Filed 1/24/19; Certified for Publication 2/25/19 (order attached)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

In re L.D., a Person Coming Under the 

Juvenile Court Law.

 H045544

 (Santa Clara County

 Super. Ct. No. 17JD024833)

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY AND 

CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

M. J.,

Defendant and Appellant.

The Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) gives Indian 

tribes the right to intervene in dependency proceedings “where the court knows or has 

reason to know that an Indian child is involved,” and foster care placement or termination 

of parental rights for the Indian child is being sought. (Id., at § 1912(a).) To that end, the 

party initiating dependency proceedings must provide the Indian child’s tribe with notice 

of the proceedings and the right to intervene. (Ibid.) In this dependency action, the 

mother of L.D. belatedly challenges the juvenile court’s finding made at the jurisdictional 

and dispositional hearing regarding compliance with ICWA. We will dismiss the appeal 

for lack of jurisdiction.
I. BACKGROUND

The Santa Clara County Department of Family and Children’s Services filed a 

juvenile dependency petition on behalf of nine-year-old L.D. At the initial detention 

hearing mother informed the court of Native Alaskan ancestry. She identified a possible 

affiliation with “Doyon—Alaska,” and related that her mother (L.D.’s maternal 

grandmother) knew more about the ancestry.

At the jurisdictional and dispositional hearing, the Department reported that it had 

investigated the ICWA matter and sent notice of the dependency proceedings to a tribe in 

Alaska. According to the social worker’s report, L.D.’s maternal grandmother reported 

having Eskimo heritage, mentioning “the Doyon tribe as well as Tanachief.” The notice,

identifying L.D. as possibly Athabascan Indian, was sent in November 2017 to the Native 

Village of Tanana in Alaska, the Bureau of Indian Affairs in Sacramento, and the 

Secretary of the Interior in Washington, D.C. Receiving no objections from the parties, 

the court found the notice satisfied ICWA. 

The court found true the allegations in the petition that mother had sexually 

abused L.D.; had failed to protect L.D. from sexual abuse by mother’s boyfriend; had 

physically attacked her father (L.D.’s maternal grandfather) in the presence of L.D., and 

during that altercation mother’s boyfriend had brandished and threatened the maternal 

grandfather with a handgun.

L.D. was declared a dependent of the court. She was removed from mother’s 

custody and ordered into the custody of the Department, with the expectation she would 

be placed with the maternal grandfather who had been caring for her informally for 

several years. Mother waived her right to reunification services, and the court set a 

selection and implementation hearing under Welfare and Institutions Code section

366.26. The juvenile court advised mother, who was in custody facing criminal charges

related to the circumstances alleged in the dependency petition, that the right to appellate 

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review was by extraordinary writ to be filed within seven days, and personally served 

mother with a copy of the writ advisement. 

Following the hearing, the court issued a three-year juvenile restraining order 

protecting L.D. from mother. The court found that mother had intentionally or recklessly 

caused or attempted to cause bodily injury and sexual assault on L.D., and had caused 

L.D. reasonable apprehension of imminent serious bodily injury. The restraining order 

prohibited mother from having a gun and required mother to sell or surrender any gun 

within her immediate possession or control. Having found that mother had possessed or 

had access to a handgun before her arrest, the court set a gun surrender hearing. At that 

hearing held on January 12, 2018, the court found that mother owned or had access to a 

gun and failed to show the gun had been surrendered or confiscated, in violation of the 

juvenile restraining order. Given mother’s custody status, the court noted its willingness 

to revisit the matter after mother’s release if she were to provide evidence of the gun’s

surrender. 

Mother filed a timely notice of appeal from the order following the gun surrender 

hearing, identifying the court’s finding that she had access to a firearm in violation of the 

restraining order as the basis for her appeal. But her briefing in this court does not

address the restraining order or its conditions. Instead mother challenges the juvenile 

court’s December 5, 2017 finding regarding ICWA compliance, and the Department 

concedes (without giving reasons) that its November 2017 notice was insufficient.

Mother argues in supplemental briefing that her ICWA challenge is timely. L.D. views 

mother’s ICWA challenge as timely, but argues that the Department’s November 2017 

notice was proper. L.D. also has requested judicial notice of three ICWA notices (sent in 

August, September, and October 2018) for the selection and implementation hearing, and 

contends mother’s appeal is moot in light of those notices.

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II. DISCUSSION

A. TIMELINESS

Relying on In re Isaiah W. (2016) 1 Cal.5th 1 (Isaiah), mother argues that an 

appellate challenge to the juvenile court’s ICWA finding may be raised at any time 

during a dependency proceeding because error under ICWA is of a continuing nature 

given the juvenile court’s duty to comply with ICWA’s notice requirement. L.D. takes a 

narrower position, also based on Isaiah, that the ICWA challenge is proper because it is 

from an appealable post-disposition order. 

In Isaiah our Supreme Court addressed whether a parent who does not timely 

appeal a juvenile court order that includes a finding of ICWA inapplicability may still 

challenge that finding on appeal from a later order terminating parental rights. (Isaiah,

supra, 1 Cal.5th at p. 6.) As here, the ICWA finding in Isaiah was made at the 

jurisdictional and dispositional hearing, and appellate review was not sought at that time. 

(Ibid.) But unlike mother’s appeal from a proceeding on compliance with a juvenile 

restraining order, the Isaiah appeal was taken from an order terminating parental rights. 

(Id. at p. 7.) 

Explaining why the parent’s challenge was timely, the Isaiah court emphasized 

that the parent was not challenging the juvenile court’s ICWA finding from the 

jurisdiction and disposition hearing, but was challenging a finding of ICWA 

inapplicability foundational to the order terminating parental rights. (Isaiah, supra, 

1 Cal. 5th at p. 10.) Because the termination order “necessarily subsumed a present 

determination of ICWA’s inapplicability,” and the validity of the order “is necessarily 

premised on a current finding by the juvenile court regarding compliance with ICWA’s 

notice requirement,” the challenge based on ICWA in an appeal from the order 

terminating parental rights was proper and timely. (Id. at pp. 11, 15.) 

In contrast, the order made at the gun surrender hearing here is not premised on 

any ICWA finding. Although we are mindful of the juvenile court’s continuing duty to 

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comply with ICWA (Welf. & Inst. Code, § 224.2, subd. (a); Isaiah, supra, 1 Cal.5th at 

pp. 10–11), ICWA notice is required “for hearings that may culminate in an order for 

foster care placement, termination of parental rights, preadoptive placement, or adoptive 

placement.” (Welf. & Inst. Code, § 224.3, subd. (a).) The gun surrender hearing 

resulted in no such order. As the reasoning of Isaiah does not extend to the facts 

presented here, the appeal is untimely. (Welf. & Inst. Code, § 366.26, subd. (l)(1)–(2); 

Cal Rules of Court, rules 8.450(e)(4)(a), 8.452; Sara M. v. Superior Court (2005) 

36 Cal.4th 998, 1018.)

Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, cited by mother (and 

the Isaiah court), is distinguishable in that the appeal in that case was taken from an order 

terminating reunification services and scheduling a selection and implementation hearing. 

(Id. at p. 251.) The ICWA issue was cognizable in the context of that order because the 

error under review was the failure to provide ICWA notice of the 12-month review 

hearing, which led directly to the challenged setting of a selection and implementation 

hearing. (Id. at p. 261.) Here, mother does not appeal from an order scheduling a 

selection and implementation hearing. She appeals from a gun surrender order unrelated 

to the purposes of ICWA notice. 

B. MOOTNESS

L.D. argues that mother’s appeal is moot because the Department sent amended 

ICWA notices based on new information concerning her possible Indian ancestry. (L.D. 

has asked us to take judicial notice of the second, third, and fourth amended ICWA 

notices of the selection and implementation hearing which were sent in August, 

September, and October 2018. We will grant the request, which is unopposed.) Relying 

on In re Louis S. (2004) 117 Cal.App.4th 622, in which the appellate court concluded that 

a deficient initial notice was not cured by a later notice (id. at p. 631), mother counters 

that the Department has not met its burden of establishing harmless error, and therefore 

her appeal is not moot.

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Given our determination that the appeal is untimely, we need not decide whether it 

is also moot. But the Department’s concession that its November 2017 notice was 

deficient and its apparently ongoing efforts to provide additional tribal notice will require 

the juvenile court to revisit its ICWA finding before proceeding with the selection and 

implementation hearing (set for February 22, 2019 according to the register of actions in 

this matter, of which we take judicial notice on our own motion [Evid. Code, §§452, 

subd. (d), 459]). (In re Louis S., supra, 117 Cal.App.4th at p. 634, fn. 9 [“The 

permanency planning hearing should not occur until the Agency properly serves notice 

on the tribe or tribes and the BIA.”].) The juvenile court must determine whether 

sufficient notice has been sent to “[a]ll tribes of which the child may be a member or 

citizen, or eligible for membership.” (Welf. & Inst. Code, § 224.3, subd. (a)(3)(A); see 

also In re Louis S., supra, 117 Cal.App.4th at p. 630 [meaningful notice requires 

sufficient information for a tribe to determine whether the minor is an Indian child].)

III. DISPOSITION

L.D.’s request for judicial notice is granted. 

The appeal is dismissed.

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____________________________________

Grover, J.

WE CONCUR:

____________________________

GREENWOOD, P. J. 

____________________________

ELIA, J. 

H045544 - In re L. D.; DFCS v. M.J.
Filed 2/25/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re L.D., a Person Coming Under the 

Juvenile Court Law.

 H045544

 (Santa Clara County

 Super. Ct. No. 17JD024833)

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY AND 

CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

M. J.,

Defendant and Appellant.

ORDER GRANTING REQUEST FOR 

PUBLICATION

BY THE COURT:

Pursuant to California Rules of Court, rule 8.1105(b), the request for publication is 

hereby granted. It is ordered that the opinion in this matter, filed on January 24, 2019.

Dated: _____________________________

Grover, J.

_____________________________

Greenwood, P. J.

_____________________________

Elia, J.
Trial Court: Santa Clara County Superior Court

Superior Court No. JD024833

Trial Judge: Hon. Michael L. Clark

Counsel for Plaintiff/Respondent:

Santa Clara County Department of 

Family and Children’s Services

James R. Williams, County Counsel

Laura Underwood, Deputy County Counsel

Office of the County Counsel

Counsel for Minor:

L.D.

Under appointment by the Court of Appeal

Anna L. Stuart, Esq. 

Counsel for Defendant/Appellant:

M.J.

Under appointment by the Court of Appeal

Jamie A. Moran, Esq. 

H045544 - In re L. D.; DFCS v. M.J.

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