Opinion
B232557
12-01-2011
In re KEITH B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent. v. MICHAEL B., Defendant and Appellant.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK26491)
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert Stevenson, Juvenile Court Referee. Reversed and remanded with directions.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel for Plaintiff and Respondent.
Appellant Michael B. (father) appeals the denial of his petition under Welfare and Institutions Code section 388 seeking to return his son Keith (born October 2005) to his custody, or in the alternative, to reinstate family reunification services, including unmonitored and overnight visits with Keith. Father also appeals the termination of his parental rights.
All further statutory references are to the Welfare and Institutions Code.
Father contends the juvenile court abused its discretion by summarily denying his section 388 petition without an evidentiary hearing. Father further contends the order terminating his parental rights must be reversed because the parental exception to terminating parental rights set forth in section 366.26, subdivision (c)(1)(B)(i) applies and because the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA).
The Los Angeles Department of Children and Family Services (the Department) concedes that notice under ICWA was deficient. That error compels a limited reversal of the juvenile court's order terminating father's parental rights. The matter is therefore remanded to the juvenile court for compliance with the ICWA notice requirements.
BACKGROUND
1. Detention and Section 300 Petition
On July 30, 2007, Long Beach police officers detained one-and-a-half-year-old Keith from the custody of his mother, K.K. (mother) after responding to a disturbance at mother's home. When the officers arrived at the home, they noticed a strong odor of marijuana and found that mother appeared to under the influence of some substance. After the officers saw mother shake Keith violently, they detained him and removed him from the home.
Mother is not a party to this appeal.
Father was present at the August 2, 2007 detention hearing at which the juvenile court ordered Keith detained. Father denied having any Indian heritage, and the juvenile court found that ICWA did not apply as to father. Mother was not present at the hearing, but the juvenile court asked the maternal grandmother whether her family had any Indian heritage. The maternal grandmother replied, "I believe so, but I don't know." The juvenile court inquired further as to whether the maternal grandmother had taken part in any tribal activities, and when she responded in the negative, the court found that "mother does not have any ICWA issues."
On August 30, 2007, mother told the Department's social worker that she believed she had Blackfeet heritage. On September 6, 2007, the Department sent notice and a copy of the section 300 petition to the Secretary of the Interior and the Blackfeet Tribe in Montana.
In September 2007, Keith was removed from a previous foster care placement and placed with Camellia W. Both father and mother were in custody but were present at the hearing held on September 13, 2007. Although this was mother's first appearance, the juvenile court did not inquire as to her claim of Blackfeet heritage.
On October 15, 2007, both parents submitted to an amended petition alleging that mother had been arrested and charged with willful cruelty and inflicting corporal injury to Keith, that mother was a current user of cocaine, and that mother had mental and emotional problems that rendered her incapable of providing Keith with regular care and supervision. The amended petition further alleged that both parents had engaged in an altercation in Keith's presence, and that father had an extensive history of criminal convictions, including grand theft, possession of a narcotic substance, burglary, auto tampering, and domestic violence. The juvenile court sustained the amended petition and ordered father to participate in parent education and individual counseling, and to comply with the requirements of his parole.
2. Review Proceedings
Father remained incarcerated in April 2008. During his incarceration, father participated in a parenting class, a domestic violence intervention program, classes on substance abuse, and an additional parenting class, for a total of 729 class hours. The Department recommended an additional six months of reunification services.
Keith remained placed with Camellia W. and was attending therapy with Dr. Sheila Clark, whom he had seen since October 13, 2007. Dr. Clark reported that Keith was exhibiting behavioral problems after prolonged visits with mother but that the behavioral problems diminished when the visits were shortened.
In May 2008, the juvenile court ordered the Department to provide father with continued reunification services and at least one visit per month with Keith at father's place of incarceration. Thereafter, one visit between Keith and father occurred in July.
In October 2008, the Department reported that Keith was exhibiting separation anxiety, crying when his caregiver, Camellia W., left the room, and coming to her room during the night to sleep on the floor near her bed.
Father had been released from custody on October 20, 2008, and was living in a halfway house. Mother's whereabouts were unknown. The Department recommended terminating reunification services for both parents, and on October 28, 2008, father's counsel requested a contested hearing on that issue. Pending that hearing, the juvenile court ordered weekly three-hour visits between father and Keith.
At the December 8, 2008 hearing regarding termination of father's reunification services, father's counsel argued that father had done everything he could during his incarceration to reunify with Keith. Since father's release from custody, he had visited regularly with Keith and was developing a relationship with him. The trial court concluded that it was in Keith's best interests to continue reunification services and extended father's reunification services until the 18-month review hearing.
In a February 2009 status review report, the Department reported that Keith's 12- year-old half-sibling, Lodeira, was now placed in the same home with him. Keith was thriving in his caregiver's home, although he continued to exhibit signs of separation anxiety. His therapist, Dr. Clark, recommended a graduated plan for extending Keith's visits with father in order to diminish Keith's separation anxiety and associated behavioral disorders. Dr. Clark also recommended that steps be taken to ensure that father understood Keith's behavioral issues and how to address them.
Keith's caregiver told the Department's social worker in February 2009 that she was no longer willing to monitor father's visits or to have father come to her home because father had purportedly telephoned Keith's maternal grandmother on several occasions while he was under the influence of alcohol. The maternal grandmother confirmed the caregiver's account. When the social worker questioned father, he denied doing so and refused to submit to alcohol testing. At the February 5, 2009 review hearing, the juvenile court ordered father to submit to on demand drug and alcohol testing.
On March 11, 2009, the juvenile court accorded father an additional six months of reunification services, pursuant to section 366.22, subdivision (b) and ordered father to attend conjoint counseling with Keith, as well as individual counseling, if Keith's therapist concluded individual counseling was needed. In August 2009, father was assessed by the therapist and participated in one conjoint therapy session.
Section 366.22, subdivision (b) allows the juvenile court to offer an extended 24- month period of reunification to a parent who has been in custody or at a residential substance abuse treatment facility.
--------
In September 2009, the Department reported problems between father and Keith's caregiver in scheduling father's weekly visits. Father complained that the caregiver cancelled at least one weekly visit per month. The Department's records showed that during the period between March and August 2009, Keith's caregiver either cancelled or failed to bring Keith to three scheduled visits, and father cancelled or failed to appear for two visits. During this period, Keith's caregiver told the social worker that she was no longer interested in adopting Keith but would consider legal guardianship. She cited father's and the maternal grandmother's resistance to her adopting Keith as the reason for her change of mind.
At a September 9, 2009 review hearing, the Department recommended terminating father's reunification services, on the grounds that father had not participated in individual counseling, and had not been forthcoming about his current residence. Father requested a contested hearing on that issue, and requested unmonitored visits with Keith. The juvenile court granted father's request for unmonitored visits, provided Keith's therapist agreed. The juvenile court ordered that mother was not to be present during father's visits with Keith.
In November 2009, the Department reported that father and Keith had had several successful unmonitored visits. Father reported that his brother was moving into a four-bedroom home; that father intended to move into his brother's home, and that father was ready to have custody of Keith. Keith's therapist reported substantial improvement in Keith's relationship with father and recommended that father be accorded a three-month trial period of overnight visits with Keith.
3. Keith's Placement with Father
On January 6, 2010, the Department requested an order allowing Keith to begin an extended visit with father pending investigation of an alleged incident involving Keith's caregiver. The application for the order stated that Keith had told his therapist that his caregiver had hit him in the face, and the therapist had observed a bruise on the child's cheek. The juvenile court ordered that Keith remain with father in the home of Keith's paternal uncle until March 1, 2010. The court further ordered that Keith's attorney be notified of any change in father's or Keith's address.
In March 2010, the Department recommended that Keith be placed with father in the home of the paternal uncle. The juvenile court terminated its previous suitable placement order and ordered Keith placed with father. Father was accorded family maintenance services and the matter was continued for a review hearing on August 30, 2010.
4. Supplemental Petition and Removal of Keith from Father's Home
On August 11, 2010, the Department filed a supplemental petition alleging that father had left Keith alone with mother, in violation of previous court orders prohibiting mother from having unmonitored access to Keith. Keith had been found wandering alone and crying at approximately 5:00 a.m. on August 5, 2010, at the corner of 50th Street and Hooper Avenue, an area known for drug dealing and prostitution. Los Angeles police officers responding to the scene eventually located mother, who told the officers she had been sleeping with Keith on the floor of a friend's apartment and that she had left the apartment alone at 3:30 or 4:00 a.m. to get coffee. Mother said she had recently been released from custody for a child abuse arrest; that Keith resided with father but had been with her for the past two days. The officers attempted to contact father but were unsuccessful.
Police officers subsequently located father, who admitted that he had violated the juvenile court's orders prohibiting him from leaving Keith alone with mother. Father said he had allowed Keith to spend two days with mother, who had recently been released from custody for child abuse against Keith.
At the August 11, 2010 detention hearing, the juvenile court found prima facie evidence of substantial danger to Keith and detained him from father's custody.
5. Termination of Reunification Services
In an August 2010 status review report, the Department informed the juvenile court that father had misrepresented his residence address. Father admitted residing in the home of his girlfriend, rather than with his brother, as he had previously told the Department's social worker. Father had also made misrepresentations about his continued participation in conjoint therapy. He had failed to take Keith to therapy sessions for the past four months.
On August 30, 2010, father submitted to the allegations of the supplemental petition, which the juvenile court sustained. Father requested a further hearing to determine if Keith could be returned to his custody.
An October 2010 interim review report stated that father rarely visited Keith. Father explained that his work schedule did not allow him to visit. On October 22, 2010, the juvenile court found that father had received an additional period of reunification services and that further reunification services were not available. The court terminated father's services and set a section 366.26 hearing.
6. Section 388 Petition
In February 2011, the Department informed the juvenile court that an adoption home study had been approved for Keith's caregiver, Camellia W., and that she was committed to adopting Keith. Father asked for a contested hearing regarding termination of his parental rights. Father also complained that Keith's caregiver was not allowing him visits with Keith.
On March 22, 2011, father filed a section 388 petition requesting Keith's return to his custody or that father be accorded further reunification services and unmonitored visits. In his petition, father acknowledged, after some "soul searching" that he should not have allowed mother unmonitored access to Keith. In an attached declaration, father stated that since his release from custody in October 2008, he had visited regularly with Keith and that during the months when Keith had been placed with him, he had cared for Keith's needs. He regretted his decision to allow mother an unmonitored overnight visit with Keith and stated his commitment never to do so again.
On March 24, 2011, the juvenile court denied father's section 388 petition on the ground that father had not shown a change of circumstance that would justify a change in the court's orders.
7. Section 366.26 Hearing
In an April 18, 2011 status review report, the Department reported that Keith and his half-sibling Lodeira were bonded with Camellia and with one another and were thriving in Camellia's home. Since Keith's return to Camellia's care, he had been diagnosed with post-traumatic stress disorder. Keith's therapist observed that Keith was fond of Camellia and often sought her attention.
Father was present but did not testify at the section 366.26 hearing held on April 18, 2011. The juvenile court admitted into evidence the Department's reports and heard testimony from the Department's social worker, from Keith's caregiver and prospective adoptive parent, Camellia W., and from Keith himself.
Social worker Bemnet Gayem testified that he had been assigned to Keith's case for three months and was attempting to become familiar with the case. He testified that he was present during three or four visits between father and Keith and that the visits went very well. He observed Keith sitting on father's lap, hugging father, and demonstrating affection. Gayem further testified that it was difficult for him to assess the relationship between father and Keith based on just a few visits, but that the two appeared to have "a basic fair relationship."
Keith testified in chambers that he lived with "Miss Camellia" and that he liked visiting with father. When asked whether he wanted to live with father, Keith replied "I don't know." When asked whether he missed living with father, Keith responded "No." He also responded "no" when asked whether it would make him sad if he saw less of father, but agreed that it would be "fun" if he could live with his foster mother and spend the weekends with father.
Keith's caregiver and prospective adoptive parent, Camellia W., testified that during Keith's initial placement with her from September 2007 to January 2010, he had been diagnosed with separation anxiety and attended therapy to address that problem. When Keith was returned to her care in August 2010, he was diagnosed with post-traumatic stress disorder.
Camellia testified that she initially wanted to be Keith's legal guardian, but since his return to her care and his diagnosis of post-traumatic stress disorder, she wanted to adopt him because she did not "want to give anyone another chance to do this to him anymore." Camellia said that she considered Keith her son and that she believed she was the best person to care for him.
Camellia further testified that Keith was a special needs child, that he attended a private school and that he was thriving at school. He participated in after school sports, attended therapy twice a week, and saw a psychiatrist once a month. Camellia took him to school and doctor appointments, prepared his meals and cared for him on a daily basis. She described father's visits with Keith since the child's return to her custody in 2010 as inconsistent.
At the conclusion of the hearing, the juvenile court found no compelling reason against terminating father's parental rights. The court further found that Keith's relationship with father did not outweigh Keith's relationship with Camellia W. and the value of the stability and permanence of that relationship. The court found by clear and convincing evidence that Keith was adoptable and terminated father's parental rights.
DISCUSSION
I. Section 388 Petition
Section 388 provides in relevant part: "Any parent . . . [of] a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . ." To obtain the requested modification, the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child. (§ 388; Cal. Rules of Court, rule 5.570(e); In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The parent bears the burden of proving the requested modification should be granted. (Cal. Rules of Court, rule 5.570(h); In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
To obtain an evidentiary hearing on a section 388 petition, the petitioner must plead facts sufficient for a prima facie showing that (1) the circumstances have changed since the prior juvenile court order, and (2) the proposed modification will be in the best interests of the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) In determining whether the petition has made a prima facie showing that modification of the prior order is in the child's best interests, it is important to consider the stage of the dependency proceedings. "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]" (Stephanie M., supra, 7 Cal.4th at p. 317.) "[S]uch presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care." (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) We cannot reverse a summary denial of an evidentiary hearing on a section 388 petition unless the ruling constituted an abuse of discretion, i.e., it was arbitrary, capricious, or beyond the bounds of reason. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Zachary G. (1999) 77 Cal.App.4th 799, 805; see Stephanie M., at p. 316.) If no prima facie evidence exists there is no due process requirement to hold a hearing. (See In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.)
Factors to be considered in determining what is in the best interests of a child under section 388 include "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
In summarily denying father's section 388 petition, the juvenile court found that father's acknowledgment that he had displayed a lack of judgment by leaving Keith alone with mother was insufficient to demonstrate a change of circumstance. The court further found that Keith's need for permanence outweighed any alleged change of circumstance set forth in father's petition.
The record discloses no abuse of discretion by the juvenile court. Father's decision to allow mother unlimited, unmonitored access to Keith placed the child at substantial risk of harm. Keith was found wandering alone in the early morning hours on a street known for drug dealing and prostitution. Father's acknowledgment of his error in judgment was not compelling evidence of a change of circumstance. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448 [mother's last minute change of heart during the last brief month of a long saga of poor choices not compelling evidence of a change of circumstance].)
Father also failed to demonstrate that his requested relief would benefit Keith. At this point in the proceedings, Keith's interest in stability and permanency outweighed father's interest in reunification. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) Keith was placed in a stable home where he had spent most of his short life. The juvenile court did not err by summarily denying father's section 388 petition.
II. Termination of Parental Rights
We review the juvenile court's ruling on whether an exception applies to terminating parental rights pursuant to section 366.26 for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) Under this standard, an appellate court must affirm the juvenile court's order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered "in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (Autumn H., at p. 576.)
Section 366.26, subdivision (c)(1) provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, "'[f]amily preservation ceases to be of overriding concern . . . the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability. [Citation.]' [Citation.]" (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) "Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.]" (Autumn H., supra, 27 Cal.App.4th at p. 573.) Although the statutory preference is in favor of adoption, section 366.26 lists certain exceptions that may preclude termination of parental rights, if the juvenile court finds "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The exception relevant to the instant case provides as follows: "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The parent bears the burden of proving that this exception applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) "[T]he exception 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. (2000) 78 Cal.App.4th 1339, 1348.)
For the exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child 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 the sense of belonging a new family would confer." (Autumn H., supra, 27 Cal.App.4th at p. 575.) A parent must establish more than merely some benefit to the child by continuing the parent/child relationship. That relationship must be "a substantial, positive emotional attachment such that the child would be greatly harmed" if the relationship were severed. (Ibid.)To overcome the benefits associated with a stable, adoptive family, the parent seeking to continue a relationship with the child must prove that severing the relationship will cause not merely some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)
When determining whether a parent/child relationship confers more than incidental benefit to a child, courts have noted that such a "relationship arises from day- to-day interaction, companionship and shared experiences. [Citation.]" (In re S.B. (2008) 164 Cal.App.4th 289, 297.) A parent seeking to establish the existence of such a relationship need not, however, prove that "the child has a 'primary attachment' to the parent, or to show the parent and the child have maintained day-to-day contact. If that were that standard, the rule would swallow the exception. [Citation.]" (Id. at p. 299.)
Factors that the juvenile court should consider when determining the applicability of the exception include "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Father failed to meet his burden of establishing that the beneficial parent/child relationship exception to terminating parental rights applied in this case. There was little evidence of regular, consistent visitation between father and Keith during the period preceding the section 366.26 hearing. Visits between father and Keith during the period following Keith's removal from father's custody in August 2010, were sporadic at best. There was little evidence that father occupied a parental role in Keith's life. While Keith was placed with him, father unilaterally stopped Keith's regular therapy sessions. Father also violated court orders prohibiting him from allowing mother unmonitored access to Keith, who was found wandering unattended on the street in front of mother's apartment building in the early morning hours.
In contrast, Keith had lived with his caregiver, Camellia W., since he was two years old, and had resided in her home continuously except for the period during his placement with father. Camellia prepared Keith's meals, took him to school, medical appointments and therapy sessions, and was an active advocate in obtaining services for him. Keith looked to her for comfort, and she responded by providing a safe and stable home. Substantial evidence supports the juvenile court's determination that Keith's bond with his foster mother was stronger than his bond with father and that father's relationship with Keith did not rise to the level of "a substantial, positive emotional attachment such that the child would be greatly harmed" if that relationship were severed. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
III. ICWA Notice
ICWA accords Indian tribes the right to intervene at any point in a state court dependency proceeding involving an Indian child. (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) To ensure the tribe will be afforded the opportunity to intervene and assert its rights in the action, the statute requires that notice be given to the appropriate tribe in any dependency proceeding involving an Indian child.
ICWA contains the following notice provision: "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 child's 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 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: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding." (25 U.S.C. § 1912(a).)
Under ICWA, the notice to the tribe must include a wide range of information, including: (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) all known names and addresses of the Indian child's parents, grandparents, and certain other relatives and custodians, as well as their birth dates, places of birth and death, enrollment numbers, "and/or other identifying information"; and (4) a copy of the petition or other document by which the proceeding was initiated. (25 C.F.R. § 23.11(d) (2011).) It is the juvenile court's responsibility to determine whether proper notice was given under ICWA. (In re Asia L. (2003) 107 Cal.App.4th 498, 506.) The juvenile court's findings are reviewed for substantial evidence. (In re Karla C., supra, 113 Cal.App.4th at pp. 178-179.)
The Department concedes that the ICWA notice requirement was triggered in this case when mother claimed to have Blackfeet heritage. The juvenile court made no inquiry into mother's claimed Indian heritage. Although the Department provided notice to the Blackfeet tribe and to the Secretary of the Interior, that notice was never reviewed by the juvenile court. The Department therefore concedes that the failure to provide sufficient notice pursuant to ICWA compels reversal of the order terminating father's parental rights. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385.)
The lack of statutory notice requires a limited remand to the juvenile court for the Department to comply with the ICWA notice requirements, with directions to the juvenile court depending on the outcome of such notice. If, after the appropriate tribes receive proper notice, the juvenile court determines that Keith is not an Indian child and ICWA does not apply, any prior defective notice becomes harmless error, and the order terminating parental rights can be reinstated. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413-1414.)
DISPOSITION
The juvenile court order terminating father's parental rights is reversed. The matter is remanded to the juvenile court with directions that the juvenile court shall direct the Department to comply with the notice provisions of ICWA. If Keith is determined to be an Indian child, a new hearing shall be held. If he is determined not to be an Indian child, the order terminating parental rights shall be reinstated, subject to the juvenile court's consideration of any circumstances that may have arisen during this appeal that may affect the outcome.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CHAVEZ , J. We concur: BOREN, P . J. DOI TODD , J.