Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. JV030137
Jenkins, J.
Defendant S.F. (mother) appeals from the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights to her daughter, B.F., and finding B.F. suitable for adoption. Mother contends the juvenile court erred by terminating parental rights because she presented evidence sufficient to support the exception to adoption under section 366.26, subdivision (c)(1)(B)(i) (“beneficial relationship exception”). Mother also contends the trial court’s finding that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply was erroneous because notice to the tribes was inadequate.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We conclude the juvenile court did not abuse its discretion by terminating mother’s parental rights to B.F. and placing the child for adoption. However, we reverse the order terminating parental rights and remand for further proceedings to determine whether respondent Humboldt County Department of Health and Human Services (Department) complied with the notice provisions of ICWA.
Background
Section 300 Petition to Disposition
B.F. was born in December 1999. On September 13, 2005, the Department filed a juvenile dependency petition pursuant to section 300, subdivision (b), citing mother’s failure to protect B.F. At a hearing on October 6, 2005, the Department filed an amended petition nunc pro tunc that alleged as follows: “On or about 09/10/05 the mother was involved in a traffic accident. There were no car seats in the mother’s car. Later in the evening, Officer Lee Alexander of the Eureka Police Department responded to a request by Chin’s Motel to escort the mother off the premises. Officer Alexander placed the child in protective custody based upon her observations. Mother has suffered some mental illness since she was 14 years old. There were a number of psychotropic medications in the car, and [mother’s] sister . . . expressed concern about whether [mother] was taking her medication. Officer Alexander observed spoiled milk in the refrigerator. When the minor was placed into foster care, there were concerns about her cleanliness.” The court sustained the amended petition and set a disposition hearing on the amended petition for October 18.
The Department’s disposition report stated that the problems requiring intervention were lack of a safe home and mother’s mental health problems affecting her ability to parent. The report notes B.F. is placed in an approved foster home. The report recommended family reunification services be offered to mother and adoption of a case plan with the goal of returning B.F. to mother’s care. The case plan provided for supervised visitation from 3:30 to 6:30 p.m., three times per week. The case plan stated visitation would become unsupervised “only at the discretion of the Social Worker and the child’s counsel’s consent.” (Emphasis omitted.) Service objectives for mother under the case plan included the following requirements: she must “[o]btain and maintain a stable and suitable residence” for B.F. and herself; she must obtain and/or resume mental health services . . . and provide verification that she is taking the appropriate medication on a regular basis”; she “will obtain the mental health services [required to] regain her ability to parent her child and will successfully complete an approved parenting skills program and provide proof of attendance to the social worker.”
The October 18 disposition hearing was continued until November 7, 2005. At the hearing, the court adopted the findings and orders in the Department’s disposition report and set a six-month review for May 8, 2006.
Six-Month Review
The Department’s six-month status review report states mother resides at the Multiple Assistance Center (MAC) and B.F. continues to reside in the same certified foster home. The report states mother “has been diligent in following her plan. She visits her daughter three times weekly, always on time and never missing a visit unless sick. [Mother] is taking her medications when and as prescribed . . . . [Mother] had a blood draw and the medications were reported to be in her blood stream at therapeutic levels. . . . [Mother] completed her Incredible Years [parenting] class, not missing a single session . . . [and] complet[ed] a consumer credit . . . course” at MAC. The report observes that mother has “her housing goals in mind” by saving money for her first and last months rent plus security deposit and making payments on outstanding debt to improve her credit.
The report notes B.F. has adjusted very well to her placement in foster care, feels safe in the home and has integrated into all aspects of the family’s life. Regarding the prognosis for reunification, the report states that as long as mother “remains stable on her medication, and as soon as she is able to get into family housing at the [MAC], [B.F.] can be safely returned to her care.” Noting mother “has followed through with her case plan,” the report recommended mother receive an additional six months of family reunification services. The court-appointed special advocate (CASA) agreed with the Department’s recommendation and in addition recommended that mother attend Parent Child Interactive Therapy (PCIT) classes with B.F.
At the six-month review hearing on May 8, the court found that mother had made substantial progress toward alleviating the causes necessitating placement out of the home. The court ordered the child continue in foster care and set the 12-month review hearing for October 17, 2006.
Twelve-Month Review
A protracted 12-month review procedure commenced on October 17 and continued over multiple hearings until its conclusion on March 6, 2007. As reflected in its status review report dated October 17, the Department’s initial recommendation at THE 12-month review stage was that B.F. should transition “to her mother’s full time care; first by allowing one overnight visit, then allowing her to spend both Friday and Saturday night each week, before moving to her mother’s full-time care the weekend of November 10, 2006.” This recommendation was based on the Department’s assessment that mother “has eagerly accomplished all the Department has asked of her. She has demonstrated that she is able to stay on her medication, obtain stable housing, and safely care for her child, as long as she remains on her medication.” Regarding mother’s housing situation, the report stated mother has been living at a clean and sober house in Eureka for approximately four months, that her mother lives at the same facility in another room, and that the manager of the facility had advised mother she could have a larger room for herself and B.F. should B.F. be returned to her care.
Minor’s counsel opposed the Department’s recommendation. In an at-issue memorandum filed on November 7, 2006, counsel stated the case “should go to 18-months” because “there is substantial evidence that the Mother, while considerably medicated, remains mentally ill to the extent that returning [B.F.] would create a substantial risk to [B.F.’S] physical and emotional safety.” Counsel stated that B.F. loves her mother but is “currently frightened by the prospect of returning to her Mother’s care because her Mother has, apparently, gone out of her way to tell [B.F.] about a stabbing that occurred at the Mother’s clean and sober house.” Counsel recommended the case plan be amended to include an “in-depth mental health/parenting assessment” by a psychologist to address specific questions concerning mother’s schizophrenia and whether her condition can be stabilized or whether she is likely to “cycle” through further bouts of the condition.
After a hearing on November 15, 2006, the court asked the Department to prepare an addendum report to address issues that surfaced at the hearing, such as whether B.F. was still fearful about going to mother’s clean and sober house, the circumstances of the stabbing that occurred there, and whether any registered sex offender lived at the facility. The Department’s subsequent addendum report dated November 28, 2006, states that at least one of the residents at the clean and sober house was a registered sex offender. The report stated that “mother is working with the apartment manager to move to a different location that would be suitable for [B.F.]” Accordingly, the report recommended B.F. “remain in foster care and [mother] be offered continued . . . [services] until such time as she is able to move to a different residence, where no registered sex offenders reside.”
At a hearing on December 4, 2006, the court received the addendum report and also noted that “mother is willing to address some of the concerns raised by minor’s counsel” regarding a psychological evaluation. The court continued the matter until January 9, 2007, ordered mother to undergo a psychological evaluation and ordered that the Department prepare a second addendum report.
The Department’s second addendum report dated January 9, 2007, states mother has moved to a more secure group residence where she will initially share a room with her mother, B.F.’s maternal grandmother. The report states the manager had given assurances that mother would be provided with her own room if B.F. is returned to her care and grandmother would then be provided with a new room mate. It further states that mother “continues to appear to be medication compliant,” and attends all her psychiatrist appointments and visits with B.F. The addendum report recommended mother “have further opportunity to settle into her new environment, that overnight visitation commence, and that [mother] attend joint . . . sessions with [B.F.]”
Attached to the Department’s January 9 addendum report was a psychological evaluation by Dr. Michael Ramirez. Regarding the issues presented to him on referral, Dr. Ramirez stated mother requires continuing medication services to establish and maintain psychological stabilization, and opined that “any plan for reunification should proceed in a deliberate step-wise manner in order to prevent relapse.” He recommended that during “pre-unification treatment,” mother should “participate in individual psychotherapy as well as parenting training while she continues with supervised visitation with [B.F.]”
At a further continued 12-month review hearing on February 14, 2007, Dr. Ramirez testified he assessed mother’s Global Assessment of Functioning (GAF) at 41 on a scale of 100. He explained that mother’s GAF score of 41 demonstrated “[s]erious symptoms in psychological, social and occupational functioning; major impairments in family relations, judgment, thinking and mood.” Such impairments, he stated, were related to the ability to safely parent a young girl. Dr. Ramirez testified that mother’s GAF score could be raised through continuing medication and her participation in individual psychotherapy sessions. Dr. Ramirez stated he would be more comfortable making a recommendation about whether it would be safe for B.F. to return to mother if mother had at least one month of weekly psychotherapy sessions.
Based on Dr. Ramirez’s testimony, the court concluded that “individual psychotherapy is what’s being recommended and hasn’t been part of the case plan in this case.” On that basis, the court found that reasonable services had not been provided to mother “because she has . . . very unique serious needs that are not simply met by trying to find . . . safe and clean housing, to find a room, but there’s more to it than that.” The court continued the matter until March 6, 2007, “solely for the purpose of having a case plan presented to the Court that includes what I’ve said and what I think came out of Dr. Ramirez’s testimony.”
At the further continued 12-month hearing on March 6, 2007, the court received a final addendum report date-stamped February 27, 2006. The final addendum report included an amended case plan recommending an additional six months of reunification services. The amended case plan noted mother is currently participating in family therapy with B.F. and will also participate in individual therapy sessions as recommended by Dr. Ramirez. The amended case plan also provided for continuing visitation for a minimum of nine hours per week with overnight visitation at the discretion of the social worker when mother obtains suitable housing. The court adopted the findings and orders set forth in the final addendum report, and set the 18-month status review hearing for September 10, 2007.
Eighteen-Month Review
The 18-month review set for September 10 was continued until October 29, 2007. The Department’s status review report received on September 7, 2007, states that B.F. continues to reside in the certified foster home where she has been in placement for two years. The report stated that B.F. has expressed a desire to be adopted by her foster family and the foster family was receptive to the idea. Regarding mother’s housing situation, the report stated mother entered the MAC for the second time on March 14, 2007, but was asked to leave on April 5 for smoking inside the facility in violation of “No tolerance smoking policy.” Mother was then homeless for four months before obtaining a room at the Serenity Inn on August 6, 2007.
The report also stated mother’s individual therapist thought mother was “very scattered” and unable to focus during sessions, and also that mother “is seeking a companion in [B.F.], so that [B.F.] will be there for [mother]” rather than seeing B.F. as her responsibility. Further, the report stated mother’s family counselor thought mother “still has a problem making good parenting choices.” The report recommended the court terminate services and move to a section 366.26 permanency hearing.
The Department’s recommendation was echoed in the CASA’s report and recommendations for 18-month review dated September 4, 2007. The CASA stated she had “serious concerns about [B.F.] while in her mother’s care.” The CASA related how she was in a candy store with B.F. and B.F. remarked it would be easy to steal from the store. B.F. told the CASA she knew it was bad to steal but said that one of her mother’s friends, Robert, steals things. Also, the CASA related that mother continues to discuss adult topics with B.F., such as why “men kept leaving her all throughout her life.” The CASA opined that “after two years in the dependency system, it is in [B.F.’s] best interest to begin to look at establishing permanency.”
At the conclusion of the October 29 hearing, the court found reasonable services had been provided, mother had made minimal progress in mitigating the causes requiring placement out of the home, and that returning B.F. to mother’s custody posed a substantial risk of detriment to B.F.’s safety, protection, or physical or emotional well-being. Accordingly, the court terminated reunifications services and scheduled the section 366.26 hearing for February 25, 2008.
Section 366.26 Hearing
The Department’s section 366.26 report received on January 2, 2008, recommended the court terminate mother’s parental rights. The report stated that although mother had maintained regular visitation, “she does not occupy a parental role in [B.F.’s] life.” The report states that B.F. has a significant positive emotional attachment to her foster parents, who wanted to adopt her. The CASA’s section 366.26 report related that the CASA had “observed the [current] foster home weekly since October 2006 and found it to be a loving and supportive environment.” The CASA reported she took B.F. on a recent outing and B.F. insisted on taking a coupon magazine to give to her mother so that mother could use the coupons to find a motel room. The CASA also stated B.F. wants to live permanently with her foster parents, and realizes this means she might not see her mother as often, or even at all.
The California Department of Social Services, Adoptions Services Bureau prepared an adoption assessment in connection with the section 366.26 hearing. The assessment noted B.F. had been interviewed concerning her attitude toward placement and adoption and stated she “wants to continue living with her foster parents and be adopted by them.” The assessment related that two prospective families had been identified—B.F.’s current foster parents and her paternal uncle and his wife. The assessment observed that B.F. has lived with her foster family for 28 months and “[a] relationship is developing which meets her needs.” The report concludes that B.F. “would benefit [from] the establishment of a permanent parent/child relationship through adoption.”
The section 366.26 hearing set for February 25 was continued until March 5, 2008. Mother called Alice Daniel to testify. Daniel stated she was a marriage family therapist at Children Youth and Family Services. Daniel stated she met with mother and B.F. once a week for a year in joint counseling sessions in family therapy. Daniel opined that mother and B.F. are bonded and that it would be detrimental to B.F. if contact with mother was severed. Daniel opined that an ongoing relationship with mother was important to B.F. therapeutically because she “would know that her mother continues to . . . care for her and love her and that she’s available.” On cross-examination by the court, Daniel stated she had not assessed whether there would be a benefit to B.F. achieving some form of permanency or how that would balance against a continuing relationship with mother.
Mother also called Lauren Brinkman, the social worker on the case since November 2007. Brinkman stated visitation between mother and B.F. was reduced from three times per week to twice per week after conclusion of the 18-month review. Brinkman stated she did not observe any of the visitations because it was unsupervised. Based on her conversations with the CASA, the foster parents and the social workers at the foster family agency who transport B.F. for the visits, Brinkman opined that the quality of the mother-daughter relationship was “questionable.” Brinkman stated she discussed adoption with B.F. in December 2007 and B.F. wanted her foster parents to be “her forever family.” On cross-examination, Brinkman opined that during visitation mother is not assuming the role of a parent to a child and that mother and B.F. share more of a friendship than a true mother-daughter relationship.
Among other witnesses, the Department called April Shewmaker, B.F.’s social worker at the foster family agency since June 2007. Shewmaker stated she had observed mother and B.F. interact during some of their visitations. Based on those observations, Shewmaker opined that mother “has a difficult time setting limits and abiding by rules with regards to [B.F.]” She believed mother “looks to [B.F.] for guidance and seeks her opinion and her leadership in terms of decisions.” According to Shewmaker, B.F. acts in a “parentified manner” toward mother in that she’s “concerned about who her mother is around and also where her mother is living.” Shewmaker opined that the relationship between mother and B.F. is “very strained because . . . [B.F.] feels that she has to make the decisions a lot of the time” and “doesn’t always feel safe.” With respect to the counseling B.F. attends with mother, B.F. told Shewmaker, “ ‘I don’t need counseling; my mom needs counseling.’ ” Regarding adoption, Shewmaker stated B.F. has been steadfast for some time in her desire to be adopted by her foster parents. Shewmaker explained to B.F. that adoption would mean a gradual reduction in her visitation with mother and she said, “That’s fine.”
At the conclusion of the hearing, the trial court found by clear and convincing evidence that B.F. is an adoptable child. Next, the court addressed the question of whether B.F. would benefit from a continuing parental relationship with mother pursuant to section 366.26, subdivision (c)(1)(B)(i). The court commended mother for her consistency in maintaining visitation with B.F. and found she and B.F. had an “emotionally, significant relationship.” Nevertheless, the court also found that “the benefit to [B.F.] in her current placement and the . . . stability and benefit that she achieves from that is evident and substantial. And I would find that [the] benefit outweighs the benefit to the ongoing parent relationship.” Accordingly, the court terminated mother’s parental rights and ordered adoption as the permanent plan.
Discussion
I. The Beneficial Relationship Exception to Adoption
A. Applicable Standard of Review
Section 366.26 provides that where “it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption” unless one of the enumerated exceptions applies. (§ 366.26, subd. (c)(1)(A)-(B), italics added.) Under the beneficial relationship exception to adoption, parental rights shall not be terminated if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to [the fact that] [¶] (i) [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).) Mother contends she presented sufficient evidence to establish the “beneficial relationship” exception to adoption and therefore the trial court erred by terminating her parental rights.
In In re Jasmine D. (2000) 78 Cal.App.4th 1339 (Jasmine D.), we observed that because the juvenile court’s beneficial relationship determination decides “which kind of custody is appropriate for the child . . . [it] is typically reviewable for abuse of discretion.” (Id. at p. 1351.) Thus, mother must shoulder a very heavy burden in order to establish an abuse of discretion in this context. As we stated in Jasmine D., supra, “when the court has not returned an adoptable child to the parent’s custody and has terminated reunification services, adoption becomes the presumptive permanent plan and parental rights should ordinarily be terminated at the section 366.26 hearing. The parent has the burden of proving that termination would be detrimental to the child under [the beneficial relationship exception]. [Citations.] The juvenile court may reject the parent’s claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. . . . Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., at p. 1350, italics added.)
We also noted that although some courts review a juvenile court’s beneficial relationship under the substantial evidence standard, “[t]he practical differences between the two standards of review are not significant.” (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Moreover, whether the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption is decided “ ‘on a case-by-case basis . . . tak[ing] into account many variables, including 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.’ ” (Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350, quoting In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) In short, the beneficial relationship exception only applies if a parent demonstrates that the benefits to the child of a continued parental relationship outweigh the benefits to the child from the permanence provided by adoption.
B. Analysis
Relying principally on the testimony of Alice Daniel, the family therapist who jointly counseled her and B.F., mother asserts the evidence established the beneficial relationship exception. Mother notes Daniel testified that a severe reduction or severance of visitation was not in B.F.’s best interest because “[t]hey’re bonded” and that foster children who are separated from their birth parents often “suffer emotional difficulties as they enter adolescence and early adulthood.” Mother asserts that the facts here are analogous to those in the recent case of In re S.B. (2008) 164 Cal.App.4th 289, in which the appellate court reversed the trial court’s termination of parental rights on the basis of the beneficial relationship exception. We conclude that In re S.B. does not control and that the trial court did not abuse its discretion in finding that the benefits of adoption outweighed any benefit of a continuing parental relationship.
In In re S.B., supra, a young girl was made a dependent of the juvenile court due to her parents’ substance abuse. The father fully complied with his case plan, including maintaining sobriety and visiting his daughter three days a week. But he suffered from physical and emotional injuries incurred during his service in the Vietnam War and was not able to care for her full time. (In re S.B. supra, 164 Cal.App.4th at pp. 293-294.) He argued the beneficial relationship exception should prevent the termination of his parental rights and allow him to maintain a relationship with her. (Id. at p. 295) The juvenile court found the father maintained frequent and loving contact with his daughter and they had “an emotionally significant relationship.” But it found the relationship was not “parental” because the child looked to her grandmother, with whom she lived, for day-to-day nurturing and stability; accordingly, it found the beneficial relationship exception did not apply and terminated parental rights. (Id. at pp. 295-296.)
The appellate court reversed. The court observed that “[t]he parties agree [the father] maintained regular, consistent and appropriate visits with S.B. throughout the dependency proceedings.” (In re S.B. supra, 164 Cal.App.4th at p. 298, italics added.) The court held the beneficial relationship exception did not require day-to-day contact between the parent and the child or that the child’s primary attachment be to the parent. (Id. at p. 299.) The court stated: “[The father] maintained a parental relationship with S.B. through consistent contact and visitation. His devotion to S.B. was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health. The record shows S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that [the daughter] would be greatly harmed by the loss of her significant, positive relationship with [the father].” (Id. at pp. 300-301.)
On this record, by contrast, it cannot be said the only reasonable inference is that B.F. had a positive relationship with mother and would be greatly damaged by the loss of that relationship. Indeed, the evidence was conflicting on both the nature of the relationship between mother and B.F., and the detriment attendant to the loss of that relationship.
Mother’s family therapist, Alice Daniel, testified mother and B.F. were bonded and exhibited a close emotional relationship. On the other hand, there was evidence from the CASA and the Department’s social worker and the foster family agency’s social worker that the relationship between mother and B.F. was more of a friendship in which mother played the role of a companion rather than a parent. This evidence also corroborates the opinion offered by Shewmaker that B.F.’s relationship with mother had become “parentified”—B.F. worried about her mother’s situation and was the decision maker during their visitations. Thus, unlike in In re S.B., supra, the record is not susceptible to the sole inference that mother and B.F. had a “significant, positive relationship.” (Cf. In re S.B., supra, 164 Cal.App.4th at p. 301, italics added.)
The evidence on the issue of whether B.F. would be harmed by the loss of the parental relationship clearly supports the trial court’s denial of the beneficial relationship exception. Daniel opined that an ongoing relationship with mother was important to B.F. therapeutically because she “would know that her mother continues to . . . care for her and love her and that she’s available.” On cross-examination, however, Daniel stated she had not assessed whether there would be a benefit to B.F. achieving some form of permanency or how that would balance against a continuing relationship with mother. Furthermore, both the CASA and the social workers reported that B.F.’s preference was to be adopted by her foster parents, even if that meant she would not see her mother.
Furthermore, the evidence presented by the CASA and the social workers shows B.F. had developed a significant positive emotional attachment to her foster parents and was thriving in the loving and supportive environment of their home. For example, the section 366.26 report states that “[o]ver the past two years, [B.F.] has become an adored and integral member of her prospective adoptive parents’ family.” On this record, therefore, we cannot say that trial court abused its discretion by denying the beneficial relationship exception. (See In re Helen W. (2007) 150 Cal.App.4th 71, 80-81 [to show beneficial relationship exception applies, parent must overcome the strong statutory presumption in favor of adoption and show the relationship between her and the child is so beneficial that it renders the termination of parental rights detrimental to the child].) Accordingly, we conclude the juvenile court was entitled to infer that B.F. would benefit more from the permanence and stability of adoption than the continuance of her relationship with mother.
Mother seems to suggest the juvenile court could have preserved the parental relationship by ordering guardianship over adoption. However, under section 366.26, a court may order guardianship over adoption only if it first concludes that parental rights should not be terminated because a beneficial parental relationship exists between parent and child. (See § 366.26, subd. (c)(4)(A).)
II ICWA
On February 27, 2006, Christopher W. (father) filed a statement regarding paternity requesting blood or DNA testing to determine whether he is B.F.’s father. Compliance with the ICWA became an issue in the case when father filed a notification of Indian status on April 3, 2006, stating he may have Cherokee/Chippewa ancestry. Subsequently, father’s paternity test came back positive, and on June 6, 2006, the juvenile court found father to be B.F.’s alleged father.
Counsel was appointed for father. He never had visitation with B.F. At the section 366.26 hearing, his counsel informed the court that her office had no contact with father in over a year. Father’s parental rights were terminated at the section 366.26 hearing.
The Department’s 12-month status review report dated October 17, 2006, listed the tribes the Department had contacted and attached letters of responses from the Indian tribes in question. At the conclusion of the 12-month review proceedings on March 6, 2007, the juvenile court found that the ICWA did not apply. The court restated its ICWA ruling in its section 366.26 orders.
Mother asserts here on appeal that the Department failed to provide the trial court with proof that all federally recognized Chippewa Indian Tribes had received the necessary ICWA notification. She states that 27 tribes were notified and that the 12-month review report included responses from only 19 tribes. Alternatively, mother contends that the Department failed to comply with ICWA’s notice requirements because the record does not include signed return receipts from any of the 27 tribes. Also, mother asserts there were significant errors in the notices sent to the eight Chippewa Tribes from which responses were never received. In this regard, mother details that notice to six of the eight tribes was sent to the wrong address. In addition to these alleged deficiencies in ICWA notice to the tribes, mother contends the trial court also erred under ICWA because it did not enquire whether mother had any Native American ancestry.
Respondent concedes that the proof of mailing and the signed receipts to the Bureau of Indian Affairs (BIA), as well as the 27 tribes noticed, were not part of the record below. Respondent also concedes that mother is correct that she did not file a Parental Notification of Indian Status before judgment in this case. Respondent seeks to rectify these deficiencies by way of a Request to Augment the Judgment by Judicial Notice of Certified Court Documents, filed on August 27, 2008. Respondent requests that we take judicial notice of the certified documents, namely: (1) proof of mailing and signed receipts from 27 tribes and the BIA, filed in the superior court on June 30, 2008; and, (2) a Parental Notification of Indian Status signed by mother and filed in the superior court on July 14, 2008, in which mother checked the box stating, “I have no Indian ancestry as far as I know.” Mother objects to respondent’s request to augment the record on the grounds that it asks the court to take judicial notice of the list of federally registered Indian tribes from the State Department of Social Services as of a certain date instead of the Federal Registry.
Because “[i]t is a trial court function to receive evidence of [the Department’s] notice efforts and to determine if they measure up to ICWA standards,” we deny respondent’s request to augment the record by judicial notice. (In re Nikki R. (2003) 106 Cal.App.4th 844, 852; see also In re Jennifer A. (2002) 103 Cal.App.4th 692, 705 [stating “it is up to the juvenile court to review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of the ICWA, and thereafter comply with all of its provisions, if applicable”].) Rather, because respondent concedes necessary evidence of its compliance with the notice requirements of the ICWA was not part of the record below, we reverse the juvenile court’s section 366.26 orders and remand for the juvenile court to determine whether the Department has given notice in compliance with the ICWA. (In re Veronica G. (2007) 157 Cal.App.4th 179, 187 [failure of juvenile court to determine whether ICWA notice requirements have been met requires reversal where parental rights have been terminated].) Once the juvenile court is satisfied that there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether B.F. is an Indian child. If the juvenile court finds that B.F. is not an Indian child, it shall reinstate the original order terminating parental rights. If the juvenile court finds that B.F. is an Indian child, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with the ICWA and all related federal and state law. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343.)
Disposition
The juvenile court’s section 366.26 orders are reversed and the case is remanded for further proceedings as directed.
We concur: Pollak, Acting P. J., Siggins, J.