IN RE: AMERICA H. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant J.H. (father) appeals from the juvenile court's orders finding that the Indian Child Welfare Act (ICWA) ¹ did not apply to this case.   Father raises issues relating to the ICWA notices, including the contention that the trial court erred by entering jurisdiction and disposition orders prior to making the required ICWA rulings.   Plaintiff and respondent Department of Children and Family Services (Department) contends, inter alia, that the appeal must be dismissed in its entirety because the notice of appeal specifies the findings in support of the jurisdictional and dispositional orders, not the subsequent findings relating to applicability of the ICWA. We affirm the orders of the juvenile court from which father appeals.

PROCEDURAL BACKGROUND

The notice of appeal specifies that father is appealing from “all jurisdictional and dispositional findings” made by the juvenile court on February 19 and March 5, 2010.   There were no jurisdictional or dispositional findings made at the February 19, 2010, hearing, and there were no findings made on that date concerning the applicability of the ICWA. Although the juvenile court made jurisdictional and dispositional findings at the March 5, 2010, hearing, it did not address at that time the applicability of the ICWA.

DISCUSSION

When, as here, a notice of appeal specifies a particular judgment or order, the jurisdiction of the appellate court is limited to that specified judgment or order.  (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.)   Although we liberally construe notices of appeal, “ ‘a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed.’ ”  (Id. at p. 47.)   Thus, we have no jurisdiction over findings or orders that address the ICWA, but which the juvenile court issued after the filing of the notice of appeal, because those orders were not specified in that notice.²

There is, however, one issue raised by father over which we have jurisdiction-whether the juvenile court erred when it entered the March 5, 2010, jurisdictional and dispositional orders prior to finding that the required ICWA notice had been given to the relevant tribes.   According to father, Welfare and Institutions Code section 224.2, subdivision (d) and 25 U.S.C. section 1912(a) ³ prevented the juvenile court from proceeding with the jurisdiction/disposition hearing until 10 days after the relevant tribes received the ICWA notice.   The record reflects that the Department mailed notices to the relevant tribes on February 16, 2010-seventeen days prior to the March 5 jurisdiction/disposition hearing.   But there is no indication in the record when the tribes received them.

Even assuming father is correct and the juvenile court erred in holding proceedings on jurisdiction and disposition prior to the expiration of the 10-day period in Welfare and Institutions Code section 224.2, subdivision (d) and 25 U.S.C. section 1912(a), he has failed to demonstrate that he was prejudiced by that error.  “[A] violation of the 10-day period of notice required by ICWA [in 25 U.S.C. section 1912(a) ] is not jurisdictional error,” but rather can be reviewed for harmless error.  (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410-1411.)  “The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’  (Cal. Const., art.   VI, § 13.)   We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.  (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)   We believe it appropriate to apply the same test in dependency matters.”  (In re Celine R. (2003) 31 Cal.4th 45, 59-60.)

Father does not contend that he was prejudiced by the claimed error, much less show how he could have been prejudiced.   Instead, he claims that the “[f]ailure to ensure timely notice deprives the tribe of a full and fair opportunity to respond.”   There is no showing, however, that the relevant tribes suffered any such prejudice from the entry of the jurisdictional and dispositional orders prior to the expiration of the 10-day period in Welfare and Institutions Code section 224.2, subdivision (d) and 25 U.S.C. section 1912(a).   Therefore, any error in entering the jurisdictional and dispositional orders before the expiration of that 10-day period was harmless.

DISPOSITION

The jurisdictional and dispositional orders from which father appeals are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. 25 U.S.C. section 1901 et seq..  FN1. 25 U.S.C. section 1901 et seq.

FN2. In his reply brief, father contends that the adequacy of the ICWA notices is not subject to forfeiture and can be raised for the first time on appeal.   Our jurisdictional ruling, however, is not based on a determination that father forfeited his contentions about ICWA by failing to raise them with the juvenile court.   Our ruling is based on father's failure to specify the subsequent ICWA findings and orders in his notice of appeal, which failure deprives us of jurisdiction over those findings and orders..  FN2. In his reply brief, father contends that the adequacy of the ICWA notices is not subject to forfeiture and can be raised for the first time on appeal.   Our jurisdictional ruling, however, is not based on a determination that father forfeited his contentions about ICWA by failing to raise them with the juvenile court.   Our ruling is based on father's failure to specify the subsequent ICWA findings and orders in his notice of appeal, which failure deprives us of jurisdiction over those findings and orders.

FN3. Welfare and Institutions Code section 224.2, subdivision (d) provides in pertinent part:  “No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs, except for the detention hearing,․”  The ICWA contains a similar, although narrower, notice provision that provides in pertinent part:  “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary․”  (25 U.S.C. § 1912(a).).  FN3. Welfare and Institutions Code section 224.2, subdivision (d) provides in pertinent part:  “No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs, except for the detention hearing,․”  The ICWA contains a similar, although narrower, notice provision that provides in pertinent part:  “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary․”  (25 U.S.C. § 1912(a).)

TURNER, P. J. KRIEGLER, J.