Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1252547 James E. Herman, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant Jason A.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Kimberly L.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy County Counsel, for Plaintiff and Respondent.
PERREN, J.
Kimberly L., mother, and Jason A., father, appeal from an order of the juvenile court terminating parental rights and establishing adoption as a permanent plan for their daughter, O.A. (Welf. & Inst. Code, § 366.26.) They assert the trial court erred in choosing adoption as the permanent plan for O.A. because the parental benefit, sibling relationship and Indian child exceptions apply. We remand for compliance with the Indian Child Welfare Act (ICWA) and otherwise affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
O.A. (age 4), her brothers, Nathan A. (age 5) and Dylan A. (age 3), and Kimberly L.'s son, Ryan L. (age 9), were detained by Child Welfare Services (CWS) on April 4, 2008, after a fifth child, Joshua A. (age 9), was missing and father failed to report his disappearance to authorities until 21 hours later. A petition pursuant to section 300 was filed on April 7, 2008, alleging O.A., Nathan, Dylan and Ryan were at substantial risk of abuse and neglect because Kimberly and Jason failed to adequately supervise them. The detention report stated that, at the time the children were detained, they lived in a single motel room with Kimberly and Jason, and a sixth child, Cody A. (age 14), and had done so for approximately one year. The family had 11 prior referrals to CWS, one of which was substantiated in 2007 for general neglect of Joshua, who was found wandering alone outside the house, hungry. O.A. was placed in foster care with one of Kimberly's cousins. Nathan, Dylan and Ryan were placed together with another of Kimberly's cousins.
Ryan L. is Kimberly's son, but Jason is not his father.
Joshua A. and Cody A. are Jason's sons by a previous marriage.
The report prepared for the April 28, 2008, jurisdiction hearing stated that both Kimberly and Jason denied hurting or neglecting their children. They acknowledged that Joshua had behavior problems, but blamed Joshua's behavior on Jason's ex-wife. The report noted that the three children who attended school--Cody, Joshua and Ryan--were struggling with their studies and with their attendance, Joshua and Ryan had behavioral issues, and O.A. and Dylan did not have behavior problems at that time and were doing well. The court found that reunification with mother and father was in the best interests of the children.
The disposition report dated May 19, 2008, stated that Kimberly and Jason continued to deny responsibility for the actions that led to their children being removed from their care. The report noted that O.A. appeared to be developmentally on track but she had severe tantrums. CWS again recommended family reunification services be provided.
An interim report prepared on August 11, 2008, stated that O.A. showed defiant behavior towards her foster parents and started wetting the bed and using baby talk after visiting with her parents. Kimberly and Jason had begun parenting classes. Supervised visitation continued to occur once a week. The court again ordered that family reunification services be extended.
On October 21, 2008, CWS filed a section 342 dependency petition on behalf of Cody and Joshua after it was informed of new allegations of abuse against Kimberly and Jason.
Section 342 provides that a subsequent petition may be filed in a dependency proceeding to allege new facts and circumstances not contained in the original petition.
The report prepared for the six-month review hearing on November 10, 2008, for O.A., Dylan, Nathan and Ryan, stated that O.A. continued to have behavior problems at home, including aggression and sexually acting out, and that she was receiving therapy for the problems. She was doing well scholastically and her behavior in school was improving. The report noted that the family had rented a house for a short time but, without telling CWS, had moved in with the maternal grandmother. Grandmother's house was not large enough to accommodate the entire family. Kimberly and Jason continued supervised visits with the children once a week. With CWS permission, they attended the boys' football games, but ignored a no-contact order and initiated contact with the children. The court ordered continued family reunification services. The order also states: "Mrs. [L.] is not to attend Cody and Joshua's super bowl football game. Father may attend, but no-contact order remains in full force [and] effect."
A contested six-month review hearing for O.A., Dylan, Nathan and Ryan on February 3, 2009, was followed by a jurisdiction hearing for Cody and Joshua. Cody testified in camera about several incidents of abuse perpetrated by Kimberly and Jason. Cody said Jason made Joshua and him dig through dumpsters for bottles and cans, Kimberly made him eat soap as a punishment for talking back or lying, Kimberly and Jason made him drink water with hot pepper flakes in it, Kimberly forced Joshua to eat cat feces on two occasions, Kimberly hit Cody on the head with her boot so hard that he fainted, Jason frequently beat Joshua and him with a belt, Kimberly frequently hit Joshua in the face, sometimes leaving a bruise, Kimberly and Jason frequently threw things at Joshua and banged his head against the wall if he fell asleep during a time out, and Kimberly threw Cody against a wall and choked him when he attempted to leave the motel room. Kimberly and Jason also watched pornography on television in the motel room when the children were present. Cody described Kimberly: "She is scary.... She is scary because of what she does. It is hard to explain -- the fear she puts into you." Cody stated that a judge had ordered Kimberly and Jason to stop using physical punishment on the children after Jason's ex-wife saw welts on Cody's body.
Kimberly testified that she never struck Cody or Joshua. She admitted that Jason made Joshua drink water with pepper flakes and made Joshua and Cody put small pieces of soap in their mouths as punishment. She denied that she made Joshua eat feces or that the children were beaten with a belt.
Jason testified that he has "spanked Cody since I can remember" but stopped doing so in 2003 or 2004 when CWS became involved and told him that if corporal punishment were used on the children again, they would be removed from the home. He testified that Kimberly did not use corporal punishment on Cody or Joshua after that incident. He admitted using soap and hot pepper flakes to punish Cody for lying and cussing. Jason accused Cody of lying when he said Kimberly hit him. He said that neither Cody nor Joshua told him that Kimberly forced Joshua to eat feces.
At the close of testimony, the court commented: "I would just observe that pretty much the parties you've called have admitted the behavior, which even by their explanations to me is not appropriate.... I find Cody's testimony on that point to be credible. I don't see any basis for not believing it. I don't see any impeaching evidence. [¶]... What I'm seeing is a long history with child welfare. This is one of those cases where there's red flags all over this family. And, unfortunately, it appears that... your client [Kimberly], over time, has been able to, basically, maneuver around the system, so that a number of the incidents that appear to me to be similar to what is alleged here were found to be unsubstantiated. But the history is long and consistent in terms of inappropriate discipline of the children, you know, having them dumpster dive, and so forth and so on. [¶] And the discipline admitted to, in my view, is just inappropriate; making them eat pepper flakes and soap in their mouth and using belts, and so forth and so on." The court further stated: "And... I would observe, particularly disturbed, not only by finding the allegations that Josh was found asleep in a dumpster, but I am also disturbed by the feces allegations. [¶] I'm also disturbed by the fact that pepper flakes were given to a child to punish them for talking to the police, 'lying to the police, ' quote, unquote. I don't believe they were lying to the police. I believe they were retaliated against for reporting the abuse to the police. [¶] And I find, overall, the living conditions that these children were under were egregious."
The court entered an order as to O.A., Dylan, Nathan and Ryan stating that (1) the parties had agreed to an additional six months of reunification services, (2) Kimberly and Jason should receive psychological evaluations, and (3) they were not to discuss the case with the children or tell them they are coming home. The court found that the "[e]xtent of progress made toward alleviating mitigating causes necessitating placement has been minimal as to both parents."
In a status review report prepared for the 12-month permanency hearing and filed on May 28, 2009, CWS recommended that reunification services for both Kimberly and Jason be terminated and that a section 366.26 hearing be scheduled. The report noted that O.A. visited her brothers twice a week, but she continued to have behavior problems at home and at school. Kimberly and Jason had not been able to maintain a suitable residence. They lived with the maternal grandmother until February 2009. Without notifying CWS, they once again moved into a motel. The case worker opined that, although Kimberly and Jason had completed their parenting classes, "they have not been able to show appropriate or adequate parenting skills."
Kimberly had several sessions with a therapist, but they were terminated after the therapist concluded there was no medical necessity for additional therapy. Kimberly had a psychological evaluation on March 30, 2009. The report states in part: "The history of this case indicates that Ms. [L.] felt no sense of concern regarding the distress her step-children experienced when they were abused and neglected. The drastic means of discipline employed indicated a sense of entitlement and unreasonable expectation that her parental authority would be complied with so totally. When her authority was questioned she responded with righteous indignation that disregarded bounds of humane parenting. Once these inappropriate parenting behaviors came to light Ms. [L.] apparently felt no compunction in blithely rationalizing and shifting blame for the abuse to her step-children."
The report concluded: "There is evidence of a personality orientation for the client in which the needs of others would not raise much concern for her. Run of the mill disobedience by children could be experienced by such an individual as a personal affront and responded to quite harshly and at times vengefully.
"As Ms. [L.] does not evince mental health problems or serious cognitive deficiencies, it is unclear how family reunification services could be successful in insuring that children placed in her care would not be subjected to abuse and neglect in the future. Although she said she has attended counseling sessions and derived benefit from them, what was conspicuously lacking during [the] interview was concern for the harm the children have suffered and remorse for her responsibility [or] for her role in causing this harm. Absent this one must have grave concerns regarding the prospects of family reunification in this case. As the psychological issues at stake involve characterological features as opposed to a clinical disorder, the prognosis is significantly poorer and the indicated psychotherapeutic interventions would need to be more prolonged and intensive (i.e., two times per week for 1-2 years). This falls well beyond the parameters of family reunification, but as things now stand any children placed in Ms. [L.'s] care could otherwise be at substantial risk for renewed abuse and neglect."
Jason had a psychological evaluation on March 31, 2009. The report states that he denied abusing his children and blamed CWS for alleged delays in providing services. "There was no recognition of serious shortcomings on his part or that of Ms. [L.] and no remorse about the documented severe abuse and neglect described in CWS records." Father took responsibility for disciplining Cody with hot pepper and soap, but did not believe this was abusive behavior.
The psychologist noted: "Life stress scores related to situational stressors were rated as normal despite the intense legal situation, unemployment, poverty, and absence of stable housing. These ratings appear to be the epitome of denial of personal problems, consistent with the inability to recognize and react to problems... which challenge the client in his role as father.... [B]y the client's responses on the PSI, he as father is completely competent, thus putting himself forth as utterly blameless with respect to substantiated abuse and neglect."
The report concluded: "Given the current state of affairs I have grave concerns about Mr. [A.] reunifying with his children. Approximately one year after his children were detained by CWS no real progress has been achieved with respect [to] Mr. [A.'s] attitudes and the living circumstances in which the abuse occurred. He still has not taken responsibility for his role in the abuse of his children and he continues to cohabit with Joshua's principal abuser, Ms. [L.] Therefore I recommend against continued family reunification services being offered to Mr. [A.]"
After the contested 12-month review hearing on July 23, 2009, the court ordered additional reunification services for O.A. and her brothers be provided to Jason. On August 3, 2009, Jason's reunification services for Cody and Joshua were terminated. Mother's hearing was continued to September 19, 2009.
CWS filed an addendum report on August 13, 2009, stating that a case worker met with O.A. and her foster mother to discuss O.A.'s progress. The foster mother was concerned about O.A.'s emotional well-being because she did not handle stressful situations well and was physically aggressive with her peers. CWS filed a second addendum report for the September 19, 2009, contested hearing to address new reports of physical abuse of the children. The foster mother reported that O.A. exhibited fearful behavior when another child pretended to hit her. When asked why she was afraid, O.A. said that it reminded her of when Jason would hit her a lot and Kimberly would not do anything about it. The social worker interviewed O.A. separately. O.A. said Jason hit her on her bottom, on her month, and on her hands. O.A. indicated that Kimberly was present but did not do anything about it. In O.A.'s words, "My daddy would hit me a lot of times and it hurt a lot" and "he would get really mad at us and I could hear him hitting my brothers but I didn't know who it was." CWS recommended that reunification services be terminated for Kimberly "because the mother has not accepted responsibility for her actions and admit her poor parenting judgments and her cruel acts towards her children, [and] she will continue to abuse them if they are returned to her."
At the September 19, 2009, hearing Kimberly testified that the previous week, she had moved into a two-bedroom apartment. She denied disciplining the children in an inappropriate manner or initiating contact with the children at football games. On September 28, 2009, the court terminated family reunification services for Kimberly. The court based its decision on the psychological report which concluded that Kimberly's difficulties are behavioral and the amount of time it would take to deal with her issues is well beyond any possible reunification period. The court found the children's testimony as to feces and hot pepper as punishment was credible and Kimberly's denials not credible. The court also found that CWS made reasonable efforts to return the children to Kimberly, and Kimberly had made minimal progress as far as alleviating or mitigating the causes necessitating placement.
On November 19, 2009, CWS filed a status review report recommending that Jason's family reunification services as to O.A. and her brothers be terminated. Jason had not made significant progress in resolving the problems that led to the children's removal from the home. He still did not acknowledge that he abused the children and took no blame for their difficulties. In addition, he had not found suitable housing. The court terminated Jason's reunification services.
A section 366.26 hearing was held on March 10, 2010. The report prepared for the hearing dated January 25, 2010, stated that O.A. is doing well academically, but continues to struggle with her peers. The report notes that the children have maintained monthly contact with Kimberly and Jason and their grandmother, and that the children maintain consistent visitation with each other on weekends and during family functions. The report also states that the foster parents said that the children are aggressive and defiant after visiting their parents as demonstrated by an increase in irritability and fighting. The foster parents have requested that the children's visitation with Kimberly and Jason be terminated. O.A.'s foster parents wish to adopt her. CWS recommended termination of Kimberly and Jason's parental rights as to O.A. and adoption as her permanent plan.
Prior to the start of the hearing, O.A. was questioned in camera. O.A. said she liked being with Kimberly because she gets to see her brothers. O.A. said she missed Dylan and Ryan. She sees Nathan every day at school. She said: "I like playing with my brother Dylan because he's really nice to me." When she was asked a second time whether she missed Kimberly, O.A. said "yeah... I really like playing with my brothers a lot and I really miss them both." O.A. said that she thought of Jason as her dad, she has a good time when he visits, and she feels "sad because I really want to live with him."
At the hearing, the children's current social worker testified. She observed O.A. in her foster parents' home and concluded that O.A. has a "very bonding" relationship with her foster parents. The social worker also said that the foster mother said that she would continue to facilitate visits between O.A. and her brothers if parental rights were terminated. The social worker opined that O.A.'s need for permanency and stability outweighed her need to maintain contact with her brothers, and that if she did not see her brothers, she would be fine. She also opined that when Kimberly and Jason visited the children, they acted more in the role of friends rather than parents. The court questioned the social worker and counsel at length concerning how to distinguish parental interaction from a friendly type of interaction.
O.A.'s foster mother testified. She said that they visit with O.A.'s brothers at least once a month but she did not believe O.A. would be harmed if she did not see her brothers again. Jason testified as to the activities and care he provided the children during visits. He stated that O.A. told him that she misses him very much. Kimberly testified that O.A. has a close relationship with her brothers. She said O.A. has told her that she wants to come home.
At the conclusion of the hearing, the court found by clear and convincing evidence that O.A. is adoptable and neither the parental benefit nor sibling relationship exception applied. The court terminated parental rights as to O.A.
ICWA Notice
The detention report filed on April 7, 2008, stated that the social worker contacted the maternal grandmother who stated she is American Indian. Grandmother said her paternal grandfather, George Washington Dick, was born and raised on a Chickasaw Cherokee reservation in Oklahoma. In the April 28, 2008, jurisdiction report, CWS noted that Kimberly claimed Cherokee heritage on the maternal grandmother's side and that CWS had sent notices to the appropriate tribes.
The disposition report dated May 19, 2008, erroneously stated that the ICWA did not apply because Kimberly denied Native American ancestry. This erroneous information was repeated in subsequent reports and, based on this erroneous information, the court found that ICWA did not apply. The report noted that in a prior dependency case in 2003 involving Cody and Joshua, Jason reported having Blackfeet, Apache and Cherokee ancestry, but responses received from the tribes at that time denied that the children were Indian children.
After this appeal was filed and CWS became aware of its error, it sent notices to the Bureau of Indian Affairs, the Cherokee Nation, Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians on July 19, 2010. Notice was also sent to the Blackfeet and several Apache tribes in response to father's statement that he had Blackfeet and Apache ancestry. Return receipts were received from the tribes. Of the 12 tribes sent notice, all but one responded. Ten of the responses state that O.A. was not enrolled and not eligible for membership in the particular tribe.
The Cherokee Nation responded that O.A.'s great-great-grandfather was an enrolled member of the Cherokee Nation. The letter further states: "This relationship makes the above listed child/children eligible for enrollment and affiliation with Cherokee Nation by having direct lineage to an enrolled member." Enclosed with the letter was a membership application to be completed and returned to the tribe.
On September 27, 2010, after considering the supplemental information concerning O.A.'s possible Indian ancestry, the court again found that ICWA did not apply.
DISCUSSION
Standard of Review
We review an order terminating parental rights and ordering adoption under the substantial evidence test. Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the juvenile court's order, resolving all conflicts in support of the determination and indulging all legitimate inferences to uphold the lower court's ruling. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Parental Benefit Exception
Section 366.26, subdivision (c)(1)(B)(i) states that parental rights shall not be terminated if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The parent bears the burden of proving the exception. Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) To meet his or her burden of proof, a parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
A parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent, or that the parental relationship may be beneficial to the child only to some degree. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent must also show that continuation of the parent-child relationship will promote "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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court may reject a parent's assertion of the exception simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) " [I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Here, Kimberly and Jason did not meet their burden of proof. Frequent and loving contact with a child in these circumstances is insufficient to meet the requirements of the exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) Kimberly and Jason did not provide sufficient evidence that the strength of their relationship with O.A. outweighed the sense of belonging she would receive from a stable home. (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) O.A. said that she loved Kimberly and Jason, but there was no testimony from a psychological expert that termination of parental rights would be detrimental to O.A. While the court may consider the child's wishes, it is required to act in the child's best interests, and a child's wishes are not necessarily determinative of a child's best interests. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.) Here, the psychological evaluations of the parents conclude that O.A. would be harmed by a return to the custody of her parents. (See, e.g., In re Brian R. (1991) 2 Cal.App.4th 904, 913 [expert opinion testimony, based on psychological testing and clinical evaluation, that parent had "long-standing personality disorder" and "rationalized his abuse of his domestic partners" and "had a problem with taking responsibility, " supported termination of parental rights].)
The juvenile court found that the allegations of abuse against Kimberly and Jason, as stated by the children, were true, including resumption of abuse by Kimberly a few months after a court order prohibiting corporal punishment. The nature and extent of this abuse was such that the court could reasonably infer that return of O.A. to either Kimberly or Jason would not be in her best interests. Substantial evidence supports the juvenile court's finding that adoption by mother's cousin is in O.A.'s best interests. (See, e.g., In re Zachary G. (1999) 77 Cal.App.4th 799, 811 ["When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption"].)
Sibling Relationship Exception
Section 366.26, subdivision (c)(1)(B)(v), provides an exception to termination of parental rights when termination would substantially interfere with the child's sibling relationship and the severance of the relationship would be so detrimental to the child as to outweigh the benefits of adoption. (See, e.g., In re Valerie A. (2007) 152 Cal.App.4th 987, 998 [parent may avoid termination of parental rights by showing that a significant sibling relationship existed or exists, and that continued sibling contact may be of greater long-term emotional interest to the child than adoption].) Factors to be considered in determining whether the sibling relationship exception applies include whether the siblings were raised in the same home, whether they share significant common experiences or have existing close and strong bonds, and whether ongoing contact is in the child's best interests, including his long-term emotional interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).)
The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951, citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The sibling relationship exception applies only when the juvenile court determines that there is a compelling reason for concluding that the termination of parental rights would be detrimental to the child due to substantial interference with a sibling relationship; even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. (In re Naomi P. (2005) 132 Cal.App.4th 808, 823.) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A., supra, 152 Cal.App.4th at p. 1014.)
Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's finding that Kimberly and Jason did not meet their burden of proving the exception. (In re L.Y.L., supra, 101 Cal.App.4that pp. 947, 952.) Although O.A. said she missed her brothers, especially Dylan, the record shows that she is thriving in the care of her foster parents, who facilitated visits between the children on many occasions during the dependency. O.A. suffered greatly while living with Kimberly and Jason. Her paramount need is for stability and permanency in a loving home. O.A.'s foster mother is Kimberly's relative. The foster mother told the court she would do everything she could to ensure the siblings maintained their relationship with each other. Even if termination of parental rights substantially interfered with her sibling relationships, there was no showing the severance of those relationships would be so detrimental to her as to outweigh the benefits of adoption. The court did not err in declining to apply the sibling relationship exception.
Indian Child Exception
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The ICWA only applies where the child is an Indian child as defined in ICWA. Federal law defines an "Indian child" as one who is either "a member of an Indian tribe" or is "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) If an Indian child is involved in dependency proceedings, special procedural rules apply and the juvenile court must make certain specified findings. (See, e.g., § 361.7.)
Section 361.7, subdivision (a), states in part: "[A] party seeking... termination of parental rights over an Indian child shall provide evidence to the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."
Kimberly asserts that the order must be reversed because CWS and the court failed to comply with the procedural and substantive provisions of the ICWA. We agree that procedural mistakes were made with respect to giving notice, but the error was harmless. While CWS did not notify tribes identified by Kimberly as possible tribes with which her great-great-grandfather was affiliated prior to entry of the order terminating parental rights, these tribes were provided notice during the pendency of this appeal. We take judicial notice of the augmented record filed by CWS regarding ICWA proceedings occurring after the termination order was entered. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867.) Kimberly does not assert that the notices given were procedurally defective.
Kimberly also asserts that CWS and the court failed to comply with the substantive provisions of ICWA because they did not facilitate O.A.'s efforts to become a member of the tribe once the Cherokee Nation confirmed her Indian ancestry and provided a membership application. She argues that the reason O.A. is not an "enrolled" member of a tribe is because the Department failed in its duty to provide the notice necessary for her to learn that she was eligible for membership in the tribe. (See In re Desiree F. (2000) 83 Cal.App.4th 460, 470 [agency solely at fault for child's lack of enrollment in tribe because it failed to give timely notice to the tribe].)
Kimberly asserts that California Rules of Court, rule 5.482(c) is applicable. That rule states: "If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child."
Rule 5.484(c) states: "In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful."
O.A. is not an Indian child within the meaning of ICWA. However, she is eligible for membership in the Cherokee Nation. In these circumstances, the agency must provide active efforts to secure tribal membership for the child. (Cal. Rules of Court, rule 5.482(c); but see In re C.B. (2010) 190 Cal.App.4th 102, 134-135 , fn. omitted ["The children were not Cherokee Indian children under ICWA, even though the Cherokee Nation's response indicated they were eligible for membership, since they were neither members of the Cherokee Nation nor were they biological children of a member of the Cherokee Nation. (25 U.S.C. § 1903, subd. (4).) Moreover, ICWA's 'active efforts' mandate does not require a juvenile court to proceed 'as if' a child is an Indian child when a noticed tribe's response indicates that the child is eligible for membership if certain steps are followed. [Citations.] We question whether rule 5.482(c) and rule 5.484(c) are consistent with the controlling statute"].)
The juvenile court's order terminating parental rights and referring O.A. for adoptive placement is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the notice provisions of ICWA as to the Cherokee Nation and to facilitate O.A.'s enrollment in the tribe. If after proper notice, the Cherokee Nation does not wish to intervene in the proceedings, the court shall reinstate the order terminating parental rights. If the Cherokee Nation wishes to intervene in the proceedings, then the court should conduct a new 366.26 proceeding applying the provisions of ICWA and the state law implementing it.
We concur: GILBERT, P.J., YEGAN, J.