Filed 4/30/14 In re S.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 S.W. et al., Persons Coming Under the
Juvenile Court Law.
TULARE COUNTY HEALTH AND HUMAN F067780
SERVICES AGENCY,
(Super. Ct. Nos. JJV066018A &
Plaintiff and Respondent, JJV066018B)
v.
OPINION
S.W. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza,
Commissioner.
Michelle E. Danley and Carol Koenig, under appointment by the Court of Appeal,
for Defendant and Appellant father.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and
Appellant mother.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Abel C. Martinez,
Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
J.S. (mother) and S.W. (father) appeal from the juvenile court’s order terminating
their parental rights (Welf. & Inst. Code,1 § 366.26) to their daughters, S. and A.
(collectively, the children or the girls).2 Mother contends the juvenile court erred when it
found the parental benefit exception in section 366.26, subdivision (c)(1)(B)(i) did not
apply because the record showed she had a beneficial relationship with the children.
Father, who was a noncustodial parent at the time of the children’s detention, contends
his parental rights were terminated in violation of his due process rights because the court
never found by clear and convincing evidence he was an unfit parent. He also claims the
court erred when it found the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA)
did not apply. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Section 300 Petition
On February 10, 2012, the respondent, Tulare County Health and Human Services
Agency (the agency), filed a section 300 petition on behalf of S., who was then four years
old, and her sister A., who was three years old. The petition alleged mother’s aggressive
physical conduct towards S. placed both the girls at a substantial risk of suffering serious
physical harm (§ 300, subd. (a)), and stated the following facts in support of the
allegation:
“On or near 2/9/2012, the mother kicked at a public bathroom door while
[S.] was using the bathroom. The mother was also yelling and cursing at
the child. Earlier that morning the mother hit [S.] with an open hand on the
top of her head. [S.] stated that her mother had hit her and that her arm
hurt; the child’s left arm had a small scratch on it. [S.] stated the mother
had grabbed her by her neck on the previous night, 2/8/2012. On 2/9/2012,
the mother admitted to having a loose temper and anger issues.”
1 Further statutory references are to the Welfare and Institutions Code unless otherwise
specified.
2 We refer to certain persons by their abbreviated names in accordance with our Supreme
Court’s policy regarding protective nondisclosure of identity. No disrespect is intended
2
With respect to father, the petition alleged under section 300, subdivision (g), that
the children had been left without provision for support:
“On or near 2/8/2012, the father … informed the social worker that he does
not have a place to care for the children at this time. [Father] stated that his
parents do not have room for the children as his parents are currently in the
process of adopting his two older children. [Father] is unable or unwilling
to provide care or support for the children at this time. There are no known
relatives willing or able to provide care or support for the child[ren] at this
time.”
Detention Report and Hearing
In the detention report, the social worker recommended that the juvenile court find
the ICWA did not apply, reporting that on February 8, 2012, mother denied she or the
children might have any American Indian ancestry and “signed the ICWA 20 stating
such.” The same day, father stated he might “have Indian ancestry through his paternal
great grandmother” and “signed the ICWA 20 stating that he may be Cherokee.”
However, “[o]n February 9, 2012, upon further investigation …, the paternal great
grandmother, stated that she was not a recognized member of the Cherokee Tribe.”
The social worker reported additional details about his first contact with father on
February 8, 2012. The social worker met father around 1:00 p.m. Father said he had
received a text message from mother asking him to pick up the children at the courthouse.
When he arrived at the courthouse, the bailiff told him to wait and then directed him to
see the social worker. Father informed the social worker he did not have a permanent
address and was renting a room from a friend. Father said, “There is no way I can take
both girls into my care at this time.” Father said he did not have the means to provide for
children at that time.
Father also told the social worker that he had four children with mother, and that
their two sons were in the care of father’s parents, who were in the process of adopting
the boys. Father explained his parents had been the boys’ guardians for the past year
because he and mother were unable to care for them. Father said he did not know of any
3
relatives that would be able to care for the girls at that time. Father’s parents could not
care for them because they were already caring for the boys.
Father told the social worker he was “Native American and that his mother was in
the process of getting documentation to be recognized from the Cherokee Tribe.”
Father also said “he would like help with parenting, because as a parent one is
never ‘a perfect parent’” and “he would also like help finding a stable and permanent
home.”
On February 14, 2012, mother and father both appeared with counsel at the
detention hearing. The juvenile court asked the parents if they were members of, or
eligible for membership, in a Native American tribe. Both parents answered, “No.” The
juvenile court then found there was “insufficient reason to believe that [the children] are
or may be Indian children.” The court thereafter ordered the children detained.
Jurisdiction/Disposition
The jurisdiction/disposition report recommended the children remain in out-of-
home care and be adjudged dependents of the juvenile court “due to abuse/neglect issues
by the mother and the father.” The report noted that father had “failed to protect the
children from the mother’s ongoing abuse and neglect” and reported that, on February 17,
2012, father revealed “he was aware the mother and her current husband … were in a
domestic violence relationship and he failed to remove [the children] from the
household.” The agency concluded that “father’s failure to protect has led the children to
be exposed to the mother’s anger issues and continued exposure to domestic violence.”
The report indicated the agency had considered placing the children with father,
the noncustodial parent (§ 361.2); however, father “did not/is not requesting placement of
the children.” Instead, on February 8 and February 17, 2012, father stated “he does not
have a permanent address or the financial means to support two (2) young girls” and
“feels they would be best cared for in out of home placement at this time.”
4
With respect to the children’s ICWA status, the report stated: “On February 14,
2012, at the Detention Hearing the Court found the [ICWA] does not apply.”
At the combined jurisdictional/dispositional hearing on March 6, 2012, the court
accepted father’s offer of proof that, although he was currently unable to care for the
children, he was willing to provide care and support for them. After the parents
submitted the matter of jurisdiction to the agency’s report and father’s stipulation, the
court struck the allegation that father was unwilling to care for the children and found the
amended section 300, subdivisions (a) and (g) allegations to be true.
The juvenile court further found there was clear and convincing evidence that
there was a substantial danger to the children’s physical health, safety, protection or
physical or emotional well-being if they were returned home to mother.
In adopting the recommended findings and orders of the agency, the juvenile
court ordered reunification services for both parents and twice-a-week visits with the
children with supervised visits for mother and unsupervised visits for father.
Six-month Review
The agency’s report for the six-month review hearing reflected that on April 23,
2012, father told the social worker he was unable to care for the children at that time
because of “his current housing situation and busy work schedule.” The report also noted
that father was referred to parenting education on February 17, 2012. However, on May
24 and on July 5, 2012, father told the social worker he was unable to participate in
parenting education due to his work schedule. The report further noted that “father has
not been in consistent contact with the Agency; however, he does make himself available
via phone but no-shows to several scheduled individual contacts.”
At the six-month review hearing, father’s counsel informed the juvenile court that
father was requesting in-home parenting classes because of his work schedule. The court
told father this would not be possible after confirming with agency’s counsel that “in-
home parenting is only available if the children are in the home.” The court went on to
5
adopt the findings and orders of the agency, finding, among other things, that returning
the children to mother and father would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the children.
Twelve-month Review
In the report prepared for the 12-month review hearing, the agency recommended
terminating reunification services for both parents and setting a section 366.26 hearing.
Although mother was compliant with her therapeutic services, she had not been able to
make therapeutic progress and father had failed to complete the parenting education
component of his case plan.
The agency reported that father continued to be inconsistent with his contacts with
the agency, noting father did not respond to attempted contacts in August and October
2012. When the social worker was able to make telephone contact with father on
November 15, 2012, the social worker asked father about his inconsistent contact. Father
stated he had been busy with work but was currently unemployed. When asked whether
he had enrolled in parent education, father said no but said he would be enrolling and
requested contact information for family services, which the social worker provided.
At the contested 12-month review hearing on March 20, 2013, father testified that
he was participating in parenting education and had five classes left. Father stated he
would like more services, including individualized therapy. Father further testified, “I
have stated that I could use help with a place to live so I could get my children back.”
Regarding the issue of housing, father testified on cross-examination as follows:
“[AGENCY’S COUNSEL]: Q. And you stated that you needed help
with housing and you asked the social worker.
“Which social worker did you ask for housing?
“[FATHER]: A. The first one I stated it to was the initial person that
took the report on the day the girls were taken away.
6
“Because he asked me what services I needed. I volunteered for
parenting classes. And I also stated that I needed help with housing. That
it would be nice if I could get some help getting a place of my own.
“Q. Have you tried applying for housing on your own for example,
Section Eight housing?
“A. I’ve heard rumors about that one. They are closing it down.
“Two, the waiting list is at least four years long.
“THE COURT: So the answer is no, sir?
“[FATHER]: Yes.”
Father acknowledged he asked for a list of parenting classes in September 2012,
and that he was referred again on November 21, 2012.
The juvenile court went on to adopt the findings and recommendations of the
agency, terminating reunification efforts for both parents and setting a section 366.26
hearing to select permanent plans for the children. The court observed: “It is clear to me
that mom has done everything she was asked to do. Father has not. The problem is that
even with mom doing what she was asked to do, she has not been able to make the
therapeutic progress where I could return the kids or whether I would even conceive of
returning the kids if services were continued another six months.”
Section 366.26 Hearing
The agency’s report for the section 366.26 hearing reflected that, for a majority of
the dependency proceedings, the children had lived with their maternal grandparents,
with whom they were placed in late March 2012. The grandparents were committed to
adopting the children and were meeting their needs, and the children had progressed in
their grandparents’ care. Consequently, the agency recommended that the court find the
children adoptable and terminate parental rights.
At the section 366.26 hearing on July, 31 2013, mother testified that she had
supervised visits with the children once a week for two hours. She maintained regular
7
and consistent visits with the children and the visits went well. During visits, they would
play and do various activities together. Mother felt she had a very special parent/child
bond with the children. The children would run to mother and give her a hug at the
beginning and tell her they loved her at the end of visits. The children referred to mother
as “Mom.” The children referred to their maternal grandmother as “Ya Ya.” However,
sometimes in mother’s presence they referred to their grandmother and her husband as
“their parent.”
Father testified that he visited the children every other week for four hours. He
enjoyed visiting the children. The visits took place at “a McDonald’s play place.” They
would start by eating lunch together and then he would let the children play in the play
area. The children called father “Dad” or “Daddy” and they would exchange hugs with
him during visits. Father felt very attached to the children, and felt it would be very
detrimental to the children to break the bond he had with them. Sometimes the children
would throw a tantrum or misbehave during father’s visits with them. When this would
happen, father would have them sit down, talk to them about their behavior, and let them
know they were in “time out.” Father learned about “time outs” in parenting class.
Father’s goal was to bring the children home. Father did not have a home at the moment
but was working towards one. He was currently employed as a warehouse janitor for a
dairy company.
The children’s maternal grandmother testified she had the children with her “off
and on almost all their lives.” The children would sometimes misbehave because they
were typical children. However, in the grandmother’s opinion, the children misbehaved
more often after visits with their parents. Even though mother was her daughter, the
grandmother no longer had contact with mother, explaining: “Too many lies, too many
deceiving, it hurts.”
After the grandmother testified, the agency submitted the matter on the reports.
Following argument, the juvenile court found the children adoptable and terminated
8
parental rights. The court specifically rejected the parents’ arguments that the beneficial
relationship exception was applicable to prevent termination of parental rights.
DISCUSSION
I. Beneficial Relationship Exception
Mother contends the juvenile court erred by failing to apply the beneficial
relationship exception to termination of her parental rights to the children. We disagree
and conclude the juvenile court properly found the beneficial relationship exception
inapplicable with respect to both mother and father.3
A. Applicable Legal Principles
The purpose of a section 366.26 hearing is to select and implement a permanent
plan for the dependent child. (In re S.B. (2009) 46 Cal.4th 529, 532.) The Legislature’s
preferred permanent plan is adoption. (In re D.M. (2012) 205 Cal.App.4th 283, 290.)
“At a section 366.26 hearing, the court must terminate parental rights and free the child
for adoption if [1] it determines by clear and convincing evidence the child is adoptable
within a reasonable time, and [2] the parents have not shown that termination of parental
rights would be detrimental to the child under any of the statutory exceptions to adoption
found in section 366.26, subdivision (c)(1)(B)(i) through (vi). (§ 366.26, subd. (c)(1).)”
(In re D.M., supra, 205 Cal.App.4th at p. 290.)
To avoid termination of parental rights under the beneficial relationship exception,
the juvenile court must find “a compelling reason for determining that termination would
be detrimental to the child due to [the circumstance that the] parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) It is the parent’s burden to prove the
exception applies. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autumn H.).)
3 Although father does not address the issue directly, we assume he adopts mother’s
arguments concerning the beneficial relationship exception based on his reply brief which states
he joins in mother’s briefs pursuant to California Rules of Court, rule 8.200(a)(5).
9
The Court of Appeal in Autumn H., supra, defined a beneficial relationship as one
that “promotes the well-being of the child to such a degree as to outweigh the well-being
the child would gain in a permanent home with new, adoptive parents.” (27 Cal.App.4th
at p. 575.) “[T]he court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a new
family would confer. If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent’s rights are not
terminated.” (Ibid.)
A parent must show more than frequent and loving contact or pleasant visits for
the exception to apply. (In re C.F. (2011) 193 Cal.App.4th 549, 555; In re C.B. (2010)
190 Cal.App.4th 102, 126; In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) “The parent
must show he or she occupies a parental role in the child’s life, resulting in a significant,
positive, emotional attachment between child and parent. [Citations.] Further, to
establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the
child would suffer detriment if his or her relationship with the parent were terminated.
[Citation.]” (In re C.F., supra, 193 Cal.App.4th at p. 555.)
There is a split of authority concerning the standard of review in this context.
“Most courts have applied the substantial evidence standard” (In re K.P. (2012) 203
Cal.App.4th 614, 621), while “at least one court has concluded that it is properly
reviewed for an abuse of discretion” (ibid.). A third approach “incorporates both ...
standards” (ibid.), reviewing for substantial evidence “whether a beneficial parental ...
relationship exists” (id. at p. 622), and for abuse of discretion “whether the existence of
that relationship ... constitutes ‘a compelling reason for determining that termination
would be detrimental to the child[]’” (ibid.). Under any of these approaches, the juvenile
court here properly rejected the beneficial relationship exception and terminated paternal
rights for both parents.
10
B. Analysis
Mother asserts, “All that is required for application of the benefit exception is a
relationship that is strong enough to benefit the child and which would cause detriment if
terminated.” Because she “visited the children regularly and consistently, because she
and the children shared a bond, and because the impact upon the children of the juvenile
court’s decision to remove her from their lives forever is unknown,” mother contends, “it
cannot be said that adoption substantially outweighs the benefit to the children of
maintaining their relationship with mother.” Mother concludes “because the evidence
establishes that the [beneficial relationship] exception does apply, the court erred in
terminating mother’s parental rights.”
Mother’s arguments are inconsistent with the well-established mass of authority
summarized above. A beneficial relationship is not, as mother claims, one “strong
enough to benefit the child and which would cause detriment if terminated,” but rather
“‘one that “promotes the well-being of the child to such a degree as to outweigh the well-
being the child would gain in a permanent home with new, adoptive parents.” [Citation.]
The existence of this relationship is determined by “[t]he age of the child, the portion of
the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of
interaction between parent and child, and the child’s particular needs.” [Citation.]’
[Citation.]” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
Although the parents here maintained regular visitation and contact with the
children, they did not meet their burden of proving the children would benefit from
continuing their relationship with the parents, as the parents had not shown that
relationship promoted the children’s well-being to such a degree that it outweighed the
well-being the children would gain in a permanent home with the prospective adoptive
parents, the children’s maternal grandparents. Substantial evidence supports the juvenile
court’s implied finding at the section 366.26 hearing that the parents did not occupy a
parental role in the children’s life. As the court observed, this role has been occupied
11
primarily by the children’s maternal grandmother, not only during the dependency
proceedings but also throughout the children’s young lives. The evidence showed the
children looked to the maternal grandparents as parental figures and progressed in the
stable environment the grandparents provided for them.
On this record, the juvenile court reasonably could find the children’s need for
permanence outweighed the benefits they would derive from a continued relationship
with their parents. It also could find that severing the children’s relationship with the
parents would not deprive them of a substantial, positive emotional attachment that
would greatly harm them. Even if mother is correct that “there is considerable evidence
in the record which supports the opposite conclusion,” we defer to the juvenile court,
whose “role to assess the credibility of the various witnesses, to weigh the evidence to
resolve the conflicts in the evidence.... [W]e must accept the evidence most favorable to
the order as true and discard the unfavorable evidence as not having sufficient verity to
be accepted by the trier of fact. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38,
52-53.)
For all these reasons, we conclude the juvenile court did not err by failing to apply
the beneficial relationship exception to the termination of parental rights.
II. Due Process
Father contends the juvenile court’s termination order violated his due process
rights because the court never made a finding by clear and convincing evidence that he
was an unfit parent. We disagree and conclude no due process violation occurred.
A. Applicable Legal Principles
Because parents have a fundamental interest in the care, companionship, and
custody of their children, they are entitled to certain due process protections in state
dependency proceedings. (Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) In
particular, before a state may sever completely and irrevocably the right of parents in
their natural child, due process requires that the state supports its allegations by at least
12
clear and convincing evidence. (Id. at pp. 747-748.) Once a state has established
parental unfitness, the court may assume that the interests of the child and the natural
parents diverge. (Id. at p. 760.) However, until the state proves parental unfitness, the
child and his parents share a vital interest in preventing erroneous termination of their
natural relationship. (Ibid.)
California’s dependency system comports with Santosky’s requirements because,
by the time parental rights are terminated at a section 366.26 hearing, the juvenile court
should have made prior findings that the parent was unfit. (Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 254 (Cynthia D.); In re Gladys L. (2006) 141 Cal.App.4th 845,
848.)
“Except for a temporary period, the grounds for initial removal of the child
from parental custody have been established under a clear and convincing
standard (see § 361, subd. (b)); in addition, there have been a series of
hearings involving ongoing reunification efforts and, at each hearing, there
was a statutory presumption that the child should be returned to the custody
of the parent. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) Only if, over
this entire period of time, the state continually has established that a return
of custody to the parent would be detrimental to the child is the section
366.26 stage even reached.” (Cynthia D., supra, 5 Cal.4th at p. 253.)
As the Cynthia D. court reasoned,
“The number and quality of the judicial findings that are necessary
preconditions to termination convey very powerfully to the fact finder the
subjective certainty about parental unfitness and detriment required before
the court may even consider ending the relationship between natural parent
and child.” (Cynthia D., supra, 5 Cal.4th at p. 256.)
B. Analysis
Father correctly notes that at the combined jurisdictional/dispositional hearing in
March 2012, the juvenile court found by clear and convincing evidence that it would be
detrimental to return the children to mother’s custody but made no detriment finding as to
father. However, the court subsequently made the necessary findings of detriment to
overcome the statutory presumption requiring return of the children to both mother and
13
father at the six-month and 12-month review hearings in August 2012 and March 2013.
(See § 366.21, subd. (e), 1st par. [return “unless the court finds, by a preponderance of
the evidence, that the return of the child to … her parent … would create a substantial
risk of detriment to the safety, protection, or physical or emotional well-being of the
child”].)
Contrary to father’s assertion, the juvenile court here did not fail to state a basis
for its detriment findings against him. Rather, the court expressly adopted the findings
and orders of the agency. Thus, at the time of the six-month review hearing, the agency
found returning the children to father’s custody would be detrimental based on father’s
failure to initiate parenting education and remain in consistent contact with the agency.
At the time of the 12-month review hearing, the agency again found return to father
would be detrimental because he had “failed to participate regularly and make substantive
progress in court ordered treatment programs.” (See § 366.21, subd. (e), 1st par. [“The
failure of the parent … to participate regularly and make substantive progress in court-
ordered treatment programs shall be prima facie evidence that return would be
detrimental”].) We conclude the juvenile court’s repeated detriment findings against
father which were supported by substantial evidence, satisfied due process under the legal
principles set forth, even though they did not contain explicit references to the clear and
convincing evidence standard.
In arguing otherwise, father contrasts this case with In re P.A. (2007) 155
Cal.App.4th 1197, 1212, where detriment findings by clear and convincing evidence
were implied because there was substantial evidence the father there had persistently
sought to avoid responsibility for his child and failed to visit for long stretches at a time.
Unlike the father in that case, father asserts he “visited regularly” and the agency never
noted “a lack of parenting skills” or sought to change his visits with the children from
unsupervised to supervised visits. Father acknowledges he failed to complete parenting
education, which was the main component of his case plan, but he discounts this failure,
14
asserting “participation in the parenting classes should not be a prerequisite for a parent
who has shown no significant lack of parenting skills.” Father also asserts he was unable
to attend parenting classes due to his work schedule and suggests he made a good faith
attempt to rectify this by requesting in-home parenting classes.
We find father’s arguments unpersuasive and conclude findings of detriment by
clear and convincing evidence may be inferred from the record in this case
notwithstanding evidence that father visited the children regularly and the visits raised no
concerns for the agency. Contrary to father’s suggestion, his failure to complete
parenting education was significant because, like his failure to keep in consistent contact
with the agency, it was indicative of an avoidance of responsibility and lack of
commitment to meeting the prerequisites for reunification with his children. At the time
of the children’s detention in February 2012, father specifically requested and indicated a
need for help with parenting. However, despite being referred to parenting classes on
numerous occasions and being directly informed that in-home parenting education was
unavailable at the six-month review hearing in August 2012, father continued to be
inconsistent in his contacts with the agency and did not commence his first parenting
education course until late November 2012. Moreover, the record shows that, despite
expressing a general desire to reunify with the children someday, father never actually
sought custody of the children. The agency’s report for the 12-month review hearing
noted that father had “continuously stated he [was] unable to care for the children and
meet their basic and emotional needs” and “if he and the mother fail[ed] Family
Reunification Services he would like the children to remain with the current relative
caretakers and be adopted.” These circumstances constitute substantial evidence that it
would be detrimental to place the children in father’s custody.
We also reject father’s attempt to cast himself as a nonoffending parent who lost
his parental rights due to his indigence, not his inability to parent. Father bases this
characterization on the fact that he attributed his self-professed inability to care for the
15
children to his lack of adequate income and housing. However, the record does not
establish the juvenile court terminated parental rights or made any findings against father
on the basis of poverty or homelessness. Rather, as seen above, the court’s detriment
findings were based primarily on father’s failure to comply with his case plan. Thus, this
case is distinguishable from the ones on which father relies. (See, e.g., In re P.C. (2008)
165 Cal.App.4th 98, 103-107 [only alleged detriment from return to mother’s custody
after she completed her case plan was her inability to obtain suitable housing, which is
not a valid basis for detriment finding] and In re G.S.R. (2008) 159 Cal.App.4th 1202,
1210-1216 [father nonoffending noncustodial parent, only alleged detriment was failure
to find suitable housing due to poverty].)
Moreover, it is not entirely clear from the record that father’s inability to care for
the children was based solely on his financial circumstances. During the proceedings, he
also cited his busy work schedule as a reason for not being able to care for the children.
His desultory participation in his case plan also suggested unspoken reasons, such as lack
of interest or motivation. Father’s complaints that the agency failed to assist him in
finding housing are also uncompelling in light of evidence he failed to keep in regular
contact with the agency and failed to make any efforts on his own with which the agency
might have assisted him. We disagree with father’s assertion that “in terminating
reunification services, the court blamed [father] for the agency’s failure to provide these
services.” The court did not so much blame father as observe his demonstrated lack of
“any efforts to take care of himself.” The record as a whole supports the court’s
observation and reflects that father frequently offered excuses for, while making little
effort to change, his situation.
We conclude the record shows no violation of due process.
III. ICWA Challenge
Father contends the juvenile court erred in finding the ICWA did not apply and in
terminating his parental rights without requiring the agency to comply with the ICWA’s
16
notice provisions. The agency argues this case is controlled by our decision in In re
Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.) and that father forfeited his right to
challenge the juvenile court’s ICWA finding. We agree with the agency.
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 the ICWA is foreclosed
from raising ICWA issues (including alleged procedural infirmities) 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 dispositional hearing. The juvenile court’s rulings and
findings at the dispositional 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 dispositional hearing. (Pedro N., supra, 35
Cal.App.4th at pp. 189-190.) The same is true of father in the instant proceeding and we
disagree with his argument that Pedro N. is not applicable.
To the extent father relies on cases such as In re Marinna J. (2001) 90 Cal.App.4th
731, 737-739, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, and In re B.R.
(2009) 176 Cal.App.4th 773, 779, cases that disagreed with Pedro N., relying on the
theory Pedro N. is inconsistent with the protections and procedures afforded by the
ICWA to the interests of Indian tribes, we are not persuaded (see also Nicole K. v.
Superior Court (2007) 146 Cal.App.4th 779, 783-785; In re Antoinette S. (2002) 104
Cal.App.4th 1401, 1413-1414). We decline father’s invitation to revisit our holding in
Pedro N.
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 at the
conclusion of an earlier proceeding. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-
190; see In re Desiree F. (2000) 83 Cal.App.4th 460, 477-478 [wherein we reversed the
juvenile court’s denial of a tribe’s motion to intervene after a final order terminating
parental rights and invalidated actions dating back to outset of dependency that were
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taken in violation of ICWA].) 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 father has forfeited his personal right to complain of any
alleged defect in compliance with the ICWA.
DISPOSITION
The orders terminating parental rights are affirmed.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
LEVY, J.
_____________________
LAPORTE, J.*
_______________________
* Judge of the Superior Court of Kings County, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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