Opinion
E069823
07-11-2018
In re A.M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Mother appeals orders which led to the termination of her parental rights over her son, A.M., who was four years old when he was removed due to neglect and mother's use of methamphetamine, and will soon turn eight. Mother says the trial court erred in ruling the strength of her parental bond with A.M. did not outweigh the permanency benefits of adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), unlabeled statutory citations refer to this code.) She also says the trial court erred in ruling the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) does not apply to A.M. because the relevant tribes received defective notices. We affirm.
I
FACTUAL BACKGROUND
A.M. and two siblings came to the attention of San Bernardino County Children and Family Services (CFS) after mother tested positive for methamphetamine while giving birth to a third sibling in Arizona. She left the hospital and abandoned the newborn. She had left the other three siblings in the care of her grandmother in Big Bear City, but they were removed when grandmother told CFS she could not care for them.
A.M.'s siblings are not subjects of this appeal, though their status is raised in a related appeal in case No. E068499, which we will decide by separate opinion.
Mother's appeal relates only to the court's determination her bond with A.M. was not so substantial that the harm from severing it outweighs the benefits of placing A.M. in a stable, nurturing adoptive home and its determination A.M. is not an Indian child within the meaning of ICWA. We set out the factual background relevant to those issues separately in the discussion section.
II
DISCUSSION
A. The Beneficial Relationship Exception to Terminating Parental Rights
1. Factual background
Mother's use of methamphetamine and consequent neglect brought about A.M.'s removal. She tested positive for methamphetamine in March 2015, at the birth of A.M.'s youngest sibling in Arizona. The newborn also tested positive. Mother then left the hospital, against medical advice, and abandoned the newborn, who was taken into custody by an Arizona social services agency.
About a week before the birth, mother had left A.M. and his two other siblings with her grandmother in Big Bear City. Responding to a neglect referral, the San Bernardino Children and Family Services (CFS) interviewed grandmother at her home on March 13, 2015. She told the social worker the mother had left the children with her, though she didn't say why. 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.
On March 25, 2015, CFS filed dependency petitions for A.M. and his two siblings in San Bernardino County Superior Court. Among other things, the petition alleged mother had placed her children at risk of harm and neglect by abusing and testing positive for 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 San Bernardino court ordered A.M. detained and placed in foster care.
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 court report related to the detention of her newborn, mother admitted to having used methamphetamine the last three and a half months of her pregnancy, a decision she attributed to stress from school and moving. 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, a representation that appears inconsistent with the fact that she left the other children before giving birth.
On April 16, 2015, the San Bernardino court held a jurisdictional/dispositional hearing. The court found the key allegations true, removed A.M. from mother, ordered weekly supervised visits, and ordered CFS to provide her with reunification services. Later, at the request of CFS, the San Bernardino court transferred the case to Riverside County. On May 23, 2016, the Riverside County Superior Court accepted the transfer, appointed new counsel, and set an 18-month review hearing. (§ 366.22.) From that point on, the Riverside County Department of Social Services (DSS) handled A.M.'s case.
Prior to a September 26, 2016 status review hearing, DSS recommended A.M. be returned to the custody of mother and her wife and that they receive family maintenance services. Before these proceedings began, mother had been convicted of felony possession of a controlled substance (Pen. Code, § 11378), and in June 2015 received a 36-month term of probation, conditioned on her sobriety, participating in the Recovery Opportunity Center (ROC) program, and complying with the program rules. The social worker reported mother had done well complying with those terms. She enrolled in ROC on June 23, 2015 and was set to graduate in October 2016. She had returned 35 negative drug tests over a five month period. She had completed counseling sessions and parent classes. In addition, she had successful visits with A.M., eventually advancing to overnight weekend visits, and the social worker reported A.M. expressed joy and happiness when he saw his mother and looked forward to returning to her care. The court accepted DSS's recommendation, returned A.M. to mother's custody, and ordered family maintenance services.
Unfortunately, before she could complete the program, mother appears to have relapsed. On October 14 and 26, she tested positive for methamphetamine. She informed the ROC program probation officer 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 ROC 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 says she continued taking the medication and continued to test positive for methamphetamine. As a result, the ROC program ordered her to complete a 45-day drug treatment program.
On December 8, 2016, she entered a drug treatment program in Hot Springs, California. Less than a week later, she tested positive again for methamphetamine. On December 15, 2016, the treatment program kicked her out because she refused to relinquish her cell phone, as required by the center's regulations. Her failure to complete the program constituted a probation violation, and she was taken into custody.
On January 4, 2017, the Riverside court found a violation and sentenced her to jail. She was housed at the Indio Jail with a release date of May 1, 2018. In response, DSS filed a supplemental petition (§ 387) seeking to remove A.M. and his siblings from mother's custody again.
Mother told a social worker she felt it was best for her family for her to drop out of the ROC program and accept being incarcerated because she would have to complete a 45-day inpatient substance abuse treatment program and "start all over" at the ROC 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 A.M. and his siblings detained from mother on February 6, 2017. They remained in the custody of mother's wife, who had been determined to be their presumed parent. 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.
A social worker interviewed her in connection with putting together the jurisdiction/disposition report. Mother said, "I believe that by dropping out of the ROC program, I did what was best for my family, because the ROC program was going to have me restart the program, and after all I did to complete the program, I did not want to restart everything." She said she had believed she would be released early and felt vindicated in her choice because she was released quickly. She said, "I do not agree with the Department's decision and feel like things are not being done with real facts and with intentions to reunite my family . . . I do not understand why since I'm out of jail now, that it is still an issue." The social worker noted in the report that mother had tested positive for methamphetamine nine times between October and when she was incarcerated in December 2016. During this period, mother was having weekly monitored visits with the children at locations such as parks, restaurants, and other public places. The social worker said the visits were appropriate.
The social worker also interviewed mother's wife. She said, "I believe the original order was necessary because of [mother's] release date; however, I do not believe that the same rules should apply now that [she] has been released . . . [She] loves her children, and although she made a bad choice, I feel the outcome is harsh." She said she thought it would be more emotionally damaging to the children to keep mother away. She conceded it would have been better if mother had completed her program, and agreed mother should be required to attend another substance abuse program and medical evaluation.
The social worker concluded A.M. and his siblings 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." DSS recommended A.M. be continued as a dependent, mother's wife 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 mother's wife had left the children alone, with 6-year-old A.M. in charge of his three younger siblings. 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 she returned home, mother's wife made several attempts to minimize or excuse leaving the children. Based on this incident, DSS also sought to remove A.M. and his siblings from the wife's custody. On March 3, 2017, the Riverside court ordered A.M. and his siblings detained from the wife, and ordered she receive reunification services. The court ordered A.M. placed with his youngest sibling in the home of the person who previously had been declared the sibling's de facto parent.
In subsequent weeks, mother failed to solve the problems that led to the removal. It took her over two months from the time of her referral to register with a drug treatment program. When she did register, she chose the least intensive outpatient program. She failed to show for random drug testing three out of four times in March and April. She failed to attend her court-ordered medical evaluation. In addition, she told the social worker she had voluntarily signed up for a parenting program, but the program reported she was not enrolled. And at weekly visits, mother and her wife were reported to be discussing the case with the children. In recommending the court terminate reunification services for mother, the social worker also noted mother knew her wife had left the children without proper supervision and had not been forthcoming and honest about where she was staying after her release from jail.
In an addendum report, DSS recounted more problems. The paternal grandmother of one of A.M.'s sisters reported mother and her wife were not caring for the children adequately. The social worker interviewed A.M. and his sister. 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 mother's wife was present for the urine collection. The girl also said mother's wife had taped the youngest sibling'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 and denied using it to pass drug tests. She also denied the other allegations. On July 5, 2017, the trial court terminated reunification services because of mother's failure to make timely progress on her reunification plan.
On October 10, 2017, DSS submitted a section 366.26 report recommending termination of parental rights. The social worker reported mother had recently completed a 16-week substance abuse program and had tested clean. She also had consistent visitations with A.M. twice a month. In the meanwhile, A.M. was doing well in his foster placement. The social worker noted A.M., then 7 years old, had been living in a licensed foster home with his youngest sibling since he was detained the second time. The social worker concluded adoption is very likely because the home has been stable and appropriate. The adoptive family owned their home, a house with four bedrooms and three bathrooms. A.M. had his own bedroom. A.M. said he liked where he lived and he would want to stay there with his caregiver if he was unable to reunify with his mother. The prospective adoptive parent wanted to adopt A.M. DSS recommended terminating parental rights because he had developed a bond with his caregiver and needed a permanent, stable home.
Ultimately, on December 12, 2017, the Riverside court terminated mother's parental rights. The court found it was likely A.M. would be adopted and termination would not be detrimental to him because none of the exceptions under section 366.26, subdivision (c)(1)(A) and (B) applied.
2. Analysis
Mother argues the court erred in failing to find the parental benefit exception to terminating parental rights applied to A.M. We find no abuse of discretion.
The Legislature prefers adoption where possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Once the juvenile court finds a child is adoptable, the parent bears the burden of proving one of the exceptions to terminating parental rights exists. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception at issue here, commonly called the parental benefit exception, "applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; see also § 366.26, subd. (c)(1)(B)(i).) California courts have interpreted this exception to apply to only those parent-child relationships the severance of which "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
"[T]he 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 parent's rights are not terminated." (In re J.C. (2014) 226 Cal.App.4th 503, 528-529.) We defer to the juvenile court's determination whether a beneficial parental relationship exists, reversing only where the court has abused its discretion by basing findings of fact on less than substantial evidence or by acting arbitrarily or capriciously in determining whether the relationship provides "a 'compelling reason' for finding detriment to the child." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.)
Here, mother has not even arguably established severing the parent-child relationship would deprive A.M. of a substantial, positive emotional attachment. There is little in the record to establish a parental relationship existed at all. While A.M. was in her care, she failed to protect him by leaving him and two of his siblings with her grandmother who gave up custody to CFS because she was unable to care for them. Mother apparently knew she was not able to care for the children herself because she had her grandmother agree to call law enforcement in the event she tried to take the children back. We know she was using methamphetamine before relinquishing custody to grandmother because she admitted using during the last three and a half months of her pregnancy with A.M.'s sibling.
Mother made substantial progress on her initial reunification plan, which led the Riverside court to return A.M. to her custody after about a year and a half. However, within weeks she began testing positive for methamphetamine again, failed to complete her treatment program, and, as a result, returned to prison for violating the terms of her probation. There is significant evidence that since her release from prison she has not managed to keep herself off drugs. It took over two months for her to register with a drug treatment program, and then she chose the least intensive outpatient program. She failed to show for random drug testing three out of four times in March and April 2017—thus they are deemed positive tests—and failed to attend a court-ordered medical evaluation. In addition, her children reported she collected urine from them, apparently for the purpose of passing drug tests. Whether because of the drug use or for independent reasons, she also continued to fail to exercise judgment in protecting her children. At visits, she discussed the dependency case with them. In addition, she knew her wife had left the children without proper supervision and, at least according to one child, was aware her wife was physically abusive to the children.
The through line of this story is that mother's drug use has made her unable to stand in a parental role for A.M. and his siblings. Though the child and parent have an emotional bond, that is not sufficient to invoke the parental benefit exception. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) At the permanency stage, we must balance the bond the child shares with the parent and the harm that might arise from terminating parental rights against the benefits of a permanent stable home, and "it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The parental benefit exception will apply only where the parent has demonstrated the benefits to the child of continuing the parental relationship outweigh the benefits of permanence through adoption. Nothing in this record suggests any benefit A.M. might gain by continuing his relationship with mother outweighs the well-being he would gain from having a permanent home with his prospective adoptive family. We cannot conclude the trial court acted arbitrarily and without substantial evidence by determining the parent-child bond did not override the child's need for the stable, permanent home with a prospective adoptive family who was already meeting his needs and wants to adopt him.
B. Sufficiency of ICWA Notices
Mother's appeal raises the issue of compliance with the notice requirements of ICWA. She says DSS's ICWA notice, which the trial court approved on December 12, 2017, lacked important information about A.M.'s ancestors, and the error requires that we reverse the order terminating her parental rights.
1. Factual background
Mother reported she had been adopted when she was 16 months old and was raised in the foster care system. After CFS detained A.M., mother filed in the San Bernardino County Superior Court an ICWA-020 form saying she may have Mohawk and Iroquois ancestry and "was registered as a tribe [member] when [she was a] child in New York." The San Bernardino court noted A.M. may have Native American heritage.
CFS sent an ICWA notice to several native tribes. They included mother's legal name, five aliases, the alleged father's name, and the name, address, and tribal information for a maternal great-grandmother, but omitted information about the maternal grandparents. CFS sent the notices to the Cayuga Nation, the Oneida Nation, the Onondaga Nation, the Seneca Nation, the Tonawanda Band of Senecas, the Tuscarora Nation, and the St. Regis Band of Mohawk Indians.
CFS received responses from all but the Onondaga Nation, each saying A.M. was not a member of the tribe and not eligible to enroll. After more than 60 days passed without response from the Onondaga Nation, CFS filed a declaration of due diligence. On June 22, 2015, the court found ICWA does not apply and found no further notice was required.
After the San Bernardino court transferred the case to Riverside County, DSS and the Riverside juvenile court handled A.M.'s case. On May 23, 2016, the Riverside court reiterated that ICWA does not apply. As we discussed above, the Riverside court later ordered A.M. and his siblings returned to the custody of mother, but then ordered them detained again a few months later when mother was incarcerated for violating the terms of her probation.
DSS interviewed mother as part of these proceedings. On February 23, 2017, she told the social worker she's a registered member of an Indian tribe. She said she had notified San Bernardino County social workers of this fact, but they did not verify her ancestry. In a jurisdiction and disposition report filed March 24, 2017, DSS noted these facts and wrote that A.M. may be ICWA-eligible. DSS subsequently informed the court they had noticed a sibling's ICWA notice documentation had more information than A.M.'s, and said they intended to send out a new notice. At a hearing on July 5, 2017, the Riverside court changed its ICWA determination, finding ICWA may apply.
In an October 10, 2017 report, DSS updated the court concerning A.M.'s potential native heritage. The social worker said mother told her the maternal great-grandmother and maternal great-aunt would have information about the tribe. DSS tried unsuccessfully to contact both relatives four times in July 2017. Finally, the social worker spoke with A.M.'s maternal great-grandmother on October 2, 2017. She reported being affiliated with the Mohawk-Iroquois, Six Nations tribe. She said she had never been registered, but has a family member in Canada who is registered to the tribe, and provided a name and contact number.
The social worker reached the family member the same day. He said he and A.M. would be second cousins, three times removed. He said he's a registered member of the Metis (Mohawk-Iroquois), Six Nations Tribe in Ontario, Canada. He said because the tribe is in Ontario, Canada, and A.M. was born in the United States, A.M. may not be eligible to register with the tribe. The social worker's report concluded ICWA may apply.
DSS sent an updated ICWA notice on October 10, 2017. They told the court they do not send notices to Canadian tribes, but said they had sent notices to the Oneida Nation, the Tuscarora Nation, the Cayuga Nation, the Seneca Nation, the Onondaga Nation, the Tonawanda Band of Senecas, and the St. Regis Band of Mohawk Indians, all located in the United States. The new notice named A.M., his mother, his maternal grandmother and grandfather, and both sets of his maternal great-grandparents. It also provided seven aliases for mother, her birthdate and birth place, the city where she lived (but not her address), maternal grandmother's birthdate, an alias for one of his maternal great-grandfathers, and, for one maternal great-grandmother, an address and birthdate. The notice didn't provide names or any other information for the alleged father's side of the family, except for the alleged father's name and birthdate.
On December 12, 2017, DSS represented they had received responses to their updated notices from five of the seven tribes and more than 60 days had passed since they sent the notices. All five responses indicated A.M. was not enrolled and was not eligible to enroll as a tribe member. The Riverside court determined ICWA notice was proper and ICWA does not apply to A.M. The Riverside court also terminated mother's parental rights the same day. Mother started this appeal by filing a notice of appeal of the court's December 12 order.
Three days later, DSS sent an updated ICWA notice to the same seven tribes. The new notice added a new alias for mother, noted her current address is confidential, and provided dates she attended the Sherman Indian School in Riverside. It also added two aliases, a current address, and a former city of residence for the maternal grandmother; a middle initial and a current city of residence for the maternal grandfather; a middle name, alias, new address, and birthplace for a maternal great-grandmother; and clarified the prior form had switched a maternal great-grandfather's given name and alias. The new notice still didn't provide names or any other information for the alleged father's side of the family, except for the alleged father's name and birthdate.
In January 2018, DSS filed with the Riverside court responses from five of the seven tribes, all indicating A.M. was not enrolled and not eligible to enroll as a tribe member. On February 15, 2018, the Riverside court found ICWA does not apply to A.M.
One negative response is dated January 8, 2018, but was not filed with the Riverside Court until March 6, 2018.
2. Analysis
Mother contends the Riverside court's termination order must be reversed because DSS failed to comply with ICWA notice requirements prior to terminating her parental rights.
Congress passed ICWA "to protect Indian children and their tribes from the erosion of tribal ties and cultural heritage and to preserve future Indian generations." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Tribes have the right to intervene in a state court dependency proceeding at any time. (25 U.S.C. § 1911(c).) "Notice ensures the tribe[s] will be afforded the opportunity to assert [their] rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. Specifically, the tribe[s] ha[ve] the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Determination of a child's Indian status is up to the tribe, so just the suggestion of Indian ancestry triggers this notice requirement. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.)
The notice provision of ICWA provides, "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." (25 U.S.C. § 1912(a).) If the notice provision is not followed, an Indian child, parent, or the tribe "may petition any court of competent jurisdiction to invalidate such action." (25 U.S.C. § 1914.)
The ICWA "notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name; a statement of the right of the tribe to intervene in the proceeding; and information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information." (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) DSS has the duty to inquire and obtain all this information about the child's family history, to the extent possible. (Ibid.) However, information regarding an alleged father who has established neither biological nor adoptive parental status, need not be included in an ICWA notice. (In re E.G. (2009) 170 Cal.App.4th 1530, 1533 ["Until biological paternity is established, an alleged father's claims of Indian heritage do not trigger any ICWA notice requirement"]; In re D.C. (2015) 243 Cal.App.4th 41, 62-64 [adoptive parents' assertion of native heritage requires ICWA notice].)
Mother's complaint is the October 2017 notice omitted information about A.M.'s family members. She says the notice omitted: her own current address; maternal grandmother's married names, current address, and place of birth; any information on maternal grandfather other than his name; any information on the maternal great-grandfathers; and any information on the paternal grandparents and great-grandparents. As we've noted, the alleged father's family history is not relevant, so we focus on the alleged deficiencies in setting out A.M.'s maternal line.
DSS 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. They say we should affirm because the modified notice was adequate, the tribes determined A.M. was not eligible to enroll, and the Riverside court found ICWA did not apply based on the modified notice and the new responses. These facts, they say, show remand for further ICWA proceedings would be pointless.
Respondents also argue the ICWA notice provision doesn't apply because mother supplied information indicating A.M. was eligible to register in a Canadian tribe, which is not federally recognized under ICWA. We do not agree with this characterization of the evidence. It is true a relative referred the social worker to a more distant relative who lives in Canada and is a member of a Canadian tribe. It does not follow, however, that relatives living in the United States were not members of the related U.S.-recognized tribes to which the DSS sent notices. Those tribes are in New York state, where mother said she lived as a young child and registered in a tribe. --------
Thus, this part of the appeal boils down to whether events occurring after the Riverside court terminated mother's parental rights show the conceded error in approving the prior notice was harmless. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 ["errors in ICWA notice are subject to harmless error review"].) Our analysis turns entirely on the evidence concerning the tribes' responses to the revised notice, which DSS seeks to introduce on appeal though it was not before the Riverside court when it terminated mother's parental rights. We conclude permitting the evidence and noticing the Riverside court's orders entered based on that evidence is appropriate because doing so contributes to a just and final resolution for A.M. (Code Civ. Proc., § 909; In re Antoinette S., supra, 104 Cal.App.4th at p. 1412.) Accordingly, we grant respondent's motion to augment the record to include the tribes' responses. (In re B.D. (2008) 159 Cal.App.4th 1218, 1240.) We also take 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 appellant, mother bears the burden of showing the error was not harmless. (In re Autumn K. (2013) 221 Cal.App.4th 674, 715.) In this context, that means she must identify some fresh deficiency with the December 15, 2017 notice, and convince us there is a reasonable possibility of including new information regarding A.M.'s family background in a new notice that may enable the tribes to determine he is eligible to register with them after all. (Ibid. ["'An appellant seeking reversal for lack of proper ICWA notice must show a reasonable probability that he or she would have obtained a more favorable result in the absence of the error'"].) We conclude mother has failed to carry that burden. She argues the new notice was deficient, but faults only its failure to include address or birthdate information for the maternal great-grandfathers. By providing significant information—including multiple names, addresses, birth dates and birthplaces—for mother, maternal grandmother, and maternal great-grandmother, as well as the names of the maternal grandfather and maternal great-grandfather, DSS provided notice that "contain[ed] enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
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.) DSS cured the defects of its previous notices, supplied important additional information to the same tribes, and the tribes responded that A.M. is not a member and is not eligible to register. We cannot condone delaying permanence for A.M. to carry out an empty exercise with a preordained outcome. (Id. at p. 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.