Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, No. CK49305, D. Zeke Zeidler, Judge.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, for Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), S.S., the mother of two dependent minor children (Mother), has appealed from an order that terminated her parental rights to the children. The children are Justin S. and J.S. Mother contends the trial court erred in terminating her rights because her relationship with the minors comes under the statutory “parental relationship” exception to termination of rights. Mother also contends the dependency court did not comply with the requirements of the Indian Child Welfare Act (the ICWA, 25 U.S.C. § 1901 et seq.). While we do not find that the parental relationship issue requires reversal of the challenged order, we agree that the order, as to J., must be reversed for the limited purpose of compliance with the ICWA.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
BACKGROUND OF THE CASE
This is the second time we have had occasion to review orders in this case. On January 11, 2007, we filed an opinion (B194429) in which we denied Mother’s petition for extraordinary writ. She filed the petition after the trial court terminated her reunification services and set this case for a section 366.26 hearing. Because the factual and procedural background of the case, through the October 3, 2006 section 366.22 review hearing at which reunification services were terminated, has been set out in our prior opinion, our presentation of the background of Mother’s current request for appellate review commences with matters occurring after that date.
We granted Mother’s request for judicial notice of the appellate record in that prior proceeding.
The report filed by the Los Angeles County Department of Children and Family Services (the Department) for a January 30, 2007 status review hearing shows that the two minors continued to reside in the preadoptive home of their maternal aunt, and as noted in our prior opinion, her adoption home study had already been approved. Mother stated to the Department social worker that she had no desire to continue seeing her therapist or her psychiatrist, nor to take her psychotropic medication. She stated there was no point in taking the medication because she knows what is going to happen. It is not clear from the report what Mother meant by that. Mother also told the social worker that her counselor at the Asian American Drug Abuse Program (AADAP) wrote to Mother’s attorney and told the attorney that Mother’s case is complicated.
The caregiver maternal aunt reported that she invites Mother to family gatherings, and when Mother visited on January 7, 2007, she began throwing things at the aunt. The PET (psychiatric evaluation team) was called, and Mother was placed on a 5150 hospital hold. (Another report states Mother burned the aunt with a cigarette that day, and further states that on a December 8, 2006 visit, Mother was “talking crazy” by calling the caregiver aunt names.) The social worker opined that the minors’ physical and emotional health were still at risk due to Mother’s relapses in psychosis and her not taking psychotropic medication.
At the January 30, 2007 status review hearing, for reasons more fully discussed infra, the court stated the Department might need to serve ICWA notices for the May 8, 2007 section 366.26 hearing. The court indicated the May 8 date would also include a status review of the case.
The Department’s reports for the May 8, 2007 hearings state Mother occasionally visits the minors at the home of the maternal aunt/preadoptive parent, and the aunt does not mind Mother visiting the minors so long as Mother does not start fighting. The review hearing report states Mother last visited on March 11, 2007. The section 366.26 report states three recent occasions when Mother visited and caused problems (December 8, 2006, January 7, 2007 and March 11, 2007), and, as noted above, on one of those visits Mother was put on a 5150 hold. It states that the caregiver aunt reported that on the March 11, 2007 visit, Mother went on a “rampage” and when the aunt went to call law enforcement, Mother ran away.
The social worker opined that the minors should remain placed with the caregiver because Mother never fully complied with her case plan, she refuses to take her medication, she relapses often in her psychosis, and her drug program counselor reported that Mother needs serious anger management training. The caregiver was reported to be a loving, caring, outgoing person who desires to give the minors a permanent home and who appears capable of providing them with a nurturing environment. She stated she was willing to permit Mother to have a place in the children’s lives so long as Mother receives treatment for her mental disorder. The children were reported to have formed a close and loving attachment to the caregiver and appear content in her care.
The May 8, 2007 hearings were continued to June 19, 2007 because Mother requested a contest. Mother filed a section 388 petition on June 19, seeking a return of the minors to her care. She asserted she had completed her case plan, had been visiting the children regularly, and the minors would benefit from being in her care. Mother’s treating psychologist stated in a letter that he had been treating Mother since April 2002, and since February 2007 Mother was attending therapy twice a month. He opined there was no reason for her to see a psychiatrist for medication treatment. He stated Mother had been working on anger management for several months and was showing significant and sustained improvement. Mother’s section 388 petition was summarily denied on the day it was filed. In denying the petition, the court observed that the psychologist reported Mother had psychiatric hospitalizations, and evaluations for hospitalizations, due to Mother’s anger related problems. The court stated that although such episodes were infrequent, it was premature to place the minors in Mother’s home given that she was still having monitored visits with them, and thus moving the minors to Mother’s care would not be in their best interest.
At the June 19 hearings, Mother’s attorney stated that whereas the Department’s reports state that Mother has had about three visits in the last four to six months, Mother told the attorney she actually had more than that and would have visited even more except that the caregiver does not permit her more visits. Asked how many times Mother had visited the children, the attorney stated Mother told him she had visited them over 30 times in the past six months. The court observed that figure was “kind of . . . inconsistent with having just argued that the Mother is being denied visitation.” The court also stated it was not clear from the Department’s section 366.26 report whether the three visits reported to have taken place on December 8, 2006, January 7, 2007 and March 11, 2007 were the only visits Mother had since the last review period or the only visits which posed problems. The court stated it would take testimony from Mother.
Mother testified that in the previous six months she had visited the children over 30 times, the visits were usually over the weekend, and she would stay from Friday to Sunday. Asked where she stayed, she stated she stayed at the caregiver aunt’s house with the aunt and the minors. She stated the last two times she stayed there was on a weekend for one of the children’s birthdays (Justin was born on June and then one night after that to get a flat tire fixed. She stated that the reason she was able to have so much visitation in the previous six months was because the maternal grandmother was in town during that time and staying with the caregiver maternal aunt, and but for the grandmother being there, Mother “would not have obtained as much visits I have had.” She stated the grandmother bribed the aunt to let Mother visit the minors. She stated there were “plenty of cancelled visits during the time that I was supposed to have visitation rights.” Asked to give dates when she was not permitted to visit, Mother stated they were mostly in October (apparently meaning 2006), some in November, and from January 7, 2007 “to like about February, March I didn’t have any visits” and she was only permitted phone calls. She admitted that she visited on March 11, 2007 but said it was because the grandmother was in town. She stated she was permitted one more visit in March 2007 and was permitted to visit the minors in May for Mother’s Day and then “the visits picked up.”
Questioned further about the caregiver not permitting her to visit the children, Mother described an incident when the aunt called mental health personnel on her. Mother stated this happened about four years earlier, and then stated it happened “after the last October date,” then stated it occurred “[a]bout April,” and then stated it happened “before April, like the month before March.” She also described an incident that occurred at a later date in which the caregiver told Mother to leave because there had been no visitation set up for that day, which was apparently the March 11, 2007 incident. Mother stated a week later she spent the weekend at the caregiver’s home. Asked how many nights she had already spent at the caregiver’s house during the month of the hearing (June 2007), Mother stated she had already spent about seven nights there and there were no arguments between herself and the caregiver. She stated she spent about five nights there in the month of May. She stated she goes to the caregiver’s house as often as she can.
Mother stated the caregiver once told Mother it is good for her to be around the minors, but also told Mother a few times it was not good for Mother to be there because Mother was overemotional and was not listening to what the caregiver asked her to do. She stated she has been in counseling with her psychologist since 2002 and she has learned to control some of her emotions because they don’t need to be expressed, and has also learned to stop arguing with the caregiver on her visits so that she is not asked to leave the caregiver’s home. She stated the minors cry when she and the aunt argue.
Mother also stated that when the minors do not listen, she yells at them so that the caregiver will not hit them with a belt. She stated she called the abuse hotline and she told the social worker that the caregiver uses a belt on the minors but the social worker does not believe Mother. Asked how many times Mother called the child abuse hotline, she first stated she called it “almost every other weekend,” and later stated she called it five or six times and stopped calling because “there was no reaction.” She admitted that she thought calling the hotline would result in the children being returned to her care. (The court observed that for the aunt’s adoptive home study, the Department would have reviewed whether there were any hotline referrals.)
Asked what she and the minors do when she visits them, Mother stated they watch television (cartoons and Teletubbies), she watches the children when they play outside, she buys them ice cream, and she converses with them. She also cooks their breakfast, lunch and dinner or she orders out. If she stays over Sunday night she helps Justin get ready for school. She also helps him with his preschool homework assignments and she attended a party at Justin’s school. She stated the children call her Mother or Mommy, and call the caregiver Auntie Quin. The caregiver is the one that gives the children a “bedtime” and tucks the children into bed, however sometimes the children sleep with Mother. The children are very happy to see Mother when she arrives at their home and they cry when she leaves.
The dependency court observed that the minors have spent a large part of their life being raised by the maternal aunt. Justin was detained after he was born because Mother tested positive for marijuana and was acting emotionally unstable in the hospital. Justin lived with the maternal aunt for about two years before he was returned to Mother in May 2004. He was redetained in April 2005 and again placed with the maternal aunt. Thus, he has spent most of his life living with the aunt. J. was six months old when he was detained in April 2005 and placed with the aunt. The court also observed that Mother has mental health episodes every so often that impact the minors.
The court found Mother’s credibility was “definitely questionable” and the court specifically mentioned that part of Mother’s testimony where she stated she has parental responsibilities. The court observed that the aunt has had a parental role for most of the children’s lives. The court found that whatever Mother’s role has been, and to the extent that she has a parental relationship with the minors, that relationship does not outweigh the benefit the children would receive from being adopted by the caregiver aunt. The court terminated parental rights and thereafter Mother filed this timely appeal.
DISCUSSION
1. There Is No Showing of an Abuse of Discretion or Error Respecting Mother’s Claim to a Parental Relationship Exception to Termination of Her Parental Rights
Adoption is the Legislature’s first choice for a permanent plan for a dependent child because it is more secure and permanent than a legal guardianship or long term foster care. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Section 366.26, subdivision (c) provides that when a court finds by clear and convincing evidence that it is likely a dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption. A finding that the child continued to be removed from the custody of the parents and reunification services were terminated “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 child due to one or more of the . . . circumstances [set out in subdivision (c) (1) (A) through (F) of section 366.26].” It is a parent’s burden to prove that one or more of those (c)(1) exceptions to termination of parental rights applies to his or her child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) When a parent claims one or more of the exceptions in subdivision (c)(1), the claim must be examined in light of the Legislature’s preference for adoption, and only in exceptional circumstances will the court choose a permanent plan other than adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)
In reviewing a trial court’s determination on the applicability of statutory exceptions to termination of parental rights, appellate courts have utilized both the substantial evidence test and the abuse of discretion test. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The Jasmine D. court observed that “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.’ . . . ” ’ [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ [Citation.] That is a quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference. [Citation.]” (Ibid.)
Here, Mother contends the trial court erred when it did not find a subdivision (c)(1)(A) “parental relationship” exception to termination of her parental rights. That exception applies when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) To establish the applicability of that exception, a parent must show more than “ ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]. Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)
The parental relationship exception to termination of parental rights has been interpreted to mean that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and 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. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It has been noted, however, that the evidence of a child’s relationship with a parent should be considered in the context of the amount of visitation a parent has been permitted to have. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)
Applying the Andrea R. and Autumn H. analyses of the parental relationship exception to termination of parental rights, it is clear to this court that there was no abuse of discretion or error when the trial court determined the exception does not apply to Mother’s relationship with Justin and J. The evidence, as found by the trial court, does not describe the type of relationship between Mother and the minors that is necessary to meet the parental relationship exception. It was up to the trial court to determine the facts of the case, using all of the information available to the court. (In re Autumn H., supra, 27 Cal.App.4th at p. 575-576.)
It is true that the Department reported in March and September 2006 that the children are always delighted to see Mother when she visits. One report stated the children give her kisses and hugs, she plays with them and reads to them, Justin has an “obvious bond” with Mother, and J. cries when the visits are over and Mother leaves the room. The other report stated she brings the children food, plays with them, and the minors are unhappy when the visits end. However, the parental relationship exception to termination of parental rights requires more than just happy visits between parents and children and sad departures. The parental relationship exception concerns a sustained interest by the parent in the minors’ education, health, daily activities, and advances in meeting their milestones. Here, there is no indication that when Mother speaks with the social worker, the caregiver, or the children themselves, she shows that sustained interest. As noted above, to establish the applicability of the parental relationship exception, a parent must show more than “ ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]. Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” In re Andrea R., supra, 75 Cal.App.4th at p.1108.) Although Mother testified concerning her parental role of attending to the children’s daily needs when she has overnight visits with them at the caregiver’s home, the trial court did not find her testimony believable. Mother’s veracity has been questionable throughout this case, as seen in our prior opinion where we set out many representations she made to people which were later found to not be true.
Mother’s visits are not always good. Her tendency towards sometimes erratic and bizarre behavior and sometimes aggressive behavior has never ceased throughout the case. Indeed, since the children were removed from her care in April 2005, she has been hospitalized on more than one occasion because of her behavior.
Moreover, the reports state the children continue to thrive in the care of the maternal aunt, and the aunt was reported to be a loving, caring, outgoing person who provides the children with the necessities of life, appears capable of providing them with a nurturing environment, and desires to give them a permanent home. The children were reported to go to the aunt for “comfort, instruction, permission, and guidance,” and to smile and laugh with her. Although the aunt declined to enter into a kinship adoption agreement, she stated she was willing to permit Mother to have a place in the children’s lives so long as Mother receives treatment for her mental disorder. The children were reported to have formed a close and loving attachment to the aunt and appear content in her care. She has assumed a parental role for them and attends to their daily needs.
Regarding kinship adoption agreements, “in order to remove barriers to adoption by relatives and to preserve family relationships, the Family Code provides for adoption by a relative of a dependent child and for a written and signed kinship adoption agreement between the relative and a birth parent, which shall be attached to and filed with a petition for adoption by the relative. (Fam. Code, §§ 8714.5, [8616.5, formerly 8714.7].)” (In re Zachary D. (1999) 70 Cal.App.4th 1392, 1395-1396.)
Essentially Mother asserts that the dependency court should have found that because the minors very much enjoy their time spent with Mother and call Mother “mommy,” it is in the minors’ best interests to deny them a permanent home with their long time caregiver who assumed the role of full time parent to them when Mother was not able to do, and who has formed a loving relationship with them. However, the parental relationship exception to termination of parental rights “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) The trial court’s finding that the parental relationship exception does not apply here does not require reversal of the order terminating Mother’s parental rights.
2. Reversal of the Order Terminating Mother’s Parental Rights As To J. Is Required for the Limited Purpose of Proper ICWA Notice
a. Factual Background on the ICWA Matter
The Department’s report for the April 8, 2005 detention hearing states the ICWA may apply for both of the minors because the maternal grandmother reported that the maternal great, great-grandmother was a full-blood Choctaw Indian.
The record shows that at the arraignment hearing that was held on April 21, 2005, the court partially filled out an ICWA notice as it was questioning Mother and the maternal grandmother concerning possible Indian heritage. That notice contains the names, birth dates and birth places of Mother, the maternal grandmother and the maternal great-grandmother, as well as the name of the maternal great, great-grandmother. It states Choctaw Tribe heritage for each of them. The court ordered the clerk to make a copy of that ICWA notice for the Department, and ordered the Department to interview the maternal grandmother to obtain the maternal great, great-grandmother’s birth date and then provide proper notice to the Choctaw Tribes. The court also stated that the court’s file shows that on November 21, 2003, the court found, as to Justin, that proper ICWA notice had been given and the ICWA does not apply as to him, and therefore, ICWA notice need only be given for J.
The April 21, 2005 minute order states that the maternal grandmother indicated she has Cherokee ancestry, and further states that the court ordered the Department to give ICWA notice to Cherokee tribes. Given the clear representation in the reporter’s transcript that the grandmother stated she has Choctaw heritage, and the clear directive in the reporter’s transcript that notice was to be given to Choctaw Tribes, not to Cherokee Tribes, there could be no error when the Department did not notice the Cherokee Tribes. A conflict between a reporter’s transcript and a clerk’s transcript is resolved in favor of the reporter’s transcript on the basis of finding clerical error in the clerk’s transcript unless the particular circumstances show otherwise. (In re Merrick V. (2004) 122 Cal.App.4th 235, 249.)
With its report for the May 17, 2005 jurisdiction/disposition hearing, the Department included a newspaper article regarding the maternal great, great grandmother showing her birth date and place of birth, and a memorial service paper concerning the maternal great grandmother which shows her birth date. Also included were copies of the several ICWA notices sent out by the Department for J. ICWA notices were sent to the Bureau of Indian Affairs (BIA) in Sacramento; the Secretary of the Interior/Office of Tribal Services in Washington, D.C.; the Jena Band of Choctaw in Jena, Louisiana; the Mississippi Band of Choctaw Indians in Choctaw, Mississippi; and the Choctaw Nation of Oklahoma in Durant, Oklahoma. The notices were mailed on May 5, 2005, for the May 17, 2005 jurisdiction/disposition hearing. Also included with the report are copies of regular dependency court notices of hearing (such as are sent to parents, attorneys, caregivers for hearings during the course of a case), together with proofs of service for those notices, showing that such notices for the May 17, 2005 hearing were mailed, on May 5, 2005, to Mother as well as to the BIA in Sacramento, the Secretary of the Interior/Office of Tribal Services in Washington, D.C., and the above mentioned three Choctaw Indian Bands/Nation (Louisiana, Mississippi, and Oklahoma). The United States Postal Service green cards/Certified Mail Receipts, showing delivery to the BIA, Mississippi Band of Choctaw Indians, Choctaw Nation of Oklahoma, and the Jena Band of Choctaw in Louisiana were included with the copies of those regular dependency court notices of hearing. It is not clear whether such notices and the ICWA notices were mailed together in the same envelopes.
At the May 17, 2005 adjudication/disposition hearing, the court stated ICWA notices were sent to “all three Choctaw on May 5th. I have return receipts from the Jena Band dated May 9th. I have return receipts from both Mississippi and Oklahoma Choctaw dated May 10th.” The court found substantial compliance with the ICWA, stated it would stay its disposition findings and order to May 27, 2005 so that “the Tribes have at least 10 days to respond,” and set a May 27 progress hearing on the ICWA matter
In finding substantial compliance with the ICWA, the court stated: “[T]he only mistakes that I could tell were that the maternal great grandmother was listed as being a maternal grandfather and the maternal great, great grandmother was listed as being a maternal great grandmother, which in fact would give more percentage of blood, and so if the Tribe thought that they were doing the grandmother instead of the great grandmother, it would be more likely to come back showing Indian ancestry. So, it’s substantial compliance.”
With its report for the May 27, 2005 hearing, the Department included a letter from the Attorney General of the Mississippi Band of Choctaw Indians indicating the minors, Mother, the maternal grandmother, the maternal great grandmother, and the maternal great, great-grandmother are all not enrolled with that Band and not eligible for enrollment. Also included was a letter from the Tribal Enforcement Office of the Mississippi Band of Choctaw Indians to that same Attorney General, stating those people are not enrolled nor eligible for enrollment. Additionally, there was a letter from the Jena Band of Choctaw Indians of Jena, Louisiana which stated that neither the minors nor their relatives are members of that Band, nor eligible for membership. Lastly, there was a post office return receipt for delivery to the Department of Interior in Washington, D.C., dated May 11, 2005. There was no letter from the Choctaw Nation of Oklahoma.
At the May 27, 2005 progress hearing on the ICWA issue, the court found that the Department’s ICWA notices were proper, and that the court does not have reason to believe that the minors are Indian children and the ICWA does not apply in this case. The court once again observed that it had previously (on November 21, 2003) found that ICWA notice for Justin was proper and the ICWA does not apply to him. The stay of the disposition findings and orders were lifted.
The ICWA was not raised again until the January 30, 2007 status review hearing. The Department had submitted birth certificates for the minors with its report for that hearing, and the court opined that the spellings for the children’s and Mother’s names on the prior ICWA notices might be different from the spellings on the birth certificates. (In fact, the spellings are not different.) The court also observed that the birth certificates also include the middle names for Mother and the minors. The court instructed the Department to find the prior ICWA notices and verify that the children’s and Mother’s names on those notices match the names on the birth certificates. The court stated it would probably need new ICWA notices for the May 8, 2007 review/section 366.26 hearing even though it had found, based on the prior ICWA notices, that the ICWA does not apply to this case.
The appellate record does not contain any additional ICWA notices, nor does it contain any further mention of the ICWA other than that mentioned in the two reports that the Department submitted for the May 8, 2007 hearings. In the report for the status review, the Department stated: “The [ICWA] does or may apply. On 05/27/2005, the court found the [ICWA] does not apply to the children . . . .” In its report for the section 366.26 matter, the Department stated: “The [ICWA] does not apply. On 05/2705 [sic], the court found that the [ICWA] does not apply to the children . . . .”
b. Mother’s Appellate Position on ICWA Compliance
On appeal, Mother asserts that the notices sent out by the Department in 2005 were defective. Although it is the Choctaw Tribe that is identified for each of the maternal relatives (Mother, grandmother, great grandmother and great, great grandmother) on pages two through four of the notice form, and although on page one of the notice form it states that J. “is reported to be eligible for membership in the following tribe or band . . . Choctaw,” Mother asserts error because on page one of the form where the name of the Indian custodian and the custodian’s Tribe is asked, the Department wrote “Cherokee.” Mother argues that the three Choctaw Tribes/Bands “may have chosen not to intervene because the children were placed with another tribe (Cherokee).” Mother further complains that although the Department was ordered to re-notice the Tribes because the minors’ middle names were not given in the original notices in 2005, the Department did not in fact send out new notices. Mother asserts new notices must be given to both Choctaw and Cherokee tribes.
c. Analysis
First, as noted in footnote 5, the Cherokee tribes did not need to be noticed. Second, when the Mississippi Band of Choctaw Indians responded in 2005, they specifically stated they were not going to intervene because Justin, J., Mother, the maternal grandmother, the maternal great grandmother, and the maternal great, great grandmother are not enrolled in their Band and are not eligible for enrollment. Likewise, when the Jena Band of Choctaw Indians responded in 2005, they specifically stated Justin, J. and “their relatives” are not are not members of the Band and are not eligible for membership. Thus, Mother’s contention that the Bands may have chosen not to intervene because it appeared that the minors were placed with another tribe is without factual basis.
Third, the trial court determined in 2003 that proper ICWA notice was given regarding Justin, and further determined that the ICWA does not apply to him. Since the record does not contain the 2003 ICWA notices and responses to such notices, there is no basis to challenge that 2003 determination and therefore, based on the record, notices for Justin did not need to be sent again when Justin was again brought into the dependency court. This conclusion is supported by the reporter’s transcript for a November 21, 2003 hearing wherein the court stated that it received a letter from the Choctaw Nation of Oklahoma which indicated “non ICWA.” Coupled with the letters from the Mississippi Band and the Jena Band that were received in May 2005 for the two minors, it is clear that there is no need for further notice to any of the Choctaw Tribes/Bands for Justin. As to him, the order terminating Mother’s parental rights will be affirmed.
Fourth, because the ICWA notice requirements apply to each individual child, notices were required for J. in his own right. Because the Mississippi Band and the Jena Band have responded and ruled out intervention as to him, only the Choctaw Nation of Oklahoma is at issue. Section 224.2, subdivision (a) (2) requires that notice to a Tribe be sent “to the tribal chairperson, unless the tribe has designated another agent for service.” The notice sent to the Choctaw Nation of Oklahoma was sent to a post office box, and there is no indication such address was designated as the one to use for ICWA notices. Therefore the notice does not appear to be proper. Moreover, section 224.3, subdivision (e) (3) provides that when proper and adequate notice has been provided and a Tribe does not provide a “determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] . . . does not apply to the proceedings . . . .” Here, the 60-day period did not run its course. The three Choctaw notices were mailed on May 5, 2005, and just 22 days later (at the May 27, 2005 progress hearing on the ICWA issue), the court found that it does not have reason to believe that J. is Indian children and the ICWA does not apply in this case. It is therefore necessary to reverse the order terminating parental rights as to J., and necessary for the Choctaw Nation of Oklahoma to be re-noticed as to him. This time the proper address should be used and the full 60-day statutory time should be allowed.
Fifth, Mother asserts there are legal consequences to the Department not obeying the trial court’s January 2007 directive that the Choctaw Tribes/Bands should be re-noticed because the children’s middle names and Mother’s middle names were not included on the three Choctaw notices sent by the Department in 2005. However, Mother does not explain why there should be legal consequences to not including those middle names. The maternal grandmother’s, great grandmother’s and great, great grandmother’s middle names were included on the notices. Mother does not explain how knowing the middle names of herself and J. could have, much less would have, resulted in different responses from the Mississippi Band and the Jena Band. We find her argument to be without merit.
DISPOSITION
The order terminating Mother’s parental rights as to Justin is affirmed.
The order terminating Mother’s parental rights as to J. is reversed and the cause is remanded for the limited purpose of compliance, for J., with the ICWA notice requirements with respect to the Choctaw Nation of Oklahoma. If, after proper notice, the Choctaw Nation of Oklahoma asserts its right under the ICWA to intervene in this matter in state court with respect to J., or to obtain jurisdiction over the proceedings by transfer to the tribal court with respect to him, the cause as to him should proceed in accordance with that election. If there is no intervention or assertion of jurisdiction after proper notice and application of statutory time limits, then the juvenile court’s order terminating Mother’s parental rights as to J. shall be reinstated. The Department is to notify this court forthwith if the Choctaw Nation of Oklahoma asserts its right to intervene or obtain jurisdiction over the proceedings as to J. or the juvenile court reinstates the order terminating Mother’s parental rights as to him.
We Concur: KLEIN, P. J. ALDRICH, J.
Under section 8616.5, subdivision (b) (2), the terms of such an agreement “shall be limited to, but need not include,” (1) provisions for visits between the minor and “a birth parent or parents and other birth relatives, including siblings, and the child’s Indian tribe if the case is governed by the [ICWA]”; (2) “[p]rovisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both, and in cases governed by the [ICWA], the child’s Indian tribe”; and (3) “[p]rovisions for the sharing of information about the child in the future.” An exception to this is that “[t]he terms of any postadoption contact agreement shall be limited to the sharing of information about the child, unless the child has an existing relationship with the birth relative.” (§ 8616.5, subd. (b)(3).) Moreover, postadoption contact agreements must be “found by the court to have been entered into voluntarily and to be in the best interests of the child at the time the adoption petition is granted.” (§ 8616.5, subd. (b)(1).) Section 8616.5 also includes other limiting provisions.