as: 129 Cal.App.4th 334, 28 Cal.Rptr.3d 495)
of Appeal, Fourth District, Division 2, California.
re JONATHON S., a Person Coming Under the Juvenile Court
County Department of Public Social Services, Plaintiff and
S., Defendant and Appellant.
for Partial Publication.
Pursuant to California Rules of Court, rules 976(b) and 976.1,
this opinion is certified for publication with the exception of
parts II.C and II.D.
William Hook, under appointment by the Court of Appeal, for
Defendant and Appellant.
William C. Katzenstein, County Counsel, and Julie Koons Jarvi, Deputy
County Counsel, for Plaintiff and Respondent.
Sharon M. Jones, Ventura, under appointment by the Court of
Appeal, for Minor.
Tiffany S. (mother) appeals from an order terminating her parental
rights to her son, Jonathon S. She contends the juvenile
court erred by failing to ensure that notice was given
in accordance with the Indian Child Welfare Act (25 U.S.C.
et seq.) (ICWA). In the unpublished portion of this opinion,
we will agree.
In the published portion of this opinion, we will hold
that the mother has standing to raise this contention even
though she herself is not Indian. We will further hold,
however, that at this point the only order we may
on this contention is the termination order, and not any
AND PROCEDURAL BACKGROUND
The relevant facts are few and simple. The Riverside County
Department of Public Social Services (the Department) filed this dependency
proceeding concerning Jonathon and two of his half-siblings (not involved
in this appeal). At that time, Jonathon was four; he
is now six.
The jurisdictional/dispositional report stated: "The Indian Child Welfare Act does
not apply. [¶]
[Jonathon's father] stated that he does have an Indian Heritage
(Black Foot), but that he is not part (certified) an
At the jurisdictional/dispositional hearing, the juvenile court found that notice
had been given "as required by law." However, it made
no findings specifically concerning the ICWA.
Initially, Jonathon's father cooperated with the Department. After the jurisdictional/dispositional
hearing, however, he went into hiding, apparently because he "owe[d]
child support in three counties...." Meanwhile, the paternal grandmother sought,
first, de facto parent status and thereafter placement; although these
were denied, she remained in touch with the Department.
The social worker's reports for the six-month review hearing, the
12-month review hearing, and the hearing pursuant to Welfare and
Institutions Code section 366.26 (section 366.26 hearing) all simply repeated,
"The Indian Child
Welfare Act does not apply."
At the six-month review hearing, the 12-month review hearing, and
the section 366.26 hearing, the juvenile court still made no
In general, the ICWA applies to any state court proceeding
involving the foster care or adoptive placement of, or the
termination of parental rights to, an Indian child. (25 U.S.C.
1911(1)-(3), 1912, 1913, 1914, 1915, 1916, 1917, 1918, 1920, 1921.)
"Indian child" is defined as a child who is either
(1) "a member of an Indian tribe" or (2) "eligible
for membership in an Indian tribe and ... the biological**498
child of a member of an Indian tribe...." (25 U.S.C.
"Indian tribe" is defined so as to include only federally
recognized Indian tribes. (25 U.S.C. § 1903(8).)
Concerning notice, the ICWA provides: "[W]here the court knows or
has reason to know that an Indian child is involved,
the party seeking the foster care placement of, or termination
of parental rights to, an Indian child shall notify ...
the Indian child's tribe, by registered mail with return receipt
requested, of the pending proceedings and of their right of
intervention. If the identity or location of ... the tribe
cannot be determined, such notice shall
be given to the [Bureau of Indian Affairs (BIA)] in
like manner, who shall have fifteen days after receipt to
provide the requisite notice to the parent or Indian custodian
and the tribe. No foster care placement or termination of
parental rights proceeding shall be held until at least ten
days after receipt of notice by ... the tribe or
the [BIA]...." (25 U.S.C. § 1912(a);
see also 25 U.S.C. §§ 1a,
To enforce this notice provision, the ICWA further provides: "Any
Indian child who is the subject of any action for
foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such
child was removed, and the Indian child's tribe may petition
any court of competent jurisdiction to invalidate such action upon
a showing that such action violated any provision of section[
] ... 1912 ... of this title." (25 U.S.C. § 1914.)
Department argues that the mother lacks standing to assert that notice
pursuant to the ICWA was not given.
The appellant in a dependency
proceeding must be "aggrieved." (In
re Harmony B. (2005)
125 Cal.App.4th 831, 837, 23 Cal.Rptr.3d 207 [Fourth *339
Dist., Div. Two]; see also Code Civ. Proc., § 902; Welf.
& Inst.Code, § 395.) Recently, one court questioned
whether a non-Indian parent was aggrieved by a failure to give ICWA notice
to the child's alleged tribe. (in
rE isayah C. (2004)
118 cal.app.4th 684, 693-694, fn. 9, 13 cal.rptr.3d 198.) It reasoned
that the child had already been placed with a relative of the allegedly
Indian parent and that "[i]ntervention by the relevant tribe would
only have made it less
likely that appellant would receive custody...." (Ibid.)
However, it found it unnecessary to decide this issue.
Even a non-Indian parent has rights under the ICWA. The
ICWA defines "parent" so as to include (subject to one
exception not applicable here) "any biological parent or parents of
an Indian child...." (25 U.S.C. § 1903(9).)
It then provides that "the parent," as well as the
tribe, is entitled to notice. (25 U.S.C. § 1912(a).)
Here, the mother had notice of the proceedings; she did
not, however, receive notice of the tribe's right of intervention,
as the ICWA would require. (Ibid.)
Moreover, giving notice to the tribe could result in a
determination that Jonathan is in fact an Indian child. In
that event, the juvenile court would have to make certain
specified findings before it could terminate parental rights, including an
"active efforts" finding (25 U.S.C. § 1912(d))
and a "serious ... damage" finding (25 U.S.C. § 1912(f)).
Moreover, at least one "qualified expert witness[ ]" would have
to testify at the section 366.26 hearing. (25 U.S.C. § 1912(f).)
These heightened requirements would apply regardless of whether the tribe
chose to intervene. They all tend to benefit the non-Indian
as well as the Indian parent.
We therefore conclude that the mother, although not Indian, has
standing to assert an ICWA notice violation on appeal.
See footnote *, ante.
Effect of the Error.
In her opening brief, the mother
requested "that the order terminating parental rights be reversed...."
Nevertheless, the Department argued that we could reverse only
the order terminating parental rights, and not any earlier orders. As
a result, in her reply brief, the mother argued that we could reverse
"any other order" in the case (capitalization omitted)-- although,
somewhat confusingly, she concluded by requesting yet again "that
the order terminating parental rights be reversed...."
In a non-ICWA case, we would hold that the mother
waived any right to the reversal of any earlier orders
by failing to raise this issue in her opening brief.
(See, e.g., In
re Daniel M.
(2003) 110 Cal.App.4th 703, 707, fn. 4, 1 Cal.Rptr.3d 897.)
Nevertheless, given the concerns that have been expressed about allowing
a parent to waive a tribe's right to ICWA notice
(see, e.g., In
re Suzanna L., supra,
104 Cal.App.4th at pp. 231-232, 127 Cal.Rptr.2d 860 [Fourth Dist.,
Div. Two] ), we choose not to do so; rather,
assume, without deciding, that the issue has been preserved.
We do not believe, however, that we have jurisdiction to reverse any earlier
orders. At this point, they have the stature of appealable orders
from which no appeal was taken. " ' "If an order is appealable
... and no timely appeal is taken therefrom, the issues determined by
the order are res judicata." ' [Citation.] '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.'
[Citation.] Appellate jurisdiction to review an appealable
order depends upon a timely notice of appeal. [Citation.]'' (Wanda
B. v. Superior Court
(1996) 41 Cal.App.4th 1391, 1396, 49 Cal.Rptr.2d 175, quoting In
re Cicely L. (1994)
28 Cal.App.4th 1697, 1705, 34 Cal.Rptr.2d 345 and In
re Elizabeth M. (1991)
232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483.) Thus, the only order
before us is the order terminating parental rights.
We can think of only two even arguable ways we
could reach the earlier orders despite this limitation on our
First, arguably we could do so
if the ICWA notice violation wholly deprived the juvenile court of jurisdiction.
"When a court lacks jurisdiction in a fundamental sense, an
ensuing judgment is void, and 'thus vulnerable to direct or collateral
attack at any time.' [Citation.]" (People
v. American Contractors Indem. Co.
(2004) 33 Cal.4th 653, 660, 16 Cal.Rptr.3d
76, 93 P.3d 1020, quoting Barquis
v. Merchants Collection Assn.
(1972) 7 Cal.3d 94, 119, 101 Cal.Rptr. 745, 496 P.2d 817.) We concur,
however, with those courts that have held that an ICWA notice violation
is not jurisdictional. (In
re Brooke C. (2005)
127 Cal.App.4th 377, 384-385, 25 Cal.Rptr.3d 590, and cases cited.) [FN2]
It is simply an **500
appealable error of federal law. Here, the *341
mother forfeited her right to reversal of the earlier orders based on
any such error by failing to file a timely appeal.
was an appeal from the dispositional order. (In
re Brooke C., supra,
127 Cal.App.4th at pp. 381, 386, 25 Cal.Rptr.3d 590.) In
it, the social services agency conceded that notice as required
by the ICWA had not been given. (Id.
at p. 383, 25 Cal.Rptr.3d 590.) The appellate court held
that, because an ICWA notice violation is not jurisdictional, it
reverse a dispositional order based on an ICWA notice violation;
the only order that is ever
reversible based on an ICWA notice violation is an order
terminating parental rights. (Id.
at pp. 384-385, 25 Cal.Rptr.3d 590.) It did, however, order
a "limited remand" so the social services agency could give
the requisite notice. (Id.
at p. 385, 25 Cal.Rptr.3d 590.) It indicated that, once
such notice was given, if the child was found to
be an Indian child, the mother could
file a petition in the juvenile court under the enforcement
is an appeal from the order terminating parental rights. Even
once we find an ICWA notice violation, we must reverse
an order terminating parental rights. Thus, the actual issue in
we could reverse the dispositional order in
an appeal from the dispositional order--is
not presented here.
Second, arguably we could do so
if this appeal is, in essence, an invalidation proceeding under the ICWA
enforcement provision. As mentioned earlier, the enforcement provision
states: "Any Indian child who is the subject of any action
for foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such child was
removed, and the Indian child's tribe may petition any court of competent
jurisdiction to invalidate such action upon a showing that such action
violated any provision of section[ ] ... 1912 ... of this title."
(25 U.S.C. § 1914.) The enforcement provision contains
no express time limitation.
An appellate court, however, is not a "court of competent
jurisdiction" within the meaning of the enforcement provision.
[FN3] As we just explained, we do not have jurisdiction
to review an appealable order after the time for filing
of appeal has expired. Moreover, in many instances, a petition
under the enforcement provision will require the resolution of disputed
factual issues. We are just not the right kind of
Other wording used in the enforcement provision is likewise of
questionable applicability to an appeal. For example, is an appeal
a "petition"? Moreover, is a child an "Indian child" when
there has not yet been any determination to that effect?
There is a well-recognized distinction between a court having "reason
to know" that a child is an Indian child and
a child actually being
an "Indian child."
v. Inyo County Juvenile Court
(1991) 230 Cal.App.3d 263, 282 Cal.Rptr. 126, this court held
that "Congress ... did not intend that [25 United States
Code] section 1914 should preempt the subject matter jurisdiction of
any state court or confer new subject matter jurisdiction upon
any state court...." (Id.
at p. 267, 282 Cal.Rptr. 126.) There, the juvenile court
had sustained a dependency petition concerning three Indian children, removed
them from their parents' custody, and terminated reunification services. (Id.
at pp. 265-266, 282 Cal.Rptr. 126.) At that point, the
parents filed a petition in the superior court, purportedly under
25 United States Code section 1914, to invalidate the juvenile
at p. 266, 282 Cal.Rptr. 126.) The superior court denied
the petition on the ground that, under the circumstances, it
was not a "court of competent jurisdiction" within the meaning
of the enforcement provision. (Id.
at pp. 265-266, 282 Cal.Rptr. 126.)
We affirmed. We noted that the juvenile court has exclusive
jurisdiction over "issues pertaining to the custody of a dependent
v. Inyo County Juvenile Court, supra,
230 Cal.App.3d at p. 266, 282 Cal.Rptr. 126.) We also
that "California law prohibits one department of a superior court
from invalidating a ruling made by another department of the
same court." (Id.
at p. 268, 282 Cal.Rptr. 126.) We then held that
the enforcement provision does not give a state court any
subject matter jurisdiction it does not already have. (Id.
at p. 267, 282 Cal.Rptr. **501
126.) We concluded: "While the dependency matter is before the
juvenile court, plaintiffs are required to bring their petition in
the juvenile court. Once all the issues raised by the
petition have been adjudicated in the juvenile court, plaintiffs' recourse
for review is to the appellate court. [Citations.]" (Id.
at p. 270, 282 Cal.Rptr. 126; accord, Cal. Rules of
Court, rule 1439(n)(1) [when a child is the subject of
an open dependency proceeding, "the juvenile court is the only
court of competent jurisdiction" to hear an invalidation petition under
the enforcement provision].)
was dealing with the jurisdiction of trial-level courts,
not an appellate court, its reasoning applies equally here. The
enforcement provision does not give us any jurisdiction to invalidate
a juvenile court order based on an ICWA notice violation
that we would not otherwise have. Any petition under the
enforcement provision to invalidate an order in an open dependency
must be filed in the juvenile court; only after the
juvenile court renders an appealable ruling on the petition can
we review the issues on appeal. Accordingly, although some appellate
courts have suggested that an appeal asserting an ICWA violation
is, in itself, a proceeding under the enforcement provision (In
(2004) 118 Cal.App.4th 1108, 1115, fn. 3, 13 Cal.Rptr.3d 606;
re Daniel M., supra,
110 Cal.App.4th 703, 707-708, 1 Cal.Rptr.3d 897; In
re Pedro N.
(1995) 35 Cal.App.4th 183, 190, 41 Cal.Rptr.2d 819; In
re Riva M.
(1991) 235 Cal.App.3d 403, 411, fn. 6, 286 Cal.Rptr. 592),
we must disagree.
For this reason, although we held that the mother has
appellate standing (see part II.A, ante
), we did not
reason that her standing derives from 25 United States Code
section 1914. (But see In
re Riva M., supra,
235 Cal.App.3d at p. 411, fn. 6, 286 Cal.Rptr. 592.)
For these reasons, we conclude that the only order subject
to reversal in this appeal is the order terminating parental
The order terminating parental rights is reversed. We order a
limited remand, as follows.
The juvenile court is directed to order the Department to
give notice in compliance with the ICWA and related federal
and state law.
Once the juvenile court finds that there has been substantial
compliance with the notice requirements of the ICWA, it shall
make a finding with respect to whether Jonathan is an
Indian child. (See Cal. Rules of Court, 1439(g)(5).) If at
any time within 60 days after notice has been given
there is a determinative response that Jonathan is or is
not an Indian child, the juvenile court shall find in
accordance with the response. (Cal. Rules of Court, 1439(g)(1), (4).)
If there is no such response, the juvenile court shall
find that Jonathan is not an Indian child. (Cal. Rules
of Court, 1439(f)(6).)
If the juvenile court finds that Jonathan is not an
Indian child, it shall reinstate the original order terminating parental
If the juvenile court finds that Jonathan is an Indian
child, it shall set a new section 366.26 hearing and
it shall conduct all further proceedings in compliance with the
ICWA and all related federal and state law.
We concur: HOLLENHORST, Acting P.J., and GAUT, J.