Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J516411A-D, Yvonne E. Campos, Judge.
McCONNELL, P. J.
Michael D. and Cynthia R. (together, the parents) appeal juvenile court orders terminating parental rights to their minor children A. D., Joseph D., E. D. and Henry D. (collectively, the minors) under Welfare and Institutions Code section 366.26. The parents contend: (1) substantial evidence does not support the court's finding of "serious damage" under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA); (2) the court erred by finding that terminating parental rights would not substantially interfere with the minors' connection to their tribal community; (3) the evidence was insufficient to support the court's finding there was no beneficial parent-child relationship between Cynthia and the minors; (4) the court should have selected guardianship as the minors' permanent plans because the grandparents' only reason for adopting was financial; and (5) defective ICWA notice to the minors' tribe requires reversal.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Although we agree ICWA notice was deficient, we conclude none of the parents' other contentions have merit. Accordingly, we reverse the orders terminating parental rights for the limited purpose of ensuring compliance with ICWA notice requirements.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006 the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under section 300, subdivision (b) alleging Cynthia's mental condition, including bipolar disorder, prevented her from providing adequate care for the minors, and Michael was unable to protect them. Specifically, the petitions alleged Cynthia was agitated, nervous and paranoid, she believed her kitchen appliances were possessed by spirits and ghosts, and her home was filthy and unsanitary. The court detained the minors in out-of-home care and noted ICWA might apply.
Cynthia received a diagnosis of bipolar disorder when she was 16 years old. At the time the minors were removed from her custody, she was 33 years old.
At a jurisdiction hearing on October 24, the court sustained the allegations of the petitions and set a disposition hearing for November 14. Because both sets of grandparents lived out of state, the court ordered an expedited assessment of their homes under the Interstate Compact on the Placement of Children (ICPC).
The parents have a history of domestic violence. Michael, who is an enrolled member of the Standing Rock Sioux Tribe (the tribe), was incarcerated in Missouri, awaiting extradition to New Mexico. Cynthia was in a psychiatric facility. Agency filed a letter from the tribe indicating the minors were eligible for enrollment. The social worker reported she had spoken to Beverly Ironshield, the tribe's ICWA representative, and informed her that the juvenile court had jurisdiction of the minors. The social worker was unable to determine whether the tribe would intervene on behalf of the minors. Ironshield said the family had not asked the tribe to intervene. By January 2007, the tribe still had not decided whether to intervene.
At a contested disposition hearing in February 2007 the court received into evidence the declaration of Indian expert Phillip Powers, dated December 12, 2006. Powers stated "[a]ctive [e]fforts" had been made to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family, and returning the minors to parental custody "would result in great risk and danger of substantial physical and emotional harm" to the minors. After finding active efforts to prevent the breakup of the Indian family had been unsuccessful, the court declared the minors dependents, removed them from parental custody, placed them in out-of-home care and ordered the parents to participate in reunification services.
During the next six months Cynthia was homeless and made no effort to contact the Agency. Her mental illness remained untreated. She had telephone contact with the minors but was not otherwise participating in services. Michael lived in New Mexico and was on probation. He had two supervised visits with the minors, who had been placed with the maternal grandparents in Missouri. At a six-month review hearing in June 2007 the court continued the minors as dependents, continued Michael's services and terminated Cynthia's services.
According to a 12-month review report, the minors were now enrolled members of the tribe. Michael was again incarcerated in New Mexico. He had not followed up on drug treatment or individual therapy before his incarceration, and had attended only two parenting classes. Cynthia moved from San Diego to Missouri. She reported being employed and going to counseling. However, she continued to refuse medication for her bipolar disorder. The minors' supervised visits with Cynthia were going well. Although A.D. enjoyed visiting Cynthia, she did not want more or longer visits. Michael went to Missouri for a week, but did not visit the minors. The social worker believed it would be detrimental to return the minors to parental custody, and recommended the court set a section 366.26 selection and implementation hearing.
On November 28, 2007, Powell filed another Indian expert declaration. He stated active efforts had been made to prevent the breakup of the Indian family, and agreed with Agency's recommendation to have the court select and implement a permanent plan for the minors. He again found returning the minors to either parent's custody would result in great risk and danger of substantial physical and emotional harm to the minors.
According to various addendum reports, Michael was again incarcerated for failing to comply with conditions of probation and testing positive for drugs. After his release, he did not contact the social worker, and he missed an opportunity to visit the minors. Aurelia was in therapy to process her feelings about Cynthia and their relationship. The therapist reported Aurelia was just beginning to accept her mother's mental illness and she was enjoying visits with her. The therapist did not recommend reunification because Cynthia's mental illness was untreated, and Aurelia was at risk of assuming a parental role. The therapist would consider unsupervised visits only if Cynthia had an extended period of compliance with treatment.
During a psychological evaluation Cynthia did not disclose her history of mental health hospitalizations. She told the evaluator the minors were removed from her custody because she did not send them to school. The evaluator believed Cynthia had no psychological problems and recommended the minors be returned to her care.
At a contested 12-month hearing the court terminated Michael's services and set a hearing under section 366.26 to select and implement permanent plans for the minors.
In an assessment report the social worker recommended adoption as the minors' permanent plans. The minors were doing well in the care of their maternal grandparents, and they also had regular contact, including overnight visits, with their paternal grandparents. The two sets of grandparents interacted well. The maternal grandparents were willing to adopt the minors, and the social worker assessed the minors as both generally and specifically adoptable.
Cynthia was visiting the minors several times a week in the maternal grandparents' home. She behaved appropriately, but the visits remained supervised. Although Cynthia's mental health had stabilized since the beginning of the case, she had a history of acute mental health breakdowns, caused by her refusal to take medication, requiring hospitalizations. It was unclear how long Cynthia would be able to maintain her stability this time. Michael had a pattern of violating probation, resulting in repeated incarceration. Neither parent was able to care for the minors. There was no indication Cynthia's mental illness was being treated appropriately, and the minors needed stability, which they had with the maternal grandparents. The social worker noted the minors would continue to learn about and experience their Indian heritage through contact with the paternal relatives.
After the various permanent plan options were explained to the maternal grandparents they decided to pursue adoption, stating they wanted to do what was best for the minors. The social worker continued to recommend adoption as the minors' permanent plans because they should not have to wait for Cynthia to show she could maintain her stability or for Michael to show he could remain out of jail.
At a selection and implementation hearing that began on October 20, 2008, Cynthia testified she visited the minors two to five times a week, and helped the maternal grandparents with child care and chores. Cynthia said she went to therapy once a week or once every two weeks and was under the care of a psychiatrist, who did not prescribe medication for her.
Social worker Colleen Murray testified Agency sent notice of all proceedings to the tribe, but the tribe had not contacted her and had not sought to intervene. According to the maternal grandparents, Cynthia was having supervised visits with the minors at least twice a week and she attended their school functions and other events. Murray had not received any reports from Cynthia's treatment providers during the past six months.
Murray further testified the maternal grandparents never expressed any hesitation about adopting. After learning about the differences between adoption and guardianship, including the financial ramifications, they reiterated their willingness to adopt.
The maternal grandmother testified Cynthia visited the minors two or three times a week for three or four hours each time. Cynthia helped with the minors and had a good relationship with them. The maternal grandmother believed the visits should no longer be supervised. The minors enjoyed visits with Cynthia and were sad when she left.
The maternal grandmother testified she received information about adoption and guardianship, and knew that funding was available only if the minors were adopted. Money was a factor for her when deciding between adoption and guardianship. The maternal grandmother believed Cynthia might be able to care for the minors now. She preferred guardianship, but was willing to adopt the minors. She supported ongoing contact between the minors and Cynthia, as well as between the minors and their paternal relatives. She believed it was important for the minors to learn about their Indian heritage.
Teresa Schneider, the case manager from Missouri, testified she met with Cynthia several times a month and provided her with service referrals. Schneider never met any of the minors, she was unaware of any special needs they had and she never saw Cynthia parent them. Nevertheless, Schneider wrote a letter stating Cynthia had good insight into the minors' needs and was "perfectly capable" of parenting them. Schneider's only source of information was Cynthia.
The court admitted into evidence the stipulated testimony of Michael, who said the minors asked him about their Indian heritage. He brought them Indian artifacts and talked to them about the tribe. Michael was concerned that if the minors were adopted they would lose the opportunity to learn about their tribe, attend powwows and remain eligible for tribal benefits.
After the court took the matter under submission it issued its orders, noting first that the tribe had been notified of all proceedings and had chosen not to intervene. The court referred to its prior finding that active efforts had been made to prevent the breakup of the Indian family and these efforts were unsuccessful. The court found the minors were adoptable and none of the exceptions to adoption applied to preclude terminating parental rights. Further, the court found, beyond a reasonable doubt, that returning the minors to either parent would likely result in serious emotional or physical damage to the minors. The court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
I
The parents contend the evidence did not show, beyond a reasonable doubt, that their continued custody of the minors was likely to result in serious emotional or physical damage to the minors. They assert the court's finding of detriment was based on a stale declaration by the Indian expert and not on their current circumstances.
A
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing minimum federal standards in juvenile dependency cases. (25 U.S.C. §§ 1901, 1902; In re Robert A. (2007) 147 Cal.App.4th 982, 988.) Those standards require the juvenile court to make certain findings affecting an Indian child before ordering foster care or terminating parental rights. Before the court can terminate parental rights it must make a finding, "supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent... is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(f); see also § 366.26, subd. (c)(2)(B)(ii).)
We refer to this evidentiary finding as the ICWA detriment finding. (See In re Barbara R. (2006) 137 Cal.App.4th 941, 950.)
We review the court's ICWA detriment finding for substantial evidence. (In re Barbara R., supra, 137 Cal.App.4th at p. 951.) Under this standard, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence to the contrary. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
In terminating parental rights, the court here expressly found, beyond a reasonable doubt, that the minors' continued custody by either parent would likely result in serious emotional or physical damage to the minors. The parents concede the court made factual findings as to detriment in accordance with ICWA, but they assert those findings are not supported by substantial evidence, in part because the required expert testimony—Powers's declaration—was more than a year old at the time the court issued its decision.
Agency claims the parents forfeited any arguments regarding Powers's declaration by failing to raise them in the trial court. Although the parents did not specifically object to the adequacy of Powers's declaration, they did generally challenge the sufficiency of the evidence to support the ICWA detriment finding. Because the ICWA detriment finding necessarily includes testimony of an Indian expert, the issue the parents now raise was squarely before the court. (In re P.C. (2006) 137 Cal.App.4th 279, 288 [argument that substantial evidence does not support judgment is " 'obvious exception' " to forfeiture rule].) Moreover, because ICWA requires findings that are supported in part by testimony of an Indian expert, and the responsibility for ICWA compliance fell affirmatively on the juvenile court, the parents' general objections were sufficient to preserve the issue for appeal. (See Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410 [compliance with ICWA notice was responsibility of juvenile court]; see also In re Alice M. (2008) 161 Cal.App.4th 1189, 1197 [interest in proper ICWA notice belongs to the tribes].)
C
The most recent Indian expert testimony was provided by Powers in his declaration dated November 28, 2007, which the court received into evidence without objection at the 12-month hearing on April 1, 2008. Powers also testified telephonically at that hearing, reiterating his opinion as stated in his declaration. The parents expressly declined to cross-examine him. In recommending against returning the minors to parental custody, Powers reviewed the case files multiple times, interviewed the social worker and the maternal grandfather, and conferred with ICWA director Ironshield. Powers noted Michael failed to participate in reunification services, despite receiving referrals for substance abuse treatment and mental health counseling. Michael had been incarcerated during most of the dependency proceedings and was unable to regularly visit the minors. He was currently on probation in New Mexico and was attempting to have his case transferred to Missouri to be near the minors.
With respect to Cynthia, Powers's declaration noted the minors became dependents as a result of Cynthia's mental illness, and she resisted mental health services and treatment, resulting in termination of her reunification services in June 2007. After Cynthia moved from San Diego to Missouri to be near the minors she found employment, began participating in therapy, had a psychological evaluation, took a parenting class and regularly visited the minors. However, her mental illness remained untreated because she was not under psychiatric care and refused to take medication for her bipolar disorder. Powers concluded that returning the minors to either parent's custody would result in great risk and danger of substantial physical and emotional harm to the minors.
The court did not make its ICWA detriment finding based solely on Powers's declaration. Indeed, ICWA requires the detriment finding be made from evidence that includes expert testimony. (25 U.S.C. § 1912(f); § 366.26, subd. (c)(2)(B)(ii).) This is precisely what the court did: it made its ICWA detriment finding after considering all the evidence, observing all the witnesses and assessing their credibility. Thus, even though Powers did not submit a more recent declaration, the court was entitled to consider his opinion in the context of other updated information when making its ICWA detriment finding beyond a reasonable doubt.
Further, the passage of nearly seven months since the court admitted Powers's expert testimony did not necessarily render the evidence stale at the selection and implementation hearing. An Indian expert's opinion based on the circumstances existing at an earlier hearing retains its evidentiary value in a later hearing as long as there has been no substantial change in circumstances. (In re Barbara R., supra, 137 Cal.App.4th at p. 950.) Here, the parents did not show their circumstances had changed in any meaningful way since Powers testified. Although Michael had several visits with the minors in the ensuing months, he failed to participate in services to address his drug and alcohol problem, he was repeatedly incarcerated, and he continued to violate the terms of his probation, which prevented him from moving to Missouri to be near the minors. Cynthia's mental health had stabilized, but her underlying mental illness remained untreated. She failed to disclose her previous diagnoses and history of psychiatric hospitalizations when participating in a psychological evaluation. Although Cynthia was able to maintain a relationship with the minors and assist with their care, she did not show she could independently parent them, and her visits remained supervised. Any changes in the parents' circumstances were not sufficient to render Powers's declaration stale. (See In re Barbara R., supra, 137 Cal.App.4th at p. 952.)
At the time of the selection and implementation hearing, the parents were unable to show they could safely parent the minors or provide them with long-term stability. The court expressly disbelieved the testimony of Cynthia's witnesses that she was capable of raising her children. Substantial evidence, which included the parents' current circumstances as well as Powers's expert declaration and testimony, supported the court's finding, beyond a reasonable doubt, that continued custody of the minors by either parent was likely to result in serious emotional or physical damage to the minors. (25 U.S.C. § 1912(f); § 366.26, subd. (c)(2)(B)(ii); In re Brandon T. (2008) 164 Cal.App.4th 1400, 1412-1413; In re Krystle D. (1994) 30 Cal.App.4th 1778, 1801.)
II
The parents challenge the sufficiency of the evidence to support the court's finding that the Indian child exception to adoption did not apply to preclude terminating parental rights. (§ 366.26, subd. (c)(1)(B)(vi)(I).) They assert that under this exception, terminating Michael's parental rights and allowing adoption by the maternal grandparents will substantially interfere with the minors' connection to their tribal community.
A
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one or more of the enumerated statutory exceptions. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) "The parent has the burden of establishing the existence of any circumstance that constitutes an exception to termination of parental rights. [Citation]." (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Because a selection and implementation hearing occurs "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. (2000) 78 Cal.App.4th 1339, 1350.)
Section 366.26, subdivision (c)(1)(B)(vi)(I) provides an exception to the adoption preference for an Indian child when there is a compelling reason for the court to determine that terminating parental rights would not be in the child's best interests because it "would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights." This so-called Indian child exception recognizes the Legislature's intent regarding the implementation of ICWA in California: to encourage and protect the Indian child's membership in his or her tribe and connection to the tribal community. (§ 224, subd. (a)(2); In re A.A., supra, 167 Cal.App.4th at p. 1322.)
We review the court's finding regarding the applicability of a statutory exception to adoption for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re S.B. (2005) 130 Cal.App.4th 1148, 1157.) In this regard, we do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)
B
Here, the parents did not meet their burdens of showing that terminating parental rights would substantially interfere with the minors' connection to their tribal community. (In re A.A., supra, 167 Cal.App.4th at p. 1324 [parents had evidentiary burden to establish parental rights termination would interfere substantially with children's connection to tribal community].) The evidence showed the minors were living with the maternal grandparents in accordance with ICWA placement preferences. (25 U.S.C. § 1915(b)(i); § 361.31, subd. (b)(1) [preference must be given to placing Indian child with a member of the child's extended family].) The maternal grandparents, although they had no Indian heritage, supported the minors' connection to their tribal community by taking them to a tribal event. They intended to encourage the minors' affiliation with their tribe. Indeed, the maternal grandmother testified it was important that the minors learn about their Indian heritage. Further, the minors had regular and frequent contact, including overnight visits, with the paternal grandparents, who did have Indian heritage. The two sets of grandparents interacted well and the maternal grandmother supported ongoing contact between the minors and their paternal relatives. As the social worker noted, the minors would continue to learn about and experience their Indian heritage through contact with the paternal relatives. Substantial evidence supports the court's finding there was no compelling reason to determine that terminating parental rights would be contrary to the minors' best interests because it would substantially interfere with their connection to the tribal community.
III
Cynthia challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating her parental rights. She asserts she regularly visited the minors, and her positive, loving relationship with them outweighed their need for adoption. Michael joins in this argument.
A
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption preference if terminating parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "promotes 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 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; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811; In re Jason J. (2009) 175 Cal.App.4th 922, 936-937.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-937; In re Derek W. (1999) 73 Cal.App.4th 823, 827.) 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. (In re Derek W., supra, at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Agency concedes, and we agree, Cynthia maintained regular visitation and contact with the minors. However, Cynthia did not meet her burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i).
The minors became dependents because Cynthia's mental illness caused her to neglect and emotionally abuse them. Cynthia did not participate in services and she refused treatment for her bipolar disorder, which plagued her for many years. Although Cynthia's mental health had recently stabilized, she was not forthcoming with her treatment providers in Missouri, and she continued to deny that her mental condition placed the minors at risk. She never had an extended period of compliance with treatment. Under these circumstances, it was questionable whether Cynthia could maintain her stability to raise four young children. Her visits with the minors in the maternal grandparents' home were appropriate, but remained supervised. Cynthia spent considerable time providing for her own needs and was unable to meet the needs of the minors on a daily basis. As the maternal grandfather stated, Cynthia was not ready to be a full-time parent.
Whether Cynthia could parent the minors was not, in and of itself, determinative of whether she had a beneficial parent-child relationship with them. However, the court was entitled to consider this evidence when evaluating the strength and quality of the parent-child relationship, as well as the minors' need for stability and permanence. (In re Brittany C. (1999) 76 Cal.App.4th 847, 854 [when biological parent does not fulfill parental role, child should be given every opportunity to bond with individual who will assume the role of parent].)
Cynthia's relationship with the minors was loving, pleasant and sometimes parental, and the minors enjoyed visits with Cynthia. However, there was no evidence the minors had a "significant, positive, emotional attachment" to her such that terminating the parent-child relationship would result in great harm to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jason J., supra, 175 Cal.App.4th at p. 938.) "A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Cynthia's reliance on In re S.B. (2008) 164 Cal.App.4th 289, 300-301, is misplaced. The decision in that case does not "stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (In re Jason J., supra, 175 Cal.App.4th at p. 937.)
Further, Cynthia did not show that maintaining the relationship with the minors outweighed the benefits of adoption for them. The minors initially had symptoms of anxiety, depression and other negative behaviors, but were now thriving in the care of the maternal grandparents, who provided them with a stable and loving environment and were committed to adopting them. In the social worker's opinion, Cynthia's relationship with the minors did not outweigh the benefits of lifelong stability, safety and guidance that adoption by the maternal grandparents would provide. (In re Justice P. (2004) 123 Cal.App.4th 181, 191 [child's interest in stable and permanent home is paramount once a parent's interest in reunification is no longer at issue].) "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) The court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for the minors. We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) Substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating parental rights.
IV
The parents contend the court should have selected a permanent plan of guardianship or long-term foster care for the minors because the maternal grandparents' sole motivation to adopt was financial. While acknowledging the exception to adoption in section 366.26, subdivision (c)(1)(A) does not apply here, they nevertheless assert a prospective adoptive parent's finances are not an appropriate consideration for the court in selecting a permanent plan. They claim strong policy reasons in this case favor guardianship over adoption.
Section 366.26, subdivision (c)(1)(A) provides an exception to adoption if "[t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child."
A
Although the maternal grandmother testified the monetary assistance accompanying adoption was a factor in her decision to adopt the minors, other evidence showed the maternal grandparents wanted to do what was best for the minors, and they were able and willing to adopt them. The maternal grandmother's statement that, all else being equal, she preferred guardianship, is not relevant because the court's task was to select the plan which best serves the minors' interests. (In re Xavier G. (2007) 157 Cal.App.4th 208, 214.) The record belies the parents' argument that financial incentive was the only reason the maternal grandparents agreed to adopt.
B
As we previously discussed, adoption is the Legislature's clear preference. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "The Legislature has decreed... that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent plan and secure alternative that can be afforded them." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) Where, as here, a child is adoptable and none of the enumerated statutory exceptions apply, an order for adoption as the preferred permanent plan will be " 'relatively automatic'.... [Citation.]" (In re Matthew C. (1993) 6 Cal.4th 386, 392.)
The court selected adoption for the minors based on the evidence and on the statutory preference for adoption as the most permanent plan, and thus the one that served the minors' best interests. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.) There is no reason, supported by policy or the law, to deviate from the Legislature's preference for adoption here.
V
The parents contend their parental rights were terminated without proper ICWA notice because: (1) the tribe never received notice of its absolute right to intervene in the proceedings or transfer the proceedings to a tribal court; and (2) notice of the selection and implementation hearing was not sent by certified mail with return receipt requested, or to a correct address. They request a limited reversal for the purpose of perfecting notice to the tribe.
A
If a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene or obtain jurisdiction over the proceedings by transfer to the tribal court. (25 U.S.C. § 1912(a); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) " 'Of course, the tribe's right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.' [Citation.] 'Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.' [Citation.]" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) ICWA notice requirements are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)
To protect a tribe's rights under ICWA, the party seeking foster care placement or termination of parental rights must provide the tribe with notice of the pending proceedings and the right to intervene "by registered mail with return receipt requested." (25 U.S.C. § 1912(a); § 224.2, subd. (a).) ICWA requires actual notice to the tribe; "[m]ere 'awareness' of the proceedings is not sufficient." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266.)
B
Here, Agency sent notice of the jurisdiction and disposition hearings on form JV-135 (now form ICWA-030)—"Notice of Involuntary Child Custody Proceedings For An Indian Child"—to the parents and nine tribes. That form includes the required notices under ICWA and California law regarding a tribe's rights of intervention and transfer of proceedings. Notably, the Standing Rock Sioux Tribe was not one of the tribes to whom this form was sent. There is no evidence in the record before us that the tribe was sent or received notice of its rights under ICWA.
Further, even after Agency sent the tribe notice of Michael's enrollment in the Sioux Nation and received confirmation that Michael was an enrolled member of the Standing Rock Sioux Tribe, the tribe's ICWA representative, Ironshield, believed this was a family law matter, and she did not know Agency was involved. The social worker informed Ironshield by telephone that the juvenile court had jurisdiction of the minors and sent Ironshield information by fax, but received no response regarding whether the tribe would intervene. Instead, Ironshield stated the family had not asked the tribe to intervene. Agency argues this statement "certainly indicates the tribe knew [it] had the right to intervene if [it] chose to do so." However, because the only evidence of the tribe's knowledge of its rights of intervention and transfer is a telephone conversation between the social worker and Ironshield, it is impossible for us to determine whether the tribe's decision not to intervene was based on an erroneous belief regarding ICWA requirements for intervention or on legitimate tribal policy. (In re Kahlen W., supra, 233 Cal.App.3d at pp. 1423-1424.) Under these circumstances, we cannot say there was substantial compliance with ICWA notice. (Id. at p. 1424.) Where, as here, a tribe has not participated in the proceedings and has not expressly indicated it has no interest in the proceedings, failure to provide proper notice under ICWA cannot be deemed harmless error. (Ibid.)
The record is also unclear as to whether notice of the selection and implementation hearing was sent to the tribe at the correct address by registered mail, return receipt requested, which is required for all hearings at which a party is seeking to terminate parental rights. (25 U.S.C. § 1912(a); § 224.2, subds. (a)(1) & (b).) Agency sent copies of the minute orders to the tribe at two different post office box addresses by first class mail. It is impossible to determine on this record whether notice was sent to the proper address. (In re Mary G. (2007) 151 Cal.App.4th 184, 211 [sending ICWA notice to wrong address is prejudicial error where record lacks conclusive evidence the tribe received actual notice].) The social worker's statements in reports that she communicated with Ironshield are inadequate to show the tribe received proper notice. (In re Samuel P., supra, 99 Cal.App.4th at p. 1266.)
Because we do not have a sufficient record from which to determine whether there has been compliance with the notice provisions of ICWA, the appropriate remedy is a conditional reversal of the judgment terminating parental rights and a remand for proper ICWA notice. (See In re J.T. (2007) 154 Cal.App.4th 986, 994; In re B.R. (2009) 176 Cal.App.4th 773, 785.)
DISPOSITION
The orders terminating parental rights are reversed and the juvenile court is directed to comply with the notice provisions of ICWA with respect to the Standing Rock Sioux Tribe. If, after proper notice and inquiry, the Standing Rock Sioux Tribe does not intervene, the court shall reinstate the orders. If the Standing Rock Sioux
Tribe intervenes, the court is ordered to conduct a new section 366.26 selection and implementation hearing in accordance with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.)
WE CONCUR: BENKE, J., AARON, J.