Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD221254
SCOTLAND, P.J.
Lisa W. and Virgil W., the mother and father of Priscilla W. (the minor), appeal from the juvenile court’s orders terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; further section references are to the Welfare and Institutions Code unless otherwise specified.) They raise numerous contentions which lack merit. Accordingly, we shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
For simplicity and to avoid confusion, we will refer to the minor’s parents by their first names, Lisa and Virgil, or together as appellants.
In October 2004, a juvenile dependency petition was filed by the Sacramento County Department of Health and Human Services concerning the two-week-old minor and her five siblings. The petition alleged that the minor had been admitted to the hospital for failure to thrive, dehydration, sepsis, and poor perfusion, which “were the direct result of a lack of feeding and nourishment on the part of [appellants].” It further alleged that Lisa suffered from untreated depression, which hindered her ability to care for the minor and her siblings. An amended petition added an allegation that Virgil was aware of Lisa’s psychiatric history but failed to encourage her to seek treatment or “to protect and ensure that [the minor and her siblings] received needed medical attention.” The minor was detained, but the siblings remained placed with appellants.
The minor’s siblings are not the subject of this appeal.
In addition, the amended petition contained an allegation under section 300, subdivision (a) (substantial risk the child would suffer serious physical harm inflicted nonaccidentally by parent), but the juvenile court later dismissed this allegation.
In February 2005, the juvenile court sustained the allegations as amended and ordered reunification services. Approximately three weeks later, the minor was placed with her paternal aunt.
Appellants made progress on their case plans, and by the 12-month review hearing in January 2006, dependency jurisdiction had been terminated as to the minor’s siblings, and the minor was returned to appellants’ care. Approximately four months later, the minor and her siblings were again detained and a supplemental petition was filed after a medical examination revealed that the minor had bruises and possible bite marks on her extremities and bruising on her face and forehead. Lisa previously had reported that one of the minor’s siblings was too rough with the minor during visits; and the supplemental petition alleged that appellants had agreed to provide adequate supervision to ensure the minor’s sibling did not harm her by biting, hitting, kicking, scratching, or carrying her. The petition was later amended to add allegations that Virgil was aware of Lisa’s psychiatric history but continued to leave the minor and her siblings alone with her and that appellants denied knowledge of the minor’s injuries or how they were caused.
The minor, who was placed in foster care, was “showing signs of aggression and frustration,” in that she bit another child, “pulled out handfuls of her own hair,” bit, pinched, and scratched herself causing bruising and bleeding, and self-induced vomiting by putting her hand down her throat. In July 2006, the minor was again placed with the paternal aunt, who recently had married. In the meantime, Lisa gave birth to another child.
The juvenile court sustained the allegations in the supplemental petition and set the matter for a dispositional hearing. Prior to the dispositional hearing, a guardian ad litem began appearing on Lisa’s behalf.
The record does not disclose the procedural circumstances surrounding the appointment of the guardian ad litem.
The dispositional hearing occurred in January 2007, by which time the minor’s five older siblings were living with Virgil. At the hearing, Virgil testified Lisa was living in a home that was “assisting her with her mental health,” and there was a court order excluding her from Virgil’s home. Virgil acknowledged that it was “not easy” managing all of the children by himself; indeed, the social worker had observed that Virgil was overwhelmed by the children at times. The social worker felt there was a potential risk of returning the minor to Virgil’s care because her behavior required “so much one-on-one attention.”
The juvenile court concluded nothing had changed as to the safeguards that would protect the minor if she were returned to Virgil’s care. The court terminated reunification services and set the matter for a hearing to select and implement a permanent plan for the minor. (§ 366.26.)
In March 2007, Virgil moved to modify the juvenile court’s order denying return of the minor to his care. (§ 388, subd. (a).) He alleged numerous changed circumstances: (1) he had reunified with the minor’s youngest sibling; (2) he had completed individual counseling; (3) it was recently reported there were no concerns about visitation; (4) the Department of Health and Human Services was recommending termination of dependency as to the five older siblings; and (5) the sibling who had been aggressive toward the minor in the past was addressing “angry feelings” in individual counseling, and the therapist had no “‘immediate concerns regarding [the youngest sibling’s] safety in the home.’” Virgil claimed that changing the court’s order would be in the minor’s best interest because she would otherwise be the only one among her siblings who was placed out of the home, and daily contact with her siblings and father would “contribute to her long-term emotional stability.”
An evaluation conducted around this time found that although Virgil had “addressed his abrasive style of communication in therapy and reportedly made progress in understanding the impact of his behavior,” “[he] continue[d] to respond quickly to discomfort in a defensive and hostile manner.” An additional concern was Virgil’s “rigid and inflexible style of thinking,” as evidenced by his statement that although “he continued to believe in the efficacy of corporal punishment, he could no longer swat the children with a rubber thong or his hand due to the family’s open CPS case.” According to the evaluator, Virgil “had little insight into the reasons why corporal punishment may not [be] appropriate or effective given some of the children’s aggressive behaviors.” This suggested to the evaluator that “any changes in [Virgil’s] behavior may be superficial rather than long-lasting.”
The evaluator assessed the minor’s relationship with appellants as “intermittently positive,” and concluded that “the significance of this relationship (positive, yet weak) d[id] not outweigh the substantial benefits of permanency for [the minor].”
The report for the section 366.26 hearing described the minor as “sweet, talkative and energetic,” and reported that her previous “negative behaviors” had ceased once she was removed from daycare. The paternal aunt and her husband were committed to adopting the minor, had completed adoption training, and had been screened for criminal history and child abuse referrals.
Meanwhile, during visits in January 2007, the minor’s siblings were very aggressive with her, after which there had been a period of more than two months during which Virgil did not contact the Department to arrange a visit. During a visit in May 2007 at Virgil’s home, the same sibling who had been aggressive toward the minor in the past “was extremely inappropriate” with her, pulling her by the arm, pushing her, chasing her and yelling at her. Virgil cancelled the next visit and did not call to reschedule the visit after that. The social worker recommended a permanent plan of adoption for the minor.
At a hearing in May 2007, for which Lisa was on “phone standby” and not present, the juvenile court relieved her guardian ad litem based on the opinion of Lisa’s attorney and her guardian ad litem that Lisa was able to understand the proceedings and assist her attorney.
At the hearing on his modification motion, Virgil testified that he had adjusted his parenting style as a result of the input he had received from the sibling’s counselor and in parenting class. According to Virgil, he was not overwhelmed but was “challenged” by the six children already in his home. Virgil said that he would not leave the minor alone with the sibling who had been aggressive toward her.
The juvenile court found there were changed circumstances but it would not be in the minor’s best interests to remove her from her current placement and place her in Virgil’s care. The court framed the issue as follows: “[I]f [the minor] is returned to [Virgil] . . ., will she have structure? Will she have stability? Will she have permanence? And first and foremost will she be safe?” The court later stated: “I have to weigh whether or not the request being made is in [the minor’s] best interests. I have to weigh whether or not it is better than her current circumstance in terms of an available response for her.” Noting the minor had permanence, safety, and structure in her current placement and that Virgil’s household was chaotic, the court concluded it could not “take the chance that [the minor] could be safely maintained over the long term [in Virgil’s care] based on the current circumstances of the house.” The court explained it was referring to “the potential threat posed by the conduct of [the minor’s sibling].”
At the section 366.26 hearing in August 2007, the social worker testified the minor’s aunt and her husband completed a home study referral, although the referral was not being acted upon pending the outcome “of these trials.” Nevertheless, based on the criminal background check and the ability of the caregivers to provide for the minor and maintain appropriate family contact, the Department felt the home study would be positive. The social worker opined that the minor’s attachment to the relative caregivers was high. She acknowledged she had not assessed alternate placements for the minor.
The social worker testified that, since the minor’s return to daycare two months earlier, there had been ten incidents involving biting or hitting by the minor. But the minor did not engage in such behavior in her aunt’s home, even when other children were present. The aunt believed that the minor’s daycare provider was not “a good fit” and had arranged for a different daycare provider. Other than these incidents, the minor did not exhibit any concerns regarding behavior, delays, or disabilities. Moreover, the minor had shown an ability to form attachments with adults, and her age made it likely that she would be adopted.
Virgil testified that he had not visited the minor since the home visit in May 2007, due to transportation problems and because he was “upset [about] the way the last hearing went” and “was fearful of losing [his] daughter.” According to Virgil, the minor expressed love for him and called him “Daddy.” He felt that there was a bond between the minor and her siblings as well and that the minor needed to have ongoing contact with them. Four of the siblings testified the minor was happy during the May visit.
Virgil had concerns for the minor’s spiritual well-being if she were not able to see her siblings again, explaining his belief that the minor would be protected within her own family but that, outside this protection, “Satan[] has a legal right to bring harm to her.” Virgil also expressed concern that the paternal aunt and her husband had “only known each other for a short period of time.”
Finding the minor was likely to be adopted, the juvenile court rejected the exception to adoption based on a beneficial parent-child relationship because appellants had not maintained regular and consistent contact with the minor. The court also rejected the exception to adoption for sibling relationships. Consequently, the court terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
I
Appellants argue the juvenile court applied the wrong standard in ruling on Virgil’s section 388 motion and abused its discretion by denying the motion. We disagree.
Section 388 states in part: “Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . [¶] If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall [hold a hearing].” The parent has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (hereafter Kimberly F.).)
One of the functions of section 388 is to provide “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (In re Marilyn H., supra, at p. 309.)
The child’s best interests are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent’s interests in reunification, but to the needs of the child for permanence and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) “[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court’s discretion to decide that a child’s interest in stability has come to outweigh the natural parent’s interest in the care, custody and companionship of the child.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419.)
A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O., supra, 8 Cal.4th at p. 415.) “It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . .” (Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Here, in determining whether placing the minor with Virgil would not be in her best interests, the juvenile court focused on whether the placement would provide the minor with structure, stability, permanence, and safety. The court noted the minor had all of these benefits in her current placement, and both the chaos in Virgil’s household and the conduct of the minor’s sibling toward her would present a risk to the minor’s safety. A child’s need for stability and permanence is the appropriate focus when a request for modification is brought after the termination of reunification services. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Such was the juvenile court’s focus here.
Lisa claims the juvenile court erred by simply comparing Virgil’s household with that of the aunt when evaluating the minor’s best interests. She relies on Kimberly F., in which the parent had remedied the basis for removal (the unsanitary condition of the home) when the request for modification was made. (Kimberly F., supra, 56 Cal.App.4th at p. 527.) The appellate court reversed the denial of the parent’s request for modification, rejecting a best interests standard based on “a simplistic comparison between the natural parent’s and the caretakers’ households.” (Id. at p. 530.) Here, on the other hand, Virgil remained unable to protect the minor from her sibling’s aggression, even during a supervised visit in the home. The juvenile court’s denial of Virgil’s modification request was based on the continuing inadequacy of care he was able to provide, not a simple comparison of which home was better.
Lisa suggests the juvenile court overemphasized the risk that the minor’s sibling would continue to harm the minor if she were placed with Virgil. However, this was precisely the risk that had led to the minor’s removal, and its importance could not be overemphasized, particularly in light of the evidence that the sibling continued to be aggressive toward the minor and Virgil had been unable to prevent this even during the limited time frame of a visit.
Lisa also claims that when the court explained that the minor would not be placed in Virgil’s home because, “I don’t think at this time that the Court can take the chance [the minor] could be safely maintained [there] based on the current circumstances of the house,” the court--in counsel’s words--“use[d] the wrong standard of proof when it expect[ed] a guarantee of [the minor’s] physical safety before returning [her] home.” The contention fails because the court’s ruling cannot be reasonably construed as requiring a guarantee of the minor’s safety before placing her with Virgil. The court’s comments were nothing more than the understandable observation that, in light of the evidence of “chaos” in Virgil’s home and the danger to the minor posed by her sibling who resided there, the minor would be unsafe if placed in that home. The entirety of the court’s ruling shows that it applied the correct legal standard.
Virgil contends the court erred by finding that changing its previous order would not be in the minor’s best interests. This is so, he argues, because his motion was supported by factors, identified in Kimberly F., supra, 56 Cal.App.4th 519, used for evaluating a child’s best interests when ruling on a request for modification. We disagree.
The Kimberly F. factors include “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (Kimberly F., supra, 56 Cal.App.4th at p. 532, italics omitted.) For reasons that follow, these factors as applied to the evidence in this case support the denial of his request for modification.
Virgil is wrong in characterizing the problem leading to dependency as being “not as serious as more common reasons for dependency proceedings.” The minor was originally detained after being hospitalized for numerous physical problems that were the result of neglect by appellants. More recently, she was removed from parental custody after she was discovered with bruises and bite marks all over her body. Contrary to Virgil’s claim, appellants’ failure to recognize and prevent the neglect and physical abuse of the then one-and-one-half-year-old minor by her sibling was a serious problem.
The minor’s bond with Virgil had been assessed as “positive, yet weak,” and she did not view appellants as “her primary source for physical and emotional safety or comfort.” On the other hand, the minor displayed a high level of attachment to her relative caretakers and demonstrated a sense of security with them.
And despite Virgil’s efforts, the problem leading to the minor’s removal had not been ameliorated, nor could it be easily corrected. Counseling had not succeeded in resolving the sibling’s aggressive behavior toward the minor, and Virgil was unable to provide the level of supervision necessary to prevent aggressive incidents from occurring.
In sum, the juvenile court did not abuse its discretion by concluding that a modification of its prior order was not in the minor’s best interests.
II
Appellants contend the evidence was insufficient to support a finding that the minor was adoptable. Not so.
In order to select and implement adoption as the permanent plan, the juvenile court “must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).) “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at pp. 1649-1650, italics omitted.)
An order terminating parental rights must be affirmed if it is supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Here, the minor, who was not quite three years old when the section 366.26 hearing was held, was described as “sweet, talkative and energetic.” She had demonstrated an ability to form attachments with adults, and her age made it likely that she would be adopted. Although she continued to display aggression in daycare, she did not exhibit this behavior in her aunt’s home even when other children were present, and the problem had not deterred her relatives from wanting to adopt her. There were no other concerns about delays, disabilities, or behavior, and the self-destructive behavior the minor had exhibited when first placed in foster care was no longer mentioned as an issue.
Appellants contend the minor’s behavioral problems while in daycare precluded a finding of adoptability. Lisa relies on cases in which sociability was noted as one of the characteristics supporting a finding of adoptability. (See In re Y.R. (2007) 152 Cal.App.4th 99, 113; In re T.S. (2003) 113 Cal.App.4th 1323, 1329; In re L.Y.L. (2002) 101 Cal.App.4th 942, 956.) However, while a child’s sociability may support a finding of adoptability, a child’s lack of sociability does not require a finding that the child is unadoptable. Perfection is not a prerequisite to adoption. It is not unusual for a child who has been abused and neglected to come into the dependency system with behavioral and emotional problems. Many times such problems recede when the child is placed in a loving and stable home, as had occurred to a large degree in this case. Depending on the severity of such problems, they are not necessarily a deterrent to adoption. Under the circumstances here, substantial evidence supports the court’s conclusion that the minor’s behavioral problems were not so severe that they would pose an obstacle to adoption.
Virgil claims the finding of adoptability is undermined by that absence of any families with an approved home study that were interested in adopting the minor. We disagree. Virgil relies on decisions involving multiple children whose emotional problems or special needs rendered them difficult to place (In re Asia L. (2003) 107 Cal.App.4th 498, 511; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1063) or in which the finding of adoptability was premised solely on the willingness to adopt by an individual whose suitability for adoption had not been assessed. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) There was no evidence that the minor’s remaining behavioral issue would make it difficult to find an adoptive placement for her.
Lisa’s reliance on In re Brian P. (2002) 99 Cal.App.4th 616 (hereafter Brian P.), involving a four-year-old child with a history of “developmental difficulties,” is likewise misplaced. In that case, although the reports prepared for the section 366.26 hearing stated the child was adoptable, they contained no evidence to support this conclusion, and the appellate court determined “th[e] record raise[d] as many questions as assurances about his adoptability.” (Id. at pp. 624-625.) The court concluded the “fragmentary and ambiguous evidence was not enough to buttress the [social service a]gency’s position that [the child] was adoptable.” (Id. at p. 625.)
Here, unlike in Brian P., the social worker’s reports contained information about the minor’s developmental, physical and emotional status; and the finding of adoptability was supported by evidence of the minor’s characteristics and the desire of her current caregivers to adopt her.
We also disagree with Lisa’s contention that the minor should have been found to be difficult to place as a “special needs child.” She relies on Family Code section 8545, which defines a special needs child as one “whose adoption without financial assistance would be unlikely” due to various factors, including “adverse parental background.” Lisa argues her previous diagnosis of schizophrenia and more recent diagnosis of major depressive disorder constitute an “adverse parental background” under the statute. But the record is devoid of any evidence that the minor’s adoption was unlikely without financial assistance as a result of Lisa’s mental health problems. Furthermore, the Welfare and Institutions Code defines a “difficult to place” child for purposes of adoption as one for whom “there is no identified or available prospective adoptive parent . . . because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.” (§ 366.26, subd. (c)(3).) Since there is a dispositive provision in the Welfare and Institutions Code on the issue, we need not look to other codes for guidance on the issue. (Cf. In re Josiah Z. (2005) 36 Cal.4th 664, 678-679.)
For all the reasons stated above, the evidence is sufficient to support the finding that the minor is adoptable.
III
Virgil argues the juvenile court erred by failing to find an exception to adoption based on the bond between him and the minor. He is incorrect.
At a hearing under section 366.26, if the court finds by clear and convincing evidence that a child is likely to be adopted, the court must terminate parental rights and order the child placed for adoption unless “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” due to one of the statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).) A parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809; see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
Section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)), provides an exception to adoption when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” But “a parent may not claim entitlement to the exception provided by [this subdivision] simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The benefit to the child must 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the 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 Autumn H., supra, 27 Cal.App.4th at p. 575.)
“Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The juvenile court’s ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; cf. In re Jasmine D., supra, 78 Cal.App.4th at p. 1342 [applying abuse of discretion standard].)
Here, the juvenile court rejected the parental relationship exception because of Virgil’s failure to maintain regular and consistent contact with the minor. This was an appropriate finding in light of the paucity of visitation after the matter was transferred to the adoptions unit.
Even if there were a legally valid excuse for Virgil’s failure to visit the minor during this period, substantial evidence supports the conclusion that the benefit to the minor of maintaining her relationship with Virgil did not outweigh the benefits of adoption. As Virgil acknowledges, a bonding assessment concluded the minor would not suffer any long-term effect if her relationship with Virgil was severed, and she would derive considerable benefit from being placed in a secure and permanent home. Virgil’s assertion that there was mutual affection between him and the minor does not refute this conclusion; even “loving and frequent contact” between a parent and child is not sufficient to establish the exception unless the evidence establishes a significant, positive emotional attachment that, if severed, would cause the child great harm. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) There was no such evidence here. Thus, the juvenile court acted well within its discretion in concluding the beneficial parent-child relationship exception did not apply.
IV
Lisa claims the juvenile court violated due process by relieving her guardian ad litem without a hearing or notice to her prior to the section 366.26 hearing. However, she has failed to show any prejudice. Thus, we reject this claim.
“In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court.” (In re James F. (2008) 42 Cal.4th 901, 910; Code Civ. Proc., § 372.) “Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard,” and if the parent does not consent to the appointment, he or she must also be given “an opportunity to persuade the court that appointment of a guardian ad litem is not required.” (In re James F., supra, 42 Cal.4th at p. 910.)
Appellate opinions have delineated the due process protections required when the juvenile court appoints a guardian ad litem for a parent in a dependency case (see, e.g., In re James F., supra, 42 Cal.4th at pp. 910-911; In re Joann E. (2002) 104 Cal.App.4th 347, 355; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1187-1188; In re Sara D. (2001) 87 Cal.App.4th 661, 663) but none address the due process requirements attendant to relieving a guardian ad litem. We find it unnecessary to address this question because we conclude that there was no prejudice. (See In re James F., supra, at p. 915 [harmless error analysis applies to appointment of guardian ad litem without due process protections].)
Lisa was present at the hearing at which her attorney first told the juvenile court that she believed Lisa no longer required a guardian ad litem. Lisa did not object to her attorney’s suggestion. The issue was raised again two and one-half months later at a hearing at which Lisa was “on phone standby” and not present. Lisa’s attorney and her guardian ad litem both informed the court that Lisa now appeared able to understand and communicate with them and they believed she no longer needed a guardian ad litem. The social worker also had been able to communicate with Lisa. Although Lisa did “not always communicate[] back,” the social worker did not believe it was the result of a lack of comprehension. The minute order from the hearing stated the guardian ad litem was to be relieved 10 days after the service of the order, and a copy of the order was mailed to Lisa two days after the hearing. Again, the record does not disclose any objection by Lisa to the court’s order.
Lisa claims she was prejudiced because she “clearly did not understand the nature of the proceedings” as evidenced by the fact that she believed “the adoption was already ‘a done deal.’” This statement was reported by Lisa’s therapist to the evaluator who was performing the bonding assessment after reunification services were terminated. Assuming Lisa made this statement near in time to when it was reported to the evaluator, which was seven weeks after the termination of services, her assessment is similar to that of the courts in our state, which have recognized that once reunification services are terminated, “termination of parental rights at the section 366.26 hearing is relatively automatic” if a child is otherwise adoptable. (In re Zacharia D. (1993) 6 Cal.4th 435, 447; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.) Far from revealing a lack of understanding of what was occurring, Lisa’s statement disclosed she was well aware of the significance of the proceedings.
Lisa also proposes that a guardian ad litem acting on her behalf might have instructed her attorney to present evidence showing that she could assist Virgil in the home with tasks not involving child care, which would allow him more time to monitor the minor’s sibling to prevent him from harming the minor. This argument is unsupported by any evidence and is purely speculative. Lisa was living in a home to assist her with her mental health problems and had been ordered to remain away from Virgil’s home. Thus, she was not in a position to assist Virgil with the running of his household. Furthermore, nothing in the record suggests that Lisa’s guardian ad litem would have been in any better position to suggest this tack than was Lisa’s attorney.
Because no prejudice has been shown to have resulted from the removal of Lisa’s guardian ad litem, the order was harmless.
V
Appellants contend there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Despite the Department’s concession of error in this regard, we reject the claim.
ICWA was enacted “to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture . . . .’” (In re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902; Mississippi Choctaw v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)
Among ICWA’s procedural safeguards is a provision for notice, which states in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) The Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)
Errors in ICWA notice are subject to review under a harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
At the initial detention hearing in this case, Virgil disclosed that he may have Cherokee heritage, whereas Lisa informed the court she had no Indian ancestry. Notice to “the Cherokee Tribe” was ordered.
Notices containing information concerning appellants as well as the paternal grandmother and great-grandfather were sent to the Bureau of Indian Affairs and to the three federally recognized Cherokee tribes. Responses from two of the tribes stated that, based on the information provided, the minor was not considered an Indian child as to that tribe. The third tribe--the Cherokee Nation--responded that in order to verify the minor’s Cherokee heritage, it required the date of birth of the paternal great-grandfather, “dates of birth for everyone and maiden names of all females.” A subsequent letter from the Cherokee Nation, reflecting the year of the paternal great-grandfather’s birth, stated that, based on the information provided, the minor was not considered an Indian child as to that tribe.
When the minor was detained again a year and a half later, the Department of Health and Human Services was ordered to notify the Cherokee tribes again; and Virgil was ordered to complete a questionnaire regarding his Indian ancestry and return it to the Department within two days. According to a declaration from a paralegal with the Department, the questionnaire had not been received thirteen days later and she had been unable to contact the father or the maternal grandmother. However, the paralegal had previously obtained “a very complete family history” from the paternal grandmother, and she included “all the family and tribal information” which had been made available on the most recent notices to the tribes. The notices contained information about Virgil and the minor’s paternal grandmother and great-grandfather, but did not contain information about Lisa, noting instead that she was “not claiming” Indian heritage.
Two of the tribes responded as they had before--that, based on the information provided, the minor was not an Indian child as to that tribe. No response was received from the Cherokee Nation.
Appellants complain that the notices to the tribes did not contain information concerning Lisa and her ancestors. It is true that such information is required to be included when providing notice under ICWA. (25 C.F.R. §§ 23.11(a) & (d)(3) (2007).) However, Lisa had no Indian heritage; thus, information about her ancestors could not have led to a determination that the minor was an Indian child. Consequently, the omission caused no prejudice.
We reach a similar conclusion as to Lisa’s argument about the lack of information about various relatives of Virgil. She faults the Department for failing to include information about the minor’s paternal grandfather and great-grandmother and the fact that the paternal grandmother had died. However, the Department’s paralegal collected a complete family history from the paternal grandmother. It can be inferred from the paralegal’s declaration and information on the ICWA notices that there was no information indicating that the paternal grandfather or his ancestors had Indian heritage. Accordingly, the failure to include this information on the ICWA notices was harmless.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: BLEASE , J. HULL , J.