Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J03765
SCOTLAND, P.J.
W.M. (appellant), the mother of A.M. (the minor), appeals from the juvenile court’s order terminating appellant’s parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to this code unless otherwise specified.) She contends that the court erred in failing to apply a statutory exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)) and that the court and the Human Services Agency (HSA) violated the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Agreeing with the latter claim only, we conditionally vacate the order terminating parental rights and remand the matter for inquiry into possible Indian heritage and notice to the relevant tribal entities if necessary.
FACTS AND PROCEDURAL BACKGROUND
On January 31, 2005, HSA filed a juvenile dependency petition on behalf of the minor, alleging in part that the minor had suffered, or was at substantial risk of suffering, serious physical harm or illness because of appellant’s failure adequately to supervise or protect the minor, and inability to provide regular care for the minor due to appellant’s substance abuse. (§ 300, subd. (b).) The petition alleged appellant’s “drug use severely impairs her ability to responsibly care for, parent, house and supervise the minor. . . .”
The juvenile court sustained the petition, adjudged the minor a dependent child, ordered the minor removed from parental custody, and granted appellant reunification services.
In September 2006, appellant pled guilty to petty theft having had a prior theft conviction. She was incarcerated from November 1, 2006, to December 27, 2006. According to an HSA report, appellant remains on probation until September 2011.
Appellant’s pattern of visitation with the minor was sporadic. In September 2006, HSA reported that appellant had stopped visiting the minor. However, a March 2007 report noted appellant had begun visiting the minor once weekly and the visits were going well.
On January 4, 2007, the juvenile court terminated appellant’s reunification services.
The record contains potentially conflicting information about the applicability of ICWA to the dependency proceedings. First, the disposition report stated, without elaboration, that ICWA does not apply. A status review report later stated ICWA did or might apply. Thereafter, four reports filed by HSA recited that ICWA did not apply; no explanation was offered. The only remaining document contained in the clerk’s transcript pertaining to ICWA is a parental notification of Indian status form, though it is uncompleted and unsigned.
The report prepared for the section 366.26 hearing recommended termination of parental rights and adoption as a permanent plan for the minor. According to that report, appellant continued to have weekly supervised visits with the minor, who enjoyed those visits. The report noted, however, that although the minor referred both to appellant and to her foster mother as “mama,” the minor “does not recognize [appellant] as her mother figure.”
At the section 366.26 hearing on July 16, 2007, appellant testified that she had visited with the minor on a consistent basis and had a “close” relationship with her, and that severing their relationship would have an impact on the minor, who loved her. Acknowledging that her daughter had been with the foster mother for half the minor’s life, appellant conceded the foster mother “[p]robably” had been “a more stable influence” in the minor’s life than had appellant.
The adoptions social worker assigned to the minor’s case, Hiroko Komaki, testified the minor had lived with the foster mother for more than one-half of the minor’s life. She described the visits between appellant and the minor, which she observed, as having gone “pretty well.” However, the minor acted as though she were visiting a friend, and displayed no distress as the visits ended. During the visits, there was good communication between the minor and appellant; the minor was very comfortable with appellant, and the visits were appropriate.
Other witnesses testified a bond existed between appellant and the minor, they appeared to be “close and nurturing,” the minor was “very engaged” with appellant, and it appeared the minor loved appellant. The minor’s foster mother testified that over time the minor had become strongly attached to the foster mother.
In closing argument, appellant’s counsel objected to the proposed termination of parental rights, arguing that appellant and the minor shared a “very meaningful” relationship and that severance of the relationship would be detrimental to the minor.
The juvenile court (1) found that it was likely the minor would be adopted and that termination of parental rights would not be detrimental to the minor, (2) concluded that no statutory exceptions to adoption applied, and (3) ordered that appellant’s parental rights be terminated.
DISCUSSION
I
Appellant claims the evidence does not support the juvenile court’s finding that no statutory exception to adoption applied to the dependency proceedings. Emphasizing the strength of the bond she shared with the minor, appellant argues severance of their relationship would be detrimental to the minor. According to appellant, she had been a vital part of the minor’s life for a long time, occupying a parental role in the life of the minor. We are not persuaded.
At a section 366.26 hearing, “‘a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original italics.) There are only limited circumstances that permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
One circumstance in which termination of parental rights may be detrimental to a minor is when “[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)(A).) However, the benefit to the minor 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. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Here, the record reflects the minor had been in her foster mother’s custody for more than half the minor’s life, appellant did not maintain a pattern of consistent visitation with the minor, the visits that occurred were primarily social occasions, the minor did not acknowledge appellant as her primary “mother figure,” and the minor separated easily from appellant.
Thus, the trial court reasonably could conclude that appellant failed to establish how the minor would benefit from maintaining the status quo. To the contrary, the evidence showed the minor, who was “thriving under the loving care of the [foster mother] and becoming an energetic and active toddler,” was “in need of a safe, nurturing and permanent family who can be sure that all of her emotional, social, physical, and educational needs are being met.” Based on the totality of the evidence, the juvenile court did not err in concluding only adoption would meet the minor’s needs and, therefore, the section 366.26, subdivision (c)(1)(A) exception to adoption did not apply to the circumstances of this case. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
II
Appellant claims that the juvenile court and HSA failed to inquire into the question whether she had Indian heritage, and that the record does not reflect either parent of the minor ever was directed to complete a document pertaining to possible Indian ancestry. Thus, she argues, remand is required for determination whether the notice provisions of ICWA are applicable. We agree.
ICWA protects the interests of Indian children and promotes the stability and security of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(l), 1911(c), 1912.) The juvenile court and HSA have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d) (hereafter rule 5.664).) If after the petition is filed, the court knows or has “reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (Rule 5.664(f); 25 U.S.C. § 1912(a).)
“The burden is on [HSA] to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Failure to comply with the notice provisions and to determine whether ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
Rule 5.664(d)(3) states: “At the first appearance by a parent or guardian in any dependency case, . . . the parent or guardian must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).”
The obligation of HSA and the juvenile court pertaining to a minor’s Indian ancestry “is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.) Here, although it had the matter before it in the form of social worker’s reports reaching different conclusions as to ICWA applicability, the juvenile court did not conduct a full inquiry and determine whether ICWA applied to the proceedings. On remand, the court must consider the issue, with the record of all proceedings involving the minor before it, including the parental notification of Indian status document that appellant should be directed to complete.
DISPOSITION
The order terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to make an ICWA inquiry and, if necessary, to comply with ICWA’s notice provisions. If, after proper and complete notice, as provided, a tribe determines that the minor is an Indian child as defined by ICWA, the juvenile court is ordered to conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, no response is received or the tribes determine the minor is not an Indian child, then all previous findings and orders shall be reinstated.
We concur: BLEASE , J., DAVIS , J.