Filed 3/1/16 In re F.T. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 F.T., a Person Coming Under the Juvenile 

Court Law.

STANISLAUS COUNTY COMMUNITY 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

STEPHANIE H.,

Defendant and Appellant.

F072329

(Super. Ct. No. 516454)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. 

Ameral, Judge.

Roshni Mehta, under appointment by the Court of Appeal, for Defendant and 

Appellant.

John P. Doering, County Counsel, and Carrie Stephens, Deputy County Counsel, 

for Plaintiff and Respondent.

-ooOoo-

 

* Before Levy, Acting P.J., Kane, J. and Poochigian, J.
2.

INTRODUCTION

Appellant Stephanie H. (mother) appeals from the Welfare and Institutions Code1

section 366.26 order terminating her parental rights to her daughter, F.T., born in 

September 2011. Mother’s sole claim is that the juvenile court erred when it found that 

the Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq. (ICWA)) did not apply because 

the finding was not supported by adequate inquiry or notice on the part of the juvenile 

court and the Stanislaus County Community Services Agency (department). Mother did 

not appeal from the order finding ICWA inapplicable and asks this court to reconsider its 

holding in In re Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.). We decline to do so 

and affirm. 

FACTS AND PROCEDURAL HISTORY

Since mother does not challenge the juvenile court’s jurisdictional finding, 

dispositional ruling, or findings supporting its decision to select adoption as the 

permanent plan and terminate parental rights, a detailed summary of the evidence 

supporting these rulings is unnecessary. The department detained F.T. in October 2012 

after she was brought to the emergency room for unexplained injuries, including a near 

drowning, bruises, and lacerations, for the fifth time in a period of four months. The 

department petitioned on October 26, 2012, pursuant to section 300 to have F.T. declared 

a dependent of the juvenile court. 

The petition filed by the department included a completed Indian Child Inquiry 

Attachment form (ICWA-010(A)) which contained a mark in the box next to the 

statement, “The child may have Indian ancestry.” Mother completed a Parental 

Notification of Indian Status form (ICWA-020) stating she may have Cherokee and 

 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise indicated. 
3.

Navajo ancestry. The father also completed an ICWA-020 form, stating he had no 

known Indian ancestry. 

A completed Notice of Child Custody Proceedings for Indian Child, form ICWA030, was completed by the department, giving notice of the jurisdiction and disposition 

hearing. That form indicated that F.T. might have Cherokee ancestry; no mention of 

Navajo ancestry is made on the form. The completed form was served on mother, the

father, the Bureau of Indian Affairs (BIA), the Secretary of the Interior (Secretary), the 

Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, and the 

Eastern Band of Cherokee Indians. An amended form ICWA-030 was filed and served 

on the same tribes, the BIA, and the Secretary. 

The combined jurisdiction and disposition report filed November 15, 2012, notes 

that F.T. may have Indian ancestry because mother reported having Cherokee and Navajo 

ancestry. 

A jurisdictional hearing was held January 31, 2013. The juvenile court found that 

F.T. came within the provisions of section 300, subdivision (b). The disposition hearing 

was held on that same day, F.T. was declared a dependent, and mother was offered 

reunification services. Mother was informed by the juvenile court that she had a right to 

file an appeal and that if she had any questions about her appeal rights, to “discuss those 

with your attorney.” 

On May 28, 2013, a second amended ICWA-030 was filed and this second 

amended ICWA-030 was served on the Cherokee Nation of Oklahoma, the Navajo 

Nation, and the Ramah Navajo School Board, as well as the BIA and the Secretary. 

The status review report filed May 31, 2013, reflects the responses from the tribes. 

The Cherokee Nation of Oklahoma requested additional information, which was 

provided. The Eastern Band of Cherokee Indians and the United Keetoowah Band of 

Cherokee Indians responded that F.T. was not an Indian child. The Navajo Nation and 

the Ramah Navajo School Board had not yet responded. 
4.

At the section 366.21, subdivision (e) hearing held on June 26, 2013, mother was 

present with her attorney. The juvenile court found that proper notice had been given and 

that the ICWA did not apply to F.T. The juvenile court informed mother that she had the 

right to appeal if she had “any objections” and that she had “60 days in which to file the 

appeal.” 

Services were offered to mother for 12 months; a 12-month review report was 

filed by the department. At the 12-month review hearing on December 12, 2013, services 

were ordered continued for mother. At the 18-month review hearing, services were 

continued for mother. On September 26, 2014, F.T. was returned to mother’s care. 

On February 27, 2015, a first amended section 387 petition was filed. The section 

387 petition alleged that while placed with mother, F.T. had obtained bruises on her body 

five different times, including on the side of her head and her jawline. It also was alleged 

that mother had: (1) been receiving services since October 2012; (2) minimally engaged 

in services; (3) failed to provide a safe sleeping environment for F.T.; (4) been told 

numerous times to clean the home in which F.T. and mother were living; and (5) missed 

multiple appointments for services for F.T., including doctor’s appointments. A social 

worker had also reported the smell of marijuana in the home during a visit. 

At the detention hearing on the section 387 petition, F.T. was detained. A 

contested jurisdiction hearing concluded on April 16, 2015. The allegations of the 

section 387 petition were found true. F.T. was placed back into the foster home in which 

she had lived, prior to being returned to mother. The foster parents indicated a desire to 

adopt F.T.; they also had F.T.’s younger half-sister in their home. At the section 366.26 

hearing on August 6, 2015, the juvenile court terminated mother’s parental rights. 

Mother filed a notice of appeal from the order terminating parental rights on 

September 16, 2015. The sole issue raised in the appeal is that the juvenile court’s 

finding that ICWA does not apply is not supported by substantial evidence. 
5.

On December 29, 2015, the parties filed a “Stipulation to Immediate Limited 

Remand” with this court. In the stipulation, they agree to an immediate remand of this 

case to the juvenile court to provide ICWA notice to the Cherokee Nation, the United 

Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Navajo 

Nation, the Ramah Navajo School Board, and the Colorado River Indian Tribes. It 

appears to contemplate that the judgment terminating parental rights is set aside, to be 

reinstated if the tribes respond that F.T. is not an Indian child, but reinstatement is only 

after mother is provided an opportunity to be heard. 

By order filed December 31, 2015, this court deferred ruling on the parties’ 

stipulation pending consideration of the appeal on the merits.

In a letter dated January 11, 2016, the department notified this court it would not 

file a respondent’s brief. 

DISCUSSION

Mother argues the juvenile court’s finding that the ICWA did not apply requires 

reversal and remand because the finding is not supported by substantial evidence. The 

department apparently agrees with mother’s position on appeal, because it stipulated to a 

limited remand of this case. For reasons stated below, we do not accept the department’s 

concession and affirm. 

I. ICWA

The ICWA was enacted to “protect the best interests of Indian children and to 

promote the stability and security of Indian tribes and families by the establishment of 

minimum Federal standards for the removal of Indian children from their families and the 

placement of such children in foster or adoptive homes which will reflect the unique 

values of Indian culture ....” (25 U.S.C. § 1902.) To achieve this purpose, the ICWA 

requires notice be given to the child’s tribe “where the court knows or has reason to know 

that an Indian child is involved ....” (25 U.S.C. § 1912(a).) The tribe’s response will 

determine if the child is an Indian child. (Ibid.; see also In re Desiree F. (2000) 83 
6.

Cal.App.4th 460, 470 [“one of the primary purposes of giving notice to the tribe is to 

enable the tribe to determine whether the child involved in the proceedings is an Indian 

child.”].) An Indian tribe means a federally recognized Indian tribe. (25 U.S.C. 

§ 1903(8).) 

State law imposes on both the juvenile court and the county welfare agency “an 

affirmative duty to inquire whether a dependent child is or may be an Indian child.” (In 

re Nikki R. (2003) 106 Cal.App.4th 844, 848; § 224.3, subd. (a); Cal. Rules of Court, 

rule 5.481(a).) If the agency or the court “knows or has reason to know that an Indian 

child is involved, the social worker ... is required to make further inquiry regarding the 

possible Indian status of the child” to facilitate the provision of notice. (§ 224.3, 

subd. (c); see also In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.) 

The ICWA defines an Indian child as “a child who is either a member of an Indian 

tribe or is eligible for membership in an Indian tribe and is the biological child of a 

member of an Indian tribe.” (In re H.B. (2008) 161 Cal.App.4th 115, 120, citing 25 

U.S.C. § 1903(4).) The necessity of a biological tie to the tribe is underlined by the 

ICWA definition of a “parent” as “any biological parent or parents of an Indian child ....” 

(25 U.S.C. § 1903(9).) 

II. ICWA Notice

Mother contends the juvenile court’s finding that the ICWA did not apply was not 

supported by proof of proper notice or inquiry to all relevant Indian tribes. Mother 

acknowledges that she failed to appeal from prior orders of the juvenile court’s finding 

that the ICWA was inapplicable to F.T. Mother requests that we revisit and overrule our 

opinion in Pedro N., supra, 35 Cal.App.4th 183, 185, 189, which applies waiver and 

forfeiture to parents who wait until the termination of parental rights to first make an 

ICWA challenge. 

In Pedro N., supra, 35 Cal.App.4th at pages 185 and 189, we held that a parent 

who fails to challenge a juvenile court’s action timely regarding the ICWA is foreclosed 
7.

from raising ICWA issues, once the juvenile court’s ruling is final, in a subsequent appeal 

from later proceedings. 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, 35 Cal.App.4th at pp. 189-190.) 

In the instant action, the juvenile court’s finding that the ICWA was inapplicable 

to F.T. was made at the hearing conducted June 26, 2013. At that hearing, the court had 

before it the amended ICWA-030 and the social study report noting that the Cherokee 

Nation of Oklahoma had requested, and been provided, further information; both the 

Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians 

had responded that F.T. was not an Indian child; and the Navajo Nation and the Ramah 

Navajo School Board had not yet responded. 

Section 224.3, subdivision (e)(3) provides that the juvenile court may determine 

the ICWA does not apply if proper notice has been provided and neither a tribe nor the 

BIA has provided a determinative response within 60 days after receiving the notice. 

Here, the juvenile court made its finding after some tribes, the three Cherokee tribes, had 

received notice 60 days or more prior to the hearing, but the Navajo tribes had not. 

Mother was present at the June 26, 2013 hearing with her counsel and was advised 

of the need to appeal if she had any objections to the juvenile court’s findings and orders. 

She was at all times in these proceedings represented by counsel. Mother never filed an 

extraordinary writ or an appeal until parental rights were terminated. 

There were multiple status review hearings and other hearings where mother had 

an opportunity to raise the ICWA issue after disposition and before termination of 

parental rights. When the section 366.26 hearing was scheduled, mother was required to 

file a writ in order to challenge any findings or orders leading to the setting of the section 
8.

366.26 hearing, including any issues regarding an ICWA finding; she did not do so. (In 

re Anthony B. (1999) 72 Cal.App.4th 1017, 1021-1022.) 

Section 366.26, subdivision l, “applies to all ‘issues arising out of the 

contemporaneous findings and orders made by a juvenile court in setting a section 366.26 

hearing.’” (In re Anthony B., supra, 72 Cal.App.4th at p. 1022.) Section 366.26, 

subdivision l(2), provides that failure to file a writ petition for extraordinary writ review 

within the period specified “shall preclude subsequent review by appeal of the findings 

and orders made pursuant to this section.” 

Our holding in Pedro N. is fully applicable here. Mother waited until the end of 

the proceedings when her parental rights were terminated to object to the juvenile court’s 

earlier rulings finding the ICWA inapplicable to this case, and by her prior silence, has 

forfeited her right to complain about any procedural deficiencies in compliance with the 

ICWA in the instant appeal. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-190.)

To the extent mother relies on cases such as In re Marinna J. (2001) 90 

Cal.App.4th 731, 737-739 and Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 

261, cases that disagreed with Pedro N., relying on the theory that Pedro N. is 

inconsistent with the protection and procedures afforded by the ICWA to the interest of 

Indian tribes, we are not persuaded. We decline mother’s invitation to revisit our holding 

in Pedro N. 2 

We further note that Pedro N. does not foreclose a tribe’s rights under the ICWA 

due to a parent’s forfeiture or waiver of the issue for failing to file a timely appeal when 

procedurally entitled to do so at the conclusion of an earlier proceeding. (Pedro N., 

supra, 35 Cal.App.4th at pp. 185, 189-190; see In re Desiree F., supra, 83 Cal.App.4th at 

 

2 The California Supreme Court has granted review in In re Isaiah W. (2014) 228 

Cal.App.4th 981 (review granted 10/29/14 and depublished (S221263)) to consider 

whether a parent who did not appeal an earlier finding on ICWA was foreclosed from 

raising an ICWA issue in an appeal from a termination of parental rights.
9.

pp. 477-478 [wherein we reversed juvenile court’s denial of tribe’s motion to intervene 

after final order terminating parental rights and invalidated actions dating back to outset 

of dependency that were taken in violation of ICWA].) We note that there is no evidence 

in the record that any tribe responded and claimed F.T. as eligible for protection under 

ICWA. Should any tribe so indicate, its rights under ICWA are not foreclosed. 

In Pedro N. 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, 35 Cal.App.4th at p. 191) or, for that matter, the rights of the child. As 

a result, we conclude mother has forfeited her right to complain of any alleged defect in 

compliance with the ICWA. 

We reject the parties’ stipulation. F.T. has been in the dependency system since 

2012; a family was ready and willing to adopt F.T. and provide her a stable, loving home 

as of August 6, 2015; and adoption procedures were initiated. A dependent child’s 

interest in permanency and stability requires that we adhere to the provisions of section 

366.26, subdivision l, and that there be a time limit on a parent’s ability to raise the issue 

of ICWA compliance. We see no reason to create instability for F.T. when mother failed 

to act for a period of two years after the finding that ICWA did not apply was made by 

the juvenile court. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-190.)

DISPOSITION

The “Stipulation to Immediate Limited Remand” is denied. The order terminating 

parental rights is affirmed.