Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. JV320218A, JV320218B
Haerle, J.
I. INTRODUCTION
K.C. is the birth mother of A.I. and R.C., who were removed from her care in March 2009. In a prior appeal, pursuant to stipulation of the parties, this court conditionally reversed the disposition order for the sole and limited purpose of complying with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related federal and state law. The Lake County Department of Social Services (department) gave notice of a renewed disposition hearing. At that hearing, the juvenile court found that notice was properly given and the ICWA did not apply, and reinstated the dispositional order.
This appeal follows a Welfare and Institutions Code section 366.26 permanency planning hearing at which the court terminated parental rights and ordered the children placed for adoption. Appellant appeals from these finding and orders, contending that the department once again did not comply with the notice requirements of the ICWA and that her parental rights should not have been terminated because she maintained a beneficial parental relationship with the children (§ 366.26, subd. (c)(1)(B)(i)). We will affirm.
All further unspecified statutory references are to the Welfare and Institutions Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts pertaining to the ICWA claim are lengthy and complex. We have, therefore, presented them separately in the section of the brief addressing those claims.
On March 13, 2009, the department filed a juvenile dependency petition alleging that A.I., who was almost three years old, and R.C., who was 19 months old, came within section 300, subdivisions (b) and (g). The children had been detained two days earlier, when appellant was arrested for being under the influence of a controlled substance while the children were in her care. The petition alleged that appellant had a significant substance abuse history, including consistent use of marijuana and methamphetamines, as well as pending child endangerment charges. The petition also alleged a history of domestic violence, including a June 13, 2007, arrest for felony spousal/cohabitant abuse after a physical altercation with her boyfriend Daniel C. (Daniel), wherein she kicked out several of his teeth and a February 16, 2009, arrest for violations of a court order to prevent domestic violence. Appellant was also alleged to place the children at risk due to her history of mental health issues, including Attention Deficit Hyperactivity Disorder (ADHD) and severe emotional disorder for which she opted to self-medicate and refused to take her prescription medications and participate in behavioral health services. It was also alleged that the living conditions of the children were “inadequate, unsanitary, and hazardous, ” including poor hygiene of the children, insufficient food for them, and “rotten food, cigarette butts, and miscellaneous garbage and debris strewn throughout the home.” Appellant stated that she may have Pomo or Apache Native American heritage.
As to Daniel, the alleged father of R.C., the petition alleged a significant drug abuse history, a history of domestic violence, a history of mental health issues, and that he provided inadequate living conditions for the children. The petition also alleged that Andrew I. (Andrew), the alleged father of A.I., had a criminal history including current incarceration for rape.
This appeal concerns only appellant’s claims. Neither alleged father is involved in this appeal.
The jurisdiction report, filed on April 2, 2009, stated that A.I. and R.C. were placed together in a foster home. The report describes both appellant and Daniel as developmentally delayed and as having multiple contacts with social services and law enforcement. It also describes the poor hygiene and condition of the children and the unsanitary condition of the home when the children were removed from parental custody.
Appellant submitted the petition on the basis of the social worker’s report, as did Andrew. Daniel pleaded no contest to jurisdiction. On April 13, 2009, at the jurisdiction hearing, the court sustained the allegations of the petition and set a disposition hearing.
The April 27, 2009, disposition report stated that the children were doing well in their foster home. They played well with each other and the other children in the home. A.I. had severe tooth decay, for which oral surgery was scheduled. Otherwise, both children were healthy and appeared to have no developmental issues. They smiled and appeared happy to see appellant and Daniel at the beginning of visits, but they separated easily from them at the conclusion of each visit. Appellant and Daniel interacted appropriately with the children during visits and attended all scheduled visits with the exception that appellant missed one visit. The maternal grandparents, appellant and Daniel all wanted the children placed with the maternal grandparents. However, the department’s meeting with the maternal grandparents did not go well. Due to their child welfare history and recent behavior documented in the report, the department recommended against placing the children with the maternal grandparents and asked the court for discretion in assessing the appropriateness of the grandparents’ visitation with the children. The department recommended that the children be declared dependents, that they remain in out-of-home placement, that reunification services be offered to appellant and Daniel, and that no services be ordered for Andrew. The disposition hearing was continued to June 22, 2009, with reunification services offered in the interim.
At a hearing on May 4, 2009, the court held a Marsden hearing and denied appellant’s request for different counsel. On the same date, the court ordered no visitation with the maternal grandparents, recommended that they seek counsel, and stated that it was considering issuing a restraining order.
People v. Marsden (1970) 2 Cal.3d 118.
On May 9, 2009, appellant was arrested for violating a court order to prevent domestic violence.
On May 15, 2009, the social worker filed applications for restraining orders with respect to both maternal grandparents. On May 20, 2009, the court ordered all restraining orders regarding the maternal grandparents to be dissolved and ordered supervised visitation for the maternal grandparents. It also ordered Andrew to have supervised visitation with A.I.
In an addendum report filed on June 18, 2009, the department opined that it would not be in the best interest of the children to be placed with the maternal grandparents. The department also reported that the children had made an excellent adjustment to their current placement.
At the June 22, 2009, disposition hearing, the court adopted the recommendations of the department, ordered reunification services for all three parents, and found that the extent of progress of each of the three parents was poor. The court set the six-month review for October 26, 2009. It also found that both Daniel and Andrew were presumed fathers. Both appellant and Daniel appealed the dispositional findings and orders.
On July 19, 2009, appellant was arrested again for violation of a court order to prevent domestic violence. On the same date, it was reported that Daniel continuously slammed appellant’s head into a wall.
On September 23, 2009, the court terminated visitation for Andrew with A.I. On September 28, 2009, the court terminated reunification services for Andrew.
On October 8, 2009, the department recommended termination of services for appellant and Daniel.
The six-month review report dated October 26, 2009, stated that the children were placed together in a concurrent planning home. According to the report, both children appeared to be happy in their placement. Both were within the normal developmental ranges. R.C. was being treated for intoeing and folliculitis, and both children were carriers of Methicillin-Resistant Staphylococcus Aureus (MRSA).
The report described ongoing problems with domestic violence between appellant and Daniel in May and July 2009. According to the report, both appellant and Daniel were living in the home of the maternal grandparents and receiving Supplemental Security Income, but they both agreed it was not in their best interest to remain in the home of appellant’s parents. Appellant and Daniel felt that the maternal grandparents were taking advantage of them financially. In the past, they had let methamphetamine users into their home, felt helpless to regain control of the home, and had started using methamphetamines themselves.
In addition, the report described appellant and Daniel’s compliance with services as poor. Appellant had not completed a parenting program or a substance abuse assessment, and had not participated in substance abuse treatment. Appellant insisted that her use of marijuana did not require treatment. She and Daniel were on a waiting list for housing through the regional center. It was reported that prior to September, both appellant and Daniel had refused services from the regional center, but they began to cooperate with services in September. Neither parent was eligible for counseling services because of their marijuana use. The regional center was arranging for both parents to receive psychological evaluations.
The quality of the parents’ visits with the children was described as varied, and their attendance, sporadic. Appellant often looked bored or disinterested during visits and did not consistently engage with the children. Their progress toward completing their service plans was described as poor. The social worker assessed that the parents were easily influenced by others and were easy targets for victimization. The social worker concluded that it was not likely that the parents would be able to reunify with the children if more services were provided, and recommended that services be terminated.
A supplemental report for the continued six-month status review hearing described the department’s ICWA notice efforts. It also stated that psychological evaluations of appellant and Daniel had been completed. The psychologist reported that, “due to ‘psychiatric and cognitive deficiencies, along with cannabis abuse[, ]’ the parents [were] not able to utilize services or parent their children, ” and that “ ‘no services could help them... within six months, twelve months or even two years.’ ”
At the contested six-month review hearing on December 14, 2009, appellant and Daniel requested an additional six months of services. The court terminated appellant and Daniel’s reunification services and set the children’s cases for a section 366.26 hearing on March 1, 2010.
On December 21, 2009, appellant filed a notice of intent to file a writ petition, but no petition was ever filed.
On December 22, 2009, the department asked the court to find that the ICWA does not apply based on exhibits attached to the December 4, 2009, report. On January 11, 2010, the court found that the ICWA does not apply.
On January 15, 2010, counsel for the department asked the court to vacate the ICWA finding because its December 4, 2009, report contained incomplete ICWA compliance information. The court set aside the ICWA finding, vacated the March 1, 2010, section 366.26 hearing, and set a “renewed disposition hearing” for April 26, 2010. In addition, it was noted at this hearing that visitation for appellant and Daniel had been reduced to once a month.
On April 15, 2010, pursuant to stipulated reversal, this court conditionally reversed the disposition order of June 22, 2009, for the sole purpose of ensuring compliance with the ICWA. The matter was remanded to the juvenile court with directions to order the department to comply with the ICWA’s notice requirements and to determine the department’s compliance. This court also ordered that if there was no determinative response 60 days after proper notice, the juvenile court was required to find that the child was not an Indian child and that the ICWA did not apply.
In an ICWA compliance report dated April 26, 2010, the department recommended that the court find that the ICWA did not apply. The contents of this report and attachments thereto are more fully discussed post. At the hearing on April 26, 2010, the court found that the ICWA did not apply, reinstated the dispositional orders of June 22, 2009, and set the matter for a section 366.26 hearing.
Appellant, Daniel and Andrew each filed notices of intent to file writ petitions on May 3, 2010. This court ordered the filing of the record stricken on June 21, 2010, for failure of any party to timely file a petition for extraordinary writ.
The section 366.26 report, filed on June 18, 2010, states that the children have monthly supervised visits with their parents. Appellant and Daniel attended the March and April visits, but called an hour prior to the May visit to report that they would not be able to make it. The report also stated that the children are sociable and likable, and that they enjoy playing with other children including their older foster siblings. The foster family had many activities planned for the summer, including a trip to Legoland. The foster parents are aware of some of the difficult behaviors they may face in the future, but are committed to providing the children with a safe, loving home environment and the sense of stability they need. The department recommended that appellant’s and Daniel’s parental rights be terminated and that the court establish a permanent plan of adoption.
The department’s adoption assessment reported that A.I. and R.C. had been in out-of-home care since March 11, 2009, and in their current placement since May 2009. The foster parents wished to adopt both children. Four-year-old A.I. was described as being in good health and having no developmental delays. He was doing well in preschool. Although he became easily frustrated, he was learning to express it more appropriately. After visits with appellant and Daniel, he often returned to his foster home agitated and aggressive. This behavior had decreased since the frequency of visits was reduced. A.I.’s behavior reflected a high degree of comfort in his foster home and the development of a secure attachment with his foster parents. He sought them out for instruction, comfort, affection, and assistance.
R.C. was also in good overall health, other than her problem with intoeing. She had been receiving physical therapy and might need leg braces in the future. No developmental delays had been noted, and her mental and emotional status were both good. She reportedly was comfortable with her foster parents, and actively sought out their affection, direction and assistance. She referred to them as “Mommy” and “Daddy, ” and appeared to be developing a positive secure attachment to them. She referred to the other two girls in the home as “sister.”
The foster/prospective adoptive parents were described as “very committed to the children” and wanted to adopt them. They have two biological daughters, aged 11 and eight, and the father has a 16-year-old son from a previous marriage who is in the home periodically. The parents both work in child care.
The report stated that appellant and Daniel visited with the children together throughout the dependency, and the maternal grandparents were typically present at visits. Appellant and Daniel “demonstrated very limited ability to interact with the children in [an] appropriate manner. They had virtually no ability to anticipate the children’s needs and very limited ability to respond appropriately to the children even with direction.” The maternal grandparents were described as “repeatedly inappropriate and sometimes verbally hostile toward the CPS staff in the context of visits.” In addition, the maternal grandmother “actively dissuaded [appellant] from participating in reunification services.”
On June 22, 2010, appellant filed a section 388 petition asking the court to vacate the section 366.26 hearing date and grant another six months of services. The court summarily denied the petition because the request did not “state new evidence or a change of circumstances.”
On June 28, 2010, the section 366.26 hearing was continued to July 26, 2010. In the meantime, and over appellant’s objection, the court ordered appellant to be drug-tested that day. The drug test was positive for marijuana.
At the continued hearing, appellant testified that her visitation schedule with the children was once a month, but she was not always able to stick to the schedule. Her last visit was on July 1, 2010. Appellant’s parents and Daniel usually attended the visits with her. Appellant stated that the children recognize her when she visits; their eyes light up, and they say, “Mommy.” During visits, they play and appear happy and content. A.I. always asks, “Mommy, can I come home with you?” Appellant wanted her children to return home to her. Appellant’s attorney requested that the court not terminate appellant’s parental rights and consider a plan for guardianship because appellant had a beneficial parental relationship with the children and it was in the children’s best interests to maintain that bond. (§ 366.26, subd. (c)(1)(B)(II).) The court adopted the department’s findings and recommendations. It ordered parental rights terminated and the children placed for adoption.
On August 2, 2010, appellant filed timely notices of appeal from the termination of her parental rights as to both A.I. and R.C.
III. DISCUSSION
A. ICWA’s Notice Requirements.
1. Facts.
Appellant initially identified possible Apache and/or Pomo heritage; she subsequently identified possible Pueblo heritage. During the time frame applicable here, there were eight federally recognized Apache affiliated tribes, 22 federally recognized Pomo affiliated tribes, and 20 federally recognized Pueblo affiliated tribes. (74 Fed. Reg. 19326, 19344.)
ICWA notices filed with the court on March 25, 2009, indicated Apache and Pomo heritage. ICWA notices filed on April 9, 2009, also included the Pueblo tribes. A six-month review continued status report dated December 7, 2009, included an ICWA compliance report regarding ICWA notice of the disposition hearing. Based on the December 2009 report and exhibits attached thereto, the department asked the court to make a finding that the ICWA did not apply. On January 11, 2010, the court made this finding and set the matter for a section 366.26 hearing.
Shortly thereafter, the department notified the court that it had failed to properly notice several tribes of the disposition hearing. On January 19, 2010, the court vacated both the ICWA finding and the section 366.26 hearing, and set the matter for a renewed disposition hearing on April 26, 2010.
Concurrently, appellant’s appeal from the juvenile court’s dispositional findings and orders was pending in this court. On April 15, 2010, pursuant to the parties’ stipulation, this court filed its order reversing the disposition order of June 22, 2009, for the limited purpose of assuring compliance with the ICWA, and remanding the matter to the juvenile court.
Pursuant to its renewed noticing effort, the notice at issue in this appeal, on February 16, 2010, the department filed an ICWA notice form as to each child, and proceeded with providing notice of the renewed disposition hearing to the parents, the potential tribes, the Sacramento Area Director of the Bureau of Indian Affairs (BIA), and the Secretary of the Interior.
On April 22, 2010, the department filed its ICWA compliance report for the renewed disposition hearing on April 26, 2010. Once again, the department recommended that the court find that the ICWA did not apply. The department reported that, of the 50 tribes that were noticed, 38 responded that the children were not members or eligible for membership. Of the 12 tribes that had not yet responded, seven had responded to prior notices that the children were not members or eligible for membership.
The February 16, 2010, ICWA notices on behalf of each child were sent to all 50 tribes via U.S. Postal Service by certified return receipt requested mail. The department also mailed and/or faxed letters of clarification requesting a response to the notices, and then sent a second notice by certified return receipt requested mail on March 26, 2010, to all tribes that had not yet responded. The ICWA compliance report contained a table identifying (1) the name of the tribe and date of initial notice (February 17, 2010); (2) the tribe’s response (if any) and date it was received; (3) reminder and/or clarification letters requesting a response, with date and method of delivery; and (4) second notice (if necessary) sent on March 26, 2010, and method of delivery. The department attached the following documentation to the compliance report: the ICWA notices, certified mail receipts, return receipts, letters faxed and/or mailed to tribal representatives, letters faxed with copies of the ICWA notices as a reminder, responses received from tribes, and returned mail.
At the hearing on April 26, 2010, counsel for the department advised the court that it could make a finding that the ICWA did not apply because the tribes were properly noticed on February 17, 2010; no tribe had come forth; and it had been 68 days since February 17 when proper notice was given. Appellant’s counsel stated that she had no objection. Based on the evidence presented, the court found that the ICWA did not apply. It also reinstated the dispositional orders of June 22, 2009, and set a section 366.26 hearing.
2. Legal Principles.
In 1978, Congress enacted the ICWA to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) To further these goals, “[t]he ICWA presumes it is in the best interests of the Indian child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The ICWA thus establishes minimum federal procedural and substantive standards governing the removal of children of Indian ancestry from their families. In addition, the ICWA has a preference for giving jurisdiction over proceedings involving an Indian child to the tribe, which has “the right to intervene at any point in state court dependency proceedings. (25 U.S.C. § 1911(c); In re Desiree F., supra, 83 Cal.App.4th at p. 473.) ‘Of course, the tribe’s right to assert jurisdiction over the proceeding or to intervene 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.’ (In re Kahlen W.[, supra, ] 233 Cal.App.3d [at p.] 1421.)” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
Both the juvenile court and the county social services agency have an affirmative and a continuing duty to inquire as to whether a child subject to a dependency petition is or may be an Indian child. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.482(a).) The child’s status as an Indian child need not be conclusive or certain to trigger the notice requirements because the determination of tribal membership or eligibility for membership is made exclusively by each Indian tribe. (§ 224.3, subd. (e); In re H.A. (2002) 103 Cal.App.4th 1206, 1211; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at pp. 255, 261; In re Jonathan D. (2001) 92 Cal.App.4th 105.)
In a dependency proceeding, where the state 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. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe....” (25 U.S.C. § 1912(a); see also § 224.2, subd. (a) [once the duty to provide notice is triggered, notice must be sent by registered or certified mail with return receipt requested]; Cal. Rules of Court, rule 5.481(b).)
Notice of the proceedings must be sent to all tribes of which the child may be a member or eligible for membership. (Cal. Rules of Court, rule 5.481(b)(1).) In addition, notice to the tribe “must be sent to the tribal chairperson unless the tribe has designated another agent for service.” (Cal. Rules of Court, rule 5.481(b)(4).) The current names and addresses of the designated agents are published periodically in the Federal Register. (25 C.F.R. § 23.12; see, e.g., Indian Child Welfare Act, Receipt of Designated Tribal Agents for Service of Notice, 74 Fed. Reg. 19326-19370 (Apr. 28, 2009).)
Notice is required for every hearing in dependency proceedings unless it is determined that the ICWA does not apply. (§ 224.2, subd. (b).) In addition, “[p]roof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing except as permitted under subdivision (d).” (§ 224.2, subd. (c).) Thus, compliance with the ICWA notice provisions is a two-step process: first, the social services agency must identify any possible tribal affiliations and send proper notice to those entities, return receipt requested; second, the agency must provide the court with proof of the notice. (In re H.A., supra, 103 Cal.App.4th at pp. 1214-1215; In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740 fn. 4.) In accordance with its duty to ensure compliance with the ICWA, the juvenile court must then review the notices and make a determination as to whether there has been compliance with the notice provisions of ICWA. (In re H.A., supra, 103 Cal.App.4th at p. 1211; In re Marinna J., supra, 90 Cal.App.4th 731; In re Asia L. (2003) 107 Cal.App.4th 498, 507-508.)
Challenges to the adequacy of the ICWA notice and to the juvenile court’s finding that the ICWA does not apply are governed by the substantial evidence standard of review. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 [substantial evidence review of whether duty to inquire into possible Indian heritage was satisfied]; In re Merrick V. (2004) 122 Cal.App.4th 235, 247 [to determine whether notice was adequate, court must review whether sufficient information was provided by agency]; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941-943 [record contained sufficient evidence that a proper inquiry was made regarding whether child was an Indian child].) Under this standard, “ ‘ “the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, ” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on another ground as noted in Armendariz v. Foundation Health Psychcare Services Inc. (2000) 24 Cal.4th 83, 100.) The appellate court does not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Errors relating to ICWA notice are reviewed under the harmless error standard. (In re H.B. (2008) 161 Cal.App.4th 115, 121; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)
3. Analysis.
Appellant contends that the juvenile court erred in determining that the department gave proper ICWA notice to five of the 50 identified tribes. She raises no argument regarding the substance of the notice, such as that the department neglected to include any relevant information known to it in the notices provided to the tribes and the BIA. Rather, she argues that notice was inadequate because it failed to comply with procedural requirements contained in the ICWA. The errors were prejudicial, according to appellant, and thus reversal is required.
As an initial matter, we reject the department’s contention that appellant waived the ICWA notice claims by failing to raise them in the juvenile court. Notice requirements are intended to protect the interests of Indian tribes. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.) The juvenile court has a continuing duty to ensure compliance with the notice requirements. (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 261.) Thus, a parent cannot waive or forfeit a tribe’s right to notice; nor does parental inaction excuse an error by the juvenile court in providing notice. (In re Marinna J., supra, 90 Cal.App.4th at p. 739; see also In re B.R. (2009) 176 Cal.App.4th 773, 779-780; In re Liliana S. (2004) 115 Cal.App.4th 585, 589, fn. 3; In re Nikki R. (2003) 106 Cal.App.4th 844, 849.)
Moving on to the merits of this contention, appellant first argues there is no evidence in the record that three Pomo-affiliated tribes—the Lower Lake Rancheria, the Potter Valley Rancheria, and the Sherwood Valley Rancheria—ever received notice of the renewed disposition hearing. In the absence of proof of such receipt, appellant contends the juvenile court erred in proceeding with that hearing. In support of her position, appellant cites provisions of federal and state law providing that notice must be received at least 10 days in advance of the proceeding. (See 25 U.S.C. § 1912, subd. (a), [“[n]o foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary....”]; § 224.2, subd. (d) [“No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs, except for the detention hearing.”] see also Cal. Rules of Court, rule 5.482(a)(1).)
Our review of the record discloses that the department sent notice of the renewed disposition hearing to all 50 tribes, including the three in question, as well as the BIA, on February 17, 2010, by certified mail, return receipt requested. On February 25, 2010, the department faxed a letter referencing the notice and requesting a response to the tribes that had not yet responded, including the Potter Valley Rancheria and the Sherwood Valley Rancheria. The same letter was mailed the next day to the Lower Lake Rancheria after efforts to fax it were unsuccessful. On March 11, 2010, the department faxed to the non-responding tribes the ICWA notices as a reminder and again requested a response. On March 26, 2010, the department sent a second notice via certified mail, return receipt requested, to the tribes that had not yet responded, including the Potter Valley Rancheria, the Sherwood Valley Rancheria, and the Lower Lake Rancheria.
Appellant is correct that the record contains no return receipts or responses from these three tribes that would indicate actual receipt of notice of the renewed disposition hearing. And we are mindful that ICWA notice requirements are strictly construed. (In re Desiree F., supra, 83 Cal.App.4th at pp. 474-475) However, under the circumstances, we conclude that the department substantially complied with the procedural notice provisions of both federal and state law. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1252 [“Substantial compliance with the notice requirements of ICWA may be sufficient under certain circumstances.”].) The department sent notice of the renewed disposition hearing three times—twice by certified return receipt requested mail and once by fax—and also sent a reminder letter requesting a response, for a total of four attempts to reach non-responding tribes prior to the hearing. The notices were properly addressed to the designated tribal agents at the addresses listed in the then-current Federal Register. “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.” (Evid. Code, § 641.) In addition, the department provided notice to the BIA. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.11.) Last but not least, all three of these tribes received prior ICWA notices sent by the department on April 9, 2009, as evidenced in the record by return receipts. Here, the department was diligent in its efforts to provide proper notice of the renewed disposition hearing and the tribes had actual notice of the dependency proceedings as to both children. More is not required.
On our own motion, we take judicial notice of the BIA’s list of designated tribal agents for service of notice that was in effect at the time notice was given, as well as at the time of the renewed disposition hearing, which appears at 74 Federal Register 19326-19370 (April 28, 2009). (Evid. Code, §§ 452, subd. (c); 459, subd. (a).)
The record also contains responses from two of these tribes: the Potter Valley Tribe responded on June 4, 2009, that the children were not enrolled in the tribe and were not eligible for enrollment; the Sherwood Valley Rancheria responded on April 22, 2009, that the children were not eligible for enrollment.
Next, appellant argues that notice to two other Pomo-affiliated tribes, the Laytonville Rancheria and the Pinoleville Reservation, was improper because fewer than 60 days had elapsed between the time the tribes received notice and the juvenile court’s finding, on April 26, 2010, that the ICWA did not apply. Section 224.3, subdivision (e)(3), provides: “If proper and adequate notice has been provided pursuant to section 224.2, and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the [ICWA] and apply the act prospectively if a tribe or the [BIA] subsequently confirms that the child is an Indian child.”
With respect to the Laytonville Rancheria, the department’s ICWA compliance report states that that tribe responded on March 11, 2010, that the children are “Not Eligible.” The report does not contain a copy of the response. The report includes a return receipt indicating that the Rancheria received notice, but the date of the receipt is illegible. From these facts, appellant contends that there is no evidence that notice was received by the tribe 60 days prior to the April 26, 2010, hearing.
The ICWA compliance report states that notice was mailed to the Pinoleville Reservation on February 17, 2010, and again on March 26, 2010, and that a response from the Reservation was “pending, ” i.e., not yet received. The record contains certified mail receipts showing that the notice was mailed twice. A return receipt shows that a notice was received by the Reservation on March 29, 2010. This was fewer than 60 days prior to April 26, 2010, and again appellant asserts error in that the tribe did not have the full 60 days after receipt of notice within which to respond.
Although the juvenile court’s ICWA finding may have been premature as to these two tribes, any error was harmless. (See In re H.B., supra, 161 Cal.App.4th at p. 122 [harmless error analysis of ICWA notice requirements when the violation involves “ ‘failure to comply with higher state standard, above and beyond what the ICWA itself requires’ ”]; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) The Laytonville Rancheria received notice, as evidenced by a return receipt card, and determined that the children were not eligible for membership. Thus, appellant cannot show prejudice as to this tribe.
Similarly, appellant cannot show prejudice as to the Pinoleville Reservation. Although the dependency proceedings continued for some four months following the tribe’s receipt of notice, there is no indication in the record that the Pinoleville Reservation ever provided a response or sought to intervene. If any such response had been received, the department was required to submit it to the court. (See § 224.2, subds. (c), (e); Cal. Rules of Court, rule 5.482(b).)
We note that the record contains a return receipt for a prior notice sent by registered mail on June 2, 2009, to the Pinoleville Reservation.
For all of the above-stated reasons, appellant has failed to establish any notice deficiency that requires reversal.
B. The Beneficial Parental Relationship Exception to Termination of Parental Rights.
Appellant contends the juvenile court erred when it found the beneficial parental relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude terminating her parental rights.
When a juvenile court terminates a parent’s reunification services, it must order one of three alternatives for the dependent child: adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the court finds a minor 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 would be detrimental to the child due to one or more of the following circumstances....” (§ 366.26, subd. (c)(1)(B); In re Jamie R. (2001) 90 Cal.App.4th 766, 773; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The specified circumstances include the situation in which “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Appellant contends that termination of her parental rights would be detrimental to the children because she has maintained regular visitation and the children would benefit from a continued relationship with her. It is the parent’s burden to demonstrate the applicability of this exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.); Autumn H., supra, 27 Cal.App.4th at p. 574.)
We review the juvenile court’s ruling for substantial evidence. Under this standard, we resolve all conflicts in the evidence in favor of the prevailing party and draw all inferences in favor of the juvenile court’s ruling. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Jamie R., supra, 90 Cal.App.4th at p. 774.)
While most courts review this determination for substantial evidence (see, e.g., Autumn H., supra, 27 Cal.App.4th at pp. 575, 576; In re Clifton B. (2000) 81 Cal.App.4th 415, 424), our colleagues in Division Three of this court concluded that the proper standard of review was abuse of discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In so doing, they noted, “The practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’...” ’ ” (Ibid.) In light of the similarity between these two standards, we will apply the substantial evidence test. If the juvenile court’s decision is supported by substantial evidence, then it clearly was not an abuse of discretion.
Regarding the requirement that the parent maintain regular visitation and contact, respondent acknowledges that appellant “did make most of her visits.” Accordingly, we will focus our discussion, as do the parties in their briefs, on the benefit to the children of continuing the relationship with appellant.
The cases construing the beneficial relationship exception have made clear that not every beneficial relationship will overcome the preference for adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575; Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1350; In re Casey D. (1999) 70 Cal.App.4th 38, 52, fn. 4.) In order for the exception to apply, the parent must show that “the relationship 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 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Jamie R., supra, 90 Cal.App.4th at p. 773; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
In addition, “[t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Children normally derive some incidental benefit from interaction with a parent, so courts have required that “the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229; In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534 (Brandon C.) It is not enough for a parent to be a “friendly visitor.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
Here, appellant argues that the children would benefit from a continuing relationship with her because she behaved appropriately during visits with the children, the children appeared to enjoy the time with her, and they called her “Mommy.” Comparing the amount of time the children spent with her before being detained (A.I. was almost three years old and R.C. was 19 months old) with 16 months in foster care, appellant contends that this demonstrates “a positive, beneficial relationship” between her and the children. Finally, appellant contends that her relationship with the children was not merely that of a friendly visitor, but rather that it reached the level of parent-child. She acknowledges that she did not adequately control the children’s behavior during visits, but points to the fact that the children called her “Mommy.”
Appellant’s showing falls far short of that required to establish that the children would be greatly harmed by termination of her parental rights and that she has a parental relationship with the children. (In re Angel B. (2002) 97 Cal.App.4th 454, 466-468; In re Brittany C. (1999) 76 Cal.App.4th 847, 853-854.) First, we note that appellant’s visitation was always supervised and that by March 2010, it had been reduced from once a week to once a month. (See In re Casey D., supra, 70 Cal.App.4th at p. 51 [the necessary showing is difficult to make where the parent “[has not] advanced beyond supervised visitation”].)
Moreover, appellant has presented no evidence that she is a nurturing, parental figure to the children. As she herself acknowledges, she did not control the children’s behavior during visits. The adoption assessment, dated June 17, 2010, stated: “[Appellant and Daniel] demonstrated very limited ability to interact with the children in [an] appropriate manner. They had virtually no ability to anticipate the children’s needs and very limited ability to respond appropriately to the children even with direction. The children routinely ran about without direction or structure, and sometimes hit the adults in the room. When admonished by visit supervisors to not allow the children to act in such a manner, the family members would respond, ‘That is just what they do.’... The children often returned from visits agitated and displaying an increase in aggressive behaviors. During these visits it was not uncommon for [A.I.] to ask to return to his foster home.”
The adoption specialist noted in her assessment that A.I.’s agitation and aggressiveness after visits decreased when the frequency of visits was reduced.
Appellant cites a number of cases in arguing that the juvenile court erred in ruling that the beneficial relationship exception did not apply here. Appellant likens her case to Brandon C., supra, 71 Cal.App.4th at p. 1538, where the court explained that the benefit of continued contact between the mother and the children must be considered in the context of the limited visitation mother was allowed to have. Appellant points out that in Brandon C., both parents maintained regular contact with the boys, the children looked forward to the visits, they called the mother “mommy” and gave her hugs and kisses, and the mother felt there was a close bond between herself and the boys. (Id. at pp. 1535-1537.) Appellant contends the instant case is similar in that she also maintained regular contact with the children, the children enjoyed the visits, and they referred to her as “Mommy.” Because A.I. and R.C. were older at the time they were detained than the child in Brandon C., appellant contends the evidence of detriment to the children from terminating the parent-child relationship is stronger here than in Brandon C. We find Brandon C. readily distinguishable. There, the prospective adoptive parent, the paternal grandmother, testified that the mother had a close bond with her children and that continued contact would be beneficial. The social services agency presented no evidence to the contrary. (Id. at p. 1537.)
Appellant also contends that her case “is similar in some respects” to In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.). In Scott B., the appellate court reversed an order terminating parental rights, holding instead that the parent-child exception to termination applied, and ordered legal guardianship as the minor’s permanent plan. The mother had a limited ability to care for her autistic son, Scott. His behavior, communication, and social skills improved dramatically in foster care, and ultimately, the foster mother indicated that she wanted to adopt Scott. Scott’s mother had visited him regularly and they had a very close relationship. Although Scott loved his foster family, it was clear that he wanted to be with his mother. (Id. at p. 471.) The appellate court recognized that, although it might not ever be in Scott’s best interest to be returned to his mother’s care, he had a very strong emotional bond with her, she provided stability in his life, and given his precarious emotional state, and his history of running away and regressing when under stress, there was a very good chance that he would experience a severe setback if visitation with his mother did not continue. (Id. at p. 472.)
Here, appellant contends that, like the mother in Scott B., she was unable to provide A.I. and R.C. with a stable home and it is unclear if they will ever be able to live with her. However, the children were excited and happy when appellant visited them; they called her “Mommy;” and A.I. asked if he could come home with her. Appellant acknowledges the distinction in Scott B. that the child was autistic. However, she argues that there is a risk, as in Scott B., that the children will suffer great harm if their relationship with appellant is severed. We disagree. The emotional bond that was evident in Scott B. is simply not present here.
Appellant distinguishes cases such as In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1334-1336 [no regular contact between father and child]; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419 [parents had never occupied a parental role with the children]; In re Amanda D. (1997) 55 Cal.App.4th 813, 820 [parental contacts with children were merely random encounters]; and In re Derek W., supra, 73 Cal.App.4th 823 [child never resided with parents], on the basis that A.I. and R.C. resided with her before their removal. This bare fact does not establish a beneficial parental relationship.
Here, appellant has failed to show more than appropriate supervised visits with the children. By contrast, the record shows that the children were thriving in the foster parents’ care and that the foster parents wanted to adopt them if they were freed for adoption. Appellant has not met her burden of demonstrating that her relationship with the children promotes the children’s well-being to such an extent that it outweighs the benefit to them of being adopted into a secure and permanent home. Stated another way, substantial evidence supports a finding that the children’s need for a permanent, stable home outweighed any benefit to them from a continued relationship with appellant. We find no error.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: Kline, P.J., Lambden, J.