IN RE: CHRISTINA W. et al.

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Court of Appeal, Second District, California.

IN RE: CHRISTINA W. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GABRIEL W. et al., Defendants and Appellants.

B223936

Decided: February 23, 2011

Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant Mother, Malia W. Anne E. Fragasso for Defendant and Appellant Father, Gabriel W. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Appellants Malia W. (Mother) and Gabriel W. (Father) appeal from the juvenile court's order terminating parental rights over their two daughters, Christina W. and C.W. Parents raise two issues on appeal.   First, they argue that the juvenile court erred in concluding that Father failed to establish the parent-child relationship exception to adoption.  (See Welf. & Inst.Code, § 322.26, subd. (c)(1)(B)(i).) 1  Second, they argue that the juvenile court and the Department of Children and Family Services failed to comply with notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1902 et seq.).   We reverse and remand for compliance with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

A. Detention of Christina W.

1. Initial detention of Christina W.

On January 23, 2008, the Child Abuse Hot Line received a referral alleging that Christina W., who was born in January of 2008, was the victim of general neglect by her mother, and her father.   The caller alleged that both parents were schizophrenic and that Mother exhibited fits of violence.   Both parents refused to take psychotropic medication and were believed to be homeless, living solely on Social Security disability payments.

In response to the call, the Department of Children and Family Services (DCFS) contacted Sandy Maldanado, a UCLA Medical Center social worker who had interviewed Christina's parents.   According to Maldanado, Mother and Father had been diagnosed with schizophrenia and involuntarily hospitalized on multiple occasions. (§ 5150.2 )  She further stated that both parents had the potential to become violent.   Maldanado reported that on one occasion, Mother gave Father a black eye and knocked a tooth out.   On a separate occasion, Mother threw a vase at the wall of a hotel room, leaving a large hole.   Maldanado stated that the parents were currently living with Father's 90-year-old grandfather, who had allegedly found them living under a bridge, eating from a trashcan.

Maldanado stated that during her interview, the parents “presented well but ․ don't appear to have insight to their mental health issues.”   When Mother was asked about mental counseling, she stated that “she had found God and that the Lord would provide for her and find a way for her to get by.”

DCFS also interviewed Father, who admitted he and his wife had been diagnosed with schizophrenia and been hospitalized on multiple occasions as a result of mental breakdowns.   Father said that neither he nor his wife was currently taking medication, but were receiving “counseling through the church.”   Father also reported that although he and his wife were currently homeless, they intended to move into an apartment in Carson.   When asked if Mother ever became violent, Father said she had recently pulled out his tooth and thrown a vase at the wall.

DCFS attempted to interview Mother in her hospital room, but she became agitated, stating that if she did not get rest she would become delusional.   DCFS asked Father if Mother had ever been delusional in the past and he responded yes, explaining that she would “talk to herself, cover herself with clothing so that she could not be seen, [and] ․ behave strangely.”   Mother later admitted to DCFS that she had suffered from mental problems in the past, but “the Lord Jesus had forgiven her and that she does not have those issues anymore.”

DCFS informed Father that, based on the parents' statements and their current and past history of mental illness, Christina would be placed on a hospital hold and detained pending a detention hearing.   Father stated that he understood and believed “this was probably best.”

2. Section 300 petition and jurisdictional ruling

On January 28, 2008, DCFS filed a petition alleging that Christina fell within the jurisdiction of the juvenile court under section 300, subdivisions (a) and (b) due to parents “engaging in violent physical altercations” and “diagnosis of Schizophrenia and Bi Polar Disorder,” which rendered them “incapable of providing the child with regular care and supervision.”   At the hearing the court made “a prima facie finding that the child is a person described under Welfare and Institutions Code section 300,” and that “continuance in the home of the parents is contrary to the children's welfare, and that a substantial danger exists to the physical health, safety, protection, and physical and emotional well-being.”   The court ordered reunification services, including parent education, individual counseling and compliance with all orders of any treating physicians.

On February 25, 2008, DCFS filed a jurisdiction/disposition report, which included extensive interview notes with Mother, Father and Sandra Maldanado.   The report indicated that, on January 23, 2008, Mother told UCLA hospital staff that she had been diagnosed with schizophrenia and bipolar disorder when she was 14 and been receiving supplemental security income (SSI) payments ever since.   She also said she had been involuntarily hospitalized eight or nine times, most recently in 2007.

During DCFS's interview of Mother, she denied ever having acted violently toward Father or engaging in any other violent conduct.   Mother admitted that she had been involuntarily hospitalized in the past.   Mother also said that she had stopped taking prescribed medication for her mental illness and did not feel that her mental problems endangered Christina.   Mother also said she had used cocaine in the past while “doing pornography and prostitution.”

Father informed DCFS that neither he nor Mother was ever violent, but then admitted Mother once threw a vase against a wall and pulled a tooth from his mouth.   He also stated that he suffered from delusions, but had never been diagnosed with schizophrenia or bipolar disorder.   However, in a prior interview with DCFS he had stated that he had been diagnosed with schizophrenia in 1998.   He also said that both he and his wife had stopped taking psychotropic medication because they did not feel they needed to and did not like the medications.

The DCFS report stated that Father's sister informed UCLA staff that Christina's parents have a history of violent physical altercations.   Father's sister had also heard Mother say “a spirit of darkness overcomes her” and makes her do things she does not want to do.   During the week prior to Christina's birth, Father's sister witnessed Mother “ranting and raving through [her hospital room] window and Father sitting there not knowing what to do.”   Father's sister also said Mother and Father had been homeless for about one and half months before they were taken in by Father's grandfather.

DCFS recommended that, based on the parents' history of domestic violence and mental illness, Christina should be declared a dependent of the court and granted suitable placement, and that parents be provided reunification services.

On April 7, 2008, juvenile court held the jurisdiction and disposition hearing.   Parents waived their rights to a trial and submitted to allegations that their “history of engaging in domestic altercations” and “diagnosis of Schizophrenia and Bi Polar Disorder” “places the child at risk of emotional harm” and renders “[parents] incapable of providing the child with regular care and supervision.”   The court declared Christina “a dependent child of the court under Section 300, subdivision (b).”  The court ordered that both parents receive reunification services, including parenting education and individual counseling, and comply with all psychiatric and psychological treatment, including medications.   The court ordered monitored visitation and ordered DCFS to file a progress report in three months to address compliance with the case plan.

B. Three Month Interim Report, Six Month Review Hearing and Christina's Placement in Colorado

1. July 7, 2008 interim report

On July 7, 2008, DCFS filed a three month interim review indicating parents had attended two therapy sessions since the April jurisdictional hearing.   However, the therapist had discontinued the sessions because he thought the parents “needed further psychiatric evaluation.”   In addition, Father had enrolled in a parent education class that was to begin in June 2008.   The report also referenced a letter received from a doctor stating that parents had been coming in for treatment, but were refusing to take any medication.

The July report stated that in early June, Mother was “picked up in the street” by police and brought to a hospital, where she was held for a 72-hour evaluation.   A week later, officers “hospitalized [Mother and Father] in a mental hospital.”   Prior to his discharge, Father agreed to take psychotropic medications and appeared to be stable.

The report included a summary of an interview with Christina's paternal grandmother, who said that “on no condition should the child be returned to her parents.”   The grandmother stated that, according to the parents' landlord, Mother “would wander away at odd hours of the night” and Father “had been heard screaming at the middle of the night.”   In addition, Christina's foster mother, Marion B., stated that Father was “almost shot by a police officer” during a monitored visit after “getting in the officer's face, waving some religious pamphlets and telling the officer to be saved because Jesus is coming soon.”   Another officer told DCFS that the parents should be “Super Watched” during their visits with the child.

The DCFS report indicated that Christina appeared to be healthy and developing appropriately with her foster parent.   Although the parents frequently visited the child, a social worker reported that they “lack[ed] proper parenting skills to care for child” and that Mother ․ lack[s] bonding and nurturing relationship with the child.”

2. October 6, 2008 six month review

On October 6, 2008, the DCFS submitted a status report for Christina's six month review hearing. (§ 366.21, subd. (e).)  The report indicated Christina “appeared to be doing well” in her foster home and was “very attached to her caregiver.”   The report further stated that parents had attended some individual counseling sessions, but had been dismissed from parenting classes on August 5, 2008 “because of their unstable mental health issues.”   A letter submitted by the agency stated that although Father “was successfully participating in parenting class,” Mother “has not been able to participate as fully ․ due to her current mental issues” and had been asked to leave until her medical issues stabilized.

DCFS also reported that, as of August 2008, neither parent was taking their psychotropic medications.   Father stated he was taking “Jesus Medicine,” in reference to the Bible, while Mother said she did not want to take her medications.

DCFS's six month review report also described a series of incidents that occurred during monitored visits between March and May of 2008.   According to the report, parents repeatedly preached the Bible to the child and, on one occasion, Mother arrived wearing angel wings, explaining that “she had heard voices telling her that she must ․ go to Israel to cure the sick.”   During another visit, the baby became upset while sitting with the Mother, who refused to give the baby back to staff monitors.   When the staff tried to intervene, Father began to scream and requested the police.   According to the monitoring agency, parents demonstrated a “lack [of] parenting skills and refuse to listen to any advice on how to handle Christina.   During visits, parents have never focused on bonding with the child ․ but preach the Bible to her.”   As of August, parents stopped visiting altogether.

At the October 6, 2008 hearing, the court set the matter for a contested Section 366.21, subdivision (e) hearing on November 17, 2008.

3. November 17, 2008 supplemental six month review report

DCFS filed a supplemental report on November 17, 2008, which stated that both parents had completed 14 parenting education sessions and needed six more classes to complete the course.   They had also attended five sessions of individual counseling.   Although a letter from parents' doctor indicated Mother was taking her medications, Mother told DCFS she was not.   The doctor also indicated that Father was not taking medication because it was not necessary for him to do so.

The agency that monitored parents' visits stated that, as of mid-October 2008, Mother and Father had become more “receptive to advice and assistance” regarding parenting skills, and visited more frequently.   During the visits, parents would “hold the baby and nurture the baby in a caring manner.”   Despite these apparent improvements, DCFS recommended that reunification services be terminated and a section 366.26 hearing be set.

At the hearing, Father's counsel requested that reunification be extended until the 12-month review date (see § 366.21, subd. (f)), which would allow him “more time to show that he can be compliant.”   The juvenile court stated that it was impressed with parents' efforts to become compliant, but further noted that “the issue in this case is whether given the parents' mental illness ․ whether there [will] ever be enough progress to safely return this child to the parents.”   The court extended reunification services, and set a Section 326.21(f) review hearing on April 6, 2009.

4. Christina's placement in Colorado

In September of 2008, DCFS informed the court that Christina's paternal uncle, who lived in Colorado, had expressed an interest in caring for her.   The court ordered DCFS to pursue an ICPC (Interstate Compact on the Placement of Children;  see Fam.Code, § 7900 et seq.)   At the November 17 hearing, both parents agreed to placement with the uncle.   On December 22, 2008, Colorado approved the uncle as a suitable placement and Christina was sent there several days later.

C. Section 326.21, Subdivision (f) Hearing

On April 6, 2009, DCFS filed a 12-month review status report stating that Christina “has adjusted well in [her] new home and she loves the company of her cousin Kingston.   Caregivers continue to provide a safe and loving home for child while meeting child's needs.”

The report also stated that, in December 2008, mother told DCFS she was expecting another baby in August 2009.   Mother and Father had both completed all 20 parenting education classes and continued to participate in individual therapy sessions.   According to DCFS, Mother “is reported to ․ open up more about herself, [has] become more oriented to her surroundings, and [was] engage [d] in reality-testing.”   However, she was still refusing to take her medication, citing her pregnancy.   Father was also not taking medication, explaining that he had been “cleared and not required to take any by his doctor.”   DCFS was unable to verify whether that was true.

The report stated that, between August 2008 and October 2008, parents had stopped visiting Christina altogether.   Between October 2008 and Christina's departure for Colorado in December, they saw her 15 times.   The parents had not seen Christina since she went to Colorado, but Father regularly called her caretaker to check on the child.   DCFS concluded that “parents have failed to achieve the goals and objectives of the visitation plan.   They have not been consistent with their visits, nor spent quality time with the child during each visit due to their mental health issues.   As a result, parents have failed to bond with the child although they were provided the access to visiting the child all the time until the child was replaced with a relative caregiver in the state of Colorado.”

Overall, the report concluded that parents “have made some efforts in complying with the case plan.   However, their mental instability continues to impact their ability to provide a safe and secure home for child.   Adoption is recommended and remains appropriate as the permanent plan for the child.”   DCFS recommended terminating family reunification services and setting a section 366.26 hearing.

At the 12-month review hearing, the court found that both parents were in partial compliance with the case plan.   It further stated that “since it does appear the parents are making some progress, I'm going to give the benefit of the doubt, over the Department's objection and extend the reunification services.”   The court extended reunification until the section 366.22 18-month permanency plan hearing, but made clear that if it saw “another report like this,” it would terminate reunification.   The court thereafter set a section 366.22 hearing on September 1, 2009.

D. Detention of C.W.

In August 2009, mother gave birth to a second daughter, C.W. DCFS received a referral through the Child Abuse Hotline alleging general neglect of C.W. and immediately visited Mother in the hospital.   During the interview, Mother stated she “was consulting with God” before answering each question because “she did not trust herself so she would repeat words God had spoken to her to ensure that everything she reported was the truth because only God speaks the truth.”   DCFS reported that, throughout the interview, mother was largely nonresponsive, “either staring ․ or asking father ․ Biblical questions.”

Shortly thereafter, DCFS filed a section 300 petition regarding C.W. An accompanying detention report summarized parents' history with Christina and their prior struggles with mental illness.   During an August 28, 2009 hearing, the father requested that C.W. be released into his custody, arguing that he had been taking his medications consistently for the past three months.   The court denied the request, finding that DCFS had made a “prima facia” case that “the child is a person described by ․ section 300.”   The court set a jurisdictional hearing for September 1, 2009, which was to be heard in conjunction with Christina's contested section 366.22 hearing.

E. Christina's permanency plan hearing and C.W.'s jurisdiction hearing

1. DCFS reports

On September 1, 2009, DCFS filed an 18-month permanency plan report for Christina indicating that “parents' current whereabouts is currently unknown.”   Parents had moved out of their prior apartment in July 2009 and failed to give DCFS their current address.   Christina's Colorado caregiver reported that he had not heard from parents since July and did not know where they were.

The September report also stated that Father's treating physician reported he had become more compliant in taking his medications and gained “insight of his illness.”   The physician said Mother was not on medication due to her pregnancy, and expressed concern about Mother's ability to take care of the new baby.   Finally, the report stated Father claimed he had obtained a job at Prudential Realty, but Prudential had no record of employment.

A supplemental status review report, dated October 8, 2009, stated that parents had begun seeing a clinical psychologist who reported Mother was exhibiting symptoms of depression as a result of her separation from C.W. The psychologist reported Father was “doing a good job of providing support for his wife and providing encouragement for himself.”   The October report also indicated Father was still taking his medication.

Parents had called Christina in Colorado twice in September, and had monitored visits with C.W. on six occasions.   Father reportedly behaved “appropriate with child,” and “changed and fed child when needed.”   In a letter from the monitoring agency, Mother and Father were said to have dedicated “the entire duration of their visits bonding with their infant daughter.”

DCFS recommended that reunification services be terminated and that a section 366.26 hearing be set.   DCFS concluded that “parent's mental health problems have not been resolved due to the severe nature of their diagnoses and their minimum compliance with psychotherapy and orders of psychiatric medications.”

DCFS also filed a jurisdiction/disposition report for C.W., summarizing all the events and proceedings documented in Christina's numerous status reports.   The report concluded that “[u]pon investigation, there are profound evidences that both parents have chronic mental health issues that remain unsolved ․ that place child [C.W.] at high risk of harm.”   DCFS recommended that parents receive no reunification services for C.W. and that the court set a Section 366.26 hearing.

2. October 8, 2009 hearing

On October 8, 2009, the juvenile court conducted Christina's section 366.22 permanency review, along with C.W.'s jurisdictional hearing.   At the outset of the hearing, mother began chanting “Jesus Christ is Lord,” and was removed from the court room.   The court assigned mother a guardian ad litem, concluding that “mother does not appear to understand the nature of these proceedings,” and was unable “by any stretch of anyone's imagination ․ to assist her counsel in her defense.”

After hearing argument pertaining to Christina, the court stated that “the evidence does show that the father, certainly in the last month or two, has seemed to be more compliant with his medication, he's been visiting [Christina] regularly, they've been appropriate visits, things of that nature.   He's showing indications that he has the - he's made certain progress in alleviating the concerns that the court may have.”   The court further concluded, however, that

there's been a failure to participate and make substantive progress in a court-ordered treatment program․  For the mother, it's absolutely clear.   It's uncontroverted.   It's undisputed.   She did not remain compliant with her psychotropic medication.   That was one of the primary elements of a plan.   She didn't do it.  [¶] ․ [¶] The father's a little closer because the father did do a lot of the things that were ordered of him, if not a vast majority, if not even all of them․  [L]et's assume for the sake of argument [Father did complete everything that was ordered of him] ․ [¶] I also have to consider did you make substantive progress ․ I think the evidence shows that you've not made the substantive progress that we would expect and need for you to able to alleviate the concerns of the court.

The court then ruled that DCFS proved by a preponderance of the evidence that “return [of Christina] would be detrimental for the child to even [Father].   It not only involves his issues, which he's doing much better, it also starts with the unfortunate fact ․ that he's still together with [Mother].   And obviously, if I were to return this child to [Father] at this time, with him living with [Mother] ․ [i]t's going to be a difficult situation.”   The court reiterated, however, that “even if [Father was] not with the mother ․ I would still find a detrimental effect to return the child to [Father] independently at this time.”   The court terminated reunification services and set a section 366.26 hearing.

The court then heard argument regarding C.W.'s section 300 petition, sustained some of the allegations as true and found that “[C.W.] is a person described under ․ Section 300, subdivisions (b) and (j).”  The matter was continued to November 12, 2009 for a hearing to determine whether parents were entitled to reunification services with C.W.

3. November 12 hearing regarding parents' right to reunification services with C.W.

On November 12, 2009, the court heard argument regarding parents' right to reunification services with C.W. A DCFS report stated that, since the last hearing, Father had continued to attend psychological counseling and demonstrated “incremental improvement in functioning.”   Father had also been visiting C.W. twice a week and “been appropriate” with her.   Mother did not attend any of the visits and had been placed in a psychiatric hospital on October 8, 2009.

At the November 12 hearing, the court denied reunification based largely on the father's continuing relationship with the mother:

[I]f the father were here presenting by himself there would be no question in the court's mind that the court would offer reunification services to the father.   The issue that I have is that he is still enmeshed with the mother.   The issue that I have is that there is a history and there's been a past history of domestic violence which is unresolved.  [¶] ․ [¶] Now if the father were ultimately to work towards coming up with some sort of plan where the mother would never be left alone with the children and there would be childcare when he's not in the home, then that would be a changed circumstance for which a 388 would apply.

The matter was set for a section 366.26 hearing.

F. Christina and C.W.'s Section 366.26 Hearing

1. DCFS section 366.26 reports

In preparation for the section 366.26 hearing, DCFS filed reports for both Christina and C.W. As to Christina, DCFS concluded that it was “highly likely” she would be adopted by their current caregivers.   The report further stated that Christina “appears to be thriving and ․ adjusted to living with prospective adoptive parents.”   In addition, the report stated that parents had not visited Christina since she was placed in Colorado and had not maintained consistent telephonic contact.   DCFS recommended adoption as the permanent placement goal and termination of parental rights.

DCFS's section 366.26 report for C.W. concluded there was a high likelihood she would be adopted by either her current caregiver or paternal relatives in Texas.   It also stated that child appeared to be “happy and healthy” with the caregiver, who had offered to provide the child with a “permanent, safe, and stable home.”   DCFS reported that Father had been having “constant” monitored visits with C.W. and acted appropriately during the visits.   Mother, however, had only made sporadic visits and displayed “little interaction” with the child.   DCFS recommended parental rights be terminated with adoption as the permanent plan.

A supplemental status report on both children reaffirmed DCFS's recommendation of adoption and termination of parental rights, commenting that “both children appear to be doing very well in the care of their caregivers, who are willing and eager to provide the children with a loving, nurturing and stable home through adoption.”

2. Section 366.26 hearing and Father's section 388 petition

On April 6, 2010, the juvenile court held the section 366.26 hearing.   On the morning of the hearing, Father filed a section 388 petition arguing that the children should be returned to his custody due to a change of circumstances.   The petition alleged that Father's mental condition had stabilized and that he had arranged childcare so that the children would not be left alone with his wife.   The petition included several letters from psychologists and a declaration from Father stating he had complied with his mental treatment.   In his declaration, Father stated that although he still lived with his wife, he “would not leave [her] alone with the children.”

At the hearing, Father's counsel asserted that “Father feels that his mental health issues are stabilized” and continues to see health care professionals on a regular basis.   Father also had “a plan ․ not to leave the mother alone with the children.”   DCFS opposed the petition, arguing that no change of circumstances had been established because, among other things, Father still lived with Mother.   The court took the matter under submission and proceeded to the Section 322.26 hearing.

Father testified that although he had not seen Christina since she had been placed in Colorado, he maintained “regular” phone contact.   He reported that she was “old enough to say, ‘Hi Daddy.   I love you.’ ”   In addition to his phone calls with Christina, Father frequently talked to his brother (the caretaker) to receive updates about her development and sent her clothes and diapers.   With regard to C.W., Father asserted that he visited her “regularly at McDonald's,” but admitted he had only seen her once in the prior month.   He said that during the visits, he would feed the child, change her diaper and “tak[e] notice of how she looked and her recognizing me.”   When asked to describe his relationship with her, Father stated, “I feel that, you know, [C.W.] would need to grow up with the love and nurturing of her father.”

After Father completed his testimony, his counsel argued there was sufficient evidence to establish the parent-child relationship exception to adoption described in Section 366.26, subdivision (c)(1)(B)(i).   According to counsel, the evidence demonstrated Father had, to the best of his abilities, maintained regular visits with the children and expressed his love toward them.   The court took the matter under submission.

3. Juvenile Court's Ruling Denying Father's Section 388 Petition and Terminating Parental Rights

On April 16, 2010, the juvenile court issued a written order denying Father's section 338 petition and terminating parental rights to Christina and C.W. With regard to the section 338 petition, the court noted:

In the abstract, it does appear that Father's circumstances have changed, he has attended his counseling programs, is going to school and when he visits, the visits seem appropriate, although the visits remain monitored.   However, he remains residing with the mother, whose situation has not changed ․ Thus, while Father circumstances have changed, the parents circumstances may not have fully changed due to mother's situation.

The court further concluded that, even assuming Father had established “changed circumstances,” the petition failed to show that placing the children with Father would be in their best interest.   The court ruled that, while Father's visits and conversations with his children went well, C.W. was “thriving in placement.”   In addition, the court had grave concerns about the presence of the Mother:

[I]t cannot be ignored that the Father's request for the children to be returned to him would by definition, include return to the parents, since they live together.   Mother is not in a position to care for the children․  Father ․ has not presented sufficient evidence as to how he will be able to provide for the children, adequately parent the children, care for the Mother and keep the children safe.   While it is laudable that the Father is dedicated to the Mother, he has failed to present an appropriate plan that he would be able to adequately parent these two very young children who are at the critical developmental stage.

The court ruled DCFS had established that both children were likely to be adopted and that Father had failed to establish that the parent-child relationship exception applied.   In support, it cited the following facts:  (1) Father had not seen Christina “for a while,” (2) although Father had visited Christina “more or less regularly within the last four months” and Christina enjoyed the visits, they had never “progressed beyond monitored”;  (3) both children had “essentially [been] detained since birth,” and;  (4) DCFS indicated adoption was in the best interests of both children, who were reportedly “thriving in the homes of the caretakers ․ and have a strong bond with the caretakers.”

In the court's view, the evidence did not show “children's right to a permanent and stable home with the caretakers with whom they relate to as parents and have lived with is outweighed by the nature of the current relationship with the father, which [sic ] respect to [C.W.] is, at best, a friendly visitor, as opposed to a parent fulfilling a parental role.”

Both parents timely appealed the court's order terminating their parental rights.

DISCUSSION

Parents assert two issues on appeal.   First, parents argue that the juvenile court erred in ruling that Father failed to establish the parent-child relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i).   Second, parents argue the juvenile court failed to comply with ICWA's notice requirements.3

A. The Juvenile Court Did Not Err in Ruling That Father Failed to Establish the Parent-Child Relationship Exception

1. Summary of parent-child relationship and standard of review

Section 366.26, subdivision (c)(1) requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless it finds “a compelling reason for determining that termination would be detrimental to the child” based on a statutory exception.4  In this case, parents argue that Father established the parent-child relationship exception set forth in 366.26, subdivision (c)(1)(B)(i).5

The parent bears the burden of demonstrating that the exception applies.   (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)   It is not enough to show that the child would receive some incidental benefit from a continued relationship with the parent.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)   Rather, a parent must establish that the relationship “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.”   (Id. at p. 575.)  “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.”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)   It is especially difficult to satisfy the exception “in the situation ․ where the parents have essentially never had custody of the child nor advanced beyond supervised visitation.   The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.”  (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey D.).)

“There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies.”  (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)   Numerous decisions have applied the substantial evidence test, while others have applied the abuse of discretion standard of review.   (Compare Autumn H., supra, 27 Cal.App.4th at pp. 575-576 [applying substantial evidence standard of review];  Jasmine D., supra, 78 Cal.App.4th at pp. 1351-1352 [applying abuse of discretion standard of review].)   We need not resolve the dispute here because, under either standard, we would affirm the juvenile court's termination order.

2. Father failed to establish the parent-child relationship exception

The juvenile court engaged in the balancing test required under the parent-child relationship exception and concluded that the relationship maintained between Father and his children did not outweigh the well-being either child would gain in a permanent home with new adoptive parents.   In support, the juvenile court noted that the DCFS's section 322.26 reports indicated both children were “thriving” in stable foster placements and that adoption would be in their best interests.   It further noted that neither child had resided “for any length of time with the parents.   Both children were essentially detained since birth.”   Finally, the court concluded that, based on the evidence, Father's relationship with his children was, at most, that of a “friendly visitor, as opposed to a parent fulfilling a parental role.”

Father, does not challenge the juvenile court's findings that both children were likely to be adopted and were thriving in their foster placements.   However, he argues that the evidence demonstrated his relationship with both children provided a benefit that outweighed any benefit they might gain from adoption.   In support, Father cites three pieces of evidence:  (1) the report DCFS filed prior to Christina's August 2009 detention hearing described father's mental status as “stable”;  (2) numerous DCFS reports indicated that, during Father's monitored visits, he “bonded” with the children and engaged in appropriate activities, such as “feeding them, changing their diapers, and expressing affection toward them, and he made appropriate inquires about their care, development and needs;” and (3) Father testified at the section 322.26 hearing that both children recognized him during his visits and, during phone conversations, Christina stated that she loved her father.6

This evidence is insufficient to satisfy the “[high] hurdle” necessary to establish the parental-child relationship exception.  (Casey D., supra, 70 Cal.App.4th at p. 51.)   The fact that Father's mental state had stabilized has little relevance to determining whether he shared an extraordinary bond with his children.   At most, the evidence suggests Father might be capable of forming a relationship that would satisfy the exception;  it does not demonstrate that the Father actually had such a relationship with his children.

The remaining evidence merely shows that the children recognized their father, expressed affection toward him and that, during his visits, Father acted appropriately with the children.   However, to satisfy the exception, a parent must do more than demonstrate that he or she “was appropriate with [the child] during [ ] visits.”  (Casey D., supra, 70 Cal.App.4th at p. 52.)   Nor is it sufficient to show “ ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant.  [Citation.]”  (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)  “Rather, the parents must show they occupy ‘a parental role’ in the child's life.  [Citation.]”  (Ibid.;   see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)   The evidence Father relies on does not demonstrate a parental role.   Although Father may have had an emotional bond with his children, neither child has ever lived with Father and his visits with them were always monitored.   Moreover, Father had not seen Christina since she was placed in Colorado in 2008 and had only visited C.W. once in the month prior to the section 322.26 hearing.

Parents, however, argue that the facts of this case are analogous to In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), and In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), which held that parents had provided sufficient evidence to satisfy the parent-child relationship exception.   In both cases, there was third-party testimony indicating that the parents shared a beneficial relationship with their child and that it would be detrimental to terminate parental rights.   For example, in Amber M., a “psychologist who conducted a two-hour bonding study of Mother and [child] concluded that they shared ‘a primary attachment’ and a ‘primary maternal relationship’ and that ‘[i]t could be detrimental’ to sever that relationship.”  (Amber M., supra, 130 Cal.App.4th at p. 689.)   In addition, the Court Appointed Special Advocate for the children disagreed with DCFS's recommendation of adoption “due to the bond and love between Mother and children” and the difficulty the children had when separating from her.   (Id. at pp. 689-690.)   Similarly, in Brandon C., the children's caretaker testified that legal guardianship, rather than adoption, was preferred because terminating the parental relationship would harm the children.  (Brandon C., supra, 71 Cal.App.4th at p. 1536-1537.) 7  In contrast, other than the parents, not a single witness in this case testified or provided evidence that terminating the parental relationship would be detrimental to Christina or C.W.

The juvenile court's ruling that Father failed to establish the parent-child relationship exception is supported by substantial evidence in the record.

B. The Juvenile Court Failed to Comply with ICWA Notice Requirements

Parents contend that the juvenile court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA).  (25 U.S.C. § 1901 et seq.)   Parents argue that during the course of the juvenile court proceedings, the court received sufficient notice of the children's Native American heritage and that DCFS failed to give proper notice.

1. Factual summary

The initial detention report for Christina, which was filed January 28, 2008, indicated that Father informed DCFS that neither he nor Mother had any Indian ancestry.   However, on the day of the detention hearing, Father filed an ICWA-020 form entitled “Parental Notification of Indian Status” stating that he might have Indian ancestry.   Specifically, father checked a box stating “I may have Indian ancestry,” and listed the possible tribes as “Lakota/Cherokee (from California.)”   Mother also filed an ICWA-020 form that indicated she was not aware of any Indian ancestry.

During Christina's initial detention hearing, the juvenile court noted the parent's responses on their ICWA-020 forms and asked Father to explain the basis for his claim of Indian ancestry:

COURT:  The mother indicates that she has no Indian ancestry.   Father indicates he may have Indian ancestry.   Cherokee.

Do you know on which side of your family, sir?

FATHER:  My grandfather.

COURT:  Your paternal?   Or maternal grandmother?

FATHER:  My grandfather's wife.   My grandmother passed away.

COURT:  Okay. Do you know what tribe or tribes?

FATHER:  Just a wild guess, but Cherokee.

COURT:  Okay. Well wild guesses don't help us.   Okay? We need to know if any of your family was registered to any Indian tribes.

FATHER:  No, it's not registrations.

COURT:  Okay. What makes you think it's Cherokee?

FATHER:  I spent a lot of time with my native people.   I lived in Alaska and Hawaii, and I've met tribal people who -

COURT:  I don't know of any Cherokee tribes in Alaska or Hawaii.

At the conclusion of this exchange, the juvenile court summarized ICWA's notice requirements and ruled that, based on the Father's comments, the court had no reason to believe ICWA applied:

Pursuant to 224.3, relative membership which is remote or family lore without any reason or family lore without any recent identification with any tribe is not reason to know.   The court is finding, based upon this information that the court does not have, at this particular point, any reason to know that the [ICWA] is involved.

However, Department is to further investigate this matter.   Interview the father further with respect to any additional information that he has that he has reason to know that there's any Indian heritage in his background.   And if the Department wishes to cover its bases, it can notice the Bureau, the three Cherokee tribes

Father's also written down Lakota, which I believe is Sioux

- and notify, if the Department wishes, the Sioux tribe.   But I am not ordering the Department to do anything because I do not believe, based upon the information, that I have any reason to know that [ICWA] is involved.

The juvenile court's minute order reflected these rulings, stating that although “the Court finds that ICWA does not apply in this case[,] ․ [¶] ․ [¶] Department can interview father further regarding any Indian heritage.   The court is not ordering the Department to notice the Bureau but can do so in an abundance of caution.”   There is no evidence in the record suggesting that DCFS conducted any further interviews with Father regarding his Indian ancestry or that it notified the Bureau of Indian Affairs or any tribe regarding the dependency proceedings.

In October of 2008, DCFS filed a six month review status report for Christina which states that “[ICWA] does not apply.”   However, a supplement to the six month status report dated November 17, 2008 states that “the [ICWA] does or may apply.”   The supplemental report contains no additional information explaining why the DCFS had changed its position regarding ICWA's possible application.   Subsequent status reports regarding Christina state that “ICWA does not apply,” with no further discussion.

On August 26, 2009, DCFS filed a detention report regarding C.W. stating that “the [ICWA] does or may apply.”   According to the report, in an interview conducted August 21, 2009, Father “reported he may have Lakota Indian Heritage in his family” while “Mother denied having American Indian ancestry.” 8  After the report was filed, both parents filed ICWA-020 forms stating that they had no known Indian ancestry.   At C.W.'s initial detention hearing, the juvenile court did not inquire as to Father's claim of possible Indian ancestry, concluding that “[b]oth parents have indicated they have no American Indian Ancestry.   Therefore, the court has no reason to know that the [ICWA] is involved.”

2. Summary of ICWA notice requirements and standard of review

“Congress passed ICWA to cure ‘abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’  [Citation.]”  (In re Alice M. (2008) 161 Cal.App.4th 1189, 1194.)   “Under ICWA, a party seeking foster care or termination of parental rights must notify an Indian child's tribe of the pending proceedings and of its right to intervene.”  (In re Jonah D. (2010) 189 Cal.App.4th 118, 123 (Jonah D.) [citing (25 U.S.C. § 1912(a) ].)  “ ‘Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families.   Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’  [Citation.].” (Alice M., supra, 161 Cal.App.4th at p. 1195.)

California imposes a “continuing duty in dependency proceedings to inquire whether a child might be an Indian child.” 9  (Jonah D., supra, 189 Cal.App.4th at p. 123 [citing § 224.3, subd. (a) ].) The ICWA notice provisions, in turn, are triggered “if ‘the court knows or has reason to know that an Indian child is involved.’ ”   (Jonah D., supra, 189 Cal.App.4th at p. 123 [citing and quoting 25 U.S.C. § 1912(a) ].)  “The circumstances under which a dependency court has reason to know a child is an Indian child are set forth in California Rules of Court, rule 5.481(a)(5), and include, as relevant here, where ‘[t]he child or a person having an interest in the child, ․ an officer of the court, a public or private agency, or a member of the child's extended family, informs or otherwise provides information suggesting that the child is an Indian child to the court [or] the county welfare agency․’ ”  (Id. at p. 124.)

“If the notice duty is triggered ․, the notice to a tribe must include a wide range of information about relatives, including grandparents and great grandparents, to enable the tribe to properly identify the children's Indian ancestry.  [Citation.]  Any violation of this policy requires the appellate court to vacate the offending order and remand the matter for further proceedings consistent with ICWA requirements.  [Citation.]  On remand, the juvenile court must receive a tribal determination regarding the children's Indian ancestry before continuing the termination and placement proceedings.   [Citation.]”  (Jonah D., supra, 189 Cal.App.4th at p. 124.)

In this case, there is no factual dispute regarding what information the juvenile court received in relation to the children's possible status as “Indian children.”   The only issue is whether the information was sufficient to trigger ICWA's notice requirements, which is a matter of statutory interpretation that we review de novo.  (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254 (Dwayne P.) [where facts undisputed, “we review independently” whether ICWA notice is required].)

3. Father provided sufficient information to trigger ICWA notice requirements

Parents contend that Father's repeated claim that he may have Indian ancestry was sufficient to require notice under ICWA. “The bar is ․ very low to trigger ICWA notice.”  (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 (Antoinette S.).)   Because “[t]he determination of a child's Indian status is up to the tribe[,] ․ the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.”  (In re Nikki R. (2003) 106 Cal.App.4th 844, 848;  see also In re O.K., supra, 106 Cal.App.4th at p. 156 [“ ‘The Indian status of the child need not be certain to invoke the notice requirement.  [Citation.]’ ”].)

Several cases have held that a parent's statement that a child may belong to a certain tribe is sufficient to trigger ICWA notice.   In In re Antoinette S., supra, 104 Cal.App.4th 1401, Orange County Social Services Agency (SSA) filed a dependency petition that had a box checked indicating “ ‘Child may be of Indian ancestry.’ ”  (Id. at p. 1404.)   At the initial detention hearing, the mother denied that she or the father, who was not present, had any Indian heritage.   The juvenile court “[took] mother at her word ․ [and] proceeded as if the ICWA did not apply.”  (Ibid.) SSA eventually located Father, who was incarcerated.   Father told a social worker “he believed his deceased maternal grandparents had Native American ancestry,” but was unable to provide the name of the tribe or any additional information regarding grandparents, such as names or birthdates.  (Id. at p. 1405.)

SSA contended that “Father's general claim of his Native American heritage did not give the juvenile court reason to know [the child] was in fact an ‘Indian child’ within the meaning of the ICWA, and thus notice was not required.”   (Antoinette S., supra, 104 Cal.App.4th at p. 1406.)   The appellate court disagreed, holding that “because ‘biological descendance’ is often a prerequisite for tribal membership․  Father's suggestion that [the child] ‘might’ be an Indian child was enough” to satisfy the “minimal showing required to trigger the statutory notice provisions.”  (Id. at p. 1408.)

Other cases have held that ICWA notice was required under analogous circumstances.   For example, in In re Alice M., supra, 161 Cal.App.4th 1189, mother submitted a JV-130 form entitled “Parental Notification of Indian Status.”   The mother “answered ‘American Indian, Navajo-Apache’ in response to the query whether [child] ‘is or may be a member of, or eligible for membership in, a federally recognized Indian tribe.’ ”  (Id. at p. 1194.)   The social service agency argued that, at most, the form only triggered a duty to investigate child's ancestry further, “and not the specific notice requirements.”  (Id. at p. 1198.)   The appellate court disagreed, ruling that the mother's JV-130 form, standing alone, “gave the court reason to know that [child] may be an Indian child.”   Similarly, in Dwayne P., supra, 103 Cal.App.4th 247, the court concluded that the parents' statement that child has “Cherokee Indian heritage” was sufficient to trigger notice.  (Id. at p. 257.)

However, other cases have held that it takes “more than a bare suggestion that child might be an Indian child” to trigger ICWA. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.)   For example, in In re O.K., supra, 106 Cal.App.4th 152, the child's paternal grandmother stated that “ ‘the boy ․ may have Indian in him.   I don't know my family history that much, but where were [sic ] from it is that section so I don't know about checking that.’ ”   (Id. at p. 155.)   The court concluded that ICWA notice was not required, stating “[t]he information provided by the paternal grandmother that the father ‘may have Indian in him’ was not based on any known Indian ancestors but on the nebulous assertion that ‘where were [sic ] from is that section․’  This information was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children.”  (Id. at p. 157.)

More recently, in In re Jonah D., supra, 189 Cal.App.4th 118, the child's paternal grandmother told DFCS that her own maternal grandmother (child's great, great grandmother) had once said that she had “Native American ancestry.”  (Id. at p. 123.)   The child's grandmother could not offer any further details, explaining “ ‘I can't say what tribe it is and I don't have any living relatives to provide any additional information.   I was a little kid when my grandmother told me about our Native American ancestry but I just don't know which tribe it was.’ ”  (Ibid.) The court ruled that the information provided was “ ‘too vague, attenuated and speculative to give the dependency court any reason to believe the minors might be Indian children.’ ”  (Id. at p. 124.)

The evidence in this case presents a close question regarding the necessity of ICWA notice.   On multiple occasions, the father claimed that he might have Cherokee or Lakota ancestry.   Under the holdings in Antoinette S., Alice M. and Downey P., these statements, standing alone, would suffice to trigger ICWA. However, DCFS argues that statements Father made during Christina's detention hearing demonstrate that his claims of Indian ancestry were too speculative to require notice.   Specifically, Father conceded that the specific tribe he had named, Cherokee, was a “wild guess.”   When the court asked Father why he believed he might have Cherokee ancestry, he said, “I spent a lot of time with my native people.   I lived in Alaska and Hawaii, and I've met tribal people who-“ The court then cut him off, stating that it was unaware of any Cherokee in Alaska or Hawaii and immediately ruled that ICWA did not apply.

Although Father's statements suggest he was speculating about the identity of the tribe with which he was affiliated (Cherokee), he still made a specific claim regarding possible Native American ancestry based on his grandfather.10  Moreover, on multiple occasions he claimed Lakota ancestry, but the juvenile court never followed up on those claims.   Thus, unlike In re O.K., Father's ancestry claim was not based on having lived in an area populated with Native Americans;  instead, he said he believed one of his grandparents might have Indian ancestry.   Additionally, the record does not indicate whether there are any living relatives who might be able to provide additional information about possible native ancestry.   Therefore, it is possible that a living relative (or Father) might be able to provide additional information that was not elicited by the juvenile court.

We have previously emphasized that the ICWA notice provisions are to be interpreted “broadly” and that “it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.   [Citation.]'  [Citation.]”  (Dwayne P., supra, 103 Cal.App.4th at p. 257.)   Although the Father has not provided detailed information, his claim of Cherokee or Lakota ancestry was enough to satisfy the “minimal showing required to trigger the statutory notice provisions.”  (Antoinette S., supra, 104 Cal.App.4th at p. 1407.) 11

DISPOSITION

The order terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order DCFS to make the inquiries mandated under California Rule of Court 5.481, subdivision (a)(4) and to comply with the notice provisions of the ICWA. If after proper inquiry and notice, the Bureau of Indian Affairs or a tribe determines that the minors are Indian children as defined by the ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of the ICWA. If, on the other hand, no response is received or the tribes and the Bureau of Indian Affairs determine that the minors are not Indian children, all previous findings and orders shall be reinstated.

We concur:

FOOTNOTES

FN1. All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Section 5150 provides, in relevant part, that “[w]hen any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff ․ or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.”.  FN2. Section 5150 provides, in relevant part, that “[w]hen any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff ․ or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.”

FN3. Father's appellate briefs address the parent-child relationship exception and Mother's appellate briefs address the ICWA notice requirement issue.   However, pursuant to California Rule of Court 8.200, subdivision (a)(5), each parent has joined both arguments..  FN3. Father's appellate briefs address the parent-child relationship exception and Mother's appellate briefs address the ICWA notice requirement issue.   However, pursuant to California Rule of Court 8.200, subdivision (a)(5), each parent has joined both arguments.

FN4. Neither parent has appealed the juvenile court's finding that that both children are likely to be adopted..  FN4. Neither parent has appealed the juvenile court's finding that that both children are likely to be adopted.

FN5. Section 366.26, subdivision (c)(1)(B)(1) provides an exception where termination of parental rights would be detrimental because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”.  FN5. Section 366.26, subdivision (c)(1)(B)(1) provides an exception where termination of parental rights would be detrimental because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

FN6. Parents also argue that it was improper for the juvenile court to consider Father's “refusal to abandon Mother” when determining whether the children would benefit from a continuing relationship with the Father.   However, the portion of the court's order that analyzes the parental-child relationship exception does not reference Father's decision to continue living with Mother.   The court only discussed Father's continuing relationship with Mother in the portion of the order that denied Father's Section 388 petition, which Father has not appealed..  FN6. Parents also argue that it was improper for the juvenile court to consider Father's “refusal to abandon Mother” when determining whether the children would benefit from a continuing relationship with the Father.   However, the portion of the court's order that analyzes the parental-child relationship exception does not reference Father's decision to continue living with Mother.   The court only discussed Father's continuing relationship with Mother in the portion of the order that denied Father's Section 388 petition, which Father has not appealed.

FN7. Additionally, in Brandon C. the appellate court affirmed the juvenile court's ruling that the parent-child relationship exception applied, finding that there was substantial evidence to support the ruling.   In this case, the juvenile court found that the exception did not apply and, as a result, Father has the burden of showing that there was not substantial evidence to support the ruling, which he failed to do..  FN7. Additionally, in Brandon C. the appellate court affirmed the juvenile court's ruling that the parent-child relationship exception applied, finding that there was substantial evidence to support the ruling.   In this case, the juvenile court found that the exception did not apply and, as a result, Father has the burden of showing that there was not substantial evidence to support the ruling, which he failed to do.

FN8. This same information was reflected in an ICWA-010(A) form filed with the DCFS's Section 300 Petition..  FN8. This same information was reflected in an ICWA-010(A) form filed with the DCFS's Section 300 Petition.

FN9. “An ‘Indian child’ is defined by ICWA as ‘any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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).)”  (In re O.K. (2003) 106 Cal.App.4th 152, 155-156 (In re O.K.).).  FN9. “An ‘Indian child’ is defined by ICWA as ‘any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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).)”  (In re O.K. (2003) 106 Cal.App.4th 152, 155-156 (In re O.K.).)

FN10. The Father's statements leave some ambiguity as to which grandparent may have had Indian ancestry.   When the court asked whether Father was referring to his paternal or maternal grandmother, Father stated “My grandfather's wife.   My grandmother passed away.”   Although this statement suggests Father may have been referring to his step-grandmother (and therefore not a blood relation), the record is ambiguous on this point and the court never inquired further.   We therefore assume Father was referencing an actual blood relative.  (See Dwayne P., supra, 103 Cal.App.4th at p. 257 [“it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.   [Citation.]'  [Citation.]”].).  FN10. The Father's statements leave some ambiguity as to which grandparent may have had Indian ancestry.   When the court asked whether Father was referring to his paternal or maternal grandmother, Father stated “My grandfather's wife.   My grandmother passed away.”   Although this statement suggests Father may have been referring to his step-grandmother (and therefore not a blood relation), the record is ambiguous on this point and the court never inquired further.   We therefore assume Father was referencing an actual blood relative.  (See Dwayne P., supra, 103 Cal.App.4th at p. 257 [“it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.   [Citation.]'  [Citation.]”].)

FN11. DCFS argues that this case falls squarely within the holding of In re Z.N. (2009) 181 Cal.App.4th 282, which ruled that mother's “belief that one of her grandmothers ‘was Cherokee’ and another ‘part Apache’ ” was not sufficient to trigger ICWA notice.  (Id. at p. 298.)   However, in In re Z.N., unlike this case, there was evidence in the record that the social services did in fact contact tribes in relation to some of the mother's other children and the tribes concluded they were not eligible for membership.  (In re Z.N., supra, 181 Cal.App.4th at pp. 301-302.)   That step is missing here..  FN11. DCFS argues that this case falls squarely within the holding of In re Z.N. (2009) 181 Cal.App.4th 282, which ruled that mother's “belief that one of her grandmothers ‘was Cherokee’ and another ‘part Apache’ ” was not sufficient to trigger ICWA notice.  (Id. at p. 298.)   However, in In re Z.N., unlike this case, there was evidence in the record that the social services did in fact contact tribes in relation to some of the mother's other children and the tribes concluded they were not eligible for membership.  (In re Z.N., supra, 181 Cal.App.4th at pp. 301-302.)   That step is missing here.

PERLUSS, P. J. WOODS, J.