Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK58836. Robert Stevenson, Juvenile Court Referee.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant Marissa O. (mother) appeals from a juvenile court terminating her parental rights to Manuel R., Jr. (Manuel). She contends that the juvenile court committed two errors: (1) Pursuant to In re Fernando M. (2006) 138 Cal.App.4th 529 (Fernando), the juvenile court erred in refusing to apply the Welfare and Institutions Code section 366.26, subdivision (c)(1)(D) exception to adoption. (2) Notices sent pursuant to the Indian Child Welfare Act (ICWA) were improper.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
As for mother’s complaint that respondent Department of Children and Family Services (DCFS) did not comply with ICWA’s notification requirements, DCFS concedes in its respondent’s brief that notice was deficient. That error compels a limited reversal of the juvenile court’s order terminating mother’s parental rights. This matter is remanded back to the juvenile court for compliance with ICWA’s notice requirements.
That being said, we conclude that substantial evidence supports the juvenile court’s order refusing to apply the section 366.26, subdivision (c)(1)(D) exception to adoption.
FACTUAL AND PROCEDURAL BACKGROUND
Detention
Manuel (born June 2003) came to the attention of DCFS on March 31, 2005, after receiving a referral in Kern County. Manuel was detained by DCFS on April 18, 2005, in the home of his maternal grandparents, Dennis (Dennis) and Lily (Lily) O.
Although they are identified as the “maternal grandparents,” they actually are Manuel’s maternal grandfather and step-maternal grandmother. Like the parties, we refer to them collectively as the “maternal grandparents.”
Section 300 Petition/Detention Hearing
On April 21, 2005, DCFS filed a section 300 petition based upon mother’s history of substance abuse and of having left the toddler on numerous occasions in a car unattended.
In the detention report, DCFS reported that the matter originated in Kern County, where there was a November 2004 referral alleging parental neglect. At that time, mother had agreed to allow the maternal grandparents to obtain legal guardianship over Manuel through probate court. However, mother later objected and her whereabouts were unknown. Manuel’s father, Manuel R. (father), was incarcerated. The grandparents still wished to become Manuel’s legal guardian. Manuel had been in their care since November 2004.
Father is not a party to this appeal.
The social worker contacted mother on April 18, 2005, and told mother that Manuel would be taken into protective custody based upon the allegations from Kern County. Mother informed the social worker that she wanted Manuel to remain with his maternal grandparents.
The attached detention report indicated that “maternal grandmother and maternal great grandmother were registered with the Pima Tribe located in Arizona.”
At the detention hearing, Dennis appeared. He advised the juvenile court that there may be Native American heritage on mother’s side of the family. Specifically, he stated that Manuel’s maternal grandmother was deceased, but her name was “Audrey M.”
The juvenile court found that a prima facie showing had been made and ordered Manuel detained with his maternal grandparents. The juvenile court also ordered an ICWA inquiry.
ICWA Notices
On May 25, 2005, ICWA notices were sent to the following tribes: Yavapai-Apache, San Carlos Apache, White Mountain Apache, Tonto Apache, Fort McDowell Mohave-Apache, Pascua Yaqui Tribal Council, Salt River Pima-Maricopa Indian Community Council, Yavapai-Prescott Indian Tribe, and Gila River Indian Community Council. The notices did not include mother’s birthplace, although it indicated the Indian heritage claimed by both mother and father. The notices also included the name and year that the maternal grandmother died, but no other information regarding the maternal side of the family. The notices contained no information regarding the maternal great-grandmother. As to the paternal side of the family, it included the paternal grandmother’s name and address, but did not include her birthdate or place, nor the year or place of Manuel’s paternal great-grandmother’s death. The notices indicated that a paternal relative, Julian G., lived in Yaqui Indian land in Arizona “possibly” in 1957.
Jurisdiction/Disposition
On June 2, 2005, DCFS filed an amended petition, alleging that Manuel was subject to the juvenile court’s jurisdiction under section 300, subdivisions (a) [serious risk of harm because mother and father had a history of engaging in incidents of domestic violence], (b) [mother and father had substance abuse problems, mother had left Manuel unattended, mother and father had a history of domestic violence, and mother and father had failed to provide for Manuel], and (g) [mother and father failed to provide for Manuel].
The June 2, 2005, jurisdiction/disposition report included mother’s report that she may have Pima Indian heritage. Father had informed the social worker that he had Apache and Yaqui heritage. The paternal grandmother confirmed this representation, advising that the “paternal grandfather,” Basillio G. (born Aug. 1918), was believed to be Yaqui from Arizona and the “paternal grandmother,” Petra J. (born Oct. 1922) was believed to be Apache from Arizona. The paternal great aunt, Petra P., informed the social worker that she was in touch with the American Indian Resource Center in Los Angeles, who was assisting her in locating the family’s registration number.
According to DCFS’s respondent’s brief, Basillio G. and Petra J. may actually be Manuel’s paternal great-great grandparents.
The social worker attempted to contact mother, but never received a response.
Dennis informed the social worker that Manuel had been “withdrawn” when he first went to live with him and Lily, and cried and whined for the first two to three weeks. He stated: “I don’t know what kind of environment he was living in. I want [mother] to get her life together. I will take care of [Manuel] in whatever way is needed. He is a part of my family. I am open to adopting Manuel if needed.” Lily said: “Manuel is welcome here. He and my youngest interact like brothers. We just want to offer the child a home. We have tried to help [mother] throughout her life.” The maternal grandparents had three children of their own, ages 7, 12, and 15 years old.
Both Dennis and Lily said that mother did not seem to have an interest in caring for Manuel, and they saw little change in mother in the past six years. Mother had last seen Manuel in probate court on April 21, 2005.
The social worker reported that Manuel remained placed with his maternal grandparents. He looked to his grandfather for comfort and had shown improvement in social skills and self-confidence. Manuel appeared to be part of a bonded family.
The social worker also reported that on May 25, 2005, Dennis and Lily each individually told her that they were willing to adopt Manuel if mother and father failed to reunify with him.
An additional report for the June 2, 2005, hearing advised the juvenile court that mother had been arrested on May 30, 2005, for attempted carjacking, assault with a deadly weapon, and conspiracy. She remained incarcerated, and also had an additional charge for robbery.
At the jurisdiction/hearing, father appeared and advised the juvenile court that there was Apache heritage in his family.
The jurisdiction/disposition hearing was continued. Pending that continuation, mother resolved the criminal charges against her and was given probation; however, she was ordered to remain incarcerated until January 2006.
July 18, 2005, Interim Review Report
In its July 18, 2005, report, DCFS reported that ICWA “does or may apply.” Responses from seven Native American tribes indicated that, based upon the information provided, neither Manuel nor his parents were enrolled or eligible for enrollment as members of those tribes. At that time, the juvenile court deferred making any findings as to whether ICWA applied.
Meanwhile, Manuel remained placed with his maternal grandparents, where he was well cared for.
August 17, 2005, Interim Review Report
In its next interim review report, DCFS set forth the response from each tribe that had been notified of the proceedings. The report concluded that “[i]t does not appear that the [ICWA] applies to this case.” Nevertheless, the juvenile court again deferred making any ICWA findings until a later hearing.
October 31, 2005, Interim Review Report and Hearing
In its October 31, 2005, report, DCFS reported that mother had not yet made contact with the social worker. However, the social worker had spoken with mother’s criminal defense attorney, who indicated that mother’s criminal case had settled and that she had been sentenced to probation, but would remain incarcerated until her release date, which could be as soon as January 2006.
Mother appeared at the October 31, 2005, hearing, and advised the juvenile court that Manuel may have been or was eligible to be a member of the Pima tribe. Despite mother’s representation, based upon the documents before it, the juvenile court determined that ICWA did not apply.
A subsequent section 366.26 report indicates that the juvenile court did not determine that ICWA does not apply until March 30, 2006.
The juvenile court then sustained the amended section 300 petition pursuant to subdivisions (b) and (g). The juvenile court declared Manuel a dependent and removed custody of him from his parents. Manuel was ordered placed with his maternal grandfather. The juvenile court also ordered that reunification services be provided to mother, including monitored visits for mother, and warned that it could terminate reunification services if the parents were not in substantial compliance with the case plan “and head towards a permanent plan for this child, who is under the age of three, which could be up to and including adoption.” The six-month review hearing was scheduled for December 21, 2005.
Father waived reunification services.
Six-month Review and Report
In its six-month review report, DCFS informed the juvenile court that Manuel continued to do very well in his maternal grandparents’ home. He seemed happy and bonded to them.
Mother, who remained incarcerated until January 17, 2006, called Manuel and Dennis weekly for the past two months. Since mother had asked Dennis to pick Manuel up in Kern County, she had only seen Manuel twice. She last saw him in April 2005, at the maternal great-grandmother’s, Rosemarie O. (Rosemarie), home.
Rosemarie’s name is spelled various ways, including “Rosemarie,” “Rosemary”, and “Rose Marie.” We use the spelling first mentioned in the August 15, 2006, status review report.
Because of mother’s lack of progress, DCFS recommended termination of reunification services. It also requested that the juvenile court set the matter for a section 366.26 hearing to implement a permanent plan of adoption for Manuel with his maternal grandparents.
The December 21, 2005, hearing was continued and set for contest, as requested by mother.
February 14, 2006, Report and Hearing
On February 14, 2006, DCFS reported that Manuel seemed bonded to his maternal grandparents and their children. Mother had asked Dennis to assume guardianship rather than adoption of Manuel so that she could try to get her life together and have Manuel return to live with her. She knew that the maternal grandparents were taking good care of Manuel, but she did not want to lose her parental rights; she did not want Manuel to be adopted. DCFS maintained its recommendation.
At the hearing, the juvenile court terminated reunification services and set the matter for a June 13, 2006, section 366.26 hearing.
June 13, 2006, Section 366.26 Report
On June 13, 2006, DCFS submitted an approved adoption assessment to the juvenile court, which found that Manuel was likely to be adopted. The identified permanent plan was adoption with a relative. The assessment indicated that the social worker had discussed with the maternal grandparents “the financial and legal rights and responsibilities and the adoptive home study process. They understand and are willing to make a commitment to adopt. [¶] [Manuel] is [a] part of their family and is treated as their own.” He was “very bonded” to his maternal grandparents, and the attachment was mutual. The maternal grandparents were identified as prospective adoptive parents for Manuel.
During the adoptive home study process, Dennis and Lily learned that they were not legally married, even though they thought they had married in 1990. They indicated that they planned to remarry and complete the home study.
The section 366.26 report indicated that Manuel is an active and social child, who openly showed his affection for his maternal grandparents and their children. He seemed bonded to them. The maternal grandparents were “very motivated” to adopt. They realized that Manuel should not have to wait for either of his parents and that mother did not seem to be getting her life together. Manuel was part of their family. The report indicated that the maternal grandparents “fully [understood] the responsibilities of adoption,” that it was a lifelong commitment, and that they were “fully committed.” However, their home study was still incomplete.
Meanwhile, mother had visited only twice since February 14, 2006. The maternal grandparents were not against mother having visits with Manuel, so long as they were beneficial to him.
August 15, 2006, Status Review Report and Hearing
In August 2006, DCFS reported that Manuel remained placed with his maternal grandparents. Although they had always indicated that they would adopt Manuel, it was discovered during this time that they were not legally married. This information caused problems in their relationship and they were addressing those issues in counseling. Lily now stated that she was not comfortable adopting Manuel and only wanted legal guardianship of him; she claimed that this was how she always had felt. She indicated that she had raised her sister under a legal guardianship and this had worked out fine. Lily also had raised mother, but she did not want to be mother’s parent and had felt resentful that she could not talk to Dennis about it. She informed the social worker that she never intended to adopt Manuel, even after she and Dennis had picked him up in November 2004. While she was committed to Manuel, she only wanted to be his grandmother, and was willing to assume guardianship.
Dennis represented that he was always willing to adopt. While he informed the social worker that he was willing to assume legal guardianship of Manuel, he would “do anything” not to lose him.
The social worker noted that Dennis would “hardly talk” about what was going on and that he seemed troubled by Lily’s decision. While the adoptions social worker informed Dennis that he could adopt Manuel as a single applicant, Dennis would not discuss it.
Meanwhile, DCFS learned that Rosemarie was a licensed foster parent who had an existing relationship with Manuel. When questioned, she indicated that if things did not work out with the maternal grandparents, she and her husband, Jose O. (Jose), were willing to adopt Manuel. Therefore, an adoption assessment was submitted for Rosemarie and Jose.
DCFS recognized that Manuel had been placed with his maternal grandparents for nearly two years and was bonded to them. Lily had provided excellent care for Manuel and he was happy in their home.
DCFS continued to recommend adoption.
At the August 15, 2006, hearing, Manuel’s counsel advised the juvenile court that the maternal grandparents were interested in a guardianship. When asked to address Manuel’s request for guardianship, DCFS informed the juvenile court that guardianship was inappropriate because another relative wished to adopt him. In order to consider guardianship, Manuel would have to be found not adoptable. DCFS requested, and was granted, a continuance to explore guardianship and adoption of Manuel.
December 11, 2006, Section 366.26 Progress Report
On December 11, 2006, DCFS submitted a transcript of a June 23, 2006, voicemail message that Lily had left for the social worker. Lily stated that she and Dennis had decided not to complete their adoption paperwork. She indicated that they had never been comfortable with adoption, but were scared not to agree. They wanted to pursue a legal guardianship.
In its progress report, DCFS advised the juvenile court that Manuel remained placed with his maternal grandparents, although it was unlikely that they would adopt him because they were requesting legal guardianship.
DCFS reported that a team decision meeting (TDM) had taken place on October 19, 2006, which included the maternal grandparents and Manuel’s maternal great-grandparents (Rosemarie and Jose). Lily stated that she did not want to adopt Manuel; DCFS agreed that it would be inappropriate to force someone to adopt. The maternal great-grandparents stepped forward, and their adoption home study was approved on November 17, 2006.
The social worker was scheduled to meet with Dennis to review the final decision, however, he later cancelled the appointment. He left a message on the social worker’s voicemail, stating that he and Lily were firm about wanting guardianship. “[I]f the judge said we couldn’t get permanent guardianship, we would adopt [Manuel] per the plan that was made at the meeting last week with everyone.” In response, the social worker sent a letter to the maternal grandparents closing the adoption case. After receiving notice that the adoption home study was closed, Dennis called the social worker back and said that she was “putting words” into his mouth. Dennis stated: “In that [TDM] that we had, it was decided that we are going to go for guardianship, but we would be more than ok with the adoption if the guardianship didn’t go through. . . . And we stated at that time that if guardianship did not work we’d be also willing to adopt him. We did not make it adamant that we would not adopt him.” Dennis reiterated his position that while he and Lily preferred guardianship, if the juvenile court ordered Manuel to be adopted, then they would adopt him.
Later, on December 6, 2006, Lily called the social worker and requested that the adoption home study be reopened.
DCFS advised against anyone being forced to adopt. The maternal great-grandparents had been identified as prospective adoptive parents, and it was highly likely that Manuel would be adopted if parental rights were terminated. The maternal great-grandparents loved Manuel and he had bonded with their adopted child. The maternal great-grandparents had known Manuel his entire life and had cared for him as needed. They understood the rights and responsibilities that went with adoption and were committed to helping Manuel.
DCFS recommended that it would be in Manuel’s best interest to be placed with the maternal great-grandparents for adoption. At DCFS’s request, the juvenile court granted DCFS discretion to place Manuel with his maternal great-grandparents.
January 8, 2007, Hearing
At a January 8, 2007, hearing, Manuel’s counsel objected to Manuel’s removal from the maternal grandparents’ home and requested that the maternal grandparents be identified as Manuel’s prospective adoptive parents. After all, they had been caring for Manuel for most of his life and, although they originally opted for guardianship, they were now willing to do anything, including adopt Manuel, to keep him in their care.
DCFS responded that the maternal grandparents did not qualify as prospective adoptive parents because the evidence showed that they did not want to adopt. Manuel’s counsel then clarified: The maternal grandparents never wanted to adopt Manuel and always preferred legal guardianship because that had been their agreement with mother. “They thought they had the option” (between guardianship and adoption). However, once they learned that Manuel was going to be removed from their home if they did not adopt him, then they decided that they would be willing to adopt if it was the only way to keep Manuel in their home.
After hearing oral argument, the juvenile court requested additional briefing and continued the matter to January 23, 2007.
January 23, 2007, Interim Review Report and Hearing
For the continued contested section 366.26 hearing, DCFS reported that Manuel remained placed with his maternal grandparents.
Regarding the status of Manuel’s adoption, on January 8, 2007, Lily informed the social worker that she and Dennis had changed their minds and now wanted to adopt Manuel. The maternal grandparents met with DCFS staff a few days later. They expressed their motivation to adopt Manuel and explained why they had changed their minds. They had remarried on January 5, 2007. They provided the social worker with the outstanding documents. And, they agreed to participate in supportive services, which were initiated.
The maternal grandparents seemed to have worked through their issues and were now comfortable adopting Manuel, which they believed was best for him and their family.
Following review of DCFS’s interim review report and a memorandum of points and authorities that had been filed on behalf of Manuel, and after hearing oral argument, the juvenile court designated the maternal grandparents as prospective adoptive parents.
At mother’s request, the contested section 366.26 hearing was continued.
February 6, 2007, Status Review Report
DCFS reported that Manuel remained suitably placed with his maternal grandparents. Their home study was now complete, and they were “committed to and . . . comfortable with adopting Manuel.”
Manuel was developmentally on target and seemed bonded with his maternal grandparents and their family, including his maternal great-grandparents. They appeared to have resolved their concerns regarding adoption.
Meanwhile, mother visited Manuel most weekends in December and on the holidays. She worried that she would not be a part of Manuel’s life if the maternal grandparents adopted him.
February 27, 2007, Contested Section 366.26 Hearing
The juvenile court held the contested section 366.26 hearing on February 27, 2007. At the hearing, Jose testified. He stated that the social worker had informed him that the maternal grandparents were not going to adopt Manuel and inquired whether he and Rosemarie would be interested in adopting him. He responded that he would adopt Manuel because he did not want the child to go to an unknown family because he had a large family. He and Rosemarie were interested in adoption and instructed the social worker to proceed with the home study.
He also testified regarding the TDM. From that meeting, he understood that the maternal grandparents wanted guardianship of Manuel. When a social worker explained that a guardianship was not permanent and father’s family could petition the juvenile court for guardianship or custody of Manuel, Jose stated that he did not want that—he wanted to keep Manuel in the family. When he learned that Dennis preferred guardianship over adoption, Jose stepped forward to adopt Manuel.
Mother then testified. She stated that, recently, she had been seeing Manuel every weekend at the maternal great-grandparents’ home. During that time, she was responsible for his care. However, she admitted that until recently, she had not visited Manuel very often. Finally, she said that Manuel called Dennis “Papa.”
The juvenile court then entertained oral argument regarding adoption. Mother argued that the section 366.26, subdivision (c)(1)(D) exception to adoption applied because there were exceptional circumstances. Manuel had been living with relative caretakers (the maternal grandparents) who were unwilling to adopt, but were willing to provide for Manuel in the long-term. Also, it would be detrimental to remove him from their home. While mother acknowledged that recent reports reflected the maternal grandparents’ willingness to adopt, she argued that their willingness was only the result of pressure.
Manuel’s counsel argued that the section 366.26, subdivision (c)(1)(D) exception did not apply because the maternal grandparents were willing to adopt. While she admitted that they had only changed their minds after being faced with the real threat of Manuel being removed from their home and placed with other relatives who were willing to adopt, she believed that the current decision to adopt was “based on more than that now, including situations that have been going on within the family and interactions with [Jose] and . . . mother.” She distinguished the instant case from Fernando, supra, 138 Cal.App.4th 529.
The juvenile court found that Manuel was adoptable and that the section 366.26, subdivision (c)(1)(D) exception did not apply. In so determining, the juvenile court reviewed the maternal grandparents’ decisions of permanent plan and concluded that DCFS “gave them lots of time to consider the options for a permanent plan.” “[W]hen it all shakes out, . . . once the [maternal grandparents] got their marriage situation sorted out, they got married legally and they saw that perhaps another set of relatives who had a relationship also with the child and was pursuing an adoptive plan, they decided to go forward with adoption, and I don’t think that is unnecessary pressure that has been exerted by [DCFS].” As the juvenile court reiterated, it did not believe that the maternal grandparents’ decision was “tainted by any kind of pressure.” The juvenile court opined that the circumstances in this case were different from those in Fernando, supra, 138 Cal.App.4th 529.
The juvenile court terminated mother’s parental rights and selected adoption as Manuel’s permanent plan. Mother’s timely appeal followed.
DISCUSSION
I. Section 366.26, subdivision (c)(1)(D) Exception
The trial court properly determined that the relative placement exception did not apply.
At a permanency planning hearing, if the juvenile court determines a child is likely to be adopted, it is required to terminate parental rights unless it finds that termination would be detrimental to the child under five enumerated exceptions. (§ 366.26, subd. (c)(1).) The relative placement exception arises when: “The child is living with a relative . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child. . . .” (§ 366.26, subd. (c)(1)(D).) This exception recognizes that it may be in the best interests of children to leave them in the home of family members who are committed to caring for them, but do not wish to adopt.
The parent bears the burden to establish that an exception to the statutory preference for adoption applies. We review the juvenile court’s decision for substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Some courts review the trial court’s decision for an abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Under either standard, we conclude that there was no error.
Mother contends that there is insufficient evidence to support the juvenile court’s finding the relative placement exception did not apply in this case. Specifically, she claims that the maternal grandparents were unduly pressured to select adoption over guardianship.
Mother’s reliance on the relative placement exception is unavailing; she failed to present evidence that the maternal grandparents were unable or unwilling to adopt Manuel due to exceptional circumstances. (§ 366.26, subd. (c)(1)(D).) Rather, the evidence indicated the maternal grandparents were able and wanted to adopt Manuel, and that the adoption would be the ideal placement for him. The maternal grandparents had always been in Manuel’s life. They had been caring for him since November 2004. Moreover, Manuel was doing well in their home. And, there was no indication in the record that mother could provide for him.
Although the maternal grandparents had indicated early on in the proceedings that they preferred guardianship over adoption, it appears that they so desired because (1) that had been their agreement with mother, and (2) they were facing marital problems at that time. However, by the time of the section 366.26 hearing, the maternal grandparents had resolved their marital discord and were both committed to adopting Manuel.
Mother’s reliance on Fernando, supra, 138 Cal.App.4th 529, is misplaced. In Fernando, the maternal grandmother had three of the mother’s children in her care, but only the youngest child was a dependent of the juvenile court. The maternal grandmother hoped that all three children might be returned to their mother at some point. To preserve this option, the maternal grandmother preferred legal guardianship because adoption of the youngest child might have resulted in separation of that child from his siblings if they were returned to their mother. However, the social worker told the maternal grandmother that if she did not adopt, the social worker would try to remove the youngest child from the maternal grandmother and place him in an adoptive home. At a permanency planning hearing, the juvenile court confirmed this view and stated the preferred permanent plan for a dependent child is adoption. The Court of Appeal reversed the order terminating parental rights, concluding that, under the peculiar facts of that case, the maternal grandmother should not have been “coerced into either becoming ‘willing’ to adopt [the youngest child] or watching as someone else does.” (Fernando, supra, at p. 538.)
Fernando is readily distinguishable. In Fernando, the maternal grandmother wanted all three children to return to their mother and thus preferred legal guardianship. (Fernando, supra, 138 Cal.App.4th at p. 533.) Moreover, an adoption would have disrupted her marriage because her husband was not willing to adopt and a spousal waiver was required. (Id. at p. 537.) In the case at bench, both Dennis and Lily desired adoption; thus, the adoption would not interfere with their marriage. And, because they desired adoption, the juvenile court properly concluded the relative placement exception did not apply in this case. (In re Zachary G., supra, 77 Cal.App.4th at p. 810.)
II. ICWA Notice
Mother contends that the juvenile court erred in not giving notice of the proceedings pursuant to the ICWA when it had reason to believe that Manuel may have Indian heritage. Mother correctly argues that this information should have triggered further investigation and notice.
A. The ICWA Notice Requirements
“The ICWA, enacted by Congress in 1978, is intended to ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’ [Citation.] ‘The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.’ [Citation.]
“‘The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. [Citations.] “Of course, the tribe’s right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.” [Citation.] “Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” [Citation.]’ [Citation.]” (In re Karla C. (2003) 113 Cal.App.4th 166, 173–174; see also In re H.A. (2002) 103 Cal.App.4th 1206, 1210.)
B. Notice Was Defective Under the ICWA
The ICWA contains the following notice provision: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.” (25 U.S.C. § 1912(a).)
As DCFS concedes, the ICWA notice requirement was triggered. (See, e.g., In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 (Antoinette S.); In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Unfortunately, DCFS did not provide adequate notice to the Pima, Apache, and Yaqui Tribes. Thus, it correctly concedes that its failure to provide sufficient notice violated the ICWA. That error compels reversal of the order terminating mother’s parental rights to allow for proper compliance with the ICWA notice requirements. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384–385 [holding that the failure to comply with ICWA’s notice requirements subjects an order terminating parental rights to reversal]; In re Nikki R., supra, at pp. 855–856.)
Additionally, the lack of statutory notice requires a limited remand to the juvenile court for the DCFS to comply with notice requirements of the ICWA, with directions to the juvenile court depending on the outcome of such notice. If, after the Pima, Apache, and Yaqui Tribes receive proper notice under the ICWA, Manuel is determined not to be an Indian child and the ICWA does not apply, prior defective notice becomes harmless error, and the order terminating parental rights can be reinstated. (Antoinette S., supra, 104 Cal.App.4th at pp. 1413–1414.)
DISPOSITION
The juvenile court order terminating mother’s parental rights to Manuel is reversed and the matter is remanded to the juvenile court with directions that the juvenile court shall direct DCFS to comply with the notice provisions of the ICWA. If Manuel is determined to be an Indian child, a new hearing shall be held. If he is determined not to be an Indian child, the order terminating parental rights shall be reinstated, subject to the juvenile court’s consideration of any circumstances that may have arisen during this appeal that may affect the outcome.
We concur: BOREN, P. J., CHAVEZ, J.