Opinion
B202863
7-30-2008
In re N.H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANTHONY H., Defendant and Appellant.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
Anthony H. appeals from the order terminating his parental rights to his daughter, four-year-old N. Anthony contends reversal is required because: (1) N. is not likely to be adopted; (2) he had a beneficial parent/child relationship with N., such that the detriment of terminating parental rights outweighs the benefits of adoption; and (3) a notice provision in the California statutes and rules addressing the Indian Child Welfare Act (ICWA) was violated.
We remand for a limited hearing on the issue of whether the Los Angeles County Department of Children and Family Services (the Department) satisfied the ICWA notice provision. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The initial facts
Anthony is the father of eight children who are, or were, before the dependency court. The oldest child was born in 1986, and the youngest is N., who was born in 2003. N. is the only child who is subject to this appeal. The childrens mother is not a party to this appeal. She died during the time the case was before the dependency court.
There is also information in the record showing that the parents had a total of 11 children, some of whom were adults.
The family came to the attention of the Department as the result of a probation search executed by law enforcement on March 24, 2004, with reference to Anthony. Two assault weapons, a handgun, cocaine, and cocaine pipes were found in the search. Also, the familys two-bedroom home was in a deplorable and unsanitary condition. It smelled, was filthy, needed major repairs, and debris and roaches were everywhere. Drug addicts were living in trailers in the back of the house.
The Department learned that Anthony had an extensive criminal history including, gang association, narcotics, guns, as well as robbery and murder. He was on probation for assault on a probation officer and possession of a controlled substance. Mother informed the Department that Anthony had a cocaine problem and the cocaine was his.
Five of the children were placed in foster care. The two oldest children refused to be placed in foster care, and the whereabouts of N. were unknown.
2. Sustaining the petition
On March 29, 2004, the Department filed a petition pursuant to Welfare and Institutions Code section 300 and the juvenile court held an arraignment and detention hearing. Mother and the paternal grandmother were present and stated that there was no Native American Indian ancestry. The issue of paternity was deferred until Anthony could be present and the juvenile court ordered the Department to locate N. The juvenile court detained the children, including N., and gave the Department discretion to release the children to mother.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
On April 8, 2004, the juvenile court conducted a hearing. Anthony appeared even though he was in custody. Contradicting his mothers statements, Anthony said he had Native American Indian ancestry because his mother had informed him that he had Apache or Blackfoot heritage. The court vacated its previous finding that the ICWA did not apply. The court found that Anthony was the presumed father of all eight children. The court ordered the Department to interview the paternal grandmother regarding the possibility of Native American Indian ancestry. The Department also was to inform the court of its efforts to locate N. Anthony was awarded monitored visitation.
On April 9, 2004, N. was located and placed in foster care.
On May 11, 2004, the Department filed a report. Six of the children were placed in different foster homes. (Two of the older children could not be located.) Anthony was incarcerated on charges of possession of firearms by a convicted felon. The social worker reported that the paternal grandmother had stated, "Im an old lady. My grandparents used to tell stories about the Apache and Blackfoot." The paternal grandmother also had reported that neither she nor any of her children attended an Indian school or received medical treatment in an Indian clinic or hospital, her grandparents were not registered with any tribe, and none of her relatives lived on federal trust land, a reservation, or Indian allotment. The matter was continued.
On June 9, 2004, the petition was amended according to a mediated agreement to read that Anthony had a history of substance abuse that limited his ability to care for the children and Anthony, and mother had established an unsanitary and unhealthful home environment for the children, including a roach infestation, and dirty kitchen and bathroom. The parties also agreed to the following disposition plan: (1) six of the children, including N., were to be suitably placed; (2) reunification services were to be provided to the parents; (3) both parents were to participate in, and complete, parent education programs, substance abuse programs, random drug testing, and individual counseling; (4) both parents were to be given monitored visitation with the children; and (5) N. and her older sister Toni were to be placed with their maternal cousin, Shante P.
On June 10, 2004, the court sustained the amended petition and approved and ordered the case plan as mediated.
3. The initial placement with N.s cousin
On September 9, 2004, the Department reported to the juvenile court that N. and Toni had been placed with Shante P., and other siblings had different placements. Anthony was still incarcerated.
On September 18, 2004, mother died of a heart attack.
On November 29, 2004, the court held a six-month review hearing. Six children were placed with three relative caregivers. N. and Toni continued to be placed with Shante P. They lived near one of the other relative caretakers. A third caregiver (an adult sister) lived in San Bernardino. All children had regular contact with one another. The court found that Anthony had partially complied with the case plan and ordered the continuation of reunification services.
The 12-month review hearing was held on May 31, 2005, at which time the Department recommended that Anthony continue to receive reunification services. N. and her sister Toni (age 15) remained with their cousin Shante P. and the other siblings were placed with their adult sister, who lived in San Bernardino. At the time, Anthony was incarcerated at Folsom State Prison, which offered some programs. The social worker had sent Anthony a letter reminding him of the orders that he was to complete a drug-rehabilitation program and attend parenting and counseling programs. The court found that Anthony was in partial compliance with the case plan and it was likely that the children would be returned to him.
When Anthony was released from prison on August 22, 2005, he moved in with his mother. He had completed some programs while incarcerated. The social worker provided him with information about other programs.
In September 2005, the social worker reported that N. was developing appropriately, in good health, and enjoyed her relationship with her siblings. Shante P. expressed an interest in adoption.
On September 21, 2005, the court held an 18-month review hearing. At the time, N. and her sibling Toni were still placed with Shante P. and the other siblings were living in San Bernardino with their adult sister. The children visited one another regularly. The Departments adoption assessment indicated that N. had no developmental delays. The court found Anthony was in partial compliance with the case plan, terminated reunification services for Anthony, and set a Section 366.26 hearing for N.
On January 23, 2006, the Department reported that adoption had been identified as the permanent plan for N. and guardianship had been identified as the permanent plan for N.s siblings who remained in the system. Shante P. had shown a commitment to adopt N. and wished to become the legal guardian of Toni. The Departments report indicated that an adoption assessment had been conducted and it was determined that N. was very much adoptable. The report indicated that N. was in good health and developing within normal limits and had no emotional problems. All of the siblings, including N., had regular contact with one another and other family members, and saw Anthony on a regular basis. Anthony disagreed with the recommendation to terminate his parental rights as to N. The court ordered legal guardianship as to all minors who were in the system, except for N. The Section 366.26 hearing as to N. was continued.
In April, Shante P. expressed some reservations about adopting N. The dependency court continued the Section 366.26 hearing.
4. Anthonys Section 388 petition
On July 25, 2006, Anthony filed a Section 388 petition. He requested the reinstatement of family reunification services and liberalized visitation with N. so he could have unmonitored visits. Anthony stated that he had been visiting N. regularly, had been attending a drug program since May 25, 2006, and his repeated drug testing was negative. He wanted N. to be placed in guardianship, like his other children. Thereafter, the court granted Anthonys request for a hearing on his Section 388 petition.
The Department submitted a report on August 11, 2006. The report indicated the following: Anthony regularly visited N. once or twice a week at the home of her paternal grandmother where Anthony resided. The visits lasted several hours, during which time Anthony played with, supervised, and fed N. Additionally, N. seemed to have a strong attachment to Anthony. In an August 18, 2006, report, a social worker reported that since May 25, 2006, Anthony was enrolled in a six-month drug program and attended group sessions and Alcoholics Anonymous meetings, but he had not been attending his one-on-one therapy sessions because of his high blood pressure. Once Anthony tested positive for opiates. He stated that the test was positive because he had taken a Vicodin for back pain. The Department recommended that Anthony receive further reunification services.
On August 16, 2006, the dependency court granted Anthonys Section 388 petition, in part. It reinstated reunification services with regard to N., but denied unmonitored visitation. The court ordered Anthony to complete the previous case plan. The Section 366.26 hearing was placed off calendar because there was a likelihood that N. would be returned to Anthony.
5. The Departments Section 387 petition
On January 22, 2007, the Department reported the following: Anthony had completed a drug rehabilitation program, but he had tested positive for opiates three times and had not participated in the Departments random drug testing. Anthony visited N. two-to-three times per week for up to an hour. During these visits, Anthony behaved appropriately. There was a risk of abuse if N. was returned to Anthonys care because he did not have a stable home, was not employed, and was not drug testing. The Department recommended that reunification services be terminated because Anthony had failed to fully comply with the courts orders. The Department also recommended that N.s placement be changed because Shante P. had not been providing adequate supervision. Rather, N.s adult half-sister (Lashonda H.) had been acting as the primary caretaker. Lashonda H. had a five-year-old daughter. N. was in good health, developing appropriately, and had started pre-school.
On February 9, 2007, the Department filed a Section 387 petition requesting that N. and Toni be removed from Shante P.s home and be placed with Lashonda H., with whom they had been living.
According to a February 15, 2007, adoption assessment, it was likely that N. was to be adopted. Lashonda H. wanted to adopt N. The court detained N. with Lashonda H. and dismissed the Section 387 petition.
On February 26, 2007, the juvenile court heard evidence on the Departments request to terminate Anthonys reunification services with N., a pre-trial conference on the Departments Section 387 petition to place N. with Lashonda H., and a contested 18-month review hearing. A criminal background check revealed the Lashonda H. had two juvenile arrests in 1999, one for petty theft under $50 and another for a bad check. She received home probation for passing the bad check. The Department reported it was processing a "criminal waiver" for Lashonda H. Lashonda H. wanted to adopt N., who was in good health and developing appropriately. Anthony and Lashonda H. testified at the hearing.
Pursuant to Section 361.4, subdivision (d)(2) and (3), a relative cannot be a caretaker for a foster child unless the relative has no criminal convictions or those convictions have been investigated and waived by the appropriate agency.
In part, Anthony testified to the following: Since being released from prison he had been living with, and assisting, his mother who had had a stroke. Lashonda H. brought N. by his home every day on Lashonda H.s way to school. He had completed a parenting class and a six-month drug program, which included random drug testing. At the beginning of the program he had tested dirty three times. He had not been tested since he left the program. He had a 15- or 16-year drug history. Cocaine was his drug of choice. His sponsor and family helped him maintain his sobriety. He attended meetings every now and then. He tested positive for opiates because he had taken pain killers for his back.
Lashonda H. testified to the following: The interaction between Anthony and N. was lovely. She did not believe N. was at risk in Anthonys care.
On February 26, 2007, the dependency court found that Anthony had complied with his program and drug tested appropriately. The court placed N. and Toni with Anthony, but stayed the order so that the Department could set-up drug testing for him and evaluate his home. Anthony was ordered to attend a 12-step program and participate in random drug testing. The Department was to set-up family reunification services and make unannounced home visits. The court dismissed the Departments Section 387 petition and terminated jurisdiction over some of N.s siblings.
6. The placement with N.s half-sister, Lashonda H.
On March 8, 2007, the Department recommended that N. be released to her half-sister, Lashonda H. The court continued the stay of the order placing N. in Anthonys home, pending drug testing and assurance that Anthony had appropriate housing.
On April 5, 2007, the Department recommended that the juvenile court vacate its prior order releasing N. to Anthony. This recommendation was because Anthony had not drug tested even though the Department had reminded Anthony repeatedly that he was to be drug tested and had set-up drug testing. Anthony provided proof of attending only two 12-step program meetings. He and his sister smoked cigarettes, which would be harmful to N., who suffered from asthma. The Department recommended that N. be placed with Lashonda H., who had been approved as a caregiver and had received a criminal record clearance. The dependency court vacated its order placing N. and Toni with Anthony and placed them in Lashonda H.s home. The court found that Anthony was not in compliance with the case plan, terminated family reunification services, and referred N.s case for a Section 366.26 hearing. The court ordered the Department to conduct a home study of Lashonda H.
Pursuant to a report dated June 19, 2007, N. was bonding with Lashonda H., whom N. viewed as a mother figure. Anthony continued to visit N. approximately two or three times per week for up to an hour. Anthony tested positive for opiates as a result of taking Acetaminophen and Cyclobenzaprine. The Department was attempting to verify whether Anthony had prescriptions for both drugs. On June 19, 2007, the court ordered the Department to submit a report addressing Anthonys use of prescription drugs.
In the Departments July 30, 2007 report, it concluded that N. was adoptable given her young age, lack of physical and developmental problems, and the willingness of her caretakers to adopt.
7. The ICWA notices and the termination of parental rights
On August 8, 2007, the paternal grandmother told the social worker that the great-great paternal grandmother was Apache and the great-great paternal grandfather had mixed heritage with Blackfeet ancestry. At the time, the social worker needed additional time to complete Lashonda H.s home study. Anthony continued to have monitored contact with N. approximately three times per week. The social worker observed that N. had a positive relationship with Anthony. N.s relationship with Anthony was not significantly different from the one N. had with her other relatives in her large family. N. knew Anthony was her father, but she looked up to her older sister Toni, with whom she lived.
On September 7, 2007, ICWA notices were sent by certified mail to the Department of Interior, Bureau of Indian Affairs (BIA) and all Apache and Blackfeet tribes in the United States. Thereafter, signed return receipts were received from the BIA and all 11 tribes who had received the notices. Seven of the tribes responded and indicated that N. was not a member.
In its October 3, 2007, report, the Department reminded the dependency court that it had not made an ICWA finding. The court stated that it had the signed receipts. The trial court found that the ICWA notices were proper and the ICWA did not apply. Counsel for N. stated that she was not raising the sibling relationship exception to the termination of parental rights. The matter was trailed until the next day.
On October 4, 2007, Lashonda H. testified to the following: Because she was a full time student, her brother Antoine provided care for N. and Lashonda H.s daughter from 6:00 a.m. until 1:00 p.m. during the week. N. saw Anthony four or five times a week with monitored visits. During these visits, Anthony cleaned and sometimes did laundry. He also assisted Antoine with cooking. Lashonda H. took N. to her paternal great grandmothers home so N. could visit Anthony, although Anthony lived with one of his girlfriends. Anthony had not provided any financial support for N. N. called Lashonda H. either "mom" or "Lashonda." N. had bonded with Lashonda H. and was very close to Lashonda H.s daughter, with whom she had lived for about three years. On weekends, N. visited her adult sister who was the caretaker of N.s other siblings. Over Anthonys objection, the court struck Lashonda H.s testimony that she had been advised that if she did not adopt N., N. would be removed from her care. The court held that the issue was whether N. was adoptable and it was not relevant who wanted to adopt her.
Anthony testified that he visited N. every weekday for four or five hours before she went to preschool and in the evening. Anthony also testified that N. called him "daddy oh," he provided for N.s needs, and he believed that N. had bonded with him.
N.s counsel argued that Anthony had failed to meet his burden to prove that either the Section 366.26, subdivision (c)(1)(E) exception (sibling-relationship) or the Section 366.26, subdivision (c)(1)(A) exception (parent-child relationship) applied.
Section 366.26, subdivision (c)(1)(E) is presently codified in subdivision (c)(1)(B)(v) and Section 366.26, subdivision (c)(1)(A) is presently codified in Section 366.26, subdivision (c)(1)(B)(i).
Anthony argued that the sibling-relationship and the parent-child relationship exceptions applied, N. was not likely to be adopted, and N. would be traumatized if Lashonda H. did not adopt her.
On October 4, 2007, the juvenile court found by clear and convincing evidence that it was highly likely that N. would be adopted by a family member. It found that no exception to Section 366.26 applied. In reaching its conclusion, the court stated in part, "It really appears to me that the relationship that [N.] has with [Anthony] actually appears to be closer to a relationship with a grandparent. Her brother and [Anthony] provide day care, spend the day with her in the same way they do with her cousin, and basically he has the same role with [N.] in many ways, that [she] has with anyone."
The court terminated Anthonys parental rights and freed N. for adoption.
Anthony appealed.
DISCUSSION
1. There was substantial evidence that N. was likely to be adopted.
Contrary to Anthonys contention, there was substantial evidence to support the juvenile courts finding that N. was likely to be adopted.
In deciding if a child is adoptable, " `the court focuses on the child—whether his [or her] age, physical condition and emotional state make it difficult to find a person willing to adopt him. [Citation.] [Citation.]" (In re Josue G. (2003) 106 Cal.App.4th 725, 733; accord, In Re Gregory A. (2005) 126 Cal.App.4th 1554, 1561; § 366.26, subd. (c).) Adoptability refers to the childs general suitability for adoption, and not the specific suitability of the prospective adoptive parent. (In re Josue G., supra, at p. 733; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It focuses on "whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]" (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)
On appeal, we review the evidence in a light most favorable to the dependency courts finding of adoptability, drawing every reasonable inference and resolving all conflicts in support of the judgment. (In re Marina S. (2005) 132 Cal.App.4th 158, 165.) We do not reweigh the evidence. (Ibid.) Our task is to "determine whether there is substantial evidence from which a reasonable trier of fact could by clear and convincing evidence find a factual basis for the finding as to the childs adoptability. [Citation.]" (Ibid., accord, In re Gregorgy A., supra, 126 Cal.App.4th at pp. 1561-1562.)
N. is a young child with no mental or developmental problems. Contrary to Anthonys suggestion, there is nothing in the record to suggest that N. has a medical condition that is so severe so as to require special foster care environment. Rather, the only references in the record with regard to N. having physical problems are statements that she had been diagnosed with asthma and there was concern about the effects of cigarette smoke on her.
Further, although Lashonda H.s home study had not been completed, all of the evidence suggests Lashonda H. would be approved and therefore, Lashonda H. would have provided the adoptive home for N. Once medical documentation was received by the Department, Lashonda H.s home study would be completed. Anthony cites two pages of the reporters transcript to assert that Lashonda H. was ambivalent about adopting N. However, these pages do not support Anthonys assertion.
Further, there is no evidence that Lashonda H.s juvenile criminal record resulted in convictions that would have made her ineligible to be an adoptive parent. Lashonda H.s criminal record was when she was a juvenile and only one item resulted in a conviction, for which she was given home probation.
Further, even if Lashonda H. eventually did not adopt N., the fact that Lashonda H. was willing to adopt, suggests that others might also be willing to do so. (In re Asia L. (20031) 107 Cal.App.4th 498, 509.) The existence or non-existence of a prospective adoptive parent is a factor, but not determinative of whether a child is adoptable. (In re David H. (1995) 33 Cal.App.4th 368, 378.) The adoptability finding is not based solely on the likelihood that N. will be adopted by Lashonda H. Rather, given N.s age and physical condition, N. was generally adoptable.
Thus, on the record before us, N. was likely to be adopted into a home where she would have continued contact with other relatives.
Based upon In re Jose V. (1996) 50 Cal.App.4th 1792, 1800-1802 and In re Zachary G. (1999) 77 Cal.App.4th 799, 809-810, the dependency court excluded evidence that Lashonda H. preferred adoption. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1070, fn. 13 discussing In re Jose V., supra, on another point.) Taken together, these cases held that evidence of a relative caretakers testimony that he or she preferred guardianship was not relevant as the caretakers had admitted that they were willing to adopt. (Cf. In re Rachel M. (2003) 113 Cal.App.4th 1289, 1297-1298.) Anthony argues that the holdings of these cases is not applicable because here there was evidence of coercion because if Lashonda H. did not agree to adopt, N. would be removed from Lashonda H.s household. However, the facts do not support Anthonys suggestion of coercion.
Thus, there was substantial evidence to support the dependency courts find that N. was likely to be adopted.
2. The record supports the finding that the Section 366.26, subdivision (c)(1)(A)exception did not apply.
Anthony contends the evidence supported a finding that the exception pursuant to Section 366.26, subdivision (c)(1)(A) applied. We are not persuaded by this contention.
As noted in footnote 4, this provision is presently codified in Section 366.26, subdivision (c)(1)(B)(i).
Section 366.26, subdivision (c)(1)(A) provides an exception to adoption where the "parents . . . maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." "[T]he phrase `benefit from continuing the relationship [refers] to a `parent-child relationship that `promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [Citation.] [¶] A parent must show more than frequent and loving contact or pleasant visits. [Citation.] `Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences. [Citation.] The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 207, fn. omitted.)
"The parent bears the burden of proving the exception applies. [Citation.]" (In re Mary G., supra, 151 Cal.App.4th at p. 207.) And, as the statute directs, the evidence must make a "compelling" case for not terminative parental rights. (Former § 366.26, subd. (c)(1).)
It is undisputed that Anthony visited N. consistently since he was released from prison. It is also undisputed that Anthony assisted in feeding and caring for N. However, the facts supported the juvenile courts factual finding that the relationship that had developed between N. and Anthony was not one of parent-child. Rather, N. treated Anthony as she did Antoine (Lashonda H.s brother), who also cared for her during the day while Lashonda H. was at school. These facts support the juvenile courts finding that the parent-child relationship exception did not apply.
3. A limited hearing is required to assure that the ICWA notice provisions have been satisfied.
Anthony contends that the order terminating parental rights must be reversed because of inadequate ICWA notices. This contention is persuasive.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The dependency court and the Department have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child.
"`The ICWA provides that "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." (25 U.S.C. § 1912(a).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs [BIA] as the agent for the Secretary of the Interior. (Ibid.; 25 C.F.R. § 23.11 (2003); In re Edward H. (2002) 100 Cal.App.4th 1, 4.) "No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the . . . tribe [or] the [BIA]." (25 U.S.C. § 1912(a).) (In re Daniel M. (2003) 110 Cal.App.4th 703, 707; see also Welf. & Inst. Code, §§ 224.2, subds. (a), (b), 224.3, subd. (a).)" (In re Mary G., supra, 151 Cal.App.4th at p. 209.)
Here, the selection and implementation hearing began on October 3, 2007, more than 10 days after the tribes received notice. Thus, the Department complied with the 10-day notice provisions.
Anthony points to Section 224.3, subdivision (e)(3) which requires the court to wait 60 days after the Department serves the ICWA notices before terminating parental rights. California Rules of Court, rule 5.482(d) also includes a 60-day waiting provision. He persuasively contends that the termination order must be reversed because the juvenile court failed to wait the requisite 60-day period.
For a short time in 2007, former California Rules of Court, rule 5.664 also included a 60-day waiting provision.
Anthony advised the dependency court on April 8, 2005, of his Native American Indian ancestry. The Department served the ICWA notices on September 7, 2007. Most of the tribes acknowledged receipt on September 10, 2007. However, only 7 of the 11 tribes, as well as the BIA responded. Parental rights were terminated on October 4, 2007. Thus, all of the tribes were not given sufficient time to confirm whether N. was an Indian child. As Anthony contends, reversal is required because the court failed to wait 60 days following the sending of the ICWA notices to determine that the ICWA did not apply.
However, this error requires only a limited remand. We will conditionally reverse the order and remand the matter for the limited purpose of ascertaining if any of the tribes who did not respond to the ICWA notices prior to the October 4, 2007, termination order have done so.
IV.
DISPOSITION
The order terminating parental rights is reversed for the limited purpose of determining whether ICWA applies. To that end, the trial court is directed to order the Department to either provide evidence that it complied with the notice requirements of ICWA and the related state and federal laws, or to give such notice in compliance with ICWA and the related federal and state laws. After the court finds that there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to whether N. is an Indian child. If at anytime within 60 days after notice was given there is a determinative response and the trial court finds that N. is an Indian child, the dependency court shall set a new Section 366.26 hearing and thereafter shall proceed in accordance with ICWA and all related federal and state laws. If the court receives a determinative response at anytime within 60 days after the notice was given and the court finds that N. is not an Indian child, the court shall reinstate the order terminating parental rights. If there is no such determinative response within 60 days, the court shall find that N. is not an Indian child, and the court shall determine that ICWA does not apply and shall reinstate the original order terminating parental rights.
We concur:
KLEIN, P. J.
CROSKEY, J.