In re Emma H. CA4/1 ( 2016 )

Filed 1/15/16 In re Emma H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re EMMA H., a Person Coming Under
the Juvenile Court Law.
D068305
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J1518288F)
Plaintiff and Respondent,
v.
S.M. et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of San Diego County, Laura
Birkmeyer, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and
Appellant S.M.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant Joseph H.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
S.M., a citizen of the Muscogee (Creek) Nation, and Joseph H., a member of the
Oglala Lakota Nation, challenge an order terminating their parental rights to their
daughter, Emma H., under Welfare and Institutions Code section 366.26. They contend
the juvenile court violated the Indian Child Welfare Act (ICWA), title 25 United States
Code section 1901 et seq. and the State Indian Child Welfare Act (the Act), Welfare and
Institutions Code section 224 et seq.
S.M. argues the juvenile court erred when it did not direct an appropriate
individual or agency to provide active efforts to secure tribal membership for the child.
(Cal. Rules of Court, rules 5.482(c), 5.484(c)(2).)1 She contends the order terminating
parental rights must be reversed and the matter remanded to the juvenile court with
directions to direct the San Diego County Health and Human Services Agency (the
Agency) to make active efforts to secure Emma's tribal membership. Joseph joins in
S.M.'s argument. He also contends the juvenile court erred when it did not consider tribal
customary adoption as an alternative permanency plan for Emma, and that the juvenile
1 Unless otherwise indicated, further rule references are to the California Rules of
Court.
2
court violated ICWA placement preferences throughout Emma's dependency case
without making the required findings of good cause.
We conclude that the juvenile court and the Agency did not fully comply with
rules of court mandating active efforts to secure tribal membership for an Indian child.
Nevertheless, the Agency subsequently made active efforts to secure tribal membership
for Emma.2 The record permits the reasonable inference that termination of parental
rights will not interfere with Emma's tribal membership rights because she is a lineal
descendant of a Muscogee (Creek) Indian by blood whose name appears on the tribe's
final rolls of 1906. (Const. of the Muscogee (Creek) Nation, art. I, § 1, art. III, §§ 2, 3,
4.) Thus, unlike circumstances in which tribal membership rights are lost by termination
of parental rights or adoption, the error is not prejudicial and does not require reversal.
We also conclude that the juvenile court was not required to consider customary
tribal adoption because the tribe did not request an alternative permanency plan or object
to termination of parental rights. With respect to ICWA placement preferences, the
record shows that the juvenile court made a good cause finding when placing Emma in
foster care with her half siblings. Although the juvenile court should have considered
2 We grant the Agency's unopposed motion to augment the record with a court
report and attachments, including Emma's Tribal Citizenship Application, which was
filed in, and reviewed by, the juvenile court on October 20, 2015. On our own motion,
we take judicial notice of the Constitution of the Muscogee (Creek) Nation. (Evid. Code,
§ 452, subd. (a); Welf. & Inst. Code, § 224.5; Big Valley Band of Pomo Indians v.
Superior Court (2005) 133 Cal. App. 4th 1185, 1192.)
3
ICWA placement preferences at the Welfare and Institutions Code section 366.26
hearing, Joseph has waived this issue on appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Emma is the youngest of S.M.'s nine children, five of whom were dependents of
the juvenile court at the time of Emma's birth in April 2014. Joseph is Emma's father.3
Because of S.M.'s unresolved mental health issues and Joseph's status as a registered sex
offender, the Agency detained Emma in protective custody and filed a Welfare and
Institutions Code section 300 petition on her behalf.
By the time Emma was born, S.M. had received more than 18 months of
reunification services in the siblings' dependency cases. Four of Emma's siblings were
placed in foster care, pending permanent placements. The oldest sibling was in an out-of-
county group home.
S.M. is a citizen of the Muscogee (Creek) Nation (the Tribe). Joseph is a member
of the Oglala Lakota Nation (the Nation).4 Emma is eligible for membership in the
Tribe. Two of Emma's siblings are enrolled members of the Tribe; the others are eligible
for enrollment. Although the Tribe had intervened in the siblings' dependency cases, it
declined to do so in Emma's case, stating the Tribe was not intervening in any new out-
3 Joseph is not the father of S.M.'s other children. For brevity, we refer to Emma's
half siblings as her siblings.
4 The Agency sent notice to the Nation and followed up with a telephone call asking
about Emma's eligibility for enrollment. There is nothing in the record to indicate the
Nation responded to the Agency's notice or inquiry.
4
of-state cases at that time. In a formal letter, the Tribe said Emma's case did not meet
statutory requirements for intervention.5 Tribal representative Steve Brennan said the
Tribe would not provide any input in Emma's case. He asked the Agency to "work
towards identifying a plan to keep the siblings together and that will satisfy the spirit of
ICWA or a home that would be willing to keep the children exposed to their Native
American heritage."
S.M. and Joseph did not identify any relative who could care for Emma. They
asked the Agency to evaluate a friend for placement but the friend said she could only
care for Emma for a few weeks. The Agency detained Emma in foster care with four of
her siblings.
At the disposition hearing, the juvenile court found there was good cause to place
Emma in a foster home not in accordance with ICWA placement preferences, and
maintained her placement with her siblings. The court ordered the Agency to provide
reunification services to S.M. and denied services to Joseph.
Emma was described as a bright and bubbly baby with a very sweet disposition.
In August, because of supervision and safety concerns, Emma and two of her siblings
5 The following requirements must be met under the Muscogee (Creek) Nation
Code to intervene in an out-of-state child custody proceeding: there must be sufficient
funds available for effective intervention and monitoring; there must be sufficient staff
time to travel outside the State of Oklahoma; intervention must be necessary to protect
the rights of the Nation, the children, or the children's family; the case has the potential to
set valuable precedent regarding tribal rights under ICWA; and there must be an attorney
in the Muscogee (Creek) Nation Department of Justice or an attorney that is under
contract with the tribe and is licensed to practice law in the jurisdiction.
5
were moved as a sibling set to another foster home. However, that foster parent, who
was in the process of providing a permanent home to two of Emma's siblings, did not
want to work with the family reunification case plan in Emma's case. The Agency then
placed five-month-old Emma with another caregiver who was related to Emma's previous
foster parent. Emma had weekly visits with the two siblings who were in the care of the
related foster parent. The Agency made arrangements for Emma to visit her other
dependent siblings, but those visits were less frequent.
S.M. said she was happy with Emma's placement and care. The parents' visits
with Emma were consistent and appropriate. Joseph sang Native American songs to
Emma while rocking her to sleep. S.M. spoke to Emma in her Native American Indian
language and sang tribal songs to her. Despite participating in reunification services,
S.M. did not make substantial progress in meeting the goals of her case plan. The
juvenile court terminated reunification services at the six-month review hearing and set a
Welfare and Institutions Code section 366.26 hearing, which was heard on June 1, 2015.
The social worker contacted Brennan to obtain a declaration from the Tribe about
its position on termination of parental rights. Brennan did not respond. The Indian
expert witness, Misty Taylor, sent Brennan an e-mail stating her position that Emma not
be returned home. She asked whether Emma was enrolled in the Tribe, and added, "I am
concerned that if she is adopted it will alter her birth certificate and may affect her
enrollment eligibility in the future."
6
On May 15, in an e-mail to Taylor, Brennan said Emma was eligible for
enrollment with the Tribe. He wrote, "The tribe has chosen to not intervene in this
portion of the case. Emma is not enrolled at this time. If it would help, I can contact [the
social worker] and explore the possibilities of sending an enrollment application to her.
She may be able to supply the necessary documentation and complete the application to
enroll Emma."
The same day, Taylor sent an e-mail to the social worker asking if the social
worker could complete Emma's application for enrollment and offered to assist with the
application, if necessary. On May 19, the social worker asked Taylor to send an
enrollment application to her, and sent a copy of the e-mail to Brennan.
At a pretrial conference on May 20, county counsel informed the juvenile court the
Agency had not received any response from Brennan. Taylor said Brennan told her the
Tribe would not participate in the hearing but mentioned keeping the siblings together.
Taylor said the Tribe wanted a particular outcome in the case but was not intervening. In
her opinion, the Tribe's position was "kind of strange."
Taylor informed the juvenile court she had asked Brennan about Emma's
enrollment in the Tribe. The juvenile court asked Taylor to forward Brennan's e-mail to
the social worker. The social worker said she had a copy of the e-mail, but Brennan
would not respond to her telephone calls or e-mail messages.
During the pretrial conference, the juvenile court telephoned Brennan and left the
following message on his voice mail: "This is Judge Laura Birkmeyer calling from the
7
San Diego Superior Court. We are on the record regarding child Emma H. I have been
advised in court on the record that the Health and Human Services Agency in this matter
has had extreme difficulty in reaching you and getting your tribe's position with respect
to this trial. I'm notifying you that we have a trial scheduled in this case . . . . Of course,
we would welcome the tribe's participation, and I'm strongly urging you to directly
communicate with the social worker in this case. . . . But it is imperative that we learn
the position of the tribe."
On May 28, the social worker e-mailed Brennan to inquire about Emma's
enrollment application and whether he was available to testify at the hearing. Brennan
replied he sent the enrollment application to the social worker on May 26. He did not
believe he could "testify in a court action in which the Tribe has chosen to not intervene
(Emma's portion of the case)."
In its report to the court, the Agency said it was aware of the importance of
addressing the children's needs and preserving their Native American heritage. The
Agency identified Emma's current foster home as an adoptive placement. Emma's
caregivers considered her a part of their family and loved her very much. Emma was a
happy, playful and active toddler, with no developmental concerns. Her favorite words
were "what's that?" and "zebra." The caregivers were diligent in educating themselves
about Emma's Native American Indian heritage.
The Agency did not plan to move Emma from her current placement. However, if
the juvenile court did not approve the placement, the Agency would try to place Emma
8
with her siblings in an adoptive home that promoted their Native American heritage.
There were currently 14 approved San Diego County adoptive homes willing to adopt an
American Indian group of three children, and three approved San Diego County adoptive
homes willing to adopt an American Indian group of five children.
At the section 366.26 hearing, the juvenile court admitted in evidence the
Agency's court reports, which included copies of the tribal representative's e-mail
correspondence, the declaration of the Indian expert witness, and the court-appointed
special advocate's report. The parents and the child did not present any affirmative
evidence or cross-examine any witnesses. S.M. argued the beneficial parent/child
relationship and sibling bond exceptions applied, and Joseph asked the juvenile court to
apply the beneficial parent/child relationship exception to termination of parental rights.
The juvenile court found there was clear and convincing evidence to show that
active efforts were made to prevent the breakup of the Indian family, and there was
evidence beyond a reasonable doubt, based in part upon the testimony of a qualified
expert witness, to show that continued custody was likely to result in serious emotional or
physical damage to the child. The juvenile court determined that Emma was adoptable
and there were no applicable exceptions to termination of parental rights, and terminated
parental rights.
On October 20, the Agency filed a report with the juvenile court regarding Emma's
Tribal Citizenship Application, including copies of the completed application, required
9
supporting documents, and the Tribe's application checklist. The Agency mailed Emma's
completed application to the Tribe on October 12.
DISCUSSION
A
Overview and Issues on Appeal
"ICWA was designed to protect the best interests of Indian children and promote
the stability and security of Indian tribes and families by establishing minimum federal
standards for the removal of Indian children from their families by state courts and the
placement of such children in foster or adoptive homes." (In re Jack C., III (2011)
192 Cal. App. 4th 967, 975-976 (Jack C.).) To accomplish this goal, ICWA sets forth
minimum substantive and procedural standards to protect the interests of Indian children
and their families and tribes. (Jack C., supra, at p. 977.)
In California, the Legislature enacted a comprehensive reorganization of statutes
to fully effectuate ICWA in state Indian child custody proceedings. (Jack C., supra,
192 Cal.App.4th at p. 977.) In certain respects, California's ICWA scheme provides
greater protections for Indian children, their tribes and parents than the federal ICWA. If
a state or federal law provides a higher level of protection to the rights of the parent or
Indian guardian of an Indian child, the higher standard shall prevail. (25 U.S.C. § 1921;
Welf. & Inst. Code, § 224, subd. (d) [the higher standard of protection also applies to the
rights of the child Indian tribe].)
10
S.M. and Joseph argue the juvenile court did not comply with rules 5.482(c) and
5.484(c)(2), which require active efforts to secure tribal membership for a child who is
eligible for membership in a tribe. Joseph contends the juvenile court did not comply
with Welfare and Institutions Code section 366.24, which governs consideration of tribal
customary adoption as an alternative permanency plan. He also maintains the juvenile
court deviated from ICWA placement preferences without making findings of good
cause.
B
Active Efforts to Secure Tribal Membership
S.M. and Joseph argue there is not substantial evidence to support the finding that
active efforts were made to provide remedial services and rehabilitative program
designed to prevent the breakup of the Indian family (active efforts finding) because the
Agency did not make any attempt to enroll Emma into the Tribe. They emphasize the
Indian expert witness's concern that adoption might interfere with Emma's eligibility for
enrollment.
The Agency contends the parents have forfeited this issue by not raising it at trial.
(In re Dakota H. (2005) 132 Cal. App. 4th 212, 221-222 [a party forfeits the right to claim
error as grounds for reversal on appeal when the party fails to raise the objection in the
trial court].) Generally, issues not raised in the trial court cannot be raised on appeal. (In
re Javier G. (2006) 137 Cal. App. 4th 453, 464.) However, an appellate court is generally
11
not prohibited from reaching a question that has not been preserved for review by a party.
(People v. Williams (1998) 17 Cal. 4th 148, 161, fn. 6.)
The United States Congress and the California Legislature have authorized any
court of competent jurisdiction to invalidate a state court judgment involving an Indian
child upon a showing that such action violated any provision of title 25 United States
Code sections 1911 (tribal jurisdiction), 1912 (notice and active efforts), or 1913
(voluntary placement). (25 U.S.C. § 1914; Welf. & Inst. Code, § 224, subd. (e).) Title
25 United States Code section 1912(d) and Welfare and Institutions code section 361.7,
subdivision (a), require that any party seeking termination of parental rights to an Indian
child must show that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family. In
California, those efforts "must include pursuit of any steps necessary to secure tribal
membership for a child if the child is eligible for membership in a given tribe, as well as
attempts to use the available resources of extended family members, the tribe, tribal and
other Indian social service agencies, and individual Indian caregivers." (Rule
5.484(c)(2).) The failure to use active efforts to secure tribal membership is subject to
collateral attack under federal and state law. (See Doe v. Mann (9th Cir. 2005) 415 F.3d
1038, 1041-1042 [reviewing ICWA issue under 25 U.S.C. § 1914 that was not raised in
the state court dependency proceeding].) In the interests of judicial economy, we
exercise our discretion to review this issue.
12
If a tribe indicates the child is eligible for membership if certain steps are
followed, the court must direct the appropriate individual or agency to provide active
efforts to secure tribal membership for the child. (Rule 5.482(c); see also Bureau of
Indian Affairs, Guidelines for State Courts and Agencies in Indian Child Custody
Proceedings, Guidelines, 80 Fed. Reg. No. 37 (Feb. 25, 2015), § B.4(d)(iii) [in the event
the child is eligible for membership in a tribe but is not yet a member of any tribe, the
agency should take the steps necessary to obtain membership for the child in the tribe that
is designated as the Indian child's tribe].) Active efforts are assessed on a case-by-case
basis and shall utilize the available resources of the Indian child's extended family, tribe,
tribal and other Indian social service agencies, and individual Indian caregiver service
providers. (Welf. & Inst. Code, § 361.7, subd. (b).)
At the May 20 pretrial conference, the juvenile court learned that Taylor, the
Indian expert witness, was concerned that adoption might affect Emma's enrollment
eligibility and recommended that she be enrolled in the Tribe. Taylor contacted tribal
representative Brennan, who suggested that the social worker could supply the necessary
documentation and complete Emma's enrollment application. The juvenile court verified
the social worker had a copy of Brennan's e-mail, but did not order any person or agency
to complete Emma's application.
After the pretrial conference, the social worker contacted Brennan, who confirmed
he sent an enrollment application to the social worker on May 26. On June 1, the
juvenile court made an active efforts finding and terminated parental rights. The record
13
indicates the social worker mailed an incomplete application to Emma's tribe on October
5, and a completed application on October 12.
The parents fault the Agency for not making active efforts to enroll Emma in her
tribe.6 We do not read rule 5.482(c) as necessarily placing the burden of providing
active efforts to secure tribal membership for an Indian child on the agency. Instead, the
juvenile court has the duty to direct the appropriate individual or the agency to provide
active efforts to secure tribal membership for the child. (Rule 5.482(c).) Thus, the better
practice is when a tribe indicates the child is eligible for membership, the juvenile court
should assess whether the agency should be tasked with the duty of trying to secure tribal
membership for the child, or whether there is another appropriate individual who can
perform that task effectively. The juvenile court should direct that individual or agency
to provide active efforts to secure tribal membership for the child. The juvenile court is
required at each review hearing to make an active efforts finding. (Welf. & Inst. Code,
§ 366, subd. (a)(1)(B).) Under rules 5.482(c) and 5.484(c)(2), in making that finding, the
court should review the steps taken to secure tribal membership for the child.
Here, the juvenile court did not explicitly task the social worker with completing
Emma's membership application, and her application was neglected until the issue was
6 In his reply brief, Joseph asserts the Agency did not make efforts to enroll Emma
in the Nation. The record shows the Agency properly noticed the Nation of Emma's
dependency proceedings, including the Welfare and Institutions Code section 366.26
hearing, and the Nation received those notices but did not respond. The Nation did not
indicate that Emma was eligible for membership; thus, the Agency has no duty to make
active efforts to enroll her in the Nation. (Rule 5.482(c).)
14
raised on appeal. On this record, the parents cannot show the error was prejudicial. They
did not oppose the Agency's motion to augment the record on appeal with information
showing the social worker completed Emma's enrollment application and submitted it to
the Tribe. Significantly, the record shows that Brennan did not express any concern that
termination of parental rights would interfere with enrollment. Indeed, although parental
rights had been terminated in the siblings' cases, Brennan informed the social worker that
she could also complete enrollment applications for those siblings who were not yet
enrolled in the Tribe.
Article I, section 1, and Article III, sections 2 and 3(b) of the Constitution of The
Muscogee (Creek) Nation confer citizenship rights on any person who is a lineal
descendant of a Muscogee (Creek) Indian by blood whose name appears on the final rolls
of 1906, and who is not an enrolled member of another tribe, nation or pueblo. The
Tribe's "Checklist for Citizenship" indicates that when an adopted person applies for
membership, he or she must submit a certified copy of the petition and final adoption
decree. There is no showing that the delayed effort to secure Emma's tribal membership
prejudiced her interest in being a member of her Tribe, or the Tribe's interest in having
Emma as a member, in violation of ICWA.
C
Tribal Customary Adoption
Tribal customary adoption "is an alternative to a standard adoption and protects
both the Tribe's and the child's interests in maintaining tribal membership by formalizing
15
an adoption by an individual selected by the Tribe without terminating parental rights."
(In re A.M. (2013) 215 Cal. App. 4th 339, 348 (A.M.); Welf. & Inst. Code, § 366.24, subd.
(a)(1) [tribal customary adoption means adoption by and through the tribal custom,
tradition, or law of an Indian child's tribe].) Termination of parental rights is not required
to effect tribal customary adoption. (Welf. & Inst. Code, § 366.24, subd. (a)(1).)
Joseph contends the juvenile court did not consider tribal customary adoption as
required by Welfare and Institutions Code section 366.24. He argues the court did not
make findings required under rule 5.708(d), governing review hearings, and rule
5.725(d)(8), governing the Welfare and Institutions Code section 366.26 hearing. Joseph
seeks reversal of the order terminating parental rights and remand for compliance with
Welfare and Institutions Code section 366.26.
At every review hearing and the Welfare and Institutions Code section 366.26
hearing, the juvenile court must find that "the agency consulted with the child's tribe and
the tribe was actively involved in the development of the case plan and plan for
permanent placement, including consideration of whether tribal customary adoption is an
appropriate permanent plan for the child." (Rule 5.725(d)(8)(C).) If the court finds that
the agency did not consult with the child's tribe, it "must order the agency to consult with
the tribe, unless the court finds that the tribe is unable, unavailable, or unwilling to
participate." (Rule 5.725(d)(8)(D); In re G.C. (2013) 216 Cal. App. 4th 1391, 1398.)
The Tribe clearly stated throughout Emma's dependency case that it would not
intervene and would not comment on her permanency plan. The social worker, in
16
preparing the assessment report, contacted the tribal representative to obtain a declaration
from the Tribe about its position on termination of parental rights. The Tribe did not
respond to the social worker's inquiries. In an e-mail exchange with the Indian expert
witness, the tribal representative reiterated the Tribe's decision not to intervene in Emma's
case. When the tribal representative finally contacted the social worker, he declined to
testify, stating the Tribe had chosen to not intervene. The Agency fulfilled its obligation
to consult with the Tribe and seek its active involvement in the development of the case
plan and plan for permanent placement. The tribal representative made it clear that the
Tribe would not participate. Thus, the Tribe was "unable, unavailable, or unwilling to
participate" in her case. (Rule 5.725(d)(8)(D).)
Any error by the juvenile court in not making the required findings on the record
is harmless. (Rule 5.725(d)(8)(D).) The initial decision to pursue tribal customary
adoption must come from the tribe. (A.M., supra, 215 Cal.App.4th at p. 350.) The Tribe
did not identify tribal customary adoption as a permanency plan option for Emma. It did
not object to termination of parental rights. The Indian expert witness concurred with the
Agency's recommendation of adoption with termination of parental rights. The record
also shows that the Tribe intervened in the siblings' cases. The juvenile court terminated
parental rights in three of those cases, allowing the reasonable inference the Tribe did not
request tribal customary adoption in those cases. Thus, Joseph does not show that the
juvenile court's failure to make the findings required under rule 5.725(d)(8)(C) creates "a
reasonable probability that compliance with the procedural requirements of tribal
17
customary adoption would have resulted in an outcome more favorable to him." (In re
G.C., supra, 216 Cal.App.4th at p. 1401.)
D
Placement
Joseph asserts the order terminating parental rights should be reversed because the
Agency and the juvenile court allegedly failed to apply the placement preferences
mandated by title 25 United States Code section 1915 and Welfare and Institutions Code
section 361.31 with regard to Emma's foster care and preadoptive7 placements, and did
not make any finding there was good cause to deviate from the placement preferences.
Title 25 United States Code section 1915(b), mandates that "[i]n any foster care or
preadoptive placement, a preference shall be given, in the absence of good cause to the
contrary, to a placement with (i) a member of the Indian child's extended family; (ii) a
foster home licensed, approved, or specified by the Indian child's tribe; (iii) an Indian
foster home licensed or approved by an authorized non-Indian licensing authority; or (iv)
an institution for children approved by an Indian tribe or operated by an Indian
organization which has a program suitable to meet the Indian child's needs." (Welf. &
Inst. Code, § 361.31, subd. (b).)
7 Emma's adoptive placement has not been finalized. "In any adoptive placement of
an Indian child under State law, a preference shall be given, in the absence of good cause
to the contrary, to a placement with (1) a member of the child's extended family; (2) other
members of the Indian child's tribe; or (3) other Indian families." (25 U.S.C. § 1915;
Welf. & Inst. Code, § 361.31, subd. (c).)
18
Title 25 United States Code section 1915 governs placement preferences. As
noted earlier in this opinion, any court of competent jurisdiction has the authority to
invalidate a state court judgment involving an Indian child upon a showing that such
action violated any provision of title 25 United States Code sections 1911, 1912, or 1913.
(25 U.S.C. § 1914; Welf. & Inst. Code, § 224, subd. (e).) Unlike those provisions, title
25 United States Code section 1914 does not authorize invalidation of an order
terminating parental rights by showing a violation of placement preferences under section
1915. (B.R.T. v. Executive Dir. of Soc. Serv. Bd. N. Dakota (1986) 391 N.W.2d 594, 600-
601.) Instead, a party is limited to challenging an alleged violation of ICWA placement
preferences on direct appeal.
Joseph did not file an appeal challenging the placement orders made prior to the
section 366.26 hearing, and the time in which he was permitted to do so has long since
passed. (Rule 8.104.) "An appellate court in a dependency proceeding may not inquire
into the merits of a prior final appealable order on an appeal from a later appealable
order . . . ." (In re Merenda P. (1997) 56 Cal. App. 4th at 1143, 1151.) We therefore need
not consider his claim the juvenile court violated ICWA placement preferences prior to
the appealed-from hearing.8
8 Joseph's assertion the juvenile court did not make any finding of good cause is not
supported by the record. On May 22, 2014, at the settlement conference for the
jurisdiction and disposition hearing, the juvenile court found there was good cause to
place the child in a foster home not in accordance with ICWA placement preferences.
19
With respect to the Welfare and Institutions Code section 366.26 hearing, the
parties (and the Tribe) did not raise this issue in the juvenile court. And, because S.M.
said she was happy with Emma's placement and felt that Emma was well cared for by her
foster parents, any error is harmless. Thus, Joseph is precluded from raising the issue on
appeal. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222 [a party forfeits the
right to claim error as grounds for reversal on appeal when the party fails to raise the
objection in the trial court].)
DISPOSITION
The order terminating parental rights is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
20