Opinion
B190709
12-12-2006
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Tracie S. Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant Gerald B. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Liana Serobian, Associate County Counsel, for Plaintiff and Respondent.
Tracie S. (mother) and Gerald B. (father) appeal the juvenile courts termination of their parental rights to Jeremiah (nearly three years old) under Welfare and Institutions Code section 366.26 and the denial of their section 388 petitions for modification of the family reunification orders. Appellants also contend that proper notice was not provided under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
We affirm the juvenile courts order denying the parents section 388 petitions, finding no abuse of discretion in the courts determination that the parents failed to demonstrate changed circumstances and that modification of the family reunification orders would be in Jeremiahs best interests. We also find that substantial evidence supported the juvenile courts determination that the beneficial relationship exception to the termination of parental rights did not apply. However, because we find that the juvenile court failed to ensure proper notice as required by the ICWA, we reverse the order terminating parental rights for the sole purpose of providing ICWA notice. If, after proper notice has been given, the juvenile court determines that the ICWA does not otherwise apply, it must reinstate its order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
After testing positive for cocaine at birth, Jeremiah B. was detained by respondent the Los Angeles County Department of Children and Family Services (the department). Mother admitted to the social worker that she had used both cocaine and alcohol throughout her pregnancy, including the day she went into labor. Mother has a lengthy history of substance abuse, which has caused her to lose custody of five other children who were dependents of the juvenile court and with whom she failed to reunify. Mother has been arrested and convicted numerous times for prostitution and possession and sale of a controlled substance. At the time of Jeremiahs birth, mother and father had been in a relationship for six years and father was aware of mothers drug use. Fathers criminal history also includes numerous arrests and convictions for possession of a controlled substance and arrests for two burglaries.
In March 2004, Jeremiah was declared a dependent of the juvenile court and ordered to remain in foster care. The court ordered family reunification services for father, but denied reunification services for mother. Both parents were given monitored visits with Jeremiah. Father was also ordered to participate in parenting education and individual counseling and to undergo 20 random drug tests. If any tests were missed or positive, father was to complete a drug rehabilitation program.
Six months later in September 2004, the department reported that father was not complying with the case plan; he had not enrolled in individual counseling nor undergone drug testing. The parents were having weekly monitored visits with Jeremiah. An adoption assessment was completed and Jeremiah was found to be adoptable. His current foster mother, with whom he had been placed at the age of two and one-half months, wanted to adopt him and he was reported to be bonded with her and doing "exceptionally well." The court reminded father that he needed to undergo regular drug testing and ordered him to return in 90 days for a progress update. The court also informed father that because he and mother were living together, the court would be unable to return Jeremiah to father if mother had not resolved her own issues. The court increased the parents monitored visits to two visits per week for a total of four hours.
Ninety days later, the department reported that father had still failed to drug test or to enroll in any drug treatment program. Father and mother had weekly visits with Jeremiah that were reported as "usually positive." The court ordered father to drug test and to attend Narcotics Anonymous (NA) meetings.
For the 12-month status review in March 2005, the department reported that father had still not complied with the drug portion of his case plan, though he had completed his parenting education. The parents continued their weekly visits with Jeremiah, which continued to go well. A few days before the scheduled hearing, Jeremiah had a seizure caused by high fever and was taken by ambulance to the hospital. He was prescribed antibiotics and Tylenol and sent home. Jeremiah continued to be well cared for by his foster mother, who was "very much in love with him." The 12-month hearing was continued to May 2005. The parents did not appear at the hearing. The court found that father was not in compliance with the case plan and terminated his family reunification services. The matter was set for a section 366.26 permanent plan selection and implementation hearing for September 2005.
For the September 2005 section 366.26 hearing, the department reported that father had still not drug tested, although he had attended three NA meetings and had enrolled in a drug counseling program. Mother failed to respond to any of the social workers calls or letters. Father also asked the social worker for a paternity test, stating that he was not sure he was Jeremiahs biological father because at the time of conception he and mother were heavily involved in drugs and had multiple partners. Both parents continued to visit with Jeremiah, who was reported to have a greater bond with his foster mother than with his parents. He called his foster mother "Mommy." The department recommended termination of parental rights and that Jeremiah be placed for adoption. A home adoption study of Jeremiahs foster mother was completed and approved.
The section 366.26 hearing was twice continued to March 20, 2006. On that day, father filed a section 388 petition requesting reinstatement of his family reunification services and that Jeremiah be placed with him or that he be allowed unmonitored overnight visits. As to how his circumstances had changed, father declared that he had been regularly visiting Jeremiah and formed a bond with him and that he had completed a six-month outpatient drug counseling program in December 2005 and had appropriate housing and employment. Father believed that the requested changes would be in Jeremiahs best interests because father no longer posed a risk of harm to his son and was able to care for and support him. In support of his petition, father submitted his declaration, a certificate of completion from the drug counseling program, a letter from the paternal grandmother stating that father and Jeremiah had bonded during their visits, and a letter from the social worker who monitored the visits. The social workers letter stated that while father interacted with Jeremiah and was affectionate with him during the visits, the minor mostly interacted with mother and at times father would just read a book while watching mother and the minor interact. There were also times when the parents were an hour late for the visits. The court set a hearing on the petition for March 28, 2006.
On March 24, 2006, mother filed her own section 388 petition requesting that she be provided with family reunification services and unmonitored visits and that Jeremiah be placed in her custody. As to her changed circumstances, mother alleged that she had completed a parenting and anger management class in September 2004, she had enrolled in an outpatient drug counseling program in June 2005, and she had been having consistent weekly visits with Jeremiah for the last six months. She believed the requested changes would be in Jeremiahs best interests because the court "should encourage the biological parent-child relationship." Mother attached to her petition a certificate of completion for the parenting and anger management class and letters stating that she had been enrolled in a drug counseling program since June 2005. The letters indicated that mother had not completed any of the sessions offered by the drug program and rated her efforts to change her behavior regarding drug usage as "fair." Mother also submitted a letter from the social worker monitoring her visits with Jeremiah. The letter indicated that in 2004 there were no visits by the parents for four months and on average the parents had visited Jeremiah three times a month. In 2005, the parents visited Jeremiah sporadically, averaging less than twice a month, until November. They began visiting Jeremiah more often from November 2005 through March 2006. The court initially denied a request for hearing on mothers petition, but eventually agreed to hear both petitions.
On March 28, 2006, the court denied the parents section 388 petitions, finding that the changed circumstances were "questionable," and that the requested changes were not in Jeremiahs best interests given his young age, that he had been living with his prospective adoptive mother nearly all of his life and that the parents visits with him had been sporadic until a few months earlier. The court continued the section 366.26 hearing until May 2006.
At the May 1, 2006 contested section 366.26 hearing, both father and mother testified. Father testified that he had a close bond with Jeremiah, that he played with, read to, taught, fed and changed Jeremiah on the visits, and that Jeremiah called him "Daddy." Father knew that Jeremiah had asthma, but admitted that he was not involved in Jeremiahs medical needs, did not inquire about Jeremiah when the minor was ill, and that he did not know who Jeremiahs doctors were and had never asked for that information.
Mother testified that she and father lived together and that they visited Jeremiah together. During the visits, she changed, fed and played with Jeremiah, who called her "Mama" or "Mommy." Mother had never attended nor requested to attend any of Jeremiahs medical appointments, though she was aware he was having high fevers and seizures. Mother admitted that she had been late for visits, but did not have a reason for being late.
The court found that the parents had "regular and frequent contact" with Jeremiah, who appeared to enjoy and benefit from the visits. But the court believed that Jeremiah looked to his foster mother as his parent since she was the person who cared for him when he was ill, stayed with him in the hospital, and met all of his needs on a daily basis. The court found that Jeremiahs relationship with his parents did not outweigh the benefit of being in a stable and permanent home. The court also found Jeremiah to be adoptable and terminated parental rights. The court asked the department to try to maintain parental visitation through the Childrens Consortium, stating that it would be important for Jeremiah to have contact with his parents, particularly his father, so that Jeremiah could have a father figure in his life as he grew older. Mother and father have each appealed from the orders denying their section 388 modification petitions and the termination of their parental rights.
DISCUSSION
I. Section 388 Petitions
Both parents contend that the juvenile court abused its discretion by denying their section 388 petitions, in which they requested that the court modify its prior orders denying mother family reunification services and terminating fathers family reunification services. Under section 388, subdivision (a), a parent may "upon grounds of change of circumstance or new evidence," petition the court in which a child was found to be a dependent for a hearing "to change, modify, or set aside any order of court previously made." Under subdivision (c), if it appears that the best interests of the child may be promoted by the proposed change of order, the court shall order that a hearing be held. "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47; see also Cal. Rules of Court, rule 1432(f).) "This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated or never ordered." (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) We will not reverse the decision of the juvenile court unless the parent establishes that the court abused its discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
A. Change of Circumstances
To support her claim that she had a significant change of circumstances in the two years from the time the court denied her family reunification services in March 2004 until she filed her section 388 petition in March 2006, mother points to the facts that she completed a parenting and anger management course in September 2004 and that she enrolled in an outpatient drug counseling program in June 2005. Mother also reminds us that she was making these changes on her own without the benefit of any department assistance.
Although mother was making progress, her changes were not significant when measured against her many years of drug abuse, which had already caused her to lose custody of five other children before Jeremiahs birth. Mother enrolled in the same outpatient drug counseling program as father, but only did so more than a year after reunification services had been denied to her and after the section 366.26 hearing was set. By the time her section 388 petition was denied nine months after her enrollment in the drug counseling program, she still had not completed the program and her progress in the program was rated as "fair."
Against the backdrop of mothers extremely troubled past, her recent efforts at rehabilitation established only changing circumstances and not "changed" circumstances sufficient to warrant a modification of the courts order denying her reunification services. "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.] `"[C]hildhood does not wait for the parent to become adequate." (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)" (In re Casey D., supra, 70 Cal.App.4th at p. 47; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [doubting that a parent who loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the reunification period could ever show a sufficient change of circumstances to warrant granting a section 388 petition].)
We also find that father failed to demonstrate changed circumstances warranting a modification of the courts order terminating his reunification services. Father claims that his change of circumstances is established by his "total completion of his case plan," his obtaining suitable housing for himself and Jeremiah in the form of a one-bedroom apartment and his recent employment as an in-home caregiver for his mother.
But father did not totally comply with his case plan. While it is true that by the time fathers section 388 petition was denied he had completed his parenting education and an outpatient drug counseling program, there is nothing in the record to indicate that father actually underwent random drug testing, let alone that he had completed 20 clean drug tests as ordered by the court. Father asserts that the drug portion of his case plan "was not premised on a proven substance abuse problem, but instead, a criminal history involving possession and sales." We find such a distinction to be without consequence, particularly when father admitted to the social worker that at the time Jeremiah was conceived, he and mother were heavily involved in drugs. Moreover, contrary to his assertion that he had suitable housing for himself and Jeremiah, fathers living arrangement was not appropriate for Jeremiahs placement because mother was still living with father. At least a year and a half prior to the courts denial of his section 388 petition, the court warned father that it could not place Jeremiah with him if he was still living with mother and she had not resolved her own issues. Father complains on appeal that the court should have given him the opportunity to secure separate housing for mother prior to denying his petition. But he does not explain why he did not attempt to do so in the year and a half prior to submitting his petition. That father continued to live with mother after receiving the courts initial warning demonstrates that he was more committed to his relationship with mother than his relationship with his son.
B. Jeremiahs Best Interests
We also find that the parents failed to present any evidence showing that granting them additional reunification services or removing Jeremiah from his prospective adoptive mother—with whom he has lived nearly his entire life—and placing him in the parents care would be in Jeremiahs best interests. Instead, the parents improperly attempt to shift the burden to the department, arguing that there was no expert psychological opinion that severing Jeremiahs bond with his foster mother would result in his suffering serious, long-term emotional damage. But the parents, not the department, have the burden of demonstrating that a proposed change is in the childs best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
After the termination of reunification services, the focus of dependency proceedings "`shifts to the needs of the child for permanency and stability." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Ibid.) Therefore, at this stage of the proceedings, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.) "[S]uch presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care." (In re Angel B., supra, 97 Cal.App.4th at p. 464.) "To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Id. at p. 465.)
Here, the parents presented no evidence to rebut this presumption. As the court in In re Angel B. noted, it is difficult to imagine how they could have done so, given the fact that neither of them actually parented Jeremiah before his removal. (In re Angel B., supra, 97 Cal.App.4th at p. 465.) As was the case in In re Angel B., Jeremiah was taken from mother directly from the hospital within days of his birth and was quickly placed with a foster mother who wishes to adopt him. And it was this prospective adoptive parent, not mother or father, who provided Jeremiah "with all the day-to-day, hour-by-hour care needed by a helpless infant and then growing toddler." (Ibid.) The parents have only had monitored visits with Jeremiah that never progressed beyond four hours per week.
The parents take issue with the courts finding that their visits with Jeremiah were "sporadic," but the record bears this out. As noted above, it was not until November 2005, six months before their petitions were denied, that the parents began consistently visiting Jeremiah. Prior to this time, their visits never averaged more than three times a month and frequently much less than that, despite the fact that they were allowed twice-weekly visits. While the visits were generally described by the social worker as "positive," the visits, in total, added up to only a tiny fraction of the time Jeremiah has spent with his foster mother.
The parents also complain that the juvenile court placed too much emphasis on Jeremiahs age and the length of time he had spent with his foster mother. But the strength of a childs bond to his or her present caretakers, and the length of time a child has been in the dependency system in relationship to the parental bond are "vital" factors. (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.) "`When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citations.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Nothing in either mothers or fathers petitions rebuts the presumption that continued foster care was in Jeremiahs best interests. Nor did they present any evidence that further reunification services would promote Jeremiahs best interests.
We find no abuse of discretion in the juvenile courts denial of mothers and fathers section 388 petitions.
II. Termination of Parental Rights
Both mother and father contend that the juvenile court erred by refusing to find that their parental rights should not be terminated based on the exception to termination of such rights found in section 366.26, subdivision (c)(1)(A).
Removal of the minor and termination of reunification services shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the minor under certain circumstances. (§ 366.26, subd. (c)(1).) Section 366.26, subdivision (c)(1)(A) provides an exception to the termination of parental rights when: "The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)
It is well established that a parent bears the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(A). (Cal. Rules of Court, rule 1463(e)(3); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-27; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-44.) This is not an easy burden to meet. "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement." (In re Jasmine D., supra, at p. 1350.) We review the juvenile courts order terminating parental rights for substantial evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 251; cf. In re Jasmine D., supra, at p. 1351 [applying abuse of discretion standard but noting that the practical differences between the two standards are not significant].) Thus, we consider the evidence in the light most favorable to the courts order, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Where there is any substantial evidence, contradicted or uncontradicted, to support the order, we must affirm the decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
"To overcome the preference for adoption and avoid termination of the natural parents rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the childs need for a parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466.)
Here, the juvenile court found that the parents had maintained regular visitation and contact with Jeremiah. The question therefore becomes whether they have shown that the benefit to Jeremiah by continuing their relationship would promote his well-being to such an extent as to outweigh the well-being he would gain in a permanent home with a new, adoptive parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child." (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs." (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.)
Applying these factors here, we note the following: First, Jeremiah was two years old at the time his parents rights were terminated, obviously too young to have any understanding of what is a biological parent. Second, Jeremiah has lived with his prospective adoptive mother since he was two and one-half months old, and she is the only adult who has provided him with food, shelter, protection and guidance on a daily basis. The parents, on the other hand, never progressed to unmonitored visits with Jeremiah. As noted above, a showing that a child would be greatly harmed will be difficult to make when, as here, "the parents have essentially never had custody of the child nor advanced beyond supervised visitation." (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Third, while the parents may have acted lovingly and appropriately during the visits, "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." (In re Angel B., supra, 97 Cal.App.4th at p. 468; see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 ["We do agree . . . that a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one"].) As the court in In re Autumn H. noted, interaction between a natural parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The exception applies only where there has been regular contact that has continued or developed a significant, positive, emotional attachment from child to parent. (Ibid.) The record does not indicate the existence of such a significant, positive, emotional attachment by Jeremiah toward mother and father such that termination of parental rights would be detrimental to Jeremiah. "On this record, no reasonable trier of fact could conclude that the bond, if any, [Jeremiah] feels toward Mother [and father] (as opposed to the bond that Mother [and father] feel[] toward [Jeremiah]) is that of a child for a parent." (In re Angel B., supra, 97 Cal.App.4th at p. 465.) Finally, there is no evidence that Jeremiah has any particular needs that can only be met by mother or father and not by the prospective adoptive parent. To the contrary, neither mother nor father took any role whatsoever in dealing with Jeremiahs medical problems.
Both parents argue that the juvenile courts referral of the matter to the Childrens Consortium to see if the parties could work out a postadoption visitation plan is an implicit recognition by the court that termination of parental rights would be detrimental to Jeremiah. But they point out that given the prospective adoptive mothers indication that she did not wish to continue visits postadoption, the courts hope that future visits would occur was hollow. The department does not address this point. While the court may have believed that continuing visits between Jeremiah and his natural father would benefit Jeremiah by giving him a father figure in his life, this factor alone is insufficient to overcome the legislative preference for adoptive placement and giving Jeremiah a stable and permanent home, particularly when viewed among the circumstances of this case as a whole.
In short, there is no evidence in the record to support that Jeremiah would be greatly harmed if his relationship with his natural parents were severed. To the contrary, if the parents parental rights were not terminated, Jeremiah would be denied a permanent, stable, adoptive family, "something that the Legislature has determined to be detrimental, as shown by its ranking of adoption as more desirable than long-term foster care or legal guardianship, and its streamlining of the dependency system to promote the prompt adoption of infants whose parents have failed to reunify with older siblings." (In re Angel B., supra, 97 Cal.App.4th at p. 468.)
Based on the evidence presented in the record, we conclude that this is not the extraordinary case where an adoption should have been foreclosed by the exception provided in section 366.26, subdivision (c)(1)(A).
III. ICWA
Mother and father both contend that the department failed to comply with the notice provisions of the ICWA and that the juvenile court failed to make any findings about whether the ICWA applied. They claim that such errors necessitate reversal and remand.
A. ICWA Notice Requirements
Congress passed the ICWA in 1978 "to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children `in foster or adoptive homes which will reflect the unique values of Indian culture . . . ." (In re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902.) For purposes of the ICWA, an "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) A child may qualify as an Indian child within the meaning of the ICWA even if neither of the childs parents is enrolled in the tribe. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
Among the procedural safeguards included in the ICWA is the provision for notice. The ICWA provides, in part: "In any involuntary proceeding in a State court, where the 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 childs 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 or the Secretary . . . ." (25 U.S.C. § 1912(a), emphasis added.)
Similarly, the California Rules of Court provide: "If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice must be sent to the specified office of the Secretary of the Interior, which has 15 days to provide notice as required." (Cal. Rules of Court, rule 1439(f)(4).) Section 290.1, subdivision (a)(10) also provides that "[i]f the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice shall be given to the Bureau of Indian Affairs [BIA]."
The BIA acts as the agent for the Secretary of the Interior. (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 254; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406; 25 U.S.C. § 1a [delegation to the BIA of powers and duties of the Secretary of the Interior regarding laws governing Indian affairs].) Thus, notice to the BIA satisfies notice to the Secretary of the Interior. (In re L. B. (2003) 110 Cal.App.4th 1420, 1426, fn. 4; In re Suzanna L. (2002) 104 Cal.App.4th 223, 232; 25 C.F.R. § 23.11(c)(12) [for proceedings in California and Hawaii, notice must be given to the BIA in Sacramento, California].)
B. Notice Provided in This Case
Prior to the initial detention hearing, the paternal grandmother informed the social worker that her great-grandfather, Charlie H., had Indian heritage, but she could not recall his tribal affiliation. At the detention hearing on January 29, 2004, the juvenile court directed the department to "check all that out." Thereafter, the paternal grandmother, mother and father each completed an "Indian Ancestry Questionnaire" indicating they had no information regarding any Indian ancestry of Jeremiah. The department then served the BIA in Sacramento, California with notices of the upcoming March 4, 2004 jurisdiction/disposition hearing, including form SOC 318, and a request for confirmation of Jeremiahs Indian status (form SOC 319). The request identified the name and birthplace of the paternal great-grandfather. The proofs of service attached to the notices indicated that they were served on February 23, 2004 by "certified or registered mail service." A partial copy of the dependency petition was attached to the notices. No copies of return receipts or response from the BIA were filed with the juvenile court. Although the departments subsequent reports repeatedly stated that the ICWA did not apply, the juvenile court made no express findings on the issue.
C. The ICWA Notice Provisions Were Triggered Here
As a preliminary matter, we must address the departments contention that the ICWA was not triggered in the first place. According to the department, the paternal grandmothers "bare" and "vague" suggestion of Indian heritage followed by her "completed and signed questionnaire abandoning that suggestion" does not suffice to invoke the notice provisions of the ICWA. We disagree.
First, we cannot so easily conclude that the paternal grandmother was "abandoning" her claim that Jeremiah might have Indian heritage because she filled out a form indicating that she had no information regarding his Indian heritage. In completing the form as she did, it may simply have been her intention to indicate that she had no further information beyond what she had already provided to the social worker. In the absence of any unequivocal evidence, we have no way of knowing her actual intention.
Second, "the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; see also Cal. Rules of Court, rule 1439(d)(4)(A) [the "circumstances that may provide probable cause for the court to believe the child is an Indian child include," inter alia, receipt of "information suggesting that the child is an Indian child"]; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258 [providing exhaustive analysis of the issue and concluding that the "minimal showing" required to trigger notice under the ICWA is merely evidence "suggest[ing]" the minor "may" be an Indian].) "Given the interests protected by the [ICWA], the recommendations of the [federal] guidelines, and the requirements of our court rules, the bar is indeed very low to trigger ICWA notice." (In re Antoinette S., supra, 104 Cal.App.4th at p. 1408 [finding fathers suggestion that child "might" be an Indian child because paternal great-grandparents had unspecified Native American ancestry was enough to trigger notice].) Accordingly, we find that the ICWA notice requirements were triggered here by the paternal grandmothers suggestion of Indian ancestry, and the departments contention therefore has no merit.
D. There Was No Evidence That the BIA Was Properly Served
Mother contends that the "pivotal notice problem" in this case was the lack of notice to the Secretary of the Interior in Washington, D.C., claiming that ICWA notice must be sent to both the Secretary and the area director of the BIA. But we have already explained that because the BIA acts as the agent for the Secretary, notice to the BIA satisfies notice to the Secretary. (In re L. B., supra, 110 Cal.App.4th at p. 1426, fn. 4; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 254; In re Suzanna L., supra, 104 Cal.App.4th at p. 232; 25 C.F.R. § 23.11(c)(12).) Father concedes as much.
Rather, father contends, and mother agrees, that the problem in the present case is the absence of evidence indicating that notice was properly sent to the BIA because the department never supplied the court with copies of proof of the registered or certified mail, return receipts or any written response from the BIA.
At the time the ICWA notice was prepared in this case, neither the ICWA nor the California Rules of Court required return receipts to be filed with the juvenile court. But the BIAs Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed. Reg. 67584 (Nov. 26, 1979)) recommended that "the original or a copy of each notice sent . . . shall be filed with the court together with any return receipts or other proof of service" (id. at p. 67588) in order that "there will be a complete record of efforts to comply with the [ICWA]" (id. at p. 67589). Although the BIAs guidelines are "not intended to have binding legislative effect" (id. at p. 67584), the majority of California courts which have considered the issue have held that, in order for the juvenile court to determine whether the ICWA notice requirements have been met—and for an appellate court to review such determination—copies of the notices sent to the tribes, the return receipts, and any responses from the tribes must be included in the court record. (See, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906; In re Louis S. (2004) 117 Cal.App.4th 622, 629; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 865; In re Karla C. (2003) 113 Cal.App.4th 166, 1750-178; In re Asia L. (2003) 107 Cal.App.4th 498, 508; In re H. A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.) Effective January 1, 2005, California Rules of Court, rule 1439(f) provides that proof of notice pursuant to the ICWA, "including copies of notices sent and all return receipts and responses received, must be filed with the juvenile court." Although this amendment took effect after the date of the ICWA notice here, the amendment merely confirmed the law established by these decisions.
On this record we cannot find compliance with the ICWAs notice requirements. The departments failure to provide the court with return receipts for the notice served on the BIA on February 23, 2004 is fatal. The entire purpose of filing return receipts is to establish that ICWA notices were actually received by the tribe or agency in question. Here, the record contains no proof that the BIA received actual notice. No written response from the BIA was ever filed with the court. In light of the failure of proof that the BIA actually received notice, the court could not properly view the lack of response by the BIA after 60 days as determinative on the applicability of ICWA. "Absent evidence the notice was sufficient, a tribes nonresponse may not be deemed `tantamount to determinations that the minor [is] not an "Indian child" within the meaning of the [ICWA]." (In re Karla C., supra, 113 Cal.App.4th at p. 178.)
California Rules of Court, rule 1439(f)(6) provides: "If, after a reasonable time following the sending of notice under this rule—but in no event less than 60 days—no determinative response to the notice is received, the court may determine that the [ICWA] does not apply to the case unless further evidence of the applicability of the act is later received."
The department asserts that while the technical requirements of the ICWAs notice provisions may not have been met, there was nonetheless "substantial compliance." But the cases the department cites to support its position (In re Aaliyah G. (2003) 109 Cal.App.4th 939 and In re E.H. (2006) 141 Cal.App.4th 1330) are inapplicable because neither of these cases has anything to do with the issue of substantial compliance with the ICWA notice requirements. Although the department does not specify in what particular manner there was substantial compliance, the department seems to suggest that because the parents indicated in writing that they had no information about Jeremiahs Indian heritage and they did not specifically object to the departments reports concluding that the ICWA did not apply, the department was not required to fully comply with the ICWAs notice requirements. This is simply not the law. In a case not cited by the department, the court stated: "Where the record shows unequivocally that proper notice was given to the proper tribes and that responses were received, and the only omission is the failure to file a proof of service establishing that the notice and a copy of the petition were sent by certified mail, error will not be presumed and compliance will be deemed sufficient." (In re Elizabeth W., supra, 120 Cal.App.4th at p. 907.) But here, there was no unequivocal evidence that the BIA actually received notice.
The parents also complain that the juvenile court failed to make any finding as to whether the ICWA applied. "While the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied." (In re Asia L., supra, 107 Cal.App.4th at p. 506, citing to In re Jennifer A., supra, 103 Cal.App.4th at p. 705 [explicit finding required]; In re Levi U., supra, 78 Cal.App.4th at p. 199 [implicit finding allowed].) The department asserts that the juvenile court here made an implicit finding that the ICWA did not apply because it had read the departments reports that consistently stated that the ICWA did not apply. But we need not decide this issue here because even if the juvenile court had made a finding, either express or implied, that the ICWA did not apply, we could not uphold this finding in light of the evidence establishing insufficient notice to the BIA.
Finally, while the department correctly recognizes that a parents timely failure to raise the issue of defects in the ICWA notice does not waive the issue on appeal (In re Marinna J. (2001) 90 Cal.App.4th 731, 739), the department incorrectly asserts that the parents invited the errors of which they complain by remaining silent throughout the dependency process about the deficient notice and the courts failure to make an express finding as to whether the ICWA applied. The departments assertion reflects a fundamental misunderstanding of the obligations imposed by the ICWA where the department seeks termination of parental rights. In such a case, the responsibility for compliance with the ICWA falls squarely on the juvenile court and the department. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 1439(d); In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) "[T]he juvenile court has a sua sponte duty `to give the requisite notice itself or ensure the social services agencys compliance with the notice requirement. . . . [N]otice is intended to protect the interests of Indian children and tribes despite the parents inaction." (In re Nikki R., supra, 106 Cal.App.4th at p. 849, citing Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 261.) Thus, the parents inaction neither excuses the courts failure to ensure proper compliance with the ICWA notice requirements nor constitutes a determination that the notice given was proper. Where the court and the department fail to meet their obligations with respect to ICWA notice, it is they, not the parents, who have caused a delay in the proceedings and in establishing permanency for the child.
We conclude that the departments failure to file with the juvenile court copies of the return receipts and any correspondence it received from the BIA constituted error. We also conclude that the error was not harmless given the absence of any evidence that the BIA actually received notice and the absence of any basis in the record for concluding that Jeremiah is not an Indian child as a matter of law. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) While the error requires reversal of the order made at the section 366.26 hearing terminating the parents parental rights to Jeremiah, it "does not mean the trial court must go back to square one. It simply means the trial court must see to it that proper notice is given." (In re Suzanna L., supra, 104 Cal.App.4th at p. 237; see alsoIn re Francisco W. (2006) 139 Cal.App.4th 695, 705 ["The limited reversal approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice"].) If, after proper notice, the court finds insufficient evidence that Jeremiah is an Indian child, the court should reinstate the order made pursuant to section 366.26. (In re Suzanna L., supra, 104 Cal.App.4th at p. 237 .) "If the only error requiring reversal of the judgment terminating parental rights is defective ICWA notice and it is ultimately determined on remand that the child is not an Indian child, the matter ordinarily should end at that point, allowing the child to achieve stability and permanency in the least protracted fashion the law permits." (In re Francisco W., supra, at p. 708.)
DISPOSITION
We affirm the juvenile courts order denying the parents section 388 petitions. We also find that substantial evidence supported the juvenile courts determination that the beneficial relationship exception to the termination of parental rights did not apply. The failure to comply with the ICWA notice provisions, however, requires a limited reversal. The order terminating parental rights is reversed. The case is remanded to the juvenile court with directions to order the department to give notice to the BIA in accordance with the ICWA and guidelines, and cases and rules implementing the ICWA and to file all required documentation with the juvenile court for the courts inspection. If there is no timely response after proper notice, or if the response raises no substantial question as to whether Jeremiah is an Indian child, the juvenile court must reinstate its original order terminating parental rights. If the response does raise a substantial question as to whether Jeremiah is an Indian child, the trial court must hold further proceedings consistent with the ICWA. Even then, if it determines, in the course of such proceedings, that the ICWA does not otherwise apply, the court must reinstate its original order terminating parental rights.
We Concur:
ASHMANN-GERST, J.
CHAVEZ, J.