s action regarding ICWA is foreclosed from raising ICWA notice issues in a subsequent appeal once the court’s ruling is final. The proper time to raise such i ssues is after the disposition h earing. The juvenile court’s rulings and findings at the di sposition hearing are appealable upon a timely notice of appeal. We noted in Pedro N. that the parent there was represented by counsel and failed to appeal the juvenile court’s orde rs from the disposition hearing. ( Pedro N., supra, at pp. 189-190.) Here, after the petition was filed, moth er and father were questioned about possible Indian heritage; necessary forms were completed; the applicable tribes and the BIA were notified; responses from the tribes and BIA were receive d; and the juvenile court held a disposition hearing on May 22, 2012, specifically for the purpose of8. determining whether the ICWA applied. At the hearing, both mother and father submitted on the department’s motion to find the ICWA inapp licable. The juvenile court granted the motion. Final disposition then took place on July 5, 2012. Mother was present at both the May 22 and continued July 5, 2012, disposition hearings; father was not, although he was represente d by counsel. Both received notice of their right to appellate review with this court at that tim e. Although the procee dings leading up to and including the juvenile court’s disposition were appealable ( In re Eli F. (1989) 212 Cal.App.3d 228, 233; § 395), mother and father did not raise the question of the adequacy of ICWA notice until they filed their appe als from the ruling in the section 366.26 hearing on August 7, 2014, mo re than two years later. Appellate jurisdiction to review an appe alable order depends upon a timely notice of appeal. ( In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) 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 Elizabeth M. (1991) 232 Cal.App.3d 553, 563, abrogated on other grounds in In re Tabitha W. (2006) 143 Cal.App.4th 811, 817.) The juvenile court’ s dispositional findings and orders on May 22, 2012, and July 5, 2012, are fi nal and no longer subject to a ttack by mother and father. ( Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-191.) We therefore do not reach their contention concerning the adeq uacy of the ICWA notice.
Mother and father also a ppear to argue that the juvenile court erred at the subsequent section 387 detentio n hearing on March 8, 2013, when it failed to readdress
the ICWA issue because “there is no indica tion from the clerk’s minute order that any additional inquiry or mention was made of the ICWA.” We reject their claim. Because the juvenile court had previously determined that ICWA did not apply, a duty to make further inquiry would be triggered only if the court or the department had new information that the children are or may be In dian children. (Cal. Rules of Court, rule 5.481(a)(4).) In the absence of any indicati on from either mother or father of newly9. discovered information that the children did indeed have Indian ancestry, no further inquiry was required. Here, ne ither mother nor father profess to have such information and, in fact, ignore their consent to the juve nile court’s dispositional finding again, this time on the section 387 petition, that the ICWA did not apply. Th e detention report on the section 387 petition specifically stated th at the ICWA did not apply. Further, the jurisdiction/disposition report, on which mother submitted, also noted that the ICWA did not apply. Thus, again, the time for mother and father to raise the ICWA compliance issue has passed. Finally, mother and father ask that we overrule Pedro N. citing other decisions,
such as In re Nikki R. (2003) 106 Cal.App.4th 844 and In re Marinna J. (2001) 90 Cal.App.4th 731, which disagree with Pedro N. These cases, and others, rely on the theory that Pedro N. is inconsistent with the protections ICWA affords to the interests of Indian tribes. We are not persuaded by th ese other authorities because our decision in
Pedro N. does not foreclose a tribe’s rights unde r ICWA due to a parent’s appellate waiver. ( Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460, 464 [we reversed denial of tribe’s motion to intervene after final order terminating parental rights and invalidated ac tions dating back to outset of dependency and taken in violation of the ICWA].) In so ruling, we held we were addressing only the rights of the parent to a heightened evidentia ry standard for remova l and termination, not those of the tribe ( Pedro N., supra, at p. 191), or, for that ma tter, the rights of the child. As a result, we conclude mother and father have forfeited their personal right to complain of any ICWA violation and decline thei r invitation to revisit our holding in Pedro N. Mother and father had oppo rtunity to challenge the juvenile court’s findings concerning ICWA, but waited un til now to object and their silence has waived their right to complain.10. DISPOSITION
The orders are affirmed.

_____________________ FRANSON, J. WE CONCUR:

_____________________ LEVY, Acting P.J.

_____________________ DETJEN, J.