Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. JUV74369 Christopher J. Sheldon, Judge.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Lori A. Fields, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ P.J.
Appellant C.O. (mother) is the mother of L.O. (child). Mother appeals from the juvenile court decisions: 1) denying mother’s petition to change its previous orders under Welfare and Institutions Code section 388; and 2) terminating her parental rights to L.O. As discussed below, we conditionally reverse the juvenile court’s orders to allow the Riverside County Department of Public Social Services (Department) to comply with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.), but in all other respects affirm the orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURE
Detention
On August 19, 2007, mother was arrested for being under the influence of a controlled substance and resisting arrest. Mother was taken to the hospital for drug testing and was found to have opiates, methamphetamine and marijuana in her system. The child, then age 6, was taken into protective custody. The child was formally detained on August 22, 2007.
On August 24, 2007, mother filed a “Parental Notification of Indian Status” (Judicial Counsel form JV-130) stating that she had no Native American ancestry. She also filed a “Notification of Mailing Address” (Judicial Counsel form JV-140) giving her address as 46806 Lilac Ct., Indio, California, 92201. Mother told the social worker that for the previous three years she had rotated between Martha’s Village & Kitchen (Martha’s Village), the Coachella Valley Rescue Mission, and the home of a cousin, and that she had no means with which to support herself.
Jurisdiction and Disposition
At the jurisdiction and disposition hearing held on September 11, 2007, the juvenile court found true the allegations in the section 300 petition that, under subdivision (b), mother had failed to protect the child because she assaulted a police officer while caring for her child, abuses drugs thus creating a detrimental home environment, is unable to maintain a stable home, has a history with child protective services regarding other children and has failed to benefit from previous services, has a criminal history, is currently incarcerated, and the identity and whereabouts of the child’s father are unknown. The court also found true the allegations that, under subdivision (g), mother had made no provisions for supporting the child, in that she is currently incarcerated and the identity and whereabouts of the father are unknown. The court offered mother reunification services.
Six-Month Review
At the six-month review hearing held March 5, 2008, the juvenile court authorized six more months of reunification services for mother. Mother was not present at the hearing.
Twelve-Month Review and Notices
In preparation for the 12-month review hearing to be held on September 3, 2008, the Department filed the status review report on August 7, 2008, in which it recommended continuing reunification services. The Department reasoned that, although it had concerns about mother’s “transient lifestyle,” she appeared to be making some progress on her case plan. Mother had completed a 90-day treatment program at LaVista Women’s Recovery Center in San Jacinto and had recently returned to Martha’s Village in Indio, where she had been working with a case manager and was working on her general education diploma (GED). Also on August 7, the Department mailed a copy of the report to mother’s attorney and to mother at her last known address, 83791 Date Avenue in Indio, also known as Martha’s Village.
In an amended report dated August 26, 2008, the social worker states that he telephoned mother at Martha’s Village on August 20, but was told that mother was no longer living there. Mother had been asked to leave because she tested positive for alcohol use. The social worker then called Victory Outreach in Banning, and was told that mother would be checking in after 5:00 p.m. on August 21. For this reason, it appears, the Department changed its initial recommendation and asked the juvenile court to terminate mother’s reunification services and set a section 366.26 hearing. However, the record also indicates that on August 18, 2008, the Department mailed a further Notice of Review Hearing to mother informing her that its recommendation had changed. The record also indicates that, on August 19, 2008, the Department mailed the same notice to mother’s attorney. The Department filed the addendum report with the juvenile court on August 26, 2008. The addendum report listed mother’s address as 2207 West Nicolette Street, Banning, California, 92220, which is Victory Outreach.
The record is not clear as to the chronology of the social worker’s telephone call to Martha’s Village and the Department’s decision to recommend termination of services. Perhaps the parties could clarify this for the Court.
Mother was not present at the 12-month review hearing held on September 3, 2008. Mother’s counsel was present and stated simply “I would object to services being terminated as to [child].” The juvenile court terminated reunification services and set the section 366.26 selection and implementation hearing for December 29, 2008. The court also ordered that “[w]rit rights [be sent] to the last known address.” That same day, the court clerk mailed the notice of writ rights to mother at 250 N. Hargrave #1, Banning, California, 92220. Mother and the social worker spoke by telephone later that day when mother called to find out what had happened at the hearing.
Selection and Implementation / Section 388 Petition
On December 4, 2008, the Department filed a selection and implementation hearing report, in which it recommended termination of parental rights and adoption by the current foster parents. On December 18, 2008, the Department filed an addendum report in which it asked to continue the section 366.26 hearing so it could further assess the prospective adoptive parents. Attached to the report was the Preliminary Adoption Assessment, which reported that the foster father had a history of drug abuse as an adult, as well as two misdemeanor convictions for disorderly conduct/prostitution under Penal Code section 647, subdivision (b).
On December 29, 2008, the juvenile court granted the Department’s request for a continuance to March 3, 2009. On that day mother filed a petition under section 388 on Judicial Council form JV-180. Mother asked the juvenile court to modify its order of September 3, 2008, terminating reunification services and scheduling the section 366.26 hearing. Mother asked the court to order family maintenance services instead. The juvenile court set a hearing on the petition for March 3, 2009.
The Department filed an addendum report on February 25, 2009, in which it recommended parental rights be terminated and the child be freed for adoption by his foster parents. At the hearing on March 3, 2009, the juvenile court denied mother’s section 388 petition. During the selection and implementation portion of the hearing, the child’s counsel argued for legal guardianship rather than adoption because of the child’s close bond with his mother and family. Mother’s counsel also argued for legal guardianship rather than adoption based on the parental bond exception to the preference for adoption. Based on the recommendation of the child’s counsel, the juvenile court continued the hearing to March 25, 2009, so the Department could ask the foster parents whether they were interested in legal guardianship.
At the continued hearing on March 25, 2009, the Department reported that the foster parents would be willing to be the child’s legal guardians if that is what the court ordered, and if they could be assigned “educational rights”. Mother’s counsel asked for legal guardianship. The child’s counsel reported that the child asked her to tell the court that “he wishes to stay where he’s at, definitely doesn’t want to return to mother’s care. He did, however, say he wanted to continue to visit with mom.” At the end of the hearing, the juvenile court selected adoption as the child’s permanent plan. This appeal followed.
Discussion
1. Order Setting Section 366.26 Hearing
A. Notification of 12-Month Review Hearing—Structural Error?
Mother argues the juvenile court committed structural error by conducting the 12-month review hearing despite the Department’s failure to give mother timely notice that it had changed its recommendation to termination of services. Thus, mother argues, the order setting the section 366.26 hearing must be reversed.
At least 10 days before the status review hearing, the social worker is required to file and provide the parent with a report that includes the Department’s recommendation. (§366.21, subd. (c).) Here, mother did not receive a copy of the Department’s changed recommendation to discontinue services because she had moved from her previous Martha’s Village address, and it appears the Department did not send notice of the changed recommendation to mother’s new address at Victory Outreach Mother contends we should deem noncompliance with section 366.21, subdivision (c) as structural error, requiring per se reversal. She cites Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), in support of her position. In Judith P., the juvenile court, at a status review hearing, terminated the mother’s reunification services and denied her request for a continuance and a contested hearing. (Id. at pp. 543-544.) The appellate court held that the child welfare agency’s failure to serve the mother and her counsel with the status review report at least 10 days before the status review hearing as required by statute “constituted structural error, requiring per se reversal because it prevented mother from preparing her defense. [Citation.]” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420 (Sabrina H.), fn. omitted.)
The facts of Judith P. are distinguishable from the facts in this case in several respects. Judith P. involved an order terminating services after denying the mother’s requests for a continuance and contested hearing so she could present evidence that she was in compliance with the case plan. The Court of Appeal stated: “It is fundamentally unfair to terminate either a parent’s or a child’s familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification.” (Judith P., supra, 102 Cal.App.4th at pp. 557-558.) In the instant case, mother did not request a continuance based on the Department’s changed recommendation, and the court accordingly did not deny her a contested hearing on the issue of the Department’s recommendation. In Judith P., neither the mother nor her counsel was served with the status review report. Here, mother’s counsel received a copy of the revised report, and so could have fully prepared for the hearing. Nothing prevented mother’s counsel from arranging for witnesses to present testimony and providing other evidence to dissuade the court from adopting the Department’s changed recommendation. Further, mother called the social worker after the hearing was concluded to find out what had happened, which indicates that she had actual notice of the hearing. Thus, the proceedings themselves cannot reasonably be described as “fundamentally unfair.”
Finally, mother’s counsel was present at the 12-month review hearing and simply stated his objections to services being terminated. Mother’s counsel did not argue that the Department’s changed recommendation was without notice. Therefore, we decline to apply the Judith P. analysis here. (See Sabrina H., supra, 149 Cal.App.4th at p. 1420.) We conclude the Department’s failure to give mother timely notice of its intent to change its recommendation to termination of services was harmless beyond a reasonable doubt.
B. Notification of Need for Writ Review.
Mother argues that the juvenile court’s September 3, 2008, order setting the section 366.26 hearing, while normally not appealable, is reviewable here because the court failed to properly notify mother of her right to writ review of the order.
The general rule is that a parent may not appeal from an order made at a hearing where a section 366.26 hearing was set unless the parent timely files a petition for extraordinary writ review (§ 366.26, subd. (l)), and the juvenile court must advise the parent of the right to file such a petition. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 5.585(e), 5.600(b).) Where the juvenile court fails to advise a parent of the right to file a petition for writ relief, the parent appealing from the order terminating parental rights may challenge the predicate order setting the section 366.26 hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.)
To ensure that a parent aggrieved by a setting order is made aware that the order may be attacked only by petition for extraordinary writ, section 366.26, subdivision (l)(3)(A) directs the juvenile court to give notice to the parties of the requirement to file a petition for extraordinary writ review in order to preserve any right to appeal issues raised in the setting order. “When the [dependency] court orders a hearing under section 366.26, the court must advise orally all parties present, and by first-class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party must seek an extraordinary writ.... [¶]... Within 24 hours of the hearing, notice by first-class mail must be provided by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under section 366.26.” (Rule 5.695(f)(18); see also § 366.26, subd. (l)(3)(A); rules 5.585(e), 5.600(d).) The Department concedes that mother did not receive this required notice of her writ rights. The Department therefore addresses the merits of mother’s challenge to the order setting the section 366.26 hearing.
C. Court’s Statement of Factual Basis for Detriment Finding
Mother contends that, at the 12-month review hearing, the juvenile court failed to adequately specify the factual basis for its conclusion that it would be detrimental to return the child to her custody. Section 366.21, subdivision (f), provides in pertinent part: “If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental.”
At the conclusion of the 12-month review hearing, the court stated: “All right. In this matter, the court has read and considered the report, signed the same. The child will remain a dependent, care and custody with the Department. Services are terminated to the parents as indicated. Writ rights to the last known address. Child will remain in [f]oster [c]are. Plan will be changed to adoption. And the.26 will be set for 12-29-08.” While section 366.21, subdivision (f) does not require the juvenile court to expressly discuss every fact that might impact its decision, the plain language of the statute does require the court to specify the facts that actually form the basis for its decision. The court did not do so here. We now determine whether this error on the part of the trial court compels reversal of the order terminating parental rights and setting the section 366.26 hearing.
Mother does not contend that there was insufficient evidence to support the juvenile court’s decision not to return the child to her. Rather, she argues the court failed to state its reasons for concluding that return would be detrimental to the child. Such findings may, however, be implied. (See In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555 [implying finding pursuant to former section 366.25, subdivision (c), that minor would not be returned to parent’s custody within six months]; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-85 [implying finding pursuant to former section 366.25, subdivision (d), where court had not refused to make finding and substantial evidence would have supported it]; In re Jason L. (1990) 222 Cal.App.3d 1206, 1218 [“cases involving a court’s obligation to make findings regarding a minor’s change of custody or commitment have held the failure to do so will be deemed harmless where ‘it is not reasonably probable such a finding, if made, would have been in favor of continued parental custody.’ [Citation.]”]
Here, there was more than sufficient evidence to support a finding of detriment. Under section 366.21, subdivision (f), mother’s failure to “make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” Mother’s lack of substantive progress is demonstrated by her relapse into alcohol use less than a year into services and being expelled from Martha’s Village. Thus, sufficient evidence supports a finding of detriment to the child if he were returned to mother at the 12-month review hearing, and we deem the juvenile court’s failure to make the specific detriment findings to be harmless error.
2. Denial of Section 388 Petition
Mother next contends the juvenile court abused its discretion when it denied her petition to change the court’s orders of September 3, 2008, terminating reunification services and setting the section 366.26 hearing.
A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317 (Stephanie M.).) The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) Generally, the petitioner must show by a preponderance of the evidence that the child’s welfare requires the modification sought. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider: (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. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953, 959.)
In her section 388 petition, mother alleges that circumstances had changed since the 12-month hearing, in that she had completed a substance abuse program and a parenting program, had obtained stable housing, regularly tested negative for drugs, and was due to complete the MFI day treatment program in January 2009. However, as the juvenile court pointed out, mother’s circumstances could at best be described as “changing” rather than changed.” Mother’s substance abuse and homeless issues were serious and longstanding; of the eight children to which mother had given birth, none were in her custody. At the time of her arrest that initiated this dependency, mother had so much opiates, methamphetamine and marijuana in her system that she could not walk or provide any information about the child’s father, and had to be admitted to the hospital for a racing heartbeat. In addition, throughout the dependency mother had a history of failing to show for random drug tests, and had yet to complete a hair follicle test that would help demonstrate a sustained period without substance abuse. She also had several relapses during the dependency, including in August 2008 at Martha’s Village, and as recently as November 2008 at the MFI recovery center. As the Department pointed out in its addendum report of March 3, 2009, mother had yet to actually complete an outpatient drug program. In fact, mother had a history of relapsing, and then simply moving to another treatment program without actually completing one. At the time of the March 3, 2009 hearing on the section 388 petition, mother failed to present any evidence that she had completed the MFI program in January 2009, as projected in the petition. For these reasons, we conclude that the juvenile court did not abuse its discretion when it found that mother had not established the first requirement for granting a section 388 petition—changed circumstances. Thus, we need not address whether the requested changes would be in the child’s best interest.
3. Order Terminating Parental Rights
A. Likelihood of Adoption
Mother argues that substantial evidence does not support the juvenile court’s conclusion that the child is generally adoptable. Mother then uses that conclusion to argue that, given the lack of general adoptability, the Department had failed to establish that the child would be adopted by this particular family. As discussed below, we conclude that sufficient evidence support’s the juvenile court’s conclusion that the child is generally adoptable.
The juvenile court cannot terminate parental rights unless it finds by clear and convincing evidence “that it is likely the child will be adopted....” (§ 366.26, subd. (c)(1).) “Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “[W]e view the evidence in the light most favorable to the trial court’s order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.]” (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
“‘The issue of adoptability... focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “‘“Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.”’ [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562, italics omitted.)
Here, mother argues that the child was not generally adoptable because he was moody and defiant, had behavioral problems at school, had a short attention span, and had been referred for counseling. However, the child is physically healthy, with no major medical issues. He is of above average intelligence, with an IQ of 122. The child is reported to have enjoyed kindergarten and first grade, is active and likes to play with other children. The evidence does not suggest that the child’s behavioral, mood and attention span issues are real impediments to adoption. The child participated in therapy to address some of these issues, and a shift to another classroom with more intensive supervision had a positive effect. The child did experience a period of moodiness and frequent crying later on in the dependency, but this appears to have been normal reaction to inconsistent visits by mother and the fact that the child was getting old enough to understand his circumstances. The child had inquired in October 2008 if it were all right for him to have two moms. In December 2008, the child and the social worker specifically discussed adoption, and the child understood that “Adoption is where you do not have any parents and you find some parents that take care of you and stuff.” During this discussion, the child appeared very sad that his mother would not be able to take care of him. However, by the time of the selection and implementation hearing, the child was able to tell his attorney that “he wishes to stay where he’s at, definitely doesn’t want to return to mother’s care. He did, however, say he wanted to continue to visit with mom.” To conclude then, substantial evidence supports the juvenile court’s conclusion that the child is generally adoptable because he has no notable physical or health impairments, and his psychological issues appear to be both an understandable result of his situation and on their way to being resolved.
Because we have concluded that the child is generally adoptable, we need not examine the suitability of the prospective adoptive family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650; In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
B. Parental Bond Exception to Adoption
Mother contends the juvenile court erred when it found that the parental bond exception to the preference for adoption did not apply here.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature in California. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when 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 phrase “benefit from continuing the relationship” refers to a parent/child relationship that “ promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Here, mother did not meet her burden. She points to evidence in the record that she had raised the child for six years prior to the dependency, that he missed her and enjoyed their visits, and was initially unhappy when the idea of adoption was first introduced. However, mother simply did not meet her burden to show that the bond between her and the child was so strong and beneficial to the child that it outweighed the benefit the child would receive from having a stable, adoptive home. The child specifically negated any such showing by stating that he wanted to live with the foster parents and “definitely” did not want to return to mother’s care. Despite the evidence that the child cared for his mother, missed her, and was had the normal reaction of being sad that she could not reunify with him, the evidence simply is not enough to establish that the child was so bonded with mother that it would be in his best interest to forego the benefits of adoption.
4. ICWA Inquiry re Father
Lastly, mother asserts that Department and juvenile court failed to ask father whether he has any Native American ancestry, as required by ICWA. Mother further argues that this failure requires this Court to reverse each of the proceedings contemplated in this appeal and to remand the matter so the juvenile court can determine whether the child is an Indian child, pursuant to In re Francisco W. (2006) 139 Cal.App.4th 695, 711.
ICWA itself does not expressly impose any duty to inquire as to Indian ancestry. Neither do the controlling federal regulations. (See 25 C.F.R. § 23.11(a) (1994).) However, ICWA also provides that states may provide “a higher standard of protection to the rights of the parent... of an Indian child than the rights provided under [ICWA].” (25 U.S.C. § 1921.)
California Rules of Court, rule 5.481(a), which implements the ICWA’s inquiry provisions in California, provides that both the juvenile court and the Department have an “‘affirmative and continuing duty to inquire whether a [dependent] child is or may be an Indian child.’” Rule 5.481(a)(1) requires the social worker to ask the child’s “parents... or legal guardians whether the child is or may be an Indian child....”
In addition, “[a]t the first appearance by a parent... in any dependency case... the court must order the parent... to complete Parental Notification of Indian Status (form ICWA-020.)” (Rule 5.481(1)(2).) Mother argues that, because no form ICWA-020 from father is in the record, there is no evidence that the Department fulfilled its duty of inquiry. We agree that no form ICWA-020 form appears in the record. We thus review the record for other indications that the social worker asked father about his Native American heritage.
The social worker commented in the jurisdiction and disposition report, prepared for the September 11, 2007, hearing, that “The Indian Child Welfare Act does not apply. During interviews with both parents, and as gleaned from previous reports, neither the mother... nor the father... declared any American Indian heritage or affiliation.” This statement is not conclusive, as it does not state, nor necessarily imply, that the social worker actually asked father whether he had Native American heritage. Rather, it simply states that father did not declare any. This would be a more difficult issue to resolve, except that the same report contains a detailed narrative of the social worker’s single conversation with father, upon which the ICWA conclusion appears to be based. Nowhere in this rather thorough account does the social worker mention asking father about his Native American heritage. For this reason, we conclude that the Department did not fulfill its duty to inquire of the father as to the child’s Native American heritage.
“Through the Child Support Division, I was able to locate and speak with [father] on September 4, 2007. I explained the nature of my call, and the circumstances surrounding the protective custody of his child. [Father] confirmed that he was proven to be the father to [child], that he has been providing support, and that he has never seen his son. He explained that he has been through a rough and tumble life that has been punctuated by alcoholism. He said that while he has been clean and sober since he moved to the Redding area in September 2001, he would not be in a position to provide a home and care for [child]. He reported that he has been living in and working for the Salvation Army since he moved here, and recently married. He said that he’s making minimum wage, and would not be able to provide for a child. [Father] was cordial and cooperative, and appreciated my contact. I advised that I would apprise him of further developments.”
We now reach the issue of prejudice. In the typical appeal where the issue is whether the juvenile court or social services agency fulfilled its duty to inquire as to whether a dependent child has Native American heritage, the appealing parent complains that he or she was not asked about his or her own heritage. In such a case, the burden is on the parent to demonstrate some indication that the child has Native American ancestry. This is because “The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.)
Here, however, the appealing parent, mother, claims that the non-appealing parent, father, was not asked about his Native American heritage. Thus, it cannot be said that “knowledge of and Indian connection is a matter wholly within the appealing parent’s knowledge....” (Id. at p. 1431.) There is nothing in the record to indicate that mother has any knowledge of father’s ancestry. Father, the parent who presumably does have knowledge about his ancestry, is not before this court. There is no basis for concluding that mother could make the kind of representation or offer of proof called for in Rebecca R. Under these circumstances, a conditional reversal and limited remand is required.
DISPOSITION
The orders denying the section 388 petitions are affirmed. The order terminating parental rights is conditionally reversed, and we order a limited remand, as follows:
The juvenile court is directed to order the Department to inquire of the child’s father as to whether the child may have Native American heritage. If the father indicates the child has no Native American heritage, the juvenile court shall reinstate the original order terminating parental rights. If the father indicates the child may have Native American heritage, the Department shall give notice in compliance with ICWA and related federal and state law.
Once the juvenile court finds that there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to whether the child is an Indian child. If at any time within 60 days after notice has been given there is a determinative response that the child is or is not an Indian child, the juvenile court shall find in accordance with the response.
If there is no such response, the juvenile court shall find that the child is not an Indian child. If the juvenile court finds that the child is not an Indian child, it shall reinstate the original order terminating parental rights.
If the juvenile court finds that the child is an Indian child, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with ICWA and all related federal and state law.
We concur: GAUT J., KING J.