Opinion
E068499
08-09-2018
In re A.M. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.R. et al., Defendants and Appellants.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant, M.R. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant, S.S. Konrad S. Lee, under appointment by the Court of Appeal, for Minors. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1600395) OPINION APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed. Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant, M.R. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant, S.S. Konrad S. Lee, under appointment by the Court of Appeal, for Minors. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
S.S. had been adjudicated the presumptive parent of her wife's three children and granted custody and family maintenance services. However, the Riverside County Department of Public Social Services had begun proceedings to remove the children from her custody for neglect and abuse when the biological fathers of two of the children petitioned the juvenile court to designate them presumed fathers and to change S.S.'s presumed-parent status. (Welf. & Inst. Code, § 388, unlabeled statutory citations refer to this code.) The representative of the third child—whose father did not come forward—also petitioned to change S.S.'s presumed-parent status. The juvenile court granted the petitions, terminating S.S.'s status as presumptive parent.
S.S. appeals. She says the trial court abused its discretion by terminating her status as the children's presumed parent. We conclude the trial court did not abuse its discretion because evidence showed circumstances had changed since the original order which warranted rescinding her status. Mother argues the trial court erred in finding sufficient notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and in failing to apply the heightened standards required in dependency proceedings involving Indian children. We conclude the Department of Public Social Services cured any defect with the notices. We therefore affirm.
I
FACTUAL BACKGROUND
A. Initiating the Dependency Proceedings
Brothers A.M. and J.M. came to the attention of San Bernardino County Children and Family Services (CFS) after their mother tested positive for methamphetamine on March 7, 2015, while giving birth to their youngest sister, N.S., in Arizona. The newborn also tested positive for methamphetamine. S.S., mother's partner (later her wife), was with mother at the birth, and the two left the hospital together, abandoning the newborn before meeting with a social worker. An Arizona social services agency took the newborn into custody.
Another sister, C.M., was part of the proceedings below and initially part of this appeal. However, we granted her motion to dismiss the appeal as it relates to her because subsequent proceedings in the trial court mooted it. We therefore omit discussion of facts relevant only to C.M.
A.M. is the subject of another appeal in case No. E069823, which we decided by separate opinion.
About a week before N.S.'s birth, mother had left the older children with mother's grandmother in Big Bear City. At the time, A.M. was four years old and J.M. was a year old. Responding to a neglect referral, CFS interviewed grandmother at her home on March 13, 2015. She told the social worker the mother had left the children with her. She said she was able to take care of the children and she and mother had created a "safety plan" under which she would contact law enforcement if mother tried to take the children, important because mother had active felony warrants in Riverside County. CFS didn't remove the children immediately because grandmother appeared to be providing for them. However, she later called CFS to say she couldn't take care of the children, and CFS removed them.
B. Detaining the Older Siblings
On March 25, 2015, CFS filed dependency petitions for the older children in San Bernardino County Superior Court. Among other things, the petitions alleged mother had placed her children at risk of harm and neglect by using methamphetamine, failing to provide them with adequate provisions, leaving them with her grandmother, and testing positive at the birth of their newborn sibling and then abandoning the sibling. The petitions also alleged the fathers' whereabouts were unknown and their ability to provide care and support for the children was in question. The San Bernardino court ordered the three children detained from mother and their fathers and placed in foster care. At this point, mother and S.S. were not married and S.S. had no recognized parental status.
A social worker interviewed mother on April 6, 2015. She denied she had a substance abuse problem despite her positive drug test in Arizona. Hospital records show she tested positive for methamphetamine and had misrepresented her name to hospital staff. The social worker requested mother submit to an on-demand drug test the same day. She failed to appear at the testing center and the test was deemed positive. In a report related to the detention of her newborn, mother admitted to having used methamphetamine the last three and a half months of her pregnancy. Mother said she had left her other children with her grandmother so she could be in Arizona to deal with social workers who had custody of her newborn child, but that representation is inconsistent with the fact she left the other children before giving birth.
The social worker reported CFS hadn't located the fathers. Mother identified them by name: she said L.D. is A.M.'s biological father and A.G. is J.M.'s biological father. She said neither man had provided care for their children. She was not married to any of them when the children were born, and their names are not listed on the children's birth certificates. CFS recommended the San Bernardino court find the men to be the alleged fathers but not entitled to reunification services.
On April 16, 2015, the San Bernardino court held a jurisdictional/dispositional hearing. The court found the key allegations true, removed the older children from mother, ordered weekly supervised visits for mother, and ordered CFS to provide her with reunification services. The court found CFS made reasonably diligent, but unsuccessful efforts to locate the children's fathers. The court also found the men were the children's alleged fathers and were not entitled to reunification services.
C. Detaining the Infant
On July 15, 2015, after initial proceedings in Arizona, CFS filed a dependency petition for N.S. in San Bernardino County Superior Court. Among other things, the petition alleged N.S. was at risk because mother suffered from a substance abuse problem, had a criminal history, and her siblings had been neglected. The petition also alleged the father's identity was unknown, placing his ability and willingness to provide care and support for N.S. in question. The San Bernardino court ordered her detained from mother and placed her in foster care. At this point, S.S. had no recognized parental status.
A social worker interviewed mother, who, at the time, was in an inpatient drug treatment program and reportedly doing well. The social worker said mother was adamant she is not "the drug possessing, drug selling, police [e]luding mother that the conviction records, prison time, probation assignment and Department interventions seem to hold." The social worker also noted S.S., who was herself in prison at the time, called to support mother's story. The social worker characterized S.S. as "playing down or ignoring the facts that all her children are removed from her care and in Department custody for drugs and crime." Mother told the social worker her pregnancy with N.S. was the result of a rape and she didn't know the father's name, and said she was seeking to put S.S. on the birth certificate.
On August 18, 2015, the San Bernardino court held a jurisdictional/dispositional hearing. The court found the key allegations true, removed N.S. from mother, ordered weekly supervised visits for mother, and ordered CFS to provide her with reunification services. The court found CFS made reasonably diligent, but unsuccessful efforts to locate the child's father and found the father to be unknown and not entitled to reunification services.
D. Transferring the Cases to Riverside
On May 9, 2016, at the request of CFS, the San Bernardino court transferred the cases of the older children to Riverside County. On May 23, 2016, the Riverside County Superior Court accepted the transfers, appointed new counsel, and set an 18-month review hearing for September 26, 2016.
On August 18, 2016, after some missteps, the San Bernardino court granted CFS's motion to transfer N.S.'s case to Riverside. On September 1, 2016, the Riverside County Superior Court accepted the transfer, appointed new counsel, and set a review hearing for the same day as the hearing on the siblings' case. From that point, the Riverside County Department of Public Social Services (DPSS) and the Riverside court handled the cases together.
E. S.S. Becomes a Presumed Parent
Before the transfer, the San Bernardino court found S.S. to be N.S.'s presumed parent. On May 9, 2016, S.S. filed a section 388 petition asking the San Bernardino court to find her a presumptive parent of N.S. and grant her reunification services. She said she was present at N.S.'s birth, appears on her birth certificate, and she and mother married on March 28, 2015, about three weeks after the birth. She represented she had been a stable and constant support for the mother in reunifying with N.S. and her siblings and had been a member of N.S.'s family since her birth. On June 6, 2016, the San Bernardino court granted S.S.'s petition. The court found her to be the presumed mother of N.S. and found it to be in N.S.'s best interest to grant the order.
On August 24, 2016, S.S. filed section 388 petitions asking the Riverside court to find her a presumptive parent of A.M. and J.M. and to grant her reunification services. She said she had been an active parent and guardian for the children since their births, they had lived in her home most of their lives, and she had provided emotional and financial support. She said she and mother were legally married, and pointed out she had been granted presumed-parent status for N.S.
Prior to the status review hearing, DPSS submitted a report recommending the court find S.S. to be the presumed mother of both children, continue them as dependents, but return them to the care of mother and S.S. and provide both adults family maintenance services. Before these proceedings, mother had been convicted of felony possession of a controlled substance (Health & Saf. Code, § 11378), and in June 2015 received a 36-month term of probation, conditioned on her sobriety, her participation in a specific recovery program, and her compliance with the program rules. The social worker reported mother had done well complying with those terms. She also reported mother was married to S.S. and had provided DPSS with an affidavit of application for a marriage license from Clark County, Nevada. The report confirms the San Bernardino court had found S.S. to be a presumed parent of N.S. and granted her family reunification services. Mother and S.S. lived in a three-bedroom, two-bath home in Perris, which they intended to use as the family home should the children be returned. Both were attending individual counseling, couple's therapy, and a parenting class once a week.
The social worker also reported visits with the children, including the youngest child, were going well. Mother had been regularly and actively participating in visits with the older children, which had progressed from unsupervised daytime visits to overnights on the weekends from Friday to Sunday. A court order provided visits where S.S. was present had to be supervised and in a therapeutic setting, so S.S. decided she should stay away to support mother's efforts to reunify. S.S. maintained contact using video phone calls during the visits. In August 2016, the Riverside court allowed S.S. supervised visits and gave DPSS the authority to liberalize the visits if things went well. Meanwhile, both mother and S.S. had been visiting N.S. At first, visits were unsupervised day visits. On September 6, 2016, DPSS approved overnight visits from Tuesdays to Wednesdays and from Fridays to Sundays each week. The social worker reported the visits were going well.
The Riverside court accepted DPSS's recommendations regarding the older children. The court found mother had made substantial progress on her case plan, and ordered the children placed in her care and custody. The court also granted S.S.'s petition for a change of order, found S.S. to be the presumed mother of the older children, and ordered them placed in her care. Finally, the court ordered family maintenance services to both parents. Subsequently, on December 15, 2016, the court ordered N.S. placed with her mother and presumed mother as well.
F. Subsequent Removal from Mother and S.S.
Shortly thereafter, mother appears to have relapsed. On October 14 and 26, 2016, she tested positive for methamphetamine. She informed the drug rehabilitation program she had been prescribed Desoxyn, a methamphetamine used to treat ADHD. Her psychiatrist confirmed the prescription and said it was possible for the medication to produce a positive result. The program advised mother to discontinue using Desoxyn because it may be causing positive drug test results and because using it could induce a relapse. Mother continued taking the medication testing positive for methamphetamine, so the program ordered her to complete a 45-day drug treatment program. She tested positive for methamphetamine less than a week after entering the program, and was then kicked out for refusing to give up her cell phone, as required by the center's regulations. Failing to complete the program violated her probation, and she was taken into custody. On January 4, 2017, the Riverside court found a violation and sentenced her to jail with a May 1, 2018 release date.
In response, DPSS filed a supplemental petition (§ 387) seeking to remove the children from mother's custody again. The children remained in S.S.'s custody. Mother told a social worker she felt it was best for her family for her to drop out of the rehabilitation program and accept being incarcerated because she would have to complete a 45-day inpatient substance abuse treatment program and "start all over" if she stayed in the program. She said she expected to be released early. The social worker explained they would need to terminate family maintenance services and remove her children from her custody if she was incarcerated, and she said she understood. The Riverside court ordered the children detained from mother on February 6, 2017. They remained in S.S.'s custody.
On February 7, 2017, mother was in fact released from jail. However, because the children had been detained, she was required to live separately from the children and her wife. During this period, mother had weekly monitored visits with the children at locations such as parks, restaurants, and other public places.
The social worker concluded the children could not return to the custody of their mother because she kept testing positive for methamphetamine, minimized her addiction, and had failed to finish her treatment plan. "Due to the mother's long history with substance abuse, it is in the best interest of the children that the mother demonstrates that she can maintain her sobriety and follow through with the conditions of her probation and Case Plan." DPSS recommended the children be continued as dependents, S.S. retain custody and receive family maintenance services, and mother receive reunification services.
Things changed on February 27, 2017, when the social worker made an unannounced visit. She found S.S. had left the children alone with 6-year-old A.M. in charge. A.M. said he had been left alone with his siblings about three times before. Mother was the first adult to return home, but when she saw the social worker she turned around and walked off. When S.S. returned home, she made several attempts to minimize or excuse leaving the children. Based on this incident, DPSS also sought to remove the children from S.S. On March 3, 2017, the Riverside court ordered them detained from S.S., and ordered that she receive reunification services.
As we recounted in a related appeal, mother subsequently failed to solve the problems that led to the removal, and the Riverside court terminated mother's parental rights. Mother challenged the ruling as to A.M., but not the other children, and we affirmed in a separate opinion. (In re A.M. (July 11, 2018, E069823) [nonpub. opn.].)
On March 3, 2017, the trial court detained the children from S.S., and ordered she receive reunification services and twice weekly supervised visits. The court placed J.M. with his sister, C.M., and her paternal grandparents and A.M. and N.S. with the foster family who had previously cared for N.S.
On March 7, 2017, DPSS filed a second amended supplemental petition (§ 387) as to all four children and a subsequent petition (§ 342) as to the older children. Those petitions are not pertinent to the issues in this appeal.
G. The Challenge to S.S.'s Status as Presumed Parent
Two of the children's fathers entered the case while these new dependency proceedings were under way.
In preparing to draft the initial detention report in Riverside, a social worker discovered that, contrary to some of her statements, mother had previously identified N.S.'s father as W.F. She reached out to him on social media on February 1, 2017. He responded, claiming he knew mother. "[S]upposedly she had a baby by me, but I've never seen her or spoke with her since she said she was pregnant, never seen or been a part of my kid's life, don't know if it's a girl or boy." They later spoke by phone and he said he had last seen mother when she was four months pregnant. He said he had been trying to find them, but no one knew where they were. The social worker informed W.F of the detention hearing and gave him the courthouse address. The social worker reached out to the other children's alleged fathers the same day. She reached A.M's paternal grandfather and told him about the hearing. He said he would let A.M.'s father, L.D., know about the hearing. She spoke to J.M.'s father, A.G., by phone, and he said he may attend.
The fathers of J.M. and N.S. appeared at hearings that month. Both submitted to DNA tests to establish biological fatherhood. The tests positively identified W.F. as N.S.'s biological father and A.G. as J.M.'s biological father. A.M.'s father did not appear.
The fathers of J.M. and N.S. then formally asserted their paternity. On March 29, 2017, N.S.'s father (W.F.) filed a petition asking the court to change its previous order finding S.S. to be N.S.'s presumed mother. He represented "a fraud may have been perpetrated on this Court or, at best, the Court may have been asked to rule based on incomplete evidence." He asked the court to vacate the order making S.S. a presumed parent of N.S. and to find W.F. is her presumed father.
J.M.'s father (A.G.) later filed a petition asking the court to change its April 16, 2015 order finding him to be the alleged father and denying him family reunification services. He said he did not receive notice of the prior proceedings, and said mother withheld the birth of the child and tried to stop him from seeing the minor. He said he had completed a parenting program and submitted to a DNA test which found him to be the biological father of J.M. He requested return of J.M. to his custody on family maintenance or that he receive family reunification services. At a May 10, 2017 hearing, A.G.'s attorney said he was also asking the court to vacate the order finding S.S. to be J.M.'s presumed mother.
DPSS submitted reports addressing issues raised by the change-of-order petitions. The report filed May 5, 2017 noted several problems with S.S.'s conduct. She told the social worker she was enrolled in and attending a parenting program as part of her reunification services. However, the program staff informed the social worker she had registered, but never showed up for the classes and was not enrolled. S.S. also failed to show up or provide a urine sample for drug testing five times between March 13 and May 1, 2017. The social worker reported that mother had left the children without proper supervision, and when confronted, argued the six-year-old could babysit. In addition, S.S. allowed unapproved contact with mother, and S.S. and mother were reported to have discussed the dependency case with the children during approved supervised visits.
DPSS recommended the court set aside its previous orders declaring S.S. to be the presumed mother of J.M. and N.S. DPSS also recommended setting aside the orders finding the fathers to be alleged fathers and instead finding W.F. the presumed father of N.S., and A.G. the presumed father of J.M.
At a hearing on May 10, 2017, the social worker assigned to the case in Riverside testified on issues related to the petitions. She discussed how she located the fathers and the steps they had taken in becoming involved with their children. She said the then-alleged fathers had not received notice of the hearings at which S.S. became a presumed parent of the children. She also acknowledged S.S. had a generally good and affectionate relationship with J.M. and N.S. Both children called her "Daddy," and the social worker said she had observed S.S. taking care of their emotional and physical needs.
At the hearing, A.M. joined the other children in requesting S.S.'s status be terminated. His attorney made an oral request that the court change its September 26, 2016 order finding S.S. to be A.M.'s presumed mother. The next day, she filed a formal petition to that effect. The petition said previously unavailable information showed the child may not have resided with S.S. the majority of his life. It requested the court rescind the finding or at minimum "require more detailed truthful information to support such an order."
The trial court requested a supplemental report on the level of care provided by mother and S.S. The social worker responded by reporting several additional problems. The social worker interviewed A.M. and his sister, C.M. Both children reported mother made them give her their urine which she would pour into a balloon and attach to her stomach. A.M. said mother did it because "she had to give it to her boss." The girl said S.S. was present for the urine collection. The girl also said S.S. had taped N.S.'s hands behind her back to prevent her from removing her diaper and playing with her feces, sometimes hit them with a belt, and had left the children alone in a van while she went grocery shopping. She said mother had been living in the house since being released from jail and hid in another room when anyone came over. A.M. denied these accusations. Mother denied collecting the children's urine. She also denied the other allegations.
The trial court held another hearing on the petitions on June 6, 2017. There, it was shown S.S. had made certain misrepresentations or misleading omissions in her original petitions to be named the presumed parent of the children. In the first petition for N.S., she represented she and mother had married on March 28, 2015, just three weeks after N.S. was born. It turns out the two did not marry until August 16, 2016, after S.S. was named N.S.'s presumed parent and only eight days before she filed petitions to be named the presumed parent of the other children. S.S. also overstated the extent to which she was present for and supporting the children. She had represented she'd been an active parent and guardian for the children since their births and they'd lived in her home most of their lives. However, there was evidence mother and A.M. lived with the father of A.M.'s sister, C.M., for the first two years of his life, until father was arrested on July 23, 2012. S.S. was arrested and incarcerated on February 1, 2013. J.M. was born March 14, 2014. On December 29, 2014, S.S. was arrested again, for a probation violation. By early March 2015, mother and S.S. had left the older children with mother's grandmother, and shortly thereafter they were taken into custody. Thus, it became apparent S.S. had spent a considerable portion of the older children's lives incarcerated rather than living with and caring for them.
The trial court granted all the petitions requesting the court terminate S.S.'s status as the presumed parent and also designated the fathers of J.M. and N.S. as their presumed fathers.
II
DISCUSSION
A. Rescission of S.S.'s Presumed-Parent Status
S.S. argues the trial court abused its discretion by granting the section 388 petitions and rescinding S.S.'s presumed-parent status.
Any person having an interest in a dependent may petition the court to change, modify, or set aside a juvenile court dependency order at any time on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The petitioner must also show, by clear and convincing evidence, the proposed change would promote the best interests of the child. (§ 388, subd. (a)(2); In re J.C. (2014) 226 Cal.App.4th 503, 525-526.)
Resolving such a petition lies in "'the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.'" (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) We will not intervene unless the trial court has acted in an arbitrary, capricious, or patently absurd fashion. ""'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'"" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
We conclude the trial court did not err in finding that circumstances had changed and an order rescinding S.S.'s status as a presumed parent would be in the best interests of the children. S.S. first established her status as the presumed parent of N.S. on a petition she filed in the San Bernardino court. In that petition she relied on the representation she and mother had married on March 28, 2015, just three weeks after N.S. was born. That representation appears to have been false, as the parties produced a marriage certificate at the June 6, 2017 hearing which showed S.S. and mother married on August 16, 2016—after S.S. had become N.S.'s presumed parent. We cannot say the trial court acted arbitrarily in rescinding the order granting S.S. presumed-parent status when the order itself was based on such a fundamental misrepresentation. The marital status was particularly important because mother and S.S. had abandoned the newborn in the hospital when confronted about mother's drug use and S.S. had never had custody over the child or provided for her at the time the San Bernardino court determined her parental status. The Riverside trial court acted reasonably in concluding these changed circumstances undermined the original presumed-parent decision.
The same falsehood infected S.S.'s petitions for presumed-parent status of J.M. and A.M. She relied on her status as N.S.'s presumed parent to establish her status for the brothers, and that status relied on her misrepresentation about the marriage. Moreover, the petitions for the older children said only that mother and S.S. were married, not they had married eight days before filing the petitions. That itself is an important omission, suggesting the brothers had been part of a stable family unit, rather than that S.S. and mother were in the process of trying to achieve that status. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 [a petition must allege changed circumstances, not merely circumstances are in the process of changing].) Thus the change in marital date provided the Riverside court a reasonable basis for finding circumstances were importantly different than they appeared when it originally found S.S. to be the presumed parent of J.M. and A.M.
It is true A.M. and J.M. had lived with S.S. for a period before mother and S.S. left them with their great-grandmother who then turned them over to CFS. However, S.S. substantially overstated her involvement in their lives. She said, "I have been an active parent/guardian for [A.M. and J.M.] since [their] birth, and [they] ha[ve] lived at my home the majority of [their] li[ves]." In fact, there is new evidence from which the court could infer A.M., who was born August 28, 2010, lived apart from S.S. for at least the first two years of his life. On September 15, 2016, mother told a social worker she was worried about C.M.'s father beginning to visit C.M. because of his criminal record. She said he was arrested at her home on drug and violence charges on July 23, 2012, the day before she gave birth to his child, C.M. She was forced to move as a result, and relocated for a short time to his parents' home. The trial court could reasonably infer from this evidence that A.M. did not live with S.S. until at least August 2012.
In addition, even assuming mother and S.S. began living together with the children in August 2012, S.S. was incarcerated repeatedly over the next two and a half years, the period before the children were removed. She was sentenced to three years' incarceration on February 1, 2013 and arrested for violating probation on December 29, 2014. The trial court could reasonably conclude S.S. was not providing for the children during that interval. In addition, shortly after the children were placed in foster care in April 2015, S.S. and mother were arrested for evading arrest. S.S. was released from prison on March 4, 2016. S.S. did not contest this evidence at the hearing. Instead her attorney focused on the best interests of the children, arguing they recognize a parental relationship with S.S. and desired to remain in her custody. Thus, S.S. did not dispute the new evidence that gave the trial court a basis for finding she had made material misrepresentations concerning her qualifications to be the children's presumed parent. We conclude the trial court acted reasonably in finding changed circumstances warranting rescission of S.S.'s presumed-parent status.
The trial court also had ample evidence to find it was in the children's best interests to rescind that status. First, S.S. appears to have lied about attending a parenting program as part of her reunification services. She also failed to show up or provide a urine sample for drug testing five times between March 13 and May 1, 2017. In addition, she allowed unapproved contact with mother, and S.S. and mother were reported to have discussed the dependency case with the children during approved supervised visits. These facts on their own provided the trial court clear and convincing evidence that rescinding S.S.'s presumed-parent status was in the children's best interests.
But it got worse. The trial court requested an update on the children's treatment, and the new report indicated S.S. was neglectful and abusive. The report said S.S. was aware mother was collecting the children's urine and attaching it to her body in balloons, presumably so she could pass drug tests. The children also reported S.S. left them alone when she went grocery shopping, and had A.M.—then six years old—supervise his younger siblings. Confronted, S.S. did not deny leaving the children unattended, but instead defended her actions, saying "California does not have a legal babysitting age, and [A.M.] is responsible" to care for his younger siblings. There were also new reports of physical abuse. C.M. said S.S. taped N.S.'s arms behind her back to stop her from playing with her feces. Sometimes, S.S. hit C.M. and A.M. with a belt on their arm or bottom. In the face of this evidence, it is impossible to conclude the trial court erred in finding the children's best interests would be served by terminating S.S.'s presumed-parent status.
S.S. argues the trial court erred by granting father's petitions to be designated the children's presumed fathers. We conclude she does not have standing to challenge those orders. Fathers are not parties to this appeal and granting them rights did not affect S.S.'s status. As S.S. correctly points out, it is possible for there to be multiple presumed parents. (Fam. Code, § 7612, subd. (c) ["a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child"].) Thus, the court did not bar her from establishing she should be designated a presumed parent in a subsequent, supported petition by granting the fathers presumed-parent status. Nor did the trial court grant the petitions to rescind her presumed-parent status on the erroneous ground that each child could have only one presumed parent. We therefore decline to weigh in on the trial court's orders determining the biological fathers of J.M. and N.S. are also their presumed fathers. (Cf. In re Daniel D. (1994) 24 Cal.App.4th 1823, 1835-1836 [parent lacked standing to challenge denial of de facto parent status sought by relative].)
C.M.'s father, Ad.M., was a respondent, however, as we have noted, this appeal has been dismissed as it relates to his daughter. Neither J.M.'s nor N.S.'s father is a party to the appeal.
B. Mother's ICWA Argument
Mother argues the trial court erred in finding notice under ICWA to be sufficient and in failing to apply the heightened standards applicable to cases involving Indian children.
Mother raised many of the same arguments in a separate appeal challenging the subsequent termination of her parental rights over A.M. (In re A.M., supra, E069823.) As in that case, DPSS concedes the ICWA notices sent prior to December 2017 were deficient. However, they argue they cured the defect with an ICWA notice sent on December 15, 2017. We agreed with DPSS in the first case because the modified notice was adequate, the tribes determined the children were not eligible to enroll, and the Riverside court found ICWA did not apply based on the modified notice and the new responses. Under such circumstances, remand for further ICWA proceedings would be pointless.
DPSS submitted evidence concerning the tribes' responses to the revised notice on appeal. We concluded it was appropriate to consider those responses because doing so contributes to a just and final resolution for the children. (Code Civ. Proc., § 909; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1412.) We also took judicial notice of the minute orders issued by the Riverside court on January 8, 2018 and February 15, 2018. (Evid. Code, § 452, subd. (d).) --------
As we held in the prior case, "errors in ICWA notice are subject to harmless error review." (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.) Mother has failed to identify any deficiency with the December 15, 2017 notice, and has therefore failed to convince us there is a reasonable possibility of including new information regarding the children's family background in a new notice that may enable the tribes to determine they are eligible to register with them after all. (In re Autumn K. (2013) 221 Cal.App.4th 674, 715.) The Riverside trial court reached the same conclusion, which leads us to conclude "[e]ven a conditional reversal with limited remand would be an empty formality and a waste of . . . judicial resources." (In re E.W. (2009) 170 Cal.App.4th 396, 401-402.)
III
DISPOSITION
We affirm the trial court orders and the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.