Filed 1/2 4 /19 ; Certified for Publication 2/25/19 (order attached) NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 DE PARTMENT 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 . ( I bi d .) In this dependency action, the
mother of L.D. belatedly challenges the juvenile court’s finding made at the jurisdictional
and disposition al hearing regarding compliance with ICWA

. We will dismiss the appeal for lack of jurisdiction.BACKGROUND I.

T he Santa Clara County Department of Family and Children’s Servic es filed a juvenile dependency petition on behalf of nine

- year

- old L. D. At the initial detention hearing m other 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 jurisdiction al and disposition al hearing, the D epar tment 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.” Th e notice , identif ying L. D. as possibly Athabascan Indian , was sent in November 2017 to the Native Village of Tanana i n Alaska, the Bureau of Indian Affairs in Sacramento , and the Secretary o f the Interior in Washington , D.C

. R eceiving no objections from the parties,
the court found the notice satisfied ICWA.
The court found true the allegations in the petition that m other 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 D epartment , with the expectation she would be place d 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 Welf are and Inst itutions 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

2review was by extraordinary writ to be filed within seven days, and personally served mother with a copy of the writ adv isement. Following the hearing , t he 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 as sault 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 moth er had possessed or had access to a handgun before her arrest , the court set a gun surrender hearing. At th at hearing held on January 12, 2018 , t he court found that mother owned or had access to a gun and failed to show the gun had been surrendered or con fiscated , 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

sur render

. 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 h er 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 D epartment concedes (without giving reasons) that its November 2017 notice was insufficient

. M oth er argue s 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 i s moot in light of those notices.

3DISCUSSION II.
T IMELINESS A. Relying on In re Isaiah W . (2016) 1 Cal.5th 1 ( Isaiah ) , m other argues that an appell ate challenge to the juvenile court’s ICWA finding may be raised a t 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 i napplicability 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 jurisdiction al and disposition al hearing , and appel late review was not sought at that time

. ( I

bi d .) 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.)
E xplaining 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 th e order “i s 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 p p

. 11, 15.)
In contras t, the order made at the gun surrender hearing here is not premised on
any ICWA finding

. Although w e are mindful of the juvenile court’s continuing duty to 4comply with ICWA ( Welf. & Inst. Code, § 224. 2 , subd. (a); Isaiah , supra , 1 Cal.5th at
p p. 10

– 11 ) , ICWA notice is required “for hearings th at 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 Is aiah does not extend to the facts presented here , t he appeal is untimely. (Welf. & Inst. Code, § 366.26, subd. ( l )(1)

– (2);
C al 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.
M OOTNESS B. 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. 5Given our determination that the appeal is untimely, we need not decide whether it is also moot. But the Departm ent’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 hea ring 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.” (W elf. & 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].)
DISPOSITION III.
L.D.’ s request for judicial notice is granted. The appeal is dismissed.

6____________________________________ 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 DE PARTMENT 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.

Date d :

_____________________________ 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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