Opinion
NOT TO BE PUBLISHED.
ORIGINAL PROCEEDING; petition for writ of mandate. Christopher J. Sheldon, Judge.
APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Reversed with directions, Super.Ct.No. INJ017439.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Respondent.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut J.
Mother appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26 ) to her daughter, Angel, born in June 2004, and son, Seth, born in July 2005. Mother contends there was inadequate notice under the Indian Child Welfare Act (ICWA) and the Department of Public Social Services (DPSS) failed to inquire sufficiently into mother’s Indian heritage. Mother also asserts that the juvenile court erred in rejecting the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(A), now subd. (c)(1)(B)(i).) Mother requests this court to reverse the order terminating her parental rights and remand the case for proper ICWA notice and a new section 366.26 hearing. Father joins in mother’s contentions.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
25 United States Code § 1901 et seq.
Because mother stated she had American Indian ancestry, ICWA notice compliance was required as to mother’s lineage. ICWA notice was incomplete due to nondisclosure of the birth place of maternal grandfather and maternal great-grandmother. There also was no other information provided as to the maternal great-grandparents. We reverse the order terminating parental rights and remand for the limited purpose of allowing the DPSS to inquire further and provide complete ICWA notice. We reject mother’s contention the juvenile court erred in not applying the beneficial parental relationship exception.
On March 5, 2008, mother also filed a petition for writ of mandate (case No. E045256) seeking reversal of the July 11, 2007, order terminating parental rights. Mother asserts in her petition, as in her appeal, that the ICWA inquiry and notice were flawed and therefore the trial court erred in finding the ICWA notice was adequate. This court has ordered the writ petition to be considered with the instant appeal.
In support of her writ petition, mother has provided a declaration dated February 23, 2008, in which mother states that, upon reviewing her appellant’s opening brief in this matter (case No. E043656), she contacted her attorney and informed her that the ICWA notice was also inadequate because it did not state her father’s (maternal grandfather’s) correct last name, which was spelled “Pace” or “Pase,” not Case. Mother previously informed the social worker of his correct name but the social worker said she would not use the information because she would have to obtain maternal grandfather’s birth certificate and she did not want to do so.
Mother’s declaration stating that maternal grandfather’s name was not correctly stated in the ICWA notices provides additional support for this court’s determination that the DPSS has not provided adequate ICWA notice. Mother’s writ petition, however, is moot since on appeal this court is already reversing the trial court’s order terminating parental rights on the ground the ICWA notice was deficient, and remanding the matter with directions that the DPSS provide proper ICWA notice.
1. Factual and Procedural Background
In October 2005, the DPSS detained Angel and Seth (the children) and filed a juvenile dependency petition alleging serious physical harm, failure to protect, severe physical abuse, and abuse of a sibling. In addition, father had a history of public intoxication, including an arrest and conviction in April 2005.
The DPSS social worker reported in the petition that mother stated during an interview that she took Seth, who was three months old, to the hospital because Seth’s arm was injured when she was bathing Seth in a baby bath. When the foam in the tub slipped down, she pulled Seth up to keep him from going into the water and may have pulled Seth’s arm out of the socket.
The treating physician believed that mother’s explanation was not consistent with Seth’s injury. The doctor discovered Seth had two fractures to his left arm, one recent and one in the early healing stages. Mother told the social worker she had no idea how the fracture that was in the early healing stages happened. She suggested it may have happened when Angel pulled Seth off the couch. Father also was unable to provide a reasonable explanation for Seth’s arm fractures.
After consulting with the doctor and obtaining information regarding father’s and the baby-sitter’s criminal histories, the social worker concluded the children were at risk of being harmed if left with parents. Parents did not comprehend the seriousness of Seth’s injuries or that he had been abused. Parents also did not understand the importance of safeguarding the children. Mother had a history of mental health problems and both parents had a history of substance abuse.
The children were placed in foster care. Parents visited the children weekly. Visitation was supervised and reportedly appropriate in nature. Parents were enrolled in counseling and parenting classes and were assessed as not needing substance abuse treatment. At the contested jurisdiction/disposition hearing on December 20, 2005, parents submitted to jurisdiction on the counts alleging Seth suffered two arm fractures and father had a criminal history. Mother argued there was no evidence of abuse. The court adjudged the children dependents of the court and extended visitation until January 17, 2006, to determine if parents were capable of properly parenting the children.
At an interim review hearing on January 17, 2006, the court ordered the children returned to parents on Family Maintenance. Parents were employed, with family members providing day care.
When mother returned home from work on May 17, 2006, she heard Seth coughing and crying. She found him in the bathroom by himself in a tub of cold water, with cold water running in the tub. He was up to his neck in water. Father was in the kitchen. Mother noticed Seth had multiple bruises on his body and face. When she left for work that day Seth did not have any bruises, other than an eye bruise, which she noticed on May 15. Mother said that when she asked father about Seth’s bruises, he offered no explanation. He merely said, “I don’t know.” When mother called the maternal grandparents for guidance, father was “pissed,” according to mother. Pursuant to maternal grandmother’s advice, mother reported Seth’s injuries to the police. Mother was nonchalant about the incident. Seth was taken by ambulance to the hospital emergency room for his bruising and scratches.
During the social worker’s interview of mother, mother showed very little emotion or affection towards Seth. Mother said she and father had been continually arguing, and mother had a restraining order (RO) against father at the time of the incident because mother’s sister and father had been breaking into mother’s home and taking things.
A month before, mother had asked father to leave their home because he had resumed taking drugs and on May 13, 2006, told her that during their separation he had taken methamphetamine. Mother admitted to the social worker that she had used marijuana in the past but denied taking any other illicit drugs. She also admitted striking father on his back three weeks before her interview. The police had arrived and told her to leave with the children or be arrested. She told the social worker her arguments with father were mostly verbal, although father tended to throw things at her. He had broken furniture and made a hole in the wall from throwing something at her.
Mother said that, despite the RO entered on May 1, on May 10, 2006, mother visited father to try to work out their differences. Several days later, on May 15, while mother and father were arguing, Seth started crying. Father grabbed Seth’s face, shook him, and yelled at Seth to “shut the fuck up.” When the doctor examined Seth on May 17, mother told the doctor the bruise on Seth’s head was caused by an accident.
The children were returned to protective custody on May 17, 2007. Father was arrested and incarcerated for child endangerment and various other offenses.
On May 19, 2006, the DPSS filed a section 387 supplemental juvenile dependency petition alleging that Seth, who was 10 months old at the time, had multiple bruises on his forehead, under his eye, on his chest and in his ear. He also had scratches on his neck and legs. At the detention hearing, the court ordered the children detained and, at the jurisdiction/disposition hearing, the court found the petition allegations true and ordered reunification services.
On November 15, 2006, the DPSS filed a status review report recommending terminating parents’ reunification services. Mother was attending domestic violence and parenting classes, and had attended therapy. She was assessed for a drug treatment program. Although she tested negative for drugs, an out-patient program was recommended. Mother continued to visit the children weekly.
The DPSS social worker concluded in the report that the children should not be returned to parents because Seth had been injured twice while in their care and his injuries were the type that, at his young age of three months and 10 months, he could not have inflicted upon himself. Nevertheless, parents denied any wrongdoing. In addition, both parents were being prosecuted criminally for child endangerment arising from Seth’s injuries.
The social worker noted that parents were offered reunification services and family maintenance services over the past year. While they attended counseling and parenting classes, it appeared they had not benefited since, after they attended classes, Seth was injured once again. In addition, after mother obtained a RO against father on May 1, 2006, mother allowed father back in her home and left the children alone with him while she was at work, even though the RO prohibited such contact and father had previously injured Seth.
An addendum report filed on January 12, 2007, stated that mother underwent a court-ordered psychological exam and the report stated that mother “is impulsive and has poor judgment under stress. She has limited frustration tolerance.” Also, mother’s act of allowing father to see the children and leaving them with him despite the RO showed poor judgment and a failure to protect the children. The evaluator stated that mother tended to blame others for her problems, had difficulty accepting responsibility for her own behavior, and appeared to be angry. In addition, mother did not show up for drug testing in November, December 2006, or January 2007.
The evaluating psychologist further stated that mother showed limited ability to empathize and bond with others. He also concluded she was at risk for drug and alcohol abuse, and of further CPS contact if she regained custody of the children.
On March 8, 2007, the juvenile court terminated parents’ reunification services and set a section 366.26 hearing (.26 hearing). Mother continued visiting the children once a month even after the court terminated reunification services.
On March 30, 2007, the children were placed with prospective adoptive parents and were doing well. At the .26 hearing on July 11, 2007, the court terminated parental rights.
2. ICWA Notice
Mother contends the juvenile court erred in finding ICWA notice compliance. She asserts that the JV-135 notice forms sent to three Cherokee tribes and the BIA lacked important information. Mother argues that this prevented the BIA and tribes from determining the children’s eligibility for membership. In addition, mother asserts that the trial court and DPSS failed to make a reasonable inquiry to obtain the missing information. Mother also complains that the record does not contain copies of the return receipt requested documents as to the Eastern Band of Cherokee Indians (Eastern Band). She argues that, because the Eastern Band did not respond to notice, there was inadequate proof that the Eastern Band was properly served with notice.
When the court knows or has reason to know that an Indian child is involved, the party seeking foster care placement of, or termination of parental rights to, an Indian child must notify the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right to intervention. (25 U.S.C. § 1912(a).) ICWA notice requirements are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174 (Karla).)
A. Return receipt requested
Under California Rules of Court, rule 5.482(b) and section 224.2, subdivision (c), the DPSS must file with the court the ICWA notice, return receipts, and responses received from the BIA and tribes in order to enable the court to review whether sufficient information was supplied. (Karla, supra, 113 Cal.App.4th at pp. 175, 178-179; In re Mary G. (2007) 151 Cal.App.4th 184, 209-211.)
California Rules of Court, rule 5.482(b) requires that proof of notice filed with the court must include copies of the notice of child custody proceedings for an Indian child (form JV-135), return receipts, and any responses received from the Bureau of Indian Affairs (BIA) and tribes. Section 224.2, subdivision (c) further requires: “Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing except as permitted under subdivision (d).”
The form is now identified as form ICWA-030.
The clerk’s transcript does not contain any return receipts or a response from the Eastern Band of Cherokee Indians. However, there is a proof of service of notice of the detention hearing, dated October 18, 2005, stating that the BIA and three Cherokee tribes were served with the attached notice form JV-135, by registered or certified mail, return receipt requested. We thus conclude any failure to provide copies of the return receipts requested, showing service by certified or registered mail, was harmless error, even as to the Eastern Band of Cherokee Indians. (Karla, supra, 113 Cal.App.4th at pp. 178-179.)
We note there is a second JV-135 form noticing the jurisdiction/disposition hearing set on November 10, 2005, but the proof of service of the notice is the same proof of service form dated October 18, 2005.
B. Insufficient Notice Information
Mother argues that the JV-135 notices were deficient because the notices sent to the three Cherokee tribes and the BIA on October 18, 2005, did not state the birth places of the parents and grandparents. Also, no information was provided as to the great-grandparents.
It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage, to assist Indian tribes in making a well informed determination as to whether to intervene. (In re Louis S. (2004) 117 Cal.App.4th 622, 633.) ICWA notice thus “must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703 (Francisco).) “The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117; see also Louis S., supra, at p. 630.)
It appears the DPSS social worker may have overlooked the need to provide the place of birth, since the information could have easily been obtained for the parents and the maternal grandmother. The lack of information was significant as to the family members who may have had Indian ancestry, such as mother, the maternal grandfather, and the maternal great-grandmother.
(1) ICWA Notice Background Facts
The DPSS detention hearing report filed on October 19, 2005, states that mother reported that she may have Cherokee ancestry through her paternal grandmother. The social worker noted that in a previous case regarding mother, ICWA status was not confirmed or denied. On October 18, 2005, the DPSS provided the BIA, the Indian Child Family Services in Temecula, and three Cherokee tribes (Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians) with notice of the juvenile dependency proceedings by serving a JV-135 notice form. The form did not provide the place of birth of any of the family members and there was no information provided as to the great-grandparents.
On October 20, 2005, mother filed a JV-130 form, entitled “Parental Notification of Indian Status,” in which mother stated she may have Cherokee Indian ancestry. Father also filed a JV-130 form, which stated he did not have Indian ancestry.
Mother’s name is hand-printed on the form but the form is not signed or dated.
At the detention hearing on October 20, 2005, mother’s attorney told the court that mother claimed Cherokee heritage but did not have any additional information. Mother’s attorney suggested that the DPSS inquire of the maternal grandparents. Maternal grandmother was present at the hearing and many other hearings in the case.
The social worker reported in the jurisdiction/disposition report filed on November 8, 2005, that ICWA might apply. The social worker interviewed mother on November 3, 2005, and she said, “Yes there is Native American ancestry through my biological father and paternal grandmother. I have Cherokee, I believe out of Oklahoma.” The DPSS sent out ICWA notices and, on November 7, 2005, received notification from “the Cherokee Nation that the children . . . will not be considered Indian children in relationship to the Cherokee Nation” based on the information provided.
Attached to the jurisdiction/disposition were copies of a second JV-135 form noticing the tribes of the November 10, 2005, jurisdiction/disposition hearing. As with the previous JV-135 notice, the notice form did not provide the place of birth of any of the family members and no information was provided as to the great-grandparents. In addition, the proof of service was a copy of the same proof of service form previously used, showing service on October 18, 2005.
Attached to the addendum report filed on December 5, 2005, is the Keetoowah tribe’s response dated November 1, 2005, stating that the Keetoowah enrollment records were searched based on the information provided, and there was no evidence that the children are descendants from anyone on the Keetoowah Roll. Therefore the children are not eligible for enrollment and the Keetoowah Band would not intervene in the case.
Although the reporter’s transcript of the January 17, 2006, jurisdiction/disposition hearing, reflects that the trial court did not mention ICWA, the minute order for the hearing states that ICWA does not apply in the case. The addendum report filed on January 17, 2006, also states notice was provided pursuant to ICWA and ICWA does not apply.
Likewise, the supplemental detention report filed on May 19, 2006, states ICWA does not apply. The report further states that the DPSS social worker spoke to maternal grandmother by phone on May 18, 2006, and maternal grandmother stated that during a previous child protective services (CPS) case it was determined that ICWA did not apply. In the report, the social worker recommended that parents be ordered to disclose to the social worker the names, addresses and any known identifying information of any maternal or paternal relatives of the children.
On May 22, 2006, mother filed a second JV-130 parental notification of Indian status form in connection with the DPSS’s supplemental juvenile dependency petition. As in the previous form, mother stated that she may have Oklahoma Cherokee Indian ancestry. A minute order for the May 23, 2006 hearing on the supplemental dependency petition stated that the children did not come under ICWA. The court further ordered the parents to disclose to the social worker the names, addresses, and any other known identifying information of the maternal or paternal relatives. Once again the court found that ICWA did not apply.
An addendum report filed on June 6, 2006 for the supplemental jurisdiction/disposition hearing, as well as subsequent hearing reports filed in the case, stated that ICWA did not apply. The status review report filed on November 15, 2006, further stated that “mother declared that she thought she had Native American heritage. The three specific tribes, Indian Child Family Services and the Bureau of Indian Affairs had all been noticed properly. Letters from two of the three tribes were received and attached to the court report stating that their specific tribe did not recognize the family or deem them eligible under ICWA. The third tribe (Eastern Band of Cherokee Indians) did not respond and as such the time line of sixty days was exhausted. Ultimately resulting in the following, a minute order dated 01/17/2006 stating this matter was deemed to be NON-ICWA.”
(2) Discussion of Notice
We conclude ICWA notice was inadequate because important information was not provided and the record does not show the DPSS made a reasonable inquiry as to family members’ places of birth or as to the great-grandparents. There is no indication in the record that the DPSS asked mother for her birth place or asked maternal grandmother or any other family members for maternal grandfather’s or maternal great-grandmother’s places of birth, or for any other information relating to the maternal great-grandmother.
While the supplemental detention report filed on May 19, 2006, states that a DPSS social worker spoke to maternal grandmother by phone on May 18, 2006, there is no indication that the social worker asked her for maternal grandfather’s place of birth or for any information concerning maternal great-grandmother. Even though she might not know such information, since she separated from maternal grandfather when mother was a child, the DPSS had a duty to inquire. Nothing in the record indicated the DPSS or the court made any attempt to obtain such information. The May 19 report merely states that during a phone conversation, maternal grandmother told the social worker that, during a previous CPS case, it was determined that ICWA did not apply. This does not show that the social worker requested information required for notice purposes, such as family members’ places of birth or information concerning the great-grandparents.
We thus conclude the DPSS failed to make a reasonable inquiry to obtain the missing information, and the lack of such information in the ICWA notices, as to those family members who may have had Indian ancestry, requires remand. Under the circumstances reflected in the record, we agree with the parents that the juvenile court erred when it determined that ICWA notice had been properly provided.
(3) Substantial compliance
Citing In re Christopher I. (2003) 106 Cal.App.4th 533, 566 (Christopher), the DPSS argues that it substantially complied with the ICWA notice requirements and that is all that is required under the law. Christopher is distinguishable because the court’s application of the substantial compliance standard is premised on unusual factual circumstances in which the child was in an irreversible vegetative state due to his father physically abusing the child. The mother claimed she had Indian ancestry but the tribe she identified could not be identified. On appeal mother claimed there was a tribe that should have been noticed that had a similar name to the tribe name she had mentioned.
The Christopher court concluded that substantial compliance was sufficient because the purposes of ICWA would not be furthered by requiring further notice to an additional tribe. “[T]he stability and security of any Indian tribe or Indian family would not be served. Christopher will never be able to appreciate his alleged Indian ancestry, nor will he procreate and advance the lineage or culture of any Indian tribe. [¶] Christopher’s situation is hopeless. He is in a persistent vegetative state, and his condition is irreversible. He is suffering.” (Christopher, supra, 106 Cal.App.4th p. 564.) Under such extreme circumstances, there was no sense in enforcing technical compliance when doing so would prolong the child’s suffering. The father’s ICWA notice challenge was a means of delaying a court ordering terminating the child’s life support.
We further note that in Christopher, supra, 106 Cal.App.4th at page 566, the court relied on the substantial compliance standard based on In re Kahlen W. (1991) 233 Cal.App.3d 1414. The court in Kahlen, however, did not state that there need only be substantial compliance with ICWA notice requirements. Rather, the court in Kahlen W., supra, at pages 1421-1422, merely observed that three out-of-state cases held that substantial compliance with the ICWA notice provisions obviated the need for technical compliance. The Kahlen court then stated that, nevertheless, statutory and case law applying ICWA unequivocally require actual notice of the proceedings. Accordingly, the Kahlen court determined that actual notice had not been provided in that case. (Kahlen W., supra, at pp. 1421-1422.)
The DPSS’s reliance on Christopher is thus misplaced. The courts have repeatedly held that ICWA notice requirements are to be strictly construed. (Francisco, supra, 139 Cal.App.4th at p. 703; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
Even if substantial compliance with ICWA notice requirements is sufficient, it was lacking in the instant case due to the absence of important information concerning family members who may have had Indian ancestry. Substantial compliance requires actual notice to the tribe of the dependency proceedings, the opportunity to intervene, and information reasonably necessary to determine the child’s Indian status. (Christopher, supra, 106 Cal.App.4th at pp. 566-567.)
Furthermore, claims of this nature are subject to harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16; Christopher, supra, 106 Cal.App.4th at p. 567.) The DPSS asserts that any failure to comply with ICWA notice provisions by not stating family members’ places of birth in the notice was harmless error because father denied having any Indian ancestry and mother did not claim she was an enrolled member in a tribe. The DPSS thus assumes the lack of birth place information would not have affected the tribes’ ability to determine the children’s eligibility for membership. The DPSS further assumes that if a tribe had an individual listed with maternal grandfather’s name and date of birth, the tribes would have requested the DPSS to provide further information. The DPSS asserts that since there was no such request, the absence of the place of birth information did not affect the tribes’ ability to determine the children’s eligibility for membership.
While this may be true, this appears to be based on speculation which is an insufficient basis for finding harmless error. Until the record reflects the DPSS has reasonably attempted to obtain all information that might assist the tribes in determining if the children are eligible for membership and such information, if discovered, is provided to the tribes and BIA, there is no way of knowing what the tribes would determine or do in this case.
3. The Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in rejecting the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(A)) to termination of parental rights. During the .26 hearing, mother’s attorney argued that the beneficial parent relationship exception applied and it was not in the children’s best interests to terminate mother’s relationship with the children. It is undisputed mother visited the children regularly throughout the dependency proceedings. Nevertheless, the trial court did not err in rejecting the exception.
At a section .26 hearing, if the court finds that a child is adoptable, it must select adoption as the permanent plan and terminate parental rights (§ 366.26, subds. (b)(1) & (c)(1)) unless one of the statutory exceptions to adoption exists (§ 366.26, subd. (c)(1)(A)-(E), now subd. (c)(1)(B)(i)–(vi)). The burden of proving one of the exceptions is born by the parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn); In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) Adoption is generally the preferred permanent plan. (In re Celine R . (2003) 31 Cal.4th 45, 49.)
Mother only raised the parental relationship exception in the trial court. (Former § 366.26, subd. (c)(1)(A).) There is a conflict in case law concerning the applicable standard of review. Regardless of whether we use a substantial evidence standard of review (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.) or an abuse of discretion standard of review (ibid.; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), we conclude mother failed to establish that the exception applies.
The beneficial parental relationship exception applies when the parent has maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) Interaction between a natural parent and child will always confer some incidental benefit to the child. The beneficial relationship exception applies only if the relationship promotes the well-being of the child to such a degree as to outweigh the benefit the child would receive in a permanent home with new, adoptive parents. The court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and 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. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)
In the instant case, mother failed to establish this. The children were young when they were removed from parents. When initially detained, Angel was one year and four months old and Seth was only three months old. They lived with mother for only a relatively short period of time. Although the children were returned to parents in December 2005, five months later they were once again removed from parents’ custody in May 2006, because father once again physically abused Seth, and mother had failed to protect him from such harm.
Apparently, neither parent had learned from their past acts, resulting in Seth being harmed again by father. Despite obtaining a restraining order prohibiting father from contacting the children or mother, mother allowed father to return to her home and stay with the children while she was at work even though she knew father had previously injured Seth.
The psychologist evaluating mother concluded mother had not learned from her parenting classes and counseling. In addition, the psychologist concluded that mother “is impulsive and has poor judgment under stress. She has limited frustration tolerance.” Mother tended to blame others for her problems, had difficulty accepting responsibility for her own behavior, and “appears to be angry.” The psychologist further stated that mother showed limited ability to empathize and bond with others. She also was at risk for drug and alcohol abuse, and of further CPS contact if she regained custody of the children.
The DPSS social worker noted that it appeared that Seth was being targeted since Angel had not been physically abused. In addition, according to the Foster Family Agency assessment, which was based on observations of mother’s visits with the children, mother appeared to favor Angel and Seth did not approach or initiate contact with mother. On the other hand, the children had closely bonded to their prospective adoptive parents. The children viewed them as their parents and Angel had said she wanted to stay with them.
Although mother demonstrated the first prong of the beneficial parental relationship exception by fairly regularly visiting the children, she failed to establish the second prong: “the child[ren] would benefit from continuing the relationship.” (Former § 366.26, subd. (c)(1)(A).) Here, mother had failed to protect Seth from being injured despite attending parenting classes, domestic violence classes, and therapy. It also appeared she was not emotionally bonded to Seth. Furthermore, she had shown poor judgment in allowing father to violate the RO and leaving the children alone with father.
Under such circumstances, it was likely the past would repeat itself if mother were permitted to continue to have contact with the children and there was little, if any, showing that the children would benefit from continuing their relationship with mother. It does not appear that at the time of the .26 hearing the children had a substantial, positive emotional attachment to mother or that they would be greatly harmed by severance of their relationship with mother. (Autumn, supra, 27 Cal.App.4th at p. 575.)
4. Disposition
The order terminating parental rights is reversed and we order a limited remand (Francisco, supra, 139 Cal.App.4th at p. 706), as follows: The juvenile court is directed to order DPSS to make a reasonable inquiry regarding the children’s ancestry based upon the information available to it in order to give notice in compliance with the ICWA and related federal and state law. Once the juvenile court finds that DPSS has complied with ICWA notice requirements, including providing, if known, the dates of birth of family ancestors and the correct name of the maternal grandfather, the juvenile court shall make a finding with respect to whether the children are Indian children. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights. If the juvenile court finds the children are Indian children, 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.
Mother’s petition for writ of mandate (case No. E045256) is dismissed as moot.
We concur: Ramirez P. J., HolZlenhorst J.