Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK21726, Marilyn H. Mackel, Commissioner.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Associate County Counsel, for Defendant and Appellant.
PERLUSS, P. J.
Angela D., the mother of 12-year-old E.M., 11-year-old Leonard M., Jr., and 10-year-old Makayla D., appeals from the juvenile court’s October 17, 2007 order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Angela D. argues the court erred in failing to apply the parent-child relation exception to termination of parental rights contained in former section 366.26, subdivision (c)(1)(A), and also contends the court’s failure to inquire about the children’s possible American Indian ancestry violated the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and requires reversal of the termination order. We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Effective January 1, 2008 the six statutory exceptions to termination of parental rights formerly located in section 366.26, subdivision (c)(1)(A) through (F), were renumbered, without substantive change, and are now found in section 366.26, subdivision (c)(1)(B)(i) through (vi). Current section 366.26, subdivision (c)(1)(B)(i), which is substantially the same as former section 366.26, subdivision (c)(1)(A), provides the juvenile court may decline to terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” For convenience and because the juvenile court terminated Angela D.’s parental rights under section 366.26 prior to the effective date of these amendments, this exception to termination of parental rights is referred to in this opinion as the (c)(1)(A) exception.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initiation of Dependency Proceedings as to E.M. and Leonard, Jr.
The Los Angeles County Department of Children and Family Services (Department) initiated dependency proceedings under section 300 on behalf of E.M., Leonard, Jr. and Makayla when each was still an infant. In April 1996 then four-month-old E.M. was removed from Angela D.’s home based on Angela D.’s drug use and immaturity: At the time Angela D., herself a former dependent child of the juvenile court, was just 16 years old and was pregnant with her second child. Subsequent investigation led to the filing of an amended section 300 petition, alleging E.M. had been periodically exposed to violent confrontations between Angela D. and E.M.’s father, Leonard M., Sr., which endangered the child’s physical and emotional safety. E.M. was declared a dependent of the juvenile court in July 1996 and removed from her parents’ custody and control. Both Angela D. and Leonard M., Sr. were given family reunification services. E.M. was suitably placed with her maternal great grandmother.
Leonard M., Sr., the father of all three children, is not a party to the appeal.
In January 1997 the Department filed a section 300 petition on behalf of three-month-old Leonard, Jr., alleging Angela D.’s substance abuse, her failure to enroll in drug treatment as ordered in the case plan for E.M. and the parents’ history of domestic violence placed Leonard, Jr. at risk. Although not originally detained from Angela D., Leonard, Jr. was ultimately removed from her custody and placed together with E.M. in the home of his maternal great grandmother. Leonard, Jr. was declared a dependent child of the juvenile court, and Angela D. was given additional family reunification services.
2. Termination of Family Reunification Services and Detention of Makayla
After receiving reports of further incidents of domestic violence between Leonard M., Sr. and Angela D. and Angela D.’s continued struggles with substance abuse, the court terminated reunification services with respect to both children in January 1998 -- at the 12-month review hearing for Leonard, Jr. (§ 366.21, subd. (f)) and the 18-month hearing for E.M. (§ 366.22). The court ordered the children remain placed with the maternal great grandmother and identified a permanent plan of long-term foster care.
In April 1998 Angela D. gave birth to Makayla. The Department immediately filed a section 300 petition, alleging Angela D. and Leonard M., Sr.’s history of domestic violence, Angela D.’s drug use and both parents’ failure to participate in services and to reunify with E.M. and Leonard, Jr. placed Makayla at risk of serious harm. Evidence at the contested jurisdiction hearing in September 1998 established Angela D. had continued to abuse drugs and had not completed a substance abuse treatment program. The court sustained an amended petition and in November 1998 declared Makayla a dependent of the juvenile court, removed her from her parents’ custody and ordered her placed with her maternal grandmother. The court declined to order any family reunification services and determined Makayla’s permanent plan, like her siblings, was long-term foster care.
3. Placement with Maternal Relatives in Long-term Foster Care
For the next six years the juvenile court conducted review hearing for the children pursuant to section 366.3 every six months. Notwithstanding this ongoing supervision by the Department and the juvenile court, the record now before this court reveals that during this time, while living with maternal relatives, the children suffered physical abuse from multiple parties, including Angela D. and her boyfriends, and E.M. was the victim of sexual abuse perpetrated by two of her relatives; their caregivers apparently either refused or were unable to protect them.
In 2000, while E.M., Leonard, Jr. and Makayla continued in long-term foster care in the homes of their maternal great grandmother and maternal grandmother, Leonard M., Sr., engaged in several acts of violence directed to Angela D. In one incident, he apparently stalked her, followed her onto a bus, and then assaulted her with a firearm and threatened to kill her. As a result, Leonard M., Sr. was convicted on two felony charges and sentenced to an aggregate state prison term of 14 years.
During the years prior to 2000 Angela D. moved to Arkansas and then back to California on several occasions. When in California Angela D. would often stay for one or two weeks with the maternal great grandmother -- and hence with E.M. and Leonard, Jr. in violation of court orders regarding the manner and extent of permissible visitation -- and for similar periods with the maternal grandmother -- thus with Makayla. In late 2000 the court permitted E.M. and Leonard, Jr. to move to Arkansas with the maternal great grandmother, who had purchased a home there. The court ordered an expedited home evaluation under the Interstate Compact for the Placement of Children (ICPC). At this point Angela D. was again living in California and saw E.M. and Leonard, Jr. only once during a six-month period; however, she frequently saw Makayla in the same period. Then, in March 2001 Angela D. returned to Arkansas, where she visited regularly with E.M. and Leonard, Jr. She moved once again to California in September 2001.
Angela D. continued to battle with substance abuse. She entered an inpatient treatment program in January 2002, but left the program one month later. She was hospitalized in March 2002. Although living during this time close to Makayla, she visited her only every two or three months. At the May 2003 review hearing the Department reported Angela D. had not visited with the children at all during the previous six months.
In July 2003 the Department reported it had received a negative ICPC evaluation of the great grandmother’s home in Arkansas and E.M. and Leonard, Jr. needed to return to California. In August 2003 the Department advised the court E.M. and Leonard, Jr. were now living (without prior court approval) with the maternal grandmother in California along with Makayla. The great grandmother advised the Department she wanted the children to be with her, and the court set a section 366.26 hearing to consider establishing a legal guardianship; the court also authorized another “extended visit” with her in Arkansas notwithstanding the lack of ICPC supervision. Angela D. was once again living in Arkansas.
In October 2003, following the Department’s recommendation, the court ordered that the children remain in the permanent plan of long-term foster care. The court also authorized continuation of E.M. and Leonard, Jr.’s extended visit in Arkansas. However, in April 2004 the maternal great grandmother returned to California following the death of her husband. The maternal great grandmother, maternal grandmother, E.M., Leonard, Jr. and Makayla all lived together. Angela D. continued to live in Arkansas and did not visit the children.
4. The Department’s Supplemental Petitions under Section 387
In September 3, 2004, after removing the three children from the care of their relatives, the Department filed a supplemental petition pursuant to section 387 on behalf of E.M. (now eight years old), Leonard, Jr. (seven years old) and Makayla (six years old), alleging the maternal great grandmother, the maternal grandmother and the maternal grandmother’s husband had physically abused the children by striking them with a belt. The petition also alleged the great grandmother had failed to obtain medical care for Leonard, Jr. after being asked to do so by a social worker. (On an unannounced visit the social worker had discovered Leonard, Jr. had a black eye, which the child said had been caused by his uncle, who had slapped him, causing him to fall into a television set. The social worker asked the caregivers to have a doctor examine the injured eye; they failed to follow through on the request.) The court sustained an amended section 387 petition but placed the children back with their relatives. At a subsequent review hearing, after evaluating and finding unsupported additional allegations of physical abuse by Angela D. in the current placement, the court ordered the Department not to remove the children from the relatives’ home absent an emergency.
In May 2005 the maternal great grandmother called E.M.’s school to inquire if she was in attendance that day. The maternal great grandmother informed school authorities E.M. had been missing since the prior day. The school notified the Department, and the police were also advised of the situation. Police eventually located E.M. and returned her to the maternal great grandmother. Several days later the Department filed yet another section 387 supplemental petition on behalf of E.M. and Leonard, Jr., alleging the great grandmother had failed to properly supervise the children and Angela D. had physically abused them. At the detention hearing E.M., through her attorney, told the court she had been raped by her uncle and a cousin the previous weekend. Shortly thereafter, a social worker interviewed Makayla, who disclosed the maternal grandmother went to Las Vegas every weekend, leaving her with her maternal great grandmother or other relatives. On those occasions, Makayla reported, she would sometimes be left alone with Angela D. (contrary to court-ordered limitations on visitation) and also with the cousin who had allegedly raped E.M. Based on Makayla’s exposure to Angela D. and the cousin, the Department detained Makayla and filed a section 387 petition on her behalf.
On September 9, 2005 the juvenile court sustained amended section 387 petitions and found Angela had physically abused E.M. and Leonard, Jr. The court also sustained the allegation the relative caregivers had allowed Angela D. unsupervised contact with the children in violation of juvenile court orders. The children were ordered suitably placed in a nonrelative foster home with long-term foster care as their permanent plan. Explaining its findings and orders the court stated at the hearing, “The children are at risk if they remain as placed and, quite frankly, I wish there were something that this court was optimistic about in terms of services for the family that will enable the children to return successfully to the family. However, this court is not optimistic that there is anything that this court can do that would be appropriate in servicing the family such that they became aware of their own issues that were affecting their grandchildren and great grandchildren and already affected their children.” In its minute order the court wrote, “The court finds that the N[.]/G[.]/D[.]/M[.] family has intergenerational history of abuse and neglect. The court finds that Mother has had unlimited access to minors, leading to [a] long term history of deception. The court finds that the grandparents have had a long term history of neglect, abuse and criminality leading to a long term history of sexual abuse.”
In November 2005 the children were all placed together in the foster home of Brenda and Dan C., where they began to thrive. Reports for subsequent review hearings indicated the children referred to their foster parents as “Mommy” and “Daddy.” The children received individual therapy, as well as conjoint counseling with Angela D. Leonard, Jr., who had been hospitalized in October 2005 after becoming extremely distressed and trying to hurt himself, was making significant progress in his behavior. The foster parents initially expressed an interest in legal guardianship, and the Department recommended the court set a section 366.26 hearing to consider that alternative.
5. The Section 366.26 Hearings
In September and October 2006 Angela D. filed several petitions for modification under section 388 seeking unmonitored visits with the children and additional family reunification services. The court denied the petitions, finding that Angela D.’s limited progress in dealing with substance abuse was insufficient to demonstrate the requested modifications would be in the children’s best interests.
For the section 366.26 hearing in January 2007 the Department reported Brenda and Dan C. were committed to the children and were interested in legal guardianship, but actually would prefer to adopt the children. The children, however, while happy with the prospect of a more permanent relationship with Brenda and Dan C. (that is, legal guardianship), expressed some apprehension about being adopted because they were concerned they might never see Angela D. again. (They apparently also worried they might have to change their last name.) On January 30, 2007 Angela D. filed yet another section 388 petition seeking unmonitored visitation and additional reunification services. The section 366.26 hearing and Angela D.’s section 388 petition were set for a contested hearing on March 5, 2007.
At the hearing on March 5, 2007 the Department reported the children had expressed a desire to be adopted during a team decisionmaking meeting held in late February 2007, but also wanted to continue seeing Angela D. At the same meeting Brenda and Dan C. gave assurances the children would remain in contact with Angela D. if they were allowed to adopt the children. The Department advised the court all three children were secure and content in their current placement and reported Brenda and Dan C. provided a safe, nurturing and caring home.
At the hearing the court denied Angela D.’s section 388 petition, finding she needed to submit additional verification of case plan compliance and, in particular, needed to complete parenting and domestic violence counseling. The contested section 366.26 hearing was continued to May 30, 2007 and was then continued to August 22, 2007 because of notice issues and once again to October 16, 2007 because of additional notice problems and the court’s backlogged calendar.
At the hearing on October 16, 2007 the court admitted into evidence the Department’s section 366.26 report dated January 30, 2007, together with its attachments, a further section 366.26 report dated May 30, 2007 and several interim review reports and also took judicial notice of all sustained petitions and the court’s own minute orders. The Department’s reports included Leonard M., Sr.’s statement supporting adoption of his children by Brenda and Dan C. Angela D. testified concerning the frequency and quality of her visits with the children. E.M., then almost 12 years old, testified in chambers and explained she was happy living with Brenda and Dan C., but was uncertain whether she wanted to be adopted. E.M. said she would be sad if she would be unable to see her mother and father in the future. During closing argument the following day, counsel for the children argued (as had the Department) the children were adoptable, but suggested terminating parental rights only as to Leonard, Jr. and Makayla. Given E.M.’s age and indifference regarding adoption, he asserted, the court should wait to terminate parental rights as to her until she became sure she wanted to be adopted. Angela D.’s counsel argued, contrary to the position asserted by the Department, the (c)(1)(A) exception applied to the case. Leonard M., Sr.’s counsel explained his client loved his children but was in agreement with adoption because they were doing so well.
The court found, by clear and convincing evidence, the children were adoptable and terminated parental rights as to E.M., Leonard, Jr. and Makayla. As to E.M., the court explained its belief E.M. understood what the contested hearing concerned and did not want to be responsible for making the decision about adoption: “She understood that which was very complicated to understand in terms of significance and meaning[;] she understood but she was not making the decision and why blame her. She shouldn’t have to. She shouldn’t be put in this position before she consents to the adoption; and on the date of the adoption . . . I don’t think she is going to waiver on the date in question. I don’t think she is going to waiver. I think she will be quite happy to know that she has a family that she can rely on and be supported by. And I believe that she trusts them to allow appropriate contact with her mother and her father. She also trust[s] them I believe to protect her from inappropriate contact.”
6. ICWA Statements and Inquiries
The initial section 300 petition filed on behalf of E.M. in April 1996 indicated she had no American Indian heritage (the “no” box in the Department’s application for petition form was checked), but did not state the basis on which the social worker had made that determination. No inquiry about E.M.’s possible American Indian ancestry was made at the detention hearing or at the subsequent jurisdiction and disposition hearing. The section 300 petition filed on behalf of Leonard, Jr. in January 1997 similarly reported he had no American Indian ancestry (the “no” box on the application form was checked), once again without indicating the basis for that determination. No inquiry about Leonard, Jr.’s possible American Indian ancestry was made at his detention hearing or at the jurisdiction and disposition hearings. The petition filed in April 1998 on behalf of the newborn Makayla, presented on Judicial Council approved form JV-100, left unchecked the box on the petition itself next to the statement, “Child may come under the provisions of the Indian Child Welfare Act”; as for her siblings, the “no” box was checked on the Department’s own application form next to the question, “Does child have American Indian heritage?” Once again, the juvenile court made no inquiry about the child’s possible American Indian ancestry at the detention, jurisdiction or disposition hearings.
At every period review hearing held for the three children between 1998 and November 2, 2002, the Department reported ICWA did not apply. However, in its report for the November 4, 2002 hearing the Department stated ICWA “may or does apply.” No further information was supplied; and with the agreement of all parties and the consent of the court, the matter on calendar for that date proceeded by way of a submitted case form. That is, there was no actual appearance on the record, and no inquiry was made about the possibility one or more of the children may come under ICWA.
In connection with the hearing held six months later in May 2003, the Department once again reported ICWA does not apply. All subsequent review hearing reports contained the same assurance. Similarly, on the various section 387 petitions filed by the Department during the many years this case was pending in the juvenile court, the boxes stating, “Child may be a member of, or eligible for, membership in a federally recognized tribe” and “Child may be of Indian ancestry,” were left unchecked. However, when presented with these new petitions, the juvenile court failed to inquire whether any of the children may have had American Indian ancestry. Indeed, the concurrent-planning permanent-planning adoption-assessment form for each child attached to the Department’s report for the section 366.26 hearing on January 30, 2007 noted ICWA inquiries had not been made; and the Department in its report, although stating ICWA did not apply, expressly requested the court make ICWA findings for the children. Yet the court once again failed to make the required inquiries.
Angela D.’s own filings in the juvenile court echoed the Department’s repeated statements ICWA did not apply. In her section 388 petitions filed September 26, 2006, October 10, 2006 and January 30, 2007, Angela D. left unchecked the boxes on the petitions that state, “Child may be a member of, or may be eligible for membership in, a federally recognized tribe” and “Child may be of Indian ancestry.” In addition, she wrote “N/A” for each child under the section labeled “child’s Indian tribe” and checked “not applicable” on the proofs of service attached to the petitions under “Indian tribe” and Indian custody.”
Leonard M., Sr. filed his own section 388 petition in November 2000. Like Angela D.’s subsequent petitions, Leonard M., Sr. left unchecked the boxes that state, “Child may be a member of, or eligible for, membership in a federally recognized Indian tribe,” and “Child may be of Indian ancestry.”
DISCUSSION
1. The Juvenile Court Properly Terminated Angela D.’s Parental Rights and Selected Adoption as the Permanent Placement Plan for E.M., Leonard M., Jr. and Makayla D.
Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [“if the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child”]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes for children who have been removed from parental custody” and the court then must “concentrate its efforts . . . on the child’s placement and well-being, rather than on a parent’s challenge to a custody order”].) When the court finds by clear and convincing evidence that the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate that one of six enumerated exceptions applies. (§ 366.26, subd. (c)(1)(B); see In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic].)
To satisfy the (c)(1)(A) exception to termination, a parent must prove he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Former § 366.26, subd. (c)(1)(A) [now § 366.26, subd. (c)(1)(B)(i)]; see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the statutory exception applies”].) The “benefit” prong of the exception requires the parent to prove his or her relationship with the child “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 re Autumn H. (1994) 27 Cal.App.4th 567, 575 [“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”].) No matter how loving and frequent the contact, and notwithstanding the existence of an “emotional bond” with the child, “the parents must show they occupy ‘a parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The relationship that gives rise to this exception to the statutory preference for adoption “characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, 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. (2000) 78 Cal.App.4th 1339, 1350.)
Angela D. does not contest the juvenile court’s finding that E.M., Leonard, Jr. and Makayla are likely to be adopted. Rather, she contends she established the applicability of the (c)(1)(A) exception to termination of parental rights: Even though each of her children was removed from her custody and care when an infant, Angela D. asserts she “visited or lived with the children, albeit against juvenile court orders, throughout the children’s lives.” However, the record fully supports the juvenile court’s implied findings that Angela D.’s visits and contacts with E.M., Leonard, Jr. and Makayla were not sufficiently regular to satisfy the visitation prong of the (c)(1)(A) exception and that she failed to occupy the necessary parental role in her children’s lives.
a. Angela D. did not maintain sufficient contact with the children
There is no question, notwithstanding juvenile court orders limiting Angela D.’s visitation with her children, during significant periods she visited with them regularly and was actively involved in their lives. Yet there were other periods during which she did not visit the children at all. For example, there were no visits (and no explanation for the lack of visits) at the end of 1997 and the beginning of 1998. Later in 1998, while Angela D. lived in Arkansas, she rarely saw the children, who were all living in California. Several years later, after the maternal great grandmother had moved to Arkansas with E.M. and Leonard, Jr., Angela D., who was again living in California, visited her two older children only once during a four month period until she too returned to Arkansas. Angela D. did visit Makayla regularly during this four month period, but then had no visits with her youngest child in the following six months. By May 2003 Angela D. ceased visiting any of her children, and Makayla spoke to her therapist about missing her mother at every session they had.
The children were initially removed from their relatives’ home in late August 2004. Angela D. did not make her next visit to the children until six weeks later, on October 14, 2004. No further visit was made during the next 30 days. The children were returned to the maternal great grandmother and grandmother on December 14, 2004; and Angela D. lived with them during this time. After the children were again removed from their relatives’ care, although Angela D. was granted monitored visitation, she did not visit with them regularly because, according to Angela D., it was “too far” to travel. In May 2006 the Department again reported Angela D.’s visits were sporadic: Between January and May 2006 Angela D. visited the children only five times. By January 2007 Angela D. had established a consistent pattern of visiting the children approximately one time each month. Between visits Angela D. did not initiate telephone contact with the children. During the first part of 2007 the frequency of visits increased to approximately twice a month, although Angela D. was consistently late. This evidence amply supports a finding Angela D. had not maintained regular visitation and contact with E.M., Leonard, Jr. and Makayla. (See In re Derek W., supra, 73 Cal.App.4th at p. 826.)
b. Angela D. did not occupy a parental role in the lives of her children
Even if we were to assume Angela D.’s visits and contacts with E.M., Leonard, Jr. and Makayla were sufficiently regular to satisfy the visitation prong of the (c)(1)(A) exception, the record fails to demonstrate Angela D. occupied a parental role in her children’s lives. The evidence and the juvenile court’s findings in connection with the section 387 supplemental petitions established that Angela D. had physically abused the children even when they were not in her physical custody and that she allowed the men in her life to do so, as well. The children were also continually exposed to domestic violence while in her custody, and she shares responsibility for failing to protect E.M. from the sexual abuse she suffered. Indeed, even after E.M. disclosed the incidents of sexual abuse, Angela D. asked to bring the perpetrator to visits with E.M.
Angela D.’s testimony at the section 366.26 hearing described having lunch, going to the mall and doing arts and crafts projects during her visits. As enjoyable as those activities may have been for her children, Angela D. conceded she had never taken them to a doctor’s appointment, attended a school event with them or undertaken any of the other sometimes arduous tasks that are necessary to truly fulfill the role of a parent in a child’s life. Angela D.’s evidence of pleasant visits falls far short of the requirement that she and her children share the significant, positive emotional attachment that characterizes the parent-child relationship. (See In re Jasmine D., supra,78 Cal.App.4th at p. 1350 [“[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.”]; accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Moreover, the evidence before the juvenile court demonstrated E.M., Leonard, Jr. and Makayla were thriving in the home of their prospective adoptive parents, with whom they had lived for nearly two years, and were bonding well with Brenda and Dan C. E.M.’s and Leonard, Jr.’s behavioral and school problems were improving, and reports from each of their individual therapists showed substantial progress. In sum, substantial evidence supports the juvenile court’s conclusion Angela D. had not established the benefit to the children from continuing their relationship with her outweighed the benefits of permanence through adoption. (See In re Jasmine D., supra,78 Cal.App.4th at p. 1350; In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
2. The Juvenile Court Erred in Failing To Comply with State-imposed ICWA Inquiry Requirements
The purpose of ICWA is to “‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) “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.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For purposes of ICWA, an “Indian child” is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
When a court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, the court must give the child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)ICWA itself does not expressly impose any duty to inquire as to American Indian ancestry; nor do the controlling federal regulations. (See 25 C.F.R. § 23.11(a) (1994).) But ICWA 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), and longstanding federal guidelines provide “the state court shall make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.” (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 et seq. (Nov. 26, 1979) 67588, part B.5. (a)) (Guidelines); see In re S.B., supra, 130 Cal.App.4th at p. 1158.)
Although ICWA notice provisions apply if the court “knows or has reason to know that an Indian child is involved,” neither ICWA itself nor the federal regulations define “reason to know.” (See In re S.B., supra, 130 Cal.App.4th at p. 1158.)
Nonetheless, the Guidelines expressly provide they “are not intended to have binding legislative effect.” (44 Fed.Reg. 67584.)
In 1996, when the Department initiated dependency proceedings concerning E.M., former rule 1439(d) of the California Rules of Court imposed on both the juvenile court and the Department “an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.” Effective January 1, 2005 the former rule was amended to impose on the juvenile court and the Department “an affirmative and continuing duty to inquire” about a dependent child’s American Indian ancestry. (Former rule 1439(d), italics added.) Former rule 1439(d)(2) provided, “[T]he social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors.” Section 224.3, subdivision (a), effective January 1, 2007, elevated the Department’s and the court’s continuing duty to inquire about American Indian ancestry from a rule requirement to a statutory mandate in all dependency proceedings: “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child from whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.”
Effective January 1, 2007, the California Rules of Court were renumbered; and rule 1439 became rule 5.664. Effective January 1, 2008 -- subsequent to the juvenile court’s order terminating Angela D.’s parental rights -- former rule 5.664 was repealed and replaced, in part, with current rule 5.481. The current rule, like its predecessors, imposes on the court and the Department “an affirmative and continuing duty to inquire whether a child is or may be an Indian child” in all dependency proceedings. (Rule 5.481(a).)
The rule amendments effective January 1, 2005 also provided, “[a]t the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete form JV-130, Parental Notification of Indian Status.” (Former rule 1439(d)(3); see rule 5.481(a)(1) & (2) [requiring Department to ask the parents or legal guardians, as well as the child if the child is old enough, whether the child is or may be an Indian child and requiring completion and attachment to the petition of an Indian Child inquiry attachment form, and requiring court to order parent or guardian at his or her first appearance in dependency proceedings to complete a parental notification of Indian status form].)
Notwithstanding these affirmative duties, in effect in one form or another from the time of the initial section 300 petition in this matter, there is no evidence in the record Angela D. was ever asked by the Department about her children’s possible American Indian ancestry; and the juvenile court failed to make the required inquiries on the record. This was error.
3. Any Error in Compliance with Applicable Inquiry Requirements Was Harmless
A violation of ICWA notice requirements may be harmless error, particularly when, as here, the source of the duty to inquire is not ICWA itself but rather rule 5.664 and former rule 1439(d), rules of court implementing ICWA. (In re S.B., supra, 130 Cal.App.4th at p. 1162; see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.) “[A]ny failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.” (In re S.B., at p. 1162.)
In this case Angela D. has never asserted any of her children may have American Indian ancestry or suggested she would have said they did had she been asked by any of the social workers involved in her case or required to answer on the record the juvenile court’s inquiries on that subject. Absent any affirmative representation of American Indian ancestry, either in the dependency court or on appeal, Angela D.’s failure to indicate any of her children may have Indian ancestry throughout the Department’s lengthy involvement with this family -- including the unmistakable indication ICWA did not apply on the section 388 petitions filed by Angela D. in September 2006, October 2006 and January 2006 -- fully supports the conclusion any error by the juvenile court was harmless. (In re H.B. (2008) 161 Cal.App.4th 115, 122 [error in failing to inquire regarding American Indian ancestry harmless when mother “has never asserted [her child] may have American Indian ancestry or suggested she would have said he did had she been required to complete form JV-130 or to answer on the record the juvenile court’s inquires on that subject”]; see In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [“There is nothing whatever which prevented [father], in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not.”].)
In short, although the Department and the juvenile court unquestionably breached their affirmative, continuing duty to inquire about E.M., Leonard, Jr. or Makayla’s possible American Indian ancestry, as the Department forthrightly acknowledges in its respondent’s brief, on this record that failure cannot possibly have had any detrimental impact on the interests protected by ICWA: “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. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.” (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431; but see In re J. N. (2006) 138 Cal.App.4th 450, 461 [rejecting contention of harmless error when Department failed to indicate mother was ever asked about possible Indian heritage].)
DISPOSITION
The order of the juvenile court terminating the parental rights of Angela D. is affirmed.
We concur: WOODS, J., ZELON, J.
All further rule references are to the California Rules of Court.