Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. Nos. J210398, J210399, J210400, A. Rex Victor, Judge.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, Sandra D. Baxter and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI J.
C.M. appeals from an order terminating parental rights to three of her children. She contends that:
1. The adoption assessment failed to comply with statutory requirements.
2. There was insufficient evidence that the children were adoptable.
3. The juvenile court erred by finding that the beneficial parental relationship exception did not apply.
4. The juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related federal and state law.
We agree that proper ICWA notice was not given. Accordingly, we will reverse conditionally and order a limited remand for ICWA notice compliance. C.M. has also filed a related petition for habeas corpus. We ordered the petition considered — but not consolidated — with the appeal. We will resolve the petition by separate order.
I
FACTUAL AND PROCEDURAL BACKGROUND
This case concerns three children of C.M. (the mother) and R.W. (the father) — S.W., a boy, born in 2003, and twins, J.W., a girl, and A.W., a boy, born in 2004.
The mother also had two older children by a different father. They lived with their father but visited the mother on weekends. One of these was the mother’s daughter, H.T.
In September 2006, H.T., then aged nine, disclosed that during these weekend visits, the father was sexually abusing her, and moreover that he had been doing so for about five years. The mother did not believe H.T.; she “stated that she is always home and that she did not believe the abuse could occur.” Upon inspection, the home was found to be “filthy”; the children, too, were “filthy.”
As a result, the Department of Children’s Services (the Department) detained all five children and filed dependency petitions concerning them. The two older children were returned to the custody of their nonoffending father; the three younger children were placed with foster parents, the R.’s.
The father admitted sexually abusing H.T., although he minimized the nature, frequency, and duration of the abuse. He was arrested and charged with continuous sexual abuse of a child. (Pen. Code, § 288.5.) He remained incarcerated for the duration of the proceedings.
It soon appeared that the mother was mildly mentally retarded. A psychological evaluation indicated that she was “unable to care for the children on her own.”
In October 2006, the juvenile court found jurisdiction over all five children based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)), sexual abuse (id., subd. (d)), and abuse of a sibling (id., subd. (j)). It then dismissed the dependency as to the two older children.
By April 2007, the R.’s had expressed an interest in adopting the three younger children.
In November 2007, at the 12-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In March 2008, at a hearing pursuant to section 366.26, the juvenile court found that the children were adoptable and that there was no applicable exception to termination. Accordingly, it terminated parental rights.
II
THE ADEQUACY OF THE ADOPTION ASSESSMENT
The mother contends that the adoption assessment failed to comply with statutory requirements. However, she failed to raise this contention below. Objections to an adoption assessment are forfeited if not raised at trial. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) We therefore reject this contention.
Separately and alternatively, we also reject this contention because the adoption assessment was in substantial compliance with the statutory standards. An adoption assessment is supposed to include, among other things:
“(B) A review of the amount of and nature of any contact between the child and his or her parents . . . and other members of his or her extended family since the time of placement. . . .
“(C) An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status.
“(D) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent . . . , to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child’s needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. . . .
“(E) The relationship of the child to any identified prospective adoptive parent, the duration and character of the relationship [and] the motivation for seeking adoption . . . .
“(F) A description of efforts to be made to identify a prospective adoptive parent . . . .” (Welf. & Inst. Code, § 366.21, subd. (i)(1); see also Welf. & Inst. Code, §§ 361.5, subd. (g), 366.22, subd. (b).)
“[E]ven if the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies will go to the weight of the evidence and may ultimately prove insignificant. [Citation.] Substantial compliance with the assessment provisions has been deemed enough. [Citation.]” (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
A. Contact Between the Children and Their Parents and Their Extended Family.
The adoption assessment itself did not address visitation, but the section 366.26 report did. It noted that the mother’s visitation had initially been supervised. “[S]ince [the] mother appeared very appropriate during the visits and interact[ed] well with the children, the visits were changed to unsupervised.” The maternal grandmother and the children’s two older half siblings had attended these visits. “However, before and after the visits, the children were acting aggressively and difficult to control . . . . The children would hit, pinch, bite and kick each other. The children’s behavior would remain aggressive and unmanageable for several days after the visits until eventually the behaviors would cease. J[.W.] was also pulling out handfuls of hair after the visits.” As a result, visitation had been made supervised again. Although the children’s behavior after visits improved markedly, they “remain[ed] a little anxious after the visits . . . .”
The mother argues that the assessment failed to explain what — if anything — she was doing during visits to make the children anxious or upset. The social worker, however, did not necessarily know why the children were anxious. If the social worker did know, the mother could have called her and cross-examined her about it. The fact remains that the reports did discuss the children’s contacts with the mother.
The mother also argues that the assessment did not discuss the children’s contacts with their maternal grandmother or with their two older half siblings. The reports, however, did note that these relatives had been attending visits, along with the mother, and that the children had reacted negatively after visits. This was at least substantial compliance with the requirement that the assessment review the children’s contacts with their extended family.
B. Evaluation of the Child’s Medical, Developmental, Scholastic, Mental, and Emotional Status.
The adoption assessment stated: “A.W. is not meeting his developmental milestones. . . . [He] is not speaking yet. The foster parents reported that he hoddles [sc. “hobbles”?] instead of walks. He has been enrolled in START to address these problems. START has referred A.W. to a neurologist and the assigned social worker . . . is looking into the matter.”
In addition, according to the section 366.26 report, in October 2007, A.W. had been diagnosed as globally developmentally delayed. He was “delayed in his developmental milestones such as in the areas of speech and potty training.” Until he turned three, in December 2007, he had been receiving services from the Inland Regional Center for speech, language, and fine and gross motor skills. START had referred him to a neurologist due to “some decreased tone, flat footedness, and other symptoms that maybe [sic] suggestive of neurological issues.”
The mother complains that this information was “buried in A.W.’s health passport, [which] was attached to but not included in the social worker’s reports . . . .” By attaching the health passport, however, the report effectively did include it. There is no requirement that any particular information must be highlighted with any particular prominence.
This would appear to be full disclosure of everything that the social worker knew or reasonably could have known about A.W.’s developmental delays. The mother argues that “[t]here is no information about when the neurological assessment was to be performed.” There is no statutory requirement, however, that this detail be included; the disclosure in the reports was adequate without it. More generally, she argues that the assessment did not “evaluat[e] whether or how these facts might affect the decisions to be made at the section 366.26 hearing.” From the assessment as a whole, however, it is clear that the adoption social worker concluded that, because the R.’s were willing to adopt A.W. and his siblings, despite A.W.’s health problems (both known and unknown), the children were adoptable generally. The mother was free to challenge this conclusion in argument before the juvenile court; the fact that she disagrees with it does not make it absent or lacking.
The mother relies on In re Valerie W. (2008) 162 Cal.App.4th 1, in which the court held that the adoption assessment was inadequate for a number of reasons: (1) one of the children, who had displayed below-normal growth, anemia, and one seizure, had recently had an electroencephalogram and genetic testing, yet the assessment did not set forth his test results, his prognosis, or his treatment needs; (2) a woman and her adult daughter were proposing to adopt the children jointly, but the assessment did not include information about the daughter; and (3) the assessment did not address whether one prospective adoptive parent would adopt alone if the joint adoption fell through. (Id. at pp. 13-14.)
We do not view Valerie W. as authority that the failure to include a child’s medical test results and/or prognosis, standing alone, necessarily renders an assessment inadequate. The need for more information has to be weighed against the child’s need for permanence. In Valerie W., it appears that the necessary tests had already been performed; the results simply had not been presented to the court. Moreover, there were other deficiencies in the assessment; even aside from the child’s health problems, it was far from clear that the prospective adoptive parents would actually be able to adopt him and his sibling. Hence, it was much more important to obtain information about his diagnosis and how it bore on the children’s adoptability generally. Here, by contrast, A.W. had already been diagnosed as developmentally delayed. There did not appear to be any legal or factual impediment to adoption by the prospective adoptive parents. Awaiting the results of the neurologist’s examination would have delayed the section 366.26 hearing. We therefore conclude that the assessment was in substantial compliance with the statutory standards, despite its failure to include the results of the examination.
C. Eligibility and Commitment of the Prospective Adoptive Parents.
The assessment reported that the prospective adoptive parents denied having any criminal history. It also stated: “The undersigned conducted a CMS search on Mrs. R[.] and found that there are ten (10) referrals in CMS. Four (4) of which were evaluated out and one (1) was a secondary report. Four (4) referrals were investigated and unfounded for emotional abuse and general neglect. Most of the emotional abuse allegations were related to the oldest daughter, C[.] The undersigned spoke with C[.] regarding the previous referrals and she stated that she was influenced by friends at school to contact DCS and she could get removed from the home. C[.] stated that she did not agree with the rules in the home and she was having a hard time. She stated that now she is in counseling . . . . She stated that she feels that the issues between her and her parents were resolved. Mr. and Mrs. R[.] showed the undersigned letters that C[.]’s school mates had written to her, which contained comments about C[.] contacting CPS and that way she could get out of the house. There is currently one (1) referral under investigation at this writing alleging physical abuse on [S.W.] by the prospective adoptive parents. The undersigned spoke with the investigating worker, . . . and her plan is to unfound [sic] the allegation of physical abuse. Apparently, the child, [S.W.,] sustained bruises through play and falling, which is reported to be a regular occurrence with him being a four year old.”
The record does not reveal what this acronym stands for. The most likely candidate is “Case Management System.”
The mother argues that the assessment did not include the results of a criminal records search on the prospective adoptive parents. In order to become foster parents, however, they would have already had to pass a criminal records search. (Health & Saf. Code, § 1522, subd. (d); Cal. Code Regs., tit. 22, § 89219.) Accordingly, the only concern would be whether they had accrued subsequent convictions. Moreover, if they lied, they would be found out when they subsequently applied to adopt. (Fam. Code, § 8712.) Under these circumstances, simply asking them if they had any criminal record constituted substantial compliance with the statutory requirement.
The mother also notes that the prospective adoptive parents had 10 prior child abuse referrals; she argues, “The social worker did not elaborate on each referral or how many were substantiated . . . .” To the contrary, the social worker indicated that all 10 were (or soon would be) found to be unsubstantiated. The details of an unsubstantiated referral would not seem particularly relevant. If they were relevant, the mother’s counsel was free to call and cross-examine the adoption social worker about them. The assessment was not inadequate merely because it did not include this information.
The mother also argues that the assessment did not address the prospective adoptive parents’ ability to meet A.W.’s needs, “given his underlying neurological issues . . . .” To the contrary, because they had already been taking care of him for about a year and a half and had already been able to handle his developmental delays, the assessment adequately indicated that they could meet his needs.
D. Relationship to Prospective Adoptive Parent.
The mother admits that the assessment “reported that the children appeared bonded to the caretakers,” but she argues that “the children continued to have a strong attachment to their mother as illustrated by their behavior before and after the visits.” This pertains to the assessment of the parents, not to the assessment of the prospective adoptive parents. As we held in part II.A, ante, the assessment reported adequately on the children’s visitation with the mother.
The mother also argues that the assessment did not specify the prospective adoptive parents’ motivation for adoption. However, it did state, “The prospective adoptive parents feel that the children make their family complete.” “The R.’s believe that children are a gift f[ro]m God.” Mr. R. also stated “that he would like to have more kids.” This sufficiently addressed their motivation.
E. Efforts to Identify Prospective Adoptive Parents.
Finally, the mother argues that the assessment failed to identify any other families willing to adopt. However, it was not required to do so. It was only required to describe the efforts actually made to identify prospective adoptive parents. (Welf. & Inst. Code, § 366.21, subd. (i)(1)(F).) As the children had been placed with the R.’s almost immediately, and the R.’s were willing to adopt, there was no need to identify any other prospective adoptive parents.
We therefore conclude that the mother has failed to show that the adoption assessment was not in substantial compliance with the applicable statutory requirements.
III
THE SUFFICIENCY OF THE EVIDENCE OF ADOPTABILITY
The mother contends that there was insufficient evidence that the children were adoptable.
The juvenile court cannot terminate parental rights unless it finds, “by a clear and convincing standard, that it is likely the child will be adopted . . . .” (§ 366.26, subd. (c)(1).) “‘The issue of adoptability . . . focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
“‘[T]he fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.’ [Citation.]” (In re Y.R. (2007) 152 Cal.App.4th 99, 112, quoting In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
“When a child is deemed adoptable only because a particular care taker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.)
“The ‘clear and convincing’ standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. [Citation.] ‘“The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” [Citations.]’ [Citation.] ‘Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ [Citation.]” (In re J.I. (2003) 108 Cal.App.4th 903, 911, quoting Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881, quoting Crail v. Blakely (1973) 8 Cal.3d 744, 750; accord, In re Angelique C. (2003) 113 Cal.App.4th 509, 519; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
Accordingly, “[w]e review the juvenile court’s adoptability determination for substantial evidence. [Citation.] Our circumscribed role on appeal and limited vantage point require that we draw all inferences and resolve any evidentiary conflicts in favor of the juvenile court’s order. [Citation.]” (In re Y.R., supra, 152 Cal.App.4th at p. 112.)
The mother makes much of the children’s health problems. Practically all of them, however, were trivial. J.W. had a heart murmur, but it was “under control” and did not require any treatment. Both A.W. and S.W. had asthma. A.W.’s asthma was in remission; S.W. had an inhaler to be used as needed. Neither needed any further treatment. In addition, A.W. had frequent ear infections, which are quite common in toddlers, and “[f]acial [d]ermatitis,” which means no more than a rash on his face.
The mother claims that the children also had “[a]ttachment [d]isorder-like symptoms that the Department never explored or treated.” From her citation to the record, she appears to be referring to the aggression and anxiety that they displayed after unsupervised visitation with her. There was no medical expert testimony, however, that this behavior evidenced an attachment disorder. In any event, it improved markedly once her visitation was made supervised again. The juvenile court could reasonably find that this behavior would not have no effect on a prospective adoptive parent’s willingness to adopt.
The only health issue with any real bearing on adoptability was A.W.’s developmental delay. We may assume, without deciding, that it prevented the juvenile court from finding that the children were generally adoptable. Even if so, however, it could find that they were specifically adoptable. The R.’s were ready, willing, and able to adopt all three children. There was no legal impediment to adoption by the R.’s. It follows that there was sufficient evidence that the children were adoptable.
The mother therefore argues — yet again — that there had been no criminal records check on the prospective adoptive parents and that a child abuse records check showed 10 prior referrals. As we discussed in part II.C, ante, the prospective adoptive parents had presumably already passed a criminal records check. In addition, they both stated that they had no criminal record. Likewise, the social worker had investigated all 10 referrals and had determined that all 10 were unfounded. This was substantial evidence that there was, in fact, no legal impediment to adoption by the R.’s. The mother was free to offer contrary evidence, if there was any.
The mother also argues that an adoptability finding cannot be based solely on one family’s willingness to adopt, citing In re Jerome D. (2000) 84 Cal.App.4th 1200 and In re Jayson T. (2002) 97 Cal.App.4th 75, disapproved on other grounds in In re Zeth S., supra, 31 Cal.4th at pages 413-414. As already discussed, that is not the law.
In Jerome D., the juvenile court based its adoptability finding solely on the fact that one Mr. E. was willing to adopt. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205.) Mr. E., however, had three prior convictions for domestic violence; in addition, he was “‘listed as a perpetrator’” in connection with an episode of child abuse. (Id. at p. 1203) The adoption assessment simply did not address his criminal and child abuse history. (Id. at p. 1205.) Under these circumstances, the appellate court held that there was insufficient evidence to support an adoptability finding. (Id. at pp. 1204-1206.)
In sum, in Jerome D., there was affirmative evidence of a legal impediment to adoption. That brings the case squarely within the rule that an adoptability finding may be based on a single caretaker’s willingness to adopt, unless there is a legal impediment to adoption by that caretaker. Here, by contrast, there was affirmative evidence that there was no legal impediment to adoption. Certainly there was no evidence that there was such an impediment.
Jayson T. is even further afield. There, after the section 366.26 hearing, and while the appeal was pending, the adoption fell apart — the prospective adoptive parents returned the children to a group home. (In re Jayson T., supra, 97 Cal.App.4th at p. 82.) In addition, the former adoptive mother suggested that one of the children had “reactive attachment disorder,” which meant, as the appellate court noted, that he was “at least at some risk of turning out to be a psychopath.” (Ibid.) The appellate court concluded that, because this postjudgment evidence cast doubt on the trial court’s adoptability finding, it could reverse and remand for a new section 366.26 hearing. (Jayson T., at pp. 86-90.) But this is a far cry from saying that the trial court’s original adoptability finding was erroneous. In fact, the court conceded that, at the original section 366.26 hearing, adoptability had been a “nonissue.” (Jayson T., at p. 83.) It stated that, but for the postjudgment evidence, “this appeal would result in an affirmance because of [the] deferential standard of review.” (Id. at p. 79.)
Significantly, in the juvenile court, the mother’s counsel did not argue that the children were not adoptable. While this did not constitute a waiver (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1559-1560), it does suggest that their adoptability was self-evident.
We therefore conclude that there was sufficient evidence that the children were adoptable.
IV
THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
The mother contends that the juvenile court erred by finding that the beneficial parental relationship exception to termination did not apply.
A. Additional Factual and Procedural Background.
As of the date of the section 366.26 hearing, the children had been with the R.’s for almost a year and a half. According to the case social worker, the R.’s were “structured, loving and nurturing towards the children.” She believed that the children were bonded with the R.’s. Similarly, in the opinion of the adoption social worker, the children were “emotionally attached” to the R.’s and considered them their parental figures. The R.’s, too, believed that the children had bonded with them. The R.’s already had two children, 17-year-old C.R. and 5-year-old E.R. A.W. was “particularly attached” to E.R.
J.W. and A.W. were too young to talk to about adoption. However, when the social worker asked S.W. what adoption meant, he said that it meant that “he could be there forever.” He was asked how he would feel about being with the R.’s forever, and he said he would like that.
The mother had supervised visitation every other week, for two hours at a time; the maternal grandmother and the children’s older half siblings came with her. According to the case social worker, “During the visits [the] mother is sometimes attentive to the children’s needs but other times [she] appears aloof.” Usually, J.W. would sit on the mother’s lap, but the two boys would play with toys or interact with the maternal grandmother.
The mother testified that she believed that she had a “strong bond” with the children. They would run up to her and call her “Mom” or “Mommy.” During visits, they would all “sit . . . , play, talk.”
She also testified:
“Q . . . [W]hy do you think terminating your parental rights or having the children adopted is not the best for your children?
“A Because it won’t be fair to them.
“Q Why wouldn’t it be fair to them? Let me rephrase that. What would they have to lose by being adopted?
“A Because with me — they were with me one time[,] now they are with someone else.”
The mother’s counsel asked the juvenile court to find that the beneficial relationship exception applied, stating: “[S]he’s maintained a relationship with these children. She did have the children in her custody for a significant period of time in their lives, where she cared for them on a day-to-day basis. And she has been visiting them consistently and would eventually like to regain custody of her children.”
The juvenile court refused to do so. It noted the evidence (see part II.A, ante) that, when the mother’s visitation had been unsupervised, the children had been “aggressive and unmanageable” before and after visits. It concluded that “any parental bond that does exist is far outweighed by the need for the children to have stability in a home with a loving and responsible parent. [¶] They[] obviously are receiving that care and treatment in the concurrent planning home. And[] I think it would be detrimental to the children, in fact, if the court should adopt a lesser plan of other than termination of parental rights and adoption.”
B. Analysis.
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1).) This rule, however, is subject to seven statutory exceptions. (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(c)(1)(B)(vi).) The only one relevant here is the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) It applies when “termination 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.” (Ibid.)
“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 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.’ [Citations.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“[T]he parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child . . . . [Citation.]’ [Citation.] 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. [Citations.]” (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
“We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Because the parents had the burden of proof, we must affirm unless there was “indisputable evidence [in their favor] -- evidence no reasonable trier of fact could have rejected . . . .” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
We accept that the mother maintained regular visitation and contact. Nevertheless, as the trial court noted, there was evidence that the children would not benefit from continuing the relationship — unsupervised visitation appeared to distress them profoundly, and even supervised visitation left them “a little anxious . . . .” The mother asks us to interpret this behavior as meaning that the children “were anxious to visit her, and [they] exhibited . . . withdrawal symptoms after the visits.” This disregards the applicable standard of review, which requires us to “indulg[e] in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.)
In any event, as the trial court also reasoned, even assuming that the children derived some benefit from the relationship, there was no evidence that termination of parental rights would be detrimental to them in any way. When the mother herself was asked how termination would be detrimental to the children, all she could say was that it would be “unfair.” And while we recognize that she was mentally handicapped and perhaps should not be expected to argue her own case, her counsel did no better — the mother’s counsel did not so much as argue that termination would be detrimental.
We therefore conclude that the juvenile court did not err by finding that the beneficial parental relationship exception did not apply.
V
ICWA NOTICE
The mother contends that there was a failure to comply with the notice requirements of the ICWA and related federal and state law.
A. Additional Factual and Procedural Background.
In September 2006, at the detention hearing, both parents indicated that they might have Indian ancestry. The father stated that he had Cherokee and Blackfoot ancestry. The mother stated: “As far as I know, my great, great grandmother was a Cherokee princess. We have no proof of it.”
Thereafter, however, when the mother filled out a “Parental Notification of Indian Status” form (form JV-190), she checked the box stating, “I have no Indian ancestry as far as I know.” The social worker asked her about the discrepancy; she said “she is aware that she stated in Court that she may have heritage[;] however, she decided to mark the box indicating that she did not have Indian heritage . . . . [S]he is ‘not worried about it’ and did not want to deal with it.”
In October 2006, the Department sent an ICWA notice to all three federally recognized Cherokee tribes (see 73 Fed.Reg. 18553-01; , as of Nov. 21, 2008), the Blackfeet Tribe, and the Bureau of Indian Affairs (BIA). The notice listed the names of the father’s parents; however, it listed the names of the mother’s parents as “unknown.” (Capitalization omitted.) The Department filed return receipts from all five addressees. Two of the Cherokee tribes responded that the children were not members or eligible to be members; none of the other addressees responded.
In August 2007, the juvenile court found that ICWA did not apply.
B. Analysis.
“In general, . . . ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. [Citations.] ‘Indian child’ is defined as a child who is either (1) ‘a member of an Indian tribe’ or (2) ‘eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe . . . .’ [Citation.]” (In re S.B. (2005) 130 Cal.App.4th 1148, 1156, quoting 25 U.S.C. § 1903(4); see also Welf. & Inst. Code, § 224.1, subds. (a), (c); Cal. Rules of Court, rules 5.480.)
Under the notice provisions of ICWA, “where the court knows or has reason to know that an Indian child is involved,” the social services agency must give notice to “the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of [its] right of intervention.” (25 U.S.C. 1912(a); see also Welf. & Inst. Code, § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(b)(1).) “If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the [Bureau of Indian Affairs (BIA)] . . . , wh[ich] shall have fifteen days after receipt to provide the requisite notice to . . . the tribe.” (25 U.S.C. 1912(a).)
“The Indian status of the child need not be certain in order to trigger notice. [Citation.]” (In re Gerardo A. (2004) 119 Cal.App.4th 988, 994.) “[O]ne of the purposes of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an ‘Indian child.’ [Citation.]” (Id. at p. 995.) Federal regulations implementing the ICWA therefore require that any potentially interested tribe must be given not only notice of the proceedings, but also certain specified information about the child’s parents, grandparents, and great-grandparents. (25 C.F.R § 23.11(a), (d)(3).)
In this case, the notice did not include any information about the mother’s parents or other ancestors. This information was not “unknown”; it was readily available by just asking the mother. Indeed, as the social worker knew or should have known, the maternal grandmother lived with the mother; the maternal grandmother’s name is even in the disposition report. Thus, the notice failed to comply with federal law.
The Department argues that it was entitled to rely on the mother’s JV-190 form, in which she stated that she had no Indian ancestry. This is beside the point. Because the father claimed Indian ancestry, the Department was required to give notice. The applicable federal regulation requires an ICWA notice to include information about Indian and non-Indian ancestors alike. It is true that, if the mother had no Indian ancestry, we might be able to deem the error harmless. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576-578 [Fourth Dist., Div. Two].) However, she claimed, and continues to claim, that she does.
The Department also argues that the mother should not be allowed to “present false information to the court, only to preserve for herself an issue to raise on appeal . . . .” Ordinarily, we might hold that the mother waived and/or is estopped to raise the issue. In ICWA cases, however, “‘[t]he notice requirements serve the interests of the Indian tribes “irrespective of the position of the parents” and cannot be waived by the parent.’ [Citation.]” (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435, quoting In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Similar considerations preclude us from applying estoppel.
VI
DISPOSITION
The order terminating parental rights is conditionally reversed, and a limited remand is hereby ordered, as follows.
As soon as reasonably practicable, the Department shall file a motion for findings as to whether it has complied substantially with the notice requirements of ICWA and related federal and state law and, if so, as to whether the children are an Indian children. (See Welf. & Inst. Code, § 224.3, subd. (e).) The Department may choose to rely on any notice it has already given, and/or to give new notice.
If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and conduct all further proceedings in compliance with ICWA and related federal and state law. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.
We concur: McKINSTER Acting P.J. KING J.