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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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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 DEPARTMENT 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 DEPARTMENT 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 Institutions Code section 366.262 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, father 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 appeals 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 had any Indian ancestry. The detention report 

stated that, in a previous referral, 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 the box that stated “[o]ne or more of my 

parents, grandparents, or other lineal ancestors is or was a member of a federally 

recognized tribe,” although she did not state which ancestor or which tribe. 

 The jurisdiction report filed on March 20, 2012, stated that the department was 

currently gathering information from mother and father in order to complete the ICWA 

notices. Father was not present at jurisdiction. The allegation that mother was 

incarcerated was withdrawn; mother submitted on the report and disposition 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 hearing 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 three federally recognized Cherokee tribes and 

the Bureau of Indian Affairs (BIA). The notice included mother’s current address; date 

and place of birth; mother’s biological mother’s date and place of birth, and date and 

place of death; and under “Tribe or band, and location” for both her and her mother stated 

“Pascua Yaqui Tribal Council, Yaqui, Continental U.S. Indian Tribes.” For mother’s 

biological father it stated his name, place and date of birth, and “Not Indian.” For father 

it listed current address; date and place of birth; father’s biological mother’s date and 

place of birth; and under “Tribe or band, and location” for him and his mother stated 

“Eastern Band of Cherokee Indians, Cherokee, Continental U.S. Indian Tribes[;] 

Cherokee Nation, Cherokee, Continental U.S. Indian Tribes[;] United Keetoowah Band 
4. 

of Cherokee, Cherokee, Continental U.S. Indian Tribes.”3 For father’s biological father 

it stated “No information available.” There was also “No information available” for 

either mother or father’s grandparents 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 records ....” The Cherokee Nation and 

the United Keetowah Band stated the same. No response had 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 respective counsel, submitted on the 

motion. The juvenile court found ICWA inapplicable. 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 were ordered and a six-month review set for 

December 20, 2012. Mother filed a notice of appeal from the July 5, 2012, disposition 

hearing. According to mother, the appeal was assigned case 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 stated he had no Indian ancestry, and therefore, notice to the 

Cherokee tribes are not addressed in this appeal. 

4 The response from the Eastern Band of Cherokee Indians was received right after 

the hearing, and filed with the juvenile court in advance of the contested disposition 

hearing. This tribe also reported the children were not Indian children through the tribe. 
5. 

terminated services for father, who had been living out of state. 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 supplemental 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 since the beginning of December 

2012. The petition stated that the children had no known Indian ancestry. 

The detention report stated that mother was excused from domestic violence 

classes for excessive absences shortly after the children were returned to her care. 

Mother had failed to take Richard, who was determined 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 social 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 been asked to leave emergency housing due to lack of cooperation. 

Although there was a smell of marijuana 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 jurisdiction/disposition report 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, mother 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 still a substantial risk of detriment to the 
6. 

children. Reunification services were terminated 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 petition requesting reunification services. The petition stated 

that father had been enrolled in domestic violence classes since June of 2013 and 

attended parenting classes since August of 2013. 

At the contested section 388 hearing eventually 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 evidence that the best 

interests of the children would be served. 

Father appeared at the initial section 366.26 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 wished to adopt the youngest 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 report, all three children 

were found to be generally adoptable, 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 father’s parental rights, finding that neither had met the 

burden of proving that a beneficial bond existed and that continuation would outweigh 

the benefits of adoption. Mother and father 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 BIA was inadequate. In their view, although 

the department provided information it received, it failed to solicit or include any 

information about mother’s grandparents (children’s maternal great-grandparents), who 

mother identified as being members of a tribe. 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 petition was filed in 2013. Respondent 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 contentions 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 and 189, we held that a parent 

who fails to timely challenge a juvenile court’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 issues is after the disposition hearing. The juvenile court’s 

rulings and findings at the disposition 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 orders from the disposition hearing. (Pedro N., supra, at 

pp. 189-190.) 

Here, after the petition was filed, mother 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 received; and the juvenile 

court held a disposition hearing on May 22, 2012, specifically for the purpose of 
8. 

determining whether the ICWA applied. At the hearing, both mother and father 

submitted on the department’s motion to find the ICWA inapplicable. 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 represented by counsel. Both received notice of their right to 

appellate review with this court at that time. Although the proceedings 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 appeals from the ruling in the section 366.26 

hearing on August 7, 2014, more than two years later. 

Appellate jurisdiction to review an appealable 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 final and no longer subject to attack 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 adequacy of the ICWA notice. 

Mother and father also appear to argue that the juvenile court erred at the 

subsequent section 387 detention hearing on March 8, 2013, when it failed to readdress 

the ICWA issue because “there is no indication 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 Indian children. (Cal. Rules of Court, rule 

5.481(a)(4).) In the absence of any indication from either mother or father of newly 
9. 

discovered information that the children did indeed have Indian ancestry, no further 

inquiry was required. Here, neither mother nor father profess to have such information 

and, in fact, ignore their consent to the juvenile court’s dispositional finding again, this 

time on the section 387 petition, that the ICWA did not apply. The detention report on 

the section 387 petition specifically stated that 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 these other authorities because our decision in 

Pedro N. does not foreclose a tribe’s rights under 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 actions 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 evidentiary standard for removal and termination, not 

those of the tribe (Pedro N., supra, at p. 191), or, for that matter, 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 their invitation to revisit our holding in Pedro N. 

Mother and father had opportunity to challenge the juvenile court’s findings 

concerning ICWA, but waited until 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.