Filed 4/28/14 In re H.O. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re H.O. et al., Persons Coming Under the
Juvenile Court Law.

MADERA COUNTY DEPARTMENT OF                                                                F068201
PUBLIC WELFARE,
                                                                                 (Madera Super. Ct.
         Petitioner and Respondent,                                         Nos. MJP015761, MJP016356,
                                                                             MJP016742 & MJP016875)
                   v.

M.W.,                                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Thomas L.
Bender, Judge.
         Catherine Czar, under appointment by the Court of Appeal, for Defendant and
Appellant.




         *   Before Cornell, Acting P.J., Poochigian, J. and Peña, J.
        Douglas W. Nelson, Acting County Counsel, and Miranda P. Neal, Deputy County
Counsel, for Petitioner and Respondent.
                                            -ooOoo-


                                      INTRODUCTION
        Mother raises two issues on appeal from an order terminating her parental rights.
First, she contends that the court failed to ensure compliance with the Indian Child
Welfare Act’s (ICWA) notice requirements. Second, she submits the court abused its
discretion in refusing to apply the “beneficial parental relationship exception” to
adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)1
        We affirm in part and conditionally reverse in part. We conclude that ICWA’s
notice requirements were not followed, and conditionally reverse the order terminating
parental rights. We affirm the court’s ruling that the beneficial parental relationship
exception (§ 366.26, subd. (c)(1)(B)(i)) does not apply.
                                            FACTS
        2005–2007 Dependency
        In November 2005, the Madera County Department of Public Welfare (the
Department), filed a juvenile dependency petition. (§ 300.) The petition alleged that
Hav. O.,2 a nine-month old, suffered a burn on her right forearm caused by “the acts of or
omission of” Mother. The petition further alleged that Mother abused methamphetamine.
Finally, the petition alleged that several dangerous items were “easily accessible” to Hav.
O., including drug paraphernalia and knives.



        1   Subsequent undesignated statutory references are to the Welfare and Institutions
Code.
        2
       Several of the children in this case have the same initials. To distinguish
between the various minors, we will use multiple letters of their first name.



                                               2.
       The juvenile court sustained the petition and adjudged Hav. O. a dependent of the
court. By May 2006, the social worker described Mother’s progress as “significant,” and
concluded she was now able to provide for the safety and protection of Hav.O. On May
12, 2006, the court ordered Hav. O. returned to Mother’s care.
       On August 9, 2006, Mother indicated Hav. O. might be of Cherokee descent. The
Department sent notice to three bands of Cherokee tribes: United Keetowah Band of
Cherokee Indians, the Eastern Band of Cherokee Indians, and the Cherokee Nations. The
notices were sent in mid-August 2006. The notice contained information regarding
Mother and Hav. O.’s father, Christian O., but no information concerning other relatives.
       By September 2006, all three bands of Cherokee had responded. The United
Keetoowah Band of Cherokee Indians indicated that, upon review of their records, there
was no evidence Hav. O. is a descendant from anyone on the Keetoowah roll. The
Eastern Band of Cherokee Indians indicated that, based on the information they had
received, Hav. O. was neither registered nor eligible to register as a member of the tribe.
The Cherokee Nations indicated that, based on the information provided, Hav. O. would
“not be considered an ‘Indian child[]’ in relationship to the Cherokee Nation.” On
September 27, 2006, the court found that ICWA did not apply.
       By March 2007, the social worker had concluded that Mother had “demonstrated
that she has the capability of remaining drug free and the ability to care for her child.”
The court dismissed the dependency proceedings on March 27, 2007.
       2009 Dependency Proceedings
       On February 24, 2009, the Department filed another juvenile dependency petition.
(§ 300.) The petition alleged that Hav. O., now three years old, and Hal. O., 18 months
old, came under section 300, subdivisions (b) and (g). Specifically, the petition alleged
that Mother admitted to using methamphetamine in February 2009. Mother was arrested
on February 5, 2009, and booked into jail on charges of theft (Pen. Code, § 484g) and



                                              3.
receiving stolen property (Pen. Code, § 496, subd. (a)). The petition alleged that as a
result of Mother’s incarceration, the two children were left without support.
       Mother executed a Parental Notification of Indian Status (Form ICWA-020),
indicating that Mother “may have” Cherokee ancestry. At the detention hearing on
February 10, 2009, the court asked Mother whether she had any “American Indian
heritage in [her] background.” She initially said she did not “think” she had Indian
heritage. But shortly thereafter, Mother said her parents were Apache “[a]nd Cherokee.”
Then, the following exchange occurred between the court and county counsel:

       “THE COURT: Okay. All right. Well, I’ll find ICWA may apply here.

       “MS. NEAL [Department’s counsel]: Your Honor, you wanted also to
       send out a new notice not relying on the old case that we have had because
       there’s a companion case.

       “THE COURT: Yes, I figured that one case was one of – was older. Hav[.]
       or Hav[.] had the lower number. I figured that was an older case.

       “MS. Neal: We had Hav[.] in dependency Court. That wasn’t – that case
       was eventually dismissed.

       “THE COURT: I don’t know. I do have the old case. I would send out
       new notices just to be on the safe side.” (Italics added.)
       The Department’s jurisdiction report dated March 5, 2009, requested a finding that
ICWA does not apply based on the court’s previous finding in the 2005–2007
dependency case. There is no indication that additional notices had been sent after the
court recommended doing so at the detention hearing.
       At the jurisdiction hearing on March 5, 2009, the court noted that Mother was
present in court. Later in the hearing, the court said, “The mother appeared. She denied
any Indian heritage.” The reporter’s transcript contains no indication that Mother had




                                             4.
spoken at the hearing prior to the court’s comment.3 The court noted that “[n]o persons
have suggested that the father has any Indian heritage. It does not apply.” The court
assumed jurisdiction over Hav. O. and Hal. O.
       At the disposition hearing on March 26, 2009, the court ordered the children
removed from Mother’s custody. The court found that Mother had not “participated
regularly in the initial case plan.” But by September 2009, the Department concluded
that Mother had “made significant progress in resolving problems that led to her
children’s removal from her home.” The Department recommended that Hav. O. and
Hal. O. be returned to Mother’s custody. On September 24, 2009, the court granted the
Department discretion to place the children with Mother.
       On October 1, 2009, the court held an uncontested review hearing. Hav. O. and
Hal. O’s alleged father, Christian O., appeared at the hearing in custody. Christian O.
said he had Native American ancestry through his father but was not a member of a tribe.
He identified the “Chiricahua and Mescalera Apache in [the] White Sands
[R]eservation.” The court found that ICWA “may apply” and said the Department
“should give notice to the tribes.” The court also found that Christian O. was the
presumed father of Hav. O. and Hal. O.
       On October 2, 2009, Christian O. filed a Parental Notification of Indian Status
(Form ICWA-020). Christian O. indicated that both he and his children may be eligible
for membership in “Apache Chiwocawa WHITE SANDS RESERVATION.” He also
indicated that one or more of his lineal ancestors “is or was” a member of a federally
recognized tribe.
       Mother gave birth to minor Pr. P. in January 2011. A status review report dated
March 17, 2011 indicated that Mother was re-enrolled in a drug abuse counseling

       3Perhaps the court held off-the-record proceedings immediately prior and was
simply recounting those proceedings.



                                            5.
program with Family Treatment Center.4 But, Mother had repeatedly missed Narcotics
Anonymous (NA) meetings. Mother claimed her absences were due to the fact she had
recently given birth. Mother’s two random drug tests had come back negative. An
addendum report dated April 5, 2011, indicated that Mother had been discharged from
her outpatient drug program due to “excessive absences.”
       On June 16, 2011, the Department filed a supplemental petition as to Hav. O. and
Hal. O (§ 387) and an original petition as to Pr. P. (§ 300). The June 2011 petitions
alleged Mother tested positive for methamphetamine on June 8, 2011. They further
alleged that Mother admitted relapsing. Pr. P.’s father, Aaron P., admitted to using
methamphetamine with Mother since March 2011. Aaron P. said “he felt he and
[Mother] were unable and not fit to care for their child, Pr. P., as well as … [Hal. O. and
Hav. O.] due to their on[-]going substance abuse issues.”
       At the detention hearing on June 17, 2011, the following exchange occurred
between counsel and the court:

       “THE COURT: I’ve read the reports with respect to Indian child
       eligibility. From the position of the mother at this time, are any of the three
       childs [sic] eligible for designation as [an] Indian child?

       “MR. PENTELL [Mother’s counsel]: Your Honor, [Mother] is stating that
       as to [Hav. O. and Hal O.], there may be Apache eligibility enrollment.
       Their grandfather was an enrolled member in the Apache tribe. It’s never
       been followed up on, so it’s – not sure if they are eligible for enrollment or
       not, if the tribe was to accept them.

       “THE COURT: All right. Mr. Whitford [Department’s counsel], you had a
       comment on that issue?

       “MR. WHITFORD: I was just looking at the prior reports on ICWA and I
       had seen that the Department had checked out the requests of a number of

       4
       This report contained several dates that are apparently incorrect. The report lists
Mother’s re-enrollment date as August 20, 2011, though the report itself was filed in
March 2011. Several similar errors appear in the report.



                                             6.
       the Cherokee bands that [Mother] had indicated earlier. But I don’t see
       anything about Apache, so we can follow up on that.

       “THE COURT: All right. I will ask the Department to follow up on that.
       [¶] Ms. Mitchell [fathers’ counsel], with respect to [Aaron P.], any
       comment with respect to possible Indian heritage?

       “MS. MITCHELL: He does not claim any, Your Honor.

       “MR. PENTELL: Your Honor, if I could clarify as to the ICWA Apache
       issue, that would be as to [Christian O.], so it would be paternal grandfather
       that she believes is the possibility of enrollment in Apache tribe.

       “THE COURT: I know that has been reviewed at earlier hearings. And it
       seems, though, that the report indicated it was not – earlier, that the Court
       had found that there was not an ICWA finding to be made. But, again, I do
       want them to look into it based upon this new consideration.”
       The court stated that Mother denied “Indian heritage with respect to [Pr. P.].” The
court found that ICWA did not apply to Pr. P.
       At a hearing on August 4, 2011, Department’s counsel stated: “Now that the
children are out of the home, I think that we need to follow up on ICWA regarding
[Christian O.][5] I’d like to find him, because he contacted the Department in June, and
he said he wanted his kids, and then nobody followed up on that.” At the hearing,
Mother said she has Native American ancestry on her mother’s side. Mother’s own
mother, Betty G. spoke at the hearing. Betty said her own grandmother was “half
Cherokee.” Betty said she “suppose[d]” she was eligible for membership with the
Cherokee tribe but had “never pursued it or anything.” The court asked whether Betty’s
grandmother was a member of the Cherokee tribe. Betty said that her grandmother had
never “claimed” Cherokee heritage, as far as she knew. Betty said she “believe[d]” the
tribe was located in Oklahoma.



       5 Appellant’s brief attributes this statement to the court. But the reporter’s
transcript attributes the statement to counsel for the Department.



                                              7.
       During the August 4, 2011, hearing, Mother said Christian O.’s grandfather “is a
hundred percent Apache.” Mother said the tribe was located in Oklahoma. She also said
that Christian O.’s grandfather was “registered” and “had a number.”
       Later, at the August 4, 2011, hearing, Department’s counsel conceded that the
Department “probably” needed to send notice to the Apache tribes. The court said,
“That’s what I would do. That’s the safest thing, even if you can’t find [Christian O.’s
father].” Later in the hearing, the court said the Department could contact Christian O.’s
father about Christian O’s whereabouts and his Native American ancestry. The court said
it was important for the Department to follow up with Christian O.’s parents.
       In an order dated August 4, the court sustained the petitions and ordered Hav. O.,
Hal. O., and Pr. P., detained.
       On August 17, 2011, the social worker spoke with Christian O.’s parents.
Christian O.’s parents said there must have been a “mistake” because their entire family
was solely from Mexico and that “they have no North American Indian ancestry.” The
Department requested that the court find ICWA does not apply “[b]ased on the new
information obtained from the paternal grandparents” (i.e., Christian O.’s parents). On
September 8, 2011, the court found that ICWA does not apply to any of the children.
       A status review report dated March 23, 2012, indicated that Mother completed a
residential substance abuse program and had begun an outpatient program thereafter.
The report also indicated that Hal. O. “struggled with … grief … as it relates to being
removed from her parents” but was generally happy. Hav. O. was participating in
counseling and was making progress in managing anxiety and outbursts.6 Pr. P. appeared
“emotionally connected” with Mother and had frequent visits with her. The report also
indicated that Mother had recently given birth to another child, Pe. P.
       6 Appellant cites the report and suggests that Hav. O.’s anxiety and outbursts were
attributed to her removal from Mother. However, the cited portion of the record does not
identify the cause of Hav. O.’s anxiety and outbursts.


                                             8.
        Beginning in March 2012, Mother was set to begin biweekly overnight visits with
the children. The report described the children as having “positive interaction” with
Mother during the visits. The social worker noted that Mother “sometimes” failed to
communicate direct expectations and instead “bargain[ed]” with the children. The
Department recommended continuing reunification services for Mother.
        On May 23, 2012, the Department filed a juvenile dependency petition with
respect to Pe. P., who was four months old. The petition alleged that Mother had tested
positive for methamphetamine on May 14, 2012. The test results indicated a “strong”
concentration of methamphetamine. Additionally, one of Mother’s substance abuse
service providers reported that Mother’s attendance was inconsistent and that when she
did attend her participation had become “off the wall.” The court sustained the petition.
        In July 2012, Pe. P. tested positive for drugs at “twice the adult cut off levels for
methamphetamine at 960pg/mg.”
        A status review report dated in September 2012 explained that Mother was
homeless and unemployed. The report said that Mother had relapsed and could not
maintain the children safely in her care. Mother had also failed to appear for a mental
health assessment and would not reschedule the appointment. However, Mother was
consistently attending weekly two-hour supervised visitations with her children at the
Department.
        The Department requested that the court terminate reunification services as to
Hav. O., Hal. O., and Pr. P., and deny reunification services as to Pe. P. under section
361.5, subdivision (b)(13). At two separate hearings in September 2012, the court
granted the Department’s requests. A section 366.26 hearing was set as to all four
children for January 22, 2013.
        The Department prepared a report ahead of the section 366.26 hearing. (See
§ 366.21, subd. (i).) With respect to the children’s relationship with Mother, the report
said:

                                               9.
       “[The four children] do not share a substantial, positive, emotional
       attachment with their parents. The children do not ask for their parents
       when they are not present nor do they look to their parents to meet their
       needs. The chaotic nature of the visits with their mother … indicates a
       disorganized attachment to her rather than a healthy one.… Through no
       fault of their own, the children have been unable to develop a healthy,
       positive, parent-child relationship with [Mother] or their respective
       fathers[.]”
       The report noted that pending the section 366.26 hearing, visitations had
continued. It described the visits as “chaotic” without “a healthy bond
between the mother and the four [children].” The report noted Mother “demonstrated
poor ability” to “engage her children.” !(CT 1242)! The report acknowledged that the
children “appear to enjoy their visitation time with [Mother].”
       The Department interviewed Hav. O. and Hal. O. “concerning their attitude
toward placement and adoption.” The report concluded that “[a]lthough adoption was
explained in an age-appropriate manner it is clear [the two girls] do not fully understand
as they have had fantasies about returning home to the care of their mother.”
       On January 22, 2013, the court continued the section 366.26 hearing to July 15,
2013, so that an adoptive family could be located.
       The Department prepared a status report dated in March 2013. The report noted
that a prospective adoptive home had been found. Therefore, the Department
recommended that Mother’s visitation with the children be reduced to once per month.
The report described Mother’s supervised visits with the children: “Supervised
visitations have been observed to be optimistic as mother and children engage each other
through some playing activities.”
       On March 18, 2013, the court granted the Department the discretion to determine
the frequency of Mother’s visits with the children.
       In a report dated in July 2013, the Department described recent visits between
Mother and the children. Mother arrived late to a visit on April 3, 2013. She picked up
Pe. P., but “was not equally attentive to the other children.” Mother had brought a dog to

                                            10.
a visit on March 6, 2013, even though they are not allowed in the building. Mother was
also late to a visit on May 1, 2013, and again had brought a dog with her. She was told
that animals are not allowed in the building. Mother began to cry, which upset all of the
children, who also began crying. Prior to Mother’s late arrival, the children had been
playing and laughing with their grandmother.
       At one visit, Mother asked the children what they would call the care providers.
Hav. O. replied, “[T]hat’s my dad.” Mother “corrected” her and said, “that is ‘[J.].’ ” At
the end of a later visit, Mother said, “I do not think that [J.] is a nice guy.”
       The report also described a visit where Mother took Hav. O. and Hal. O. to the
bathroom and “locked the [social worker] out of the restroom.” The social worker
overheard part of their conversion. Mother asked the children, “[I]s that going to be your
guys’ new home?” The children replied, “Miss [L.] said this could be our forever home.”
Mother replied, “NO. You can’t live with me now but the judge ordered for me to have
six more months to get you back.”
       At the most recent visit on July 3, 2013, Mother brought nail polish and Sharpie
markers for the girls. Later in the visit, Pe. P. and Pr. P. were walking around
unsupervised with the open bottle of nail polish and an open Sharpie pen. The report
noted that during visits, Hal. O. and Pr. P. would “play off by themselves.”
       The report concluded that Mother “does not show any evidence of a positive
parent[-]child relationship with [the four children].”
       The contested section 366.26 hearing was ultimately held on August 6 and 13,
2013. Adoption social worker Lilly Spees testified at the hearing. Spees has a Bachelors
degree in psychology and a Masters degree in social work. She assessed the children and
determined they were adoptable. In her opinion, no “exception[s] to adoption” applied.
Spees referenced the “chaotic” nature of Mother’s visits with the children. She also
explained that some of the children were “off not really engaging with” Mother during



                                              11.
the visits. Spees also noted that Mother was providing “unhealthy snacks” to the
children. Spees described the ongoing visitations as “negative.”
       Spees acknowledged that the children loved their Mother and were excited to see
her during visitation. Spees also said that the children did not know that visitation with
Mother might be discontinued. Accordingly, she did not know how the children would
react if visitation was to be discontinued.
       Mother also testified at the contested hearing. Mother said she had consistently
attended her scheduled visits with her children. She said the girls were excited to see her
at visits and called her “mom” or “mommy.” During the visits, she would draw and paint
with the children. She was affectionate with the girls, hugging and kissing them. Mother
recounted keeping Pe. P. with herself for the full duration of most visits. Mother felt the
girls benefitted from seeing her because it was “normal” and “something they’re used to.”
She felt that once the visitation frequency was reduced, the girls quit expressing how they
feel in front of the social worker. It gave Mother the impression that girls were not
comfortable saying “things” in front of the social worker, “like they’re going to get in
trouble.”
       Mother said that from what she understood, “it was supposed to be an open
adoption to where I would get to see them every once in a while. What they told my
mom … she could even get them on weekends.” Hav. O. had told Mother that she would
be able to see her when she was 18 years old. Mother was asked why it would hurt the
girls if they were unable to see her. She replied, “Because I’m their mom. And why it
would hurt them, it’s hard to answer, um.” Mother felt that the children “look at [her] for
their morals and their beliefs.”
       The court terminated Mother’s parental rights and found that no “beneficial
relationship exception … exists.” Mother appeals.




                                              12.
                                       DISCUSSION

       I.     SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING
              THAT THE BENEFICIAL RELATIONSHIP EXCEPTION DOES NOT
              APPLY
       Section 366.26, subdivision (c)(1)(B)(i) provides that the “court shall terminate
parental rights unless … [t]he court finds a compelling reason for determining that
termination would be detrimental to the child [because the] parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.” (§ 366.26, subds. (c)(1) & (c)(1)(B) & (c)(1)(B)(i).) Mother claims the
court erred in finding this statute did not apply. We disagree.
       “[W]hen the court has not returned an adoptable child to the parent’s custody and
has terminated reunification services, adoption becomes the presumptive permanent plan
and parental rights should ordinarily be terminated at the section 366.26 hearing. The
parent has the burden of proving that termination would be detrimental to the child under
section 366.26, subdivision (c)(1)(A).[7] [Citations.] The juvenile court may reject the
parent’s claim simply by finding that the relationship maintained during visitation does
not benefit the child significantly enough to outweigh the strong preference for
adoption.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) “Because 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.” (Ibid.)
       Here, there was sufficient evidence to conclude that “the relationship maintained
during visitation does not benefit the child significantly enough to outweigh the strong
preference for adoption.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The
Department’s assessment that Mother’s visits with the children were “negative” is

       7Former section 366.26, subdivision (c)(1)(A) is now section 366.26,
subdivision (c)(1)(B)(i). (In re S.B. (2008) 164 Cal.App.4th 289, 292, fn. 2.)



                                             13.
supported by the various incidents that occurred during visits as outlined in the
Department’s July 2013 report. That report noted that Hal. O. and Pr. P. would “play off
by themselves” during visits. The social worker’s testimony at the hearing reiterated that
some of the children were “off not really engaging with” Mother during the visits. A July
2013 report described a visit where Mother took Hav. O. and Hal. O. to the bathroom and
“locked the [social worker] out.”
       Mother argues on appeal that she is “a positive role model” for the children.
However, there was substantial evidence that Mother was not a positive role model for
her children. Mother repeatedly relapsed into drug use despite being given several
opportunities. She also demeaned or undermined people around her including the social
worker and the adoptive parents.
       We acknowledge Mother’s evidence that she was affectionate toward the children,
and that they were excited to see her at visits. However, the evidence we cited above
supports an inference that her relationship with the children did not benefit them enough
to outweigh the strong preference for adoption. Therefore, Mother cannot defeat
adoption “simply by demonstrating some benefit to the child from a continued
relationship … or some detriment from termination of parental rights.” (In re Jasmine
D., supra, 78 Cal.App.4th at p. 1349.)
       The court’s ruling that “there’s no beneficial relationship exception that exists in
this case” is affirmed.
       II.    ICWA
       Mother also claims that the Department failed to comply with ICWA notice
requirements. We agree.
       ICWA requires notice of dependency proceedings be sent to relevant tribes
whenever the court knows or has reason to know that an Indian child is involved. (In re
D.N. (2013) 218 Cal.App.4th 1246, 1251. See also 25 U.S.C. § 1912, subd. (a).)



                                             14.
       As noted above, the Department sent ICWA notices to three Cherokee bands in
2006, during the prior dependency case. These were the only ICWA notices sent in
either dependency case, even though the court repeatedly advised new notices be sent in
the latter case. In the dependency court, the Department maintained that the 2006 notices
satisfied ICWA notice requirements for all four children in the subsequent dependency
case. We disagree for several reasons which we will now explain.
       A. Failure to Send ICWA Notice With Respect to Hal. O., Pr. P., and Pe. P.
       ICWA notices must include the subject child’s name. (See In re K.M. (2009) 172
Cal.App.4th 115, 119.) The 2006 notices only included Hav. O.’s name, as the other
three children had not even been born yet. Thus, no ICWA notices bearing the names
Hal. O, Pe. P. or Pr. P. were ever sent even though Mother claimed Native American
ancestry. At an August 4, 2011, hearing, Mother said she had Native American ancestry
on her “mom’s side.” !(8 RT 2108)! Additionally, her parental notification forms
indicated she may have Cherokee ancestry. Therefore, ICWA notices should have been
sent naming Hal. O., Pr. P., and Pe. P.
       B. Failure to Notice any Apache Tribes
       “Formal notice of the proceedings must be sent to all tribes in which the minor
may be eligible for membership. [Citations.]” (In re Desiree F. (2000) 83 Cal.App.4th
460, 475–476, original italics; see also § 224.2, subd. (a)(3) [“Notice shall be sent to all
tribes of which the child may be a member or eligible for membership…” (Italics
added.)].) “Notice to one tribe … does not protect the rights of another interested Indian
tribe. [Citation.]” (In re Desiree F., supra, 83 Cal.App.4th at p. 476.)
       Here, no notices were sent to any Apache tribes despite some evidence suggesting
the children had Apache ancestry. The Department contends that the information
regarding the children’s Indian status “was always vague” and therefore insufficient to
trigger ICWA’s notice requirements. We disagree. At the February 10, 2009, detention
hearing Mother said: “My parents are Apache.” And Christian O.’s Parental

                                             15.
Notifications of Indian Status expressly stated that Hal. O. and Hav. O. were
“members[s] of, or eligible for membership in” the “Apache Chiwocawa” tribe. There is
nothing vague about these statements of ancestry.8 We agree that ICWA notice
requirements are not triggered by a mere modicum of speculative evidence regarding the
possibility of unspecified Indian heritage. (See In re O.K. (2003) 106 Cal.App.4th 152,
157.) But here, Christian O. unequivocally asserted Indian heritage in a specific tribe.
And Mother inconsistently claimed Apache and Cherokee ancestry. This evidence did
not conclusively prove Indian heritage, but it did “suggest” Indian ancestry. Therefore, it
was sufficient to trigger ICWA’s notice requirements. (See In re Nikki R. (2003) 106
Cal.App.4th 844, 848.)
       Perhaps the Department means to argue not that the evidence was speculative, but
that there was conflicting evidence regarding children’s potential Indian heritage. If so,
we would agree. Christian O.’s parents said they have no North American Indian
ancestry, which conflicts with Christian O.’s claims of Indian ancestry. Also, some of
Mother’s statements regarding her own ancestry were contradictory. But a conflict in the
evidence does not excuse the failure to provide ICWA notice. “Given the interests
protected by the Act, the recommendations of the guidelines, and the requirements of our
court rules, the bar is indeed very low to trigger ICWA notice.” (In re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1408.) California courts have held a “minimal showing”
(Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258) that merely “suggest[s]”
Indian ancestry is all that is required to trigger ICWA’s notice requirements. (In re Nikki
R., supra, 106 Cal.App.4th at p. 848; see also Antoinette S., supra, 104 Cal.App.4th at

       8 The Department cites In re Jeremiah G. (2009) 172 Cal.App.4th 1514 (Jeremiah
G.) in arguing it had no duty to provide ICWA notices in the latter dependency case. But
in Jeremiah G., “there was no information that reasonably would suggest [the child] had
Indian heritage.” (Id. at p. 1521.) Here, there was information that would reasonably
suggest the children had Indian heritage.



                                            16.
p. 1408; Dwayne P., supra, 103 Cal.App.4th at p 258.) Notwithstanding the conflicting
evidence, Mother’s statements and Christian O.’s parental notification form created more
than a “suggestion of Indian ancestry.” (In re Nikki R., supra, 106 Cal.App.4th at p. 848.)
       The Department argues that because Christian O.’s status was reduced from
“presumed father” to “alleged father,” “any ICWA issue [is] moot.” !(RB 5)! We
disagree. First, we doubt that Christian O.’s classification as a “presumed” or “alleged”
parent under California law has any direct bearing on whether he is a “parent” under
ICWA. (See Adoptive Couple v. Baby Girl (2013) ___ U.S. ___ [133 S.Ct. 2552, 2574]
(Sotomayor, J., dissenting). But cf. In re Daniel M. (2003) 110 Cal.App.4th 703, 708–
709.) Second, there was evidence the children had Apache and Cherokee ancestry
through Mother. Therefore, even if Christian O.’s Native American ancestry were
entirely irrelevant, ICWA notice requirements were still triggered by the evidence of
Mother’s possible Native American ancestry.
                                     CONCLUSION
       In sum, the Department should have adhered to the court’s suggestions regarding
ICWA notice. Ensuring compliance with ICWA is the responsibility of both the
dependency court and the Department. (Justin L. v. Superior Court (2008) 165
Cal.App.4th 1406, 1410.) On at least three separate occasions, the court indicated the
Department should send out ICWA notices. As early as February 2009, the court said, “I
would send out new notices just to be on the safe side.” On October 1, 2009, the court
said, “The Department should give notice to the tribes.” Yet, by August 2011, no notices
had been sent. On August 4, 2011, the Department’s own counsel said, “[W]e probably
just need to send out notice to the [] Apache tribes.” It is unfortunate that the ICWA
notices were not sent. As a result, we must conditionally reverse.




                                            17.
                                      DISPOSITION
       The order terminating parental rights is conditionally reversed. The dependency
court is directed to order the Department to provide ICWA notice to Apache and
Cherokee tribes for each of the four children. If a tribe intervenes, the court shall proceed
in accordance with ICWA. If no tribes intervene after receiving proper notice, the order
terminating Mother’s parental rights shall be reinstated. (See In re A.G. (2012) 204
Cal.App.4th 1390, 1402.)




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