Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge, Los Angeles County Super. Ct. No. CK59110
John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Mother appeals from termination of her parental rights in her sons, B. and B.A. We affirm.
FACTS AND PROCEEDINGS
Mother gave birth to B. in August 2004. In May 2005, respondent Department of Children and Family Services (the department) filed a petition under Welfare and Institutions Code section 300 alleging B. was at risk of harm from mother’s inability to care for him due to her psychiatric problems, including bipolar disorder, and her past and current abuse of drugs. The petition also alleged that the long history of substance abuse by B.’s father and father’s current incarceration in state prison prevented father from caring for B. The department placed B. with his maternal grandmother.
When the dependency proceedings got underway, the department learned mother might have Native American heritage through the Sioux of South Dakota, and father might have Cherokee heritage. The court ordered the department to give notice of B.’s dependency proceedings to the eight federally recognized Sioux tribes from South Dakota and the three recognized Cherokee tribes. The department sent those notices on June 3, 2005, for a June 14 hearing, and sent a second round of notices on June 16 for a July 19 review hearing.
At the July 19 review hearing, the court found the department’s notices to the tribes complied with the Indian Child Welfare Act (ICWA), and the tribes that had responded had declared B. was neither a member nor eligible for enrollment for tribal membership. The court found B. was not an Indian child under the ICWA, and thus the act’s provisions for Indian children did not apply to him. Mother and father thereafter pleaded no contest to the department’s section 300 petition. The court sustained the petition and ordered family reunification services, including drug rehabilitation, for mother and father.
One year later in July 2006, mother gave birth to B.A. The department initially did not detain B.A. But in November, mother and father tested positive for using methamphetamine and amphetamine. The department detained B.A. and filed a petition noting B.A.’s sibling, B., was already a dependent of the juvenile court, and alleging mother’s and father’s continued drug abuse rendered them unable to care for B.A.
After B.A.’s detention, mother and father filed declarations stating they knew of no Native American heritage for him; presumably, they relied on the tribes’ responses that B. was not eligible for tribal membership to conclude B.A. was similarly ineligible. Despite the parents’ declarations, the court ordered the department to use the family history information from B.’s notices to give the eight Sioux and three Cherokee tribes notice of B.A.’s dependency proceeding. The department sent the notices to the tribes and Bureau of Indian Affairs; in each notice B.A.’s name was misspelled. The department received return receipts for each notice. Among the tribes that responded to the notice, each stated B.A.—misspelled was neither a tribal member nor eligible for membership, each seemingly unaware that the notices they had received had misspelled B.A.’s name. The court found B.A. was not an Indian child and thus ICWA did not apply to him. Mother pleaded no contest to the allegations against her in the department’s petition for B.A. The court sustained the petition’s allegations against father and terminated his parental rights in B.A.
Father filed a notice of appeal from the court’s order terminating his parental rights separate from the appeal currently before us. His appeal alleged the ICWA notices were defective because they misspelled B.A.’s name and omitted certain identifying information of father, such as his birthplace. The department and father thereafter agreed to a stipulated reversal of the termination order for the sole purpose of allowing the department to comply with ICWA’s notice provisions. In June 2007, we accepted the stipulation and remanded the matter to the dependency court to allow proper notice. Our remittitur instructed the dependency court to reinstate its termination order if no tribe stated B.A. was a tribal member or eligible for membership.
On July 12, 2007, the department sent notices to the tribes of a progress report hearing in B.A.’s case for August 6. A number of tribes responded that B.A. was not eligible for tribal membership. The notices spelled B.A.’s name correctly, but they omitted his middle name and birthplace, parents’ middle names, and father’s birthplace. The court ordered the department to send to the tribes corrected notices containing B.A.’s middle name. The department did so by giving the tribes notice on September 4, 2007, of a hearing set for October 2, 2007, but the notices omitted parents’ middle names. The court ordered the department to send to the tribes a new round of notices containing parents’ middle names informing the tribes of both B.’s and B.A.’s involvement in dependency proceedings.
On November 2, 2007, the department mailed notices containing parents’ middle names informing the tribes of a termination of parental rights hearing set for November 14. For the first time on appeal, father alleges the notices were defective because they described his birthplace as “unknown” and did not attach the boys’ birth certificates. At the November 14 hearing, the court found the department’s service of notice on November 2 had not given the tribes enough time to respond. The court thus continued the termination hearing to November 26.
The hearing on termination of parental rights occurred on November 26. The court found all the tribes had received proper notice under the ICWA. Of the tribes that responded, each stated the boys were not tribal members or eligible for membership. The court thus found the ICWA did not apply to B. or B.A. The court thereafter terminated father’s and mother’s parental rights. Only mother appeals from the termination order.
DISCUSSION
1. Notice Under ICWA
When a dependency court assumes jurisdiction over a child who might have Native American ancestry, the ICWA obligates child welfare authorities to give notice of the dependency proceedings to Indian tribes in which the child might be a member or eligible for membership. (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (b).) ICWA regulations and California’s companion legislation specify the information the notices must contain. (25 C.F.R. § 23.11(d)(3) (2008); Welf. & Inst. Code, § 224.2, subd. (a)(5).) Mother contends the November 2 notices were defective because they did not attach B.’s or B.A.’s birth certificates or identify father’s birthplace, all of which the law requires. We conclude mother waived the defects because she did not raise them in the dependency court.
Ordinarily, defective ICWA notice requires child welfare authorities to serve corrected notices. Parents usually may not waive defects in notice to the tribes because the rights such notice protects are not the parents’ but instead the interest of Native American communities in preserving tribal culture. (In re Robert A. (2007) 147 Cal.App.4th 982, 989; In re Jennifer A. (2002) 103 Cal.App.4th 692, 707; In re Merrick V. (2004) 122 Cal.App.4th 235, 246; Welf. & Inst. Code, § 224, subd. (a).) Indeed, the law’s solicitude in protecting tribal culture permits parents to raise for the first time on appeal defects in ICWA notice to tribes. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.) Consequently, when reviewing courts find a defective ICWA notice, they usually reverse and remand to permit proper notice. (In re Justin S., at pp. 1435-1436; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267; 25 U.S.C. § 1914.)
Several court decisions have established, however, that an appellate court will reverse a case only once for improper ICWA notice if a parent does not object in the dependency court to defective notice. (See In re N.M. (2008) 161 Cal.App.4th 253, 269; In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; In re X.V. (2005) 132 Cal.App.4th 794, 804.) Following that one reversal, parents must assume an active role in ensuring future notices are accurate and complete. Akin to one free bite at the apple, a parent’s failure after remand to object to defective notice in the dependency court forfeits the parent’s right in second (or later) appeals to argue notice was improper. (In re N.M.,at p. 269; In re Amber F.,at p. 1156; In re X.V., at p. 804.)
In June 2007, we remanded this matter to the dependency court to allow the department to give proper notice to the tribes of the proceedings. With mother thus aware that adequacy of ICWA notice to the tribes was a salient issue in this matter, her failure to object in the dependency court to the notice’s omission of father’s birthplace and the boys’ missing birth certificates forfeited her right to raise those defects on appeal.
Mother also contends the court erred in concluding her sons were not members of some tribes based on those particular tribes’ responses. A tribe’s statement that a child is, or is not, a member or eligible for membership is conclusive: “A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe . . . shall be conclusive.” (Welf. & Inst. Code, § 224.3, subd. (e)(1).) That statute adds a gloss, however, that a tribe’s statement that a child is not eligible for enrollment (as opposed to membership) is not determinative of the child’s membership unless the tribe declares that enrollment is necessary for membership. It states: “Information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.” (Ibid.) Here, the Spirit Lake Sioux, Lower Brule Sioux, and United Keetoowah stated that B. and B.A. were not eligible for tribal enrollment, but did not say enrollment was required for tribal membership. Hence, mother contends, those tribes’ statements were inconclusive as to the boys’ tribal membership. Mother forfeited her contention, however, because she did not object in the dependency court to the court’s reliance on those tribal responses as evidence that B. and B.A. were not members of those tribes. (In re William K. (2008) 161 Cal.App.4th 1, 11-12 [parent waived evidentiary objection to response that did not distinguish between “enrollment” and “membership].)
Finally, mother contends the November 2 notices for the November 16 hearing were defective because they gave the tribes too little time to respond. The law requires that a dependency court wait at least 10 days before holding a hearing after a tribe receives notice. (Welf. & Inst. Code, § 224.2, subd. (d).) Mindful of that rule, the court found on November 14 that notice was incomplete and continued the hearing to November 26. On November 26, the court found more than 10 days had passed since the tribes had received the November 2 notice. The court thus waited the appropriate minimum time of 10 days.
2. Parental Relationship Exception Did Not Apply
Adoption is the preferred permanent plan for dependent children who cannot be reunited with their parents. (In re Celine R. (2003) 31 Cal.4th 45, 49, 52-53; In re Dakota H. (2005) 132 Cal.App.4th 212, 228; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) The Legislature has created an exception to adoption, however, when termination of parental rights would harm a child who has an ongoing parental/child relationship with a noncustodial parent. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i) [formerly subd. (c)(1)(A)]; In re Angel B. (2002) 97 Cal.App.4th 454, 467.) The exception applies when the benefits to the child from continuing the relationship outweigh the price the child will pay from losing a prospective adoptive family’s permanency and stability. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
For the exception to apply, it requires regular contact between parent and child. It also requires the parent to play a parental role in the child’s life. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) A parental role means more than the loving attachment that commonly arises between children and the adults who take care of them, and the child must benefit from more than the good feelings that typically arise from warm interaction between a child and adult. (In re Andrea R., at pp. 1108-1109.) It is instead the type of relationship that grows from nearly daily contact when the parent shoulders the child-rearing tasks of “day-to-day interaction, companionship and shared experiences.” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; In re Casey D. (1999) 70 Cal.App.4th 38, 51: In re Beatrice M.,at p. 1420; In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Mother opposed termination of her parental rights, and argued the foregoing exception ought to apply to her and her sons. She testified she visited the boys at least twice a week. But beyond her regular contact, she fails to carry her burden of showing she filled a parental role in their lives. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) B. lived with her the first nine months of his life, but he is now four years old and has not lived with her since those early months. B.A. was four months old when the department detained him, and he has not lived with mother since. Regular visits, even when warm and loving, are not good enough for the exception to apply. Mother testified she customarily takes the boys to McDonald’s during her visits, where they play “in the Playland the whole time that they are there.” But when the court asked, “Is there anything you do when you get together with the kids, other than play with them?” She answered “no.” The court observed mother “is not the person feeding them, diapering them, waking them up, putting them to bed, nurturing them.” Substantial evidence therefore supported the court’s conclusion that the exception to termination of parental rights and placement for adoption did not apply, and thus did not abuse its discretion in terminating mother’s parental rights.
DISPOSITION
The court’s order terminating mother’s parental rights in B. and B.A. is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.