Filed 8/17/17 In re Delilah C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

Daniel C. (father) appeals from the juvenile court's order terminating parental rights for his two daughters, Delilah C. and Sage C. (sometimes, minors). (Welf. & Inst. Code,[1] § 366.26.) Father contends the juvenile court erred in failing to find the beneficial parental relationship exception to adoption applied. (§ 366.26, subd. (c)(1)(B)(i).) Father also contends the San Diego County Health and Human Services Agency (Agency) failed to comply with the inquiry and notice procedures of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). As we explain, we disagree with both contentions and thus affirm the order of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2014, Agency became involved in this case after I.C. (mother)[2] went to the emergency room with complaints of bruising to her upper chest. The report noted that mother at the time was four months pregnant; that mother refused to disclose how she received the bruises; and that she tested positive for methamphetamine. The report further noted mother also had tested positive for methamphetamine in August 2014, when she again had gone to the emergency room for treatment. The October report was generated because mother's eight-month-old daughter Delilah was residing with father.

Agency opened a "voluntary" case in October 2014 after it visited father and found "trash lying around the house." On investigation, an Agency social worker found Delilah then appeared "thin" and to have a "flat spot" on the back of her head, and was dirty. During the investigation, Agency learned that father's girlfriend brought drugs (i.e., methamphetamine) "into the home that were within reach of Delilah."

While father agreed to voluntary services, Agency was unable to engage mother because it could not locate her. Father was referred to in-home parenting and anger management classes. Mother was located upon her incarceration. Mother admitted to Agency that she was slated to go into KIVA, a residential drug treatment program, but had relapsed and had not checked into that program.

On February 24, 2015, Agency received a referral on its hotline from the maternal grandparents stating mother, who was incarcerated, did not have a plan in place for the care of newborn Sage. The maternal grandparents noted that mother was unable to contact father because his phone had been disconnected and that they were unable to care for Sage because they both worked. Agency in response on February 27, 2015, filed a section 300, subdivision (b) petition on behalf of Sage. The petition alleged in part Sage "has suffered or there is a substantial risk that the child will suffer, serious physical harm or illness" as a result of the parent's inability to "provide regular care for the child due to the parent's . . . mental illness, developmental disability or substance abuse."

The February 27, 2015 Agency detention report stated Agency met with mother while she was in the hospital, a few days after she gave birth to Sage. During that meeting, mother admitted she received no prenatal care for Sage until she was incarcerated in January 2015. Mother also admitted she was incarcerated for being under the influence of a controlled substance for sale, vehicle theft, and possession of a stolen vehicle. Mother stated upon release she intended to go and live with the maternal grandparents, or to KIVA, or to the father's home. Mother also stated that, although she had used methamphetamine in the past, she then was "clean" and did not have a drug problem. Mother denied using methamphetamine during pregnancy. When confronted by Agency that she had tested positive on August 8 and again on October 5, 2014, mother claimed she did not remember testing on those dates and, in any event, stated her use of methamphetamine " 'wasn't daily.' "

The February 27 report noted that mother had no contact with two of her other children. D.T., then-six years old, was in a guardianship with his parental grandmother; and C.C., then-two years old, was placed with her own father (i.e., not Daniel), who obtained a restraining order against mother.

Agency's investigation found that father also used drugs, as he admitted using marijuana on a weekly basis; that mother and father had a history of domestic violence, in which mother was the aggressor; and that father allowed mother to remain in the family home despite such incidents and her drug use. Father admitted he would continue to allow mother contact with Delilah and newborn Sage if Sage were placed with him, because he " 'cannot turn her [i.e., mother] away.' "

The February 27 report stated that an Agency social worker conducted an unannounced visit on February 24, 2015, to father's home located in Jamul, California; that father was then informed mother had given birth to Sage; that father then questioned whether Sage was his child; and that father stated he and mother were together "off and on." Father explained that maternal grandparents should not be caring for Sage because in his view, they "didn't do a good job" raising their own three daughters including mother; that they referred to Delilah as an "ugly baby" and as " 'a bastard child' "; and that father would consider taking Sage into his home, although he recognized doing so could " 'be . . . a serious problem' " as it would require him " 'to do a lot of work' " including obtaining a crib, diapers, and formula for Sage.

During the February 24 meeting, father also stated that if mother, on release, was "good" and "nice," he would give her another chance; that he also would consider giving her another chance if she went into KIVA; and that he could tell when mother was using drugs because when she was not using, she was a "loving mom" but when she was using, she wants to be—in his words—a " 'street hooker.' " When asked why father would let mother stay in his home when she would be gone for long periods of time and when he suspected she was using drugs, he stated that " 'deep down,' " he loved mother and wanted " 'her to be the best mom.' " However, father recognized that because of mother's drug use, his " 'heart want[ed] one thing and [his] brain sa[id] another.' "

The February 27 report concluded Sage needed protection until mother "can show that she has a safe, stable home, and is clean from all drugs and alcohol" and until father "can show that he can establish boundaries with the mother, have relationships that are free from domestic violence and [provide] a safe, stable home that is clean from drugs. Until then it is believed that the father would not be able to meet an infant's needs who would rely solely on him while still caring for a one year old." On March 2, 2015, the record shows father signed a declaration of paternity agreeing under penalty of perjury that Sage was his child.

At the March 2, 2015 detention hearing for Sage, the court found that a prima facie showing had been made that Sage was a person described by section 300, subdivision (b) and that the continued care of Sage in the home of parents was "contrary to the child's welfare."

On March 20, 2015, the record shows Agency filed a section 300, subdivision (b) petition on behalf of Delilah alleging drug use by the parents; father's failure to seek appropriate medical care for Delilah, who was underweight; and other risk factors, including the presence of drug paraphernalia in father's home within Delilah's reach.

In connection with the March 20 petition, Agency filed an ex parte application for a protective custody warrant under section 340. In support of that application, Agency noted father and mother were back in a relationship; that mother had listed father's address as her own on court documents; that mother was released from Las Colinas on March 16 and transported to KIVA, but left KIVA that same day; that a paternal relative reported to Agency that mother was seen at father's home on March 19, where Delilah also resided; and that father had failed to protect Delilah, including missing a "[f]ailure to [t]hrive" appointment for Delilah on February 25; allowing Delilah to ride with him on his motorcycle without a helmet or a safety seat; failing to begin parenting classes; and using marijuana while Delilah was present in the home. The record shows the court granted the application the same day.

The March 20, 2015 detention report referenced many of the same facts as the March 20 application. The March 20 report noted that, because mother had left KIVA the same day she was released from custody, mother had a "warrant for her arrest" and was "possibly facing additional jail time for violating her probation terms." Agency further noted in its March 20 report that mother "will return to the father's home and put Delilah at serious risk of being harmed due to being under the influence. The Agency is also concerned that the mother could be arrested while caring for Delilah and leave Delilah without a caregiver." Agency in its March 23, 2015 addendum report stated mother was in fact arrested at father's home on March 20.

The court at the March 24, 2015 detention hearing for Delilah found that a prima facie showing had been made that she was a person described by section 300, subdivision (b) and that the continued care of her in father's home was "contrary to the child's welfare."

In its April 13, 2015 jurisdiction/disposition report, Agency noted that it interviewed father on April 1; that father claimed not to know why mother was at his home on March 20, when she was arrested for a probation violation; and that "everyone" in his family "put[] their children on motorcycles and doesn't always use helmets and that is just how his family is."

Agency's April 13 report described the conditions of father's home on a March 20 visit by Agency social workers. On the day of the visit, Agency social workers saw that "[m]ost of the items in the home had been removed from inside and were sitting outside in front of the home"; that there was a knife inside one of the many cars parked in front of the home; that Delilah's toys were in front of the car; that there was an "ottoman sitting in front of the house with an open 'Four Loko' can and a fork with a brown/greenish substance on it"; that the " 'Four Loko' " can was within Delilah's reach; that Delilah's bathtub was on the ground next to a hatchet; that there was "clutter and debris" throughout the front of the house; that there was a "hacksaw" next to a fork and within two feet of Delilah's stroller; that there was a "hole in between the house and the ground that was large enough for Delilah to fit in and leads to a hill under the[] home"; that inside the house the kitchen sink was filled with dirty dishes; and that Delilah's crib and swing were located near a cracked mirror.

Agency's April 13 report described interactions between Agency social workers and father. It noted father had "demonstrated aggressive and threatening tone, paranoid statements, and labile mood in person, on the phone and written." Examples of such behaviors included phone messages from father to an Agency social worker stating the social worker was a " 'cold-hearted piece of shit,' " " 'the coldest person [father] ever met in the world,' " and "thanking [the social worker] for keeping his children together and in the same message saying he'll 'pay whatever ransom [the social worker] would like.' "

Other examples included: on March 26, Agency social workers overheard father "making statements at the Failure to Thrive clinic[,] while holding Delilah[,] about Delilah being happy to 'be away from those evil people. There's a special place for them and you'll learn about that in church' "; that on March 23, father "moved out of the way" as an Agency social worker was exiting a courtroom because "he didn't want to be accused of anything"; on March 24, several Agency social workers "overheard the father saying that he 'would rather shoot [himself] in the head or talk to rattle snakes [sic]' " than speak with an Agency social worker; that on April 7, father asked an Agency social worker, " 'do you hate kids? Do you have a psychological problem?' "; that on April 8, after being given notice of Agency's recommendation, father stated " 'why are you trying to ruin my daughter's life and my life' " as well as " 'what kind of person are you? What kind of devil are you? You are trying to play [G]od and you are going to hell' "; and that also on April 8, father accused an Agency social worker of " 'stealing [his] baby and selling her the whole time to get a kickback.' "

Agency in its April 13 report recommended against mother receiving reunification services. As to father, Agency recommended he undergo two psychological evaluations to determine whether he could benefit from services. The court at the April 15, 2015 hearing authorized psychological evaluations for father.

Agency's May 1 addendum report noted father had begun services, including therapy. That report further noted father's therapist had concerns about father's "ability to process during the sessions."

On May 4, 2015, the juvenile court sustained the section 300, subdivision (b) petitions on behalf of Delilah and Sage, removed them from parental custody, and ordered a plan of reunification services including for mother. Agency placed minors in separate placements. Father's reunification case plan required him to participate in a psychological evaluation, individual therapy, parenting education, anger management, and substance abuse services, with the objectives of maintaining a safe and stable residence, staying sober, and improving his relationships with family members.

The record shows Agency placed Delilah in foster care after her relative caregivers found they were overwhelmed caring for Delilah and their own young children. They also reported father came to their home uninvited shortly after Delilah was placed with them, yelled, and slammed doors. Sage's relative caregivers stopped supervising visits with father after he threatened a family member.

The record shows father filed a section 388 petition on September 2, 2015, seeking a change to the May 4 order from supervised to unsupervised visits. Father in support of his 388 petition noted he had completed "large parts of his services," as demonstrated by various exhibits lodged with his petition, and had visited regularly with minors.

In its September 14, 2015 addendum report, Agency recommended father's visitation continue supervised. Agency remained concerned about father's behavior during visits, noting he criticized the caregivers including stating during a May 8 visit that one of the caregivers was a " 'bitch' " and was " 'sabotag[ing his] visits with [his] girls"; the caregivers were " 'alcoholics because they drink beer and wine' "; and how he " 'wish[ed his] daughter did not live with [the caregivers].' " The September 14 report further noted father complained to minors during a May 15 visit that his " 'fucking' brother cut off [his] electricity and water' " in explaining why father was wearing " 'soiled clothes that reeked of foul odor.' " During a visit to father's home on May 27, Agency social workers found it "very dirty," as the carpet was "heavily soiled and black marks were observed on the walls"; there was a rug placed over a large "hole" in front of the door; and the home was very cold as there was no electricity.

The September 14 addendum reported that, during a June 11 visit, father on two occasions turned his back to minors and started talking to himself for "thirty seconds to a minute." Father also started talking to himself during a visit with minors on July 16 and again on July 23. Also during the July 23 visit, it appeared father became confused, as he "move[d] his hands around as if he was gesturing to someone and beg[a]n to shake his head up and down." During a visit on September 10, it was noted father again used negative language around minors in describing an Agency social worker, stating he could not stand the social worker and wished " 'she would go away and no one [could] find her' " among other comments.

The court set the section 388 petition for an evidentiary hearing. That hearing was continued to allow father to undergo a psychiatric evaluation.

In its October 1 addendum report, Agency again recommended father's visitation be supervised. In so doing, Agency noted father's psychological evaluation had been completed by Walter J. Litwin, Ph.D.[3] The October 1 report summarized Dr. Litwin's findings, including under "Axis I[]" that father had bipolar disorder and attention deficit disorder; and under "Axis IV[]," that father had problems with primary support group and related to the social environment and had a history of chronic substance abuse. Dr. Litwin found father " 'does have a mental disability that currently renders him unable to fully care for his children in a safe and secure home' "; that father had " 'periods of irritability, distractibility and anger that he appears unable to readily manage' "; that father would benefit from services; and that father needed a psychiatric medication consultation to determine if medication would help treat his mood disorder.

In connection with the six-month status review hearing, Agency reported that father was employed as a machinist; that he completed an out-patient drug treatment program and other services including anger management, parenting instruction, and individual therapy; that he was living with, and helping in the care of, his ill mother; and that father's home in Jamul was still without electricity or running water. Agency further reported father required a medication consult, per Dr. Litwin, to determine whether father's mood disorder could be treated with "psychotropic medication." Agency recommended terminating reunification services for mother and offering father six more months of services.

In yet another addendum, Agency noted that father was refusing to take what father described as "crazy medication" and that father stated it was an agency social worker who was " 'crazy' " and needed to be medicated. Agency noted that, despite all the services completed by father, he continued not to "take responsibility for his actions and the reason the Agency is involved." As a result, Agency also recommended father's visits continue to be supervised.

In connection with the six-month review hearing and father's section 388 petition, Agency submitted a December 1, 2015 addendum report. In that report, Agency noted father had gone to a mental health clinic in El Cajon and allegedly been told by a doctor at the clinic that he did not need medication. An Agency social worker next called father's therapist, who reported that father had not seen a doctor at the clinic, but rather had been assessed by a licensed clinical social worker (LCSW); that father did not tell the LCSW about his diagnosis stemming from Dr. Litwin's psychological evaluation; and that when father was contacted by an Agency social worker, father reiterated it was the social worker that needed to be medicated, not him.

At the December 1 contested modification hearing, the court ordered that father's visits with minors remain supervised; that father undergo a psychiatric evaluation for medication to be completed by a psychiatrist; that Agency submit ex parte a case plan for father to include parenting education, individual therapy, substance abuse treatment, and anger management; and that mother's reunification services be terminated.

Agency's February 9, 2016 addendum report, prepared in response to father's request for a special hearing related to his services, noted the myriad attempts made by an Agency social worker to meet with the LCSW at the mental health clinic and to find a psychiatric evaluator for father. The February 9 report noted an Agency social worker finally met with the LCSW on January 8.

During the January 8 meeting, the LCSW indicated that father was seen at the clinic; that the clinic was unable to help father because father said he "did not have a problem," he did "not need medication," and he did not even know "why" he was sent to the clinic; and that father said he was employed and had been working at his job "for over 20 years." The LCSW also told the Agency social worker father failed to inform the LCSW that a court had ordered father to be assessed for medication. The record shows Agency also provided father with referrals for additional services in anger management.

Agency's February 9 report assessed father as follows:

"As evidenced by all the Agency's attempt to ensure the father receives the necessary and appropriate services outlined in this report, it is clear that the Agency is making reasonable efforts to assist the father in reunifying with his children[.] [T]he [A]gency commends the father for being willing and able to complete any service asked of him, but it is unfortunate that he continues to approach each service with little to no insight as to how he could benefit from it and the necessary changes he needs to make in order to consistently be a safe parent for his children and able to respond to stressful and frustrating situations without such emotional outbursts and anger. The father continues to deny there ever being a protective issue for his children in his care, which . . . makes it very difficult to assess any progress in services by the father. The father spends much more time and effort blaming the Agency, and particularly this social worker, for his circumstances and his children not being in his care tha[n] he does trying to understand and address the protective concerns. As the 12 Month Hearing approaches, it is very important that the father not just attend services to be in compliance, but that he make a concerted effort to recognize risk and how he can mitigate any future harm to his children if they were to be in his care."

Agency prepared an April 26, 2016 status review report in connection with the 12-month permanency hearing pursuant to section 366.21, subdivision (f). In its April 26 report, Agency recommended that father's services be terminated; that the court set a section 366.26 hearing to determine the appropriate plan for Delilah and Sage; and that father's visits remain supervised.

During this review period, Agency noted father's progress was "minimal" despite his active participation in services, and there was "little evidence" to indicate father was "able to implement what he has learned to mitigate the protective issues," inasmuch as father had not maintained a home with electricity and plumbing and one "free of hazards." When an Agency social worker attempted to schedule a site visit to father's home, he refused. That social worker went to the home unannounced in March 2016 and found the conditions outside of the home unsafe, noting: "There was a large hole to the side and underneath of the front door. There is a piece of wood covering part of the hole, but a large gap remains[,] which the children could easily fall into and be hurt. The home also had several piles of discarded items in the front and side of the home, including a toilet, car seats, a highchair, and other items. (See attached photos.) In addition, the father's home continues to be without electricity or plumbing . . . ."

The April 26 report further noted that father continued to blame Agency for his circumstances; that he denied the existence of any protective issues based on anything he had or had not done; and that he had not been forthcoming with information sought by Agency social workers.

A Voices for Children court-appointed special advocate (CASA) report prepared for the 12-month review hearing echoed many of the concerns expressed by Agency. (See generally §§ 100 et seq. & 101, subd. (c) [defining CASA].) Specifically, this report noted that during visits observed by the CASA, father continued to express frustration with Agency and its social workers and the "parenting style" of one foster parent of Sage in particular. Father also stated he did not need additional anger management classes, despite the fact the CASA observed father having "outbursts" during visits and despite his lack of ability to manage his emotions. Father also indicated to the CASA that he was against taking medication and saw no reason for it.

The CASA reported that both Delilah and Sage were thriving in their respective placements; that they should remain in these placements; and that father's reunification services should be terminated. Delilah was living in a licensed foster home where she was "getting the care and attention she needs to grow and develop her sweet, adventurous spirit." The CASA reported Delilah's foster family was willing to adopt Delilah if reunification was unsuccessful.

As to Sage, the CASA noted that the little girl was still placed with her paternal relatives, who also had three of their own children; that Sage's foster family "cares very passionately" for Sage; and that Sage's caregivers were willing to adopt Sage should reunification be unsuccessful.

Agency's June 7, 2016 report prepared in connection with the contested 12-month review hearing noted that father had consulted with psychiatrist Samuel Kugel, M.D., on April 13; that father had been prescribed medication but stopped taking it because he claimed it made him "feel jittery"; and that Dr. Kugel had not since seen or heard from father. Father reported to an Agency social worker during a visit in April that he had made the decision to stop taking the medication because in his mind he did not need it "because he [did] not have a problem."

The June 7 report included a summary of a June 1 phone call between father and Delilah's foster parents initiated by father at around 6:30 p.m. According to Delilah's foster mother, father's behavior during the call was "bizarre," as father was speaking slowly and slurring his words. Father relayed to Delilah's foster mother that he had not heard from mother; that mother typically called him every one to two weeks; that during his last call with mother, she indicated she was going to take off her ankle monitoring bracelet and head to Mexico to work; and that in father's view, mother was " 'in a barrel of acid,' " which he blamed on Agency because it allegedly "drove the mother to become an addict by taking her children away."

Agency prepared a July 22, 2016 addendum report in connection with the contested 12-month review hearing. Agency noted during this review period that father continued to use foul and inappropriate language during some of his visits with minors; that during one visit, father stated he " 'hates' " one Agency social worker in particular, " 'cannot stand the Agency,' " and he was "losing his mind"; and that during another visit, father yelled and shouted after Delilah threw a tantrum as he was placing Delilah in her car seat. In yet another visit, when an Agency social worker "dropped in" to observe father, he mouthed the words " 'I hate her' " when referring to that social worker and told this same social worker she was a " 'work of art' " and insisted she " 'go away.' "

Also during this reporting period, Agency requested father submit to on-demand drug testing on four separate occasions. Father no-showed on the first three dates and Agency received a verbal report he also no-showed on the last date. An Agency social worker visited father's home in mid-July and found the home in the same condition as before, as the home sat on "an unstable foundation with small wooden beams supporting the back corners of the home which is sitting on uneven land." The Agency social worker took pictures and observed there were multiple "gaps" between the doors and flooring of the home where children could fall through or get stuck. Finally, the social worker observed an "ax" lying on the ground in the front of the home's entry.

The Agency's July 22 report assessed father as follows:

"The father continues to avoid the Agency and has not made himself available to meet with the worker despite multiple requests. Similarly, he has not submitted to on-demand drug tests as requested by this worker. The father has failed to provide any recent information that would indicate that he is engaged in services and making changes. Per the receptionist at his psychiatrist's office, the father was seen in their office last month [i.e., June 2016], but it is unknown if he is receiving therapy or taking medication as the doctor refused to provide any information without the father being present. The father has consistently visited with his daughters. However, he is so angry and distrustful of the Agency, that he's allowed his anger to spill over into his visits with his children.

"Although the father has participated in some services as outlined in his case plan, the father has yet to make the necessary changes in his life to demonstrate that he is able to safely parent his children while maintaining his sobriety and managing his mental health concerns. The father has maintained a consistently defensive posture with the Agency in general and has focused his energies on what he seems to perceive as an injustice rather than focusing his energy on understanding his children's needs and becoming a safe and effective parent. Unfortunately, the father's selective participation in services has not effectuated the necessary change in his behaviors to demonstrate that the children could be safely returned to his care. Instead, the father and his home situation remain largely unchanged at this time. As a result, the Agency cannot recommend that additional services be provided to the father as there is not a substantial probability of return by the 18-month dates."

At the July 22 contested 12-month review hearing, the court admitted into evidence the Agency's reports summarized ante. After an Agency social worker was sworn and examined, the court ordered father to drug test by 5:00 p.m. that day and continued the hearing to August 2.

Agency prepared yet another addendum report in anticipation of the August 2 hearing. In the August 2 addendum, Agency noted father, when asked during a July 27 compliance meeting about mother, stated mother had e-mailed her sister and based on this e-mail, father surmised mother had been kidnapped in Mexico by a "Drug Cartel." On questioning, father stated Dr. Kugel prescribed him another medication. Father stopped taking the medicine without informing Dr. Kugel because father claimed it gave him blurred vision. Toward the end of the meeting, father became agitated, began moving his arms around and told the Agency social worker, " 'I am done, you are a liar . . . and I am out of here.' " Agency reported father's July 22 drug test was negative.

At the August 2 hearing the court received Agency's August 2 addendum into evidence, but "only as to the testimony of the statements of the social worker." The record shows the court heard extensive testimony from father regarding the visits and his desire for there to be more and how, in his view, Agency made the visits more difficult in order to keep him "away from [his] children." Father also testified that, while he never missed any visits, Agency over the last six months had canceled about eight visits with Delilah and/or Sage, sometimes with very little notice. Father also testified regarding what he had learned in services, including how to control his anger and spot his "triggers."

Father further testified that he was not living at the house in Jamul, but instead was living in Crest with his mother while taking care of her. Father noted his plan all along had been to rent a new apartment when reunited with minors. Father also testified regarding his support network, including his church, which he regularly attended.

On cross-examination, father testified he was prescribed medication by Dr. Kugel, but not because Dr. Kugel believed father needed medication. In fact, father stated at no time did Dr. Kugel suggest father needed to be medicated. Instead, father testified Dr. Kugel prescribed the medication because a particular Agency social worker had "manipulated" Dr. Kugel. Father added this social worker was "pretty good at that." Father further testified he did not have any mental health issues and, thus, that he did not need any psychiatric medication because he functioned at a high level.

With regard to his trigger of being lied to, father testified Agency social workers, including one in particular, often lied to him. Father followed up by saying he saw this same social worker "bang [his] daughter's head against the wall." When asked why the section 300, subdivision (b) petitions had been filed on behalf of Delilah and Sage, father testified that, according to others, the "only thing" Agency had against him was his failure to call the police on mother when she showed up unannounced at his home in Jamul on or about March 20, 2015. When asked about giving Delilah a ride on his motorcycle, father testified he did not know "it was that big of a deal," inasmuch as the motorcycle was small and the seat was only about a foot and a half off the ground.

The record shows the court also questioned father. The court inquired whether father previously had stated to an Agency social worker that he did not have the "heart" to remove mother from his house. Father responded when mother was pregnant (with Sage) and came to the house, he would let her take a shower and give her something to eat because it not only was the "Christian way" but also the "humanity way." Father also responded that when mother was at the house, he was there to protect Delilah and that mother, in any event, loved her "babies too" despite having "some issues going on."

The court asked father whether he believed an Agency social worker was "working hard to make sure [he didn't] get [his] kids back." Father responded, "[a]bsolutely, sir." When asked what was the basis for his belief, father stated this same social worker said "point-blank" that, because father had gone to this social worker's supervisor, " 'you [i.e., father] will never get your unsupervised visits, and I doubt you will ever get your children.' "

The record shows the Agency social worker who father claimed made this statement took the witness stand and denied ever making it or otherwise making a statement that could be interpreted as such.

After hearing closing argument, the court found by clear and convincing evidence that return of both Delilah and Sage to the parents would create a substantial risk of detriment to minors' physical and emotional well-being. The court also found that the court-mandated reunification services were terminated as to father; and that a hearing would be held within 120 days under section 366.26 to implement a permanent plan for minors of adoption, legal guardianship, or another planned permanent living arrangement.

In reaching its decision, the court noted that father's compliance with the reunification plan was "very good"; that it believed father's testimony he was not using drugs; but that the real problem in the case was "father's emotional health." The court further noted as follows: "And I pointed that out at the contested six-month review hearing that I just would like him to try to take some drugs, although he was adamant he didn't need them. Because there is an absolute inability for him to regulate his emotions. It's causing him an inability to have any insight into this particular case.

"He [i.e., father] testifies he'll do anything for his kids, and he totally loves his kids. I believe that. But the problem is he can't do—whatever he needs to do to regulate these emotions isn't happening. [¶] When I look at his psych eval—and I take psych evals with a grain of salt, because they're just a snapshot. But when I read the psych eval, it's exactly what I'm seeing in the reports: the behaviors I see in the reports, the behaviors I've seen in court. He's had a horrible time regulating his emotions. I don't know if this got on the record or not, but he was cursing during county counsel's closing arguments.

"Now, if you're in a hearing where whether or not you're going to get your kids back and in front of the judge you're cursing during closing argument, that shows a complete inability to regulate emotions. So let me give you an example of why that causes me a problem of risk. If I gave him his kids back today, do you think he would cooperate with the Agency? When the social worker came and wanted to interrupt his home or whatever, would he cooperate? Would he be willing to work? It doesn't appear that that would be the case."

Thus, although the court found father had made "progress with the provisions of his case plan," the court further found most of it was "technical progress." At the end of the hearing, the record shows father then stated, "The liars win. Liars win. Liars win. Fuck it." In response, the court stated the record should "reflect father stormed from the courtroom. He was very angry, and he smashed the doors open. And that concludes the hearing."

In its November 29, 2016 section 366.26 report (filed on Nov. 21) prepared in connection with the permanent plan selection and implementation hearing, Agency recommended termination of parental rights and an order for a permanent plan of adoption both for Delilah and Sage. Delilah was living in a confidential licensed foster home, where she had been placed since late May 2015. Sage was living with her paternal relatives, where she had been placed since late February 2015, just after her birth. Mother at the time of the hearing was again incarcerated, after being arrested in August 2016 and charged with vehicle theft and possession of a controlled substance for sale.

As to father, the November 29 report described various incidents during the reporting period. On September 1, father called Agency and left a voicemail message for a social worker that had been newly assigned to this case. In that message, father "seemed upset, spoke rapidly, and much of what he said was unintelligible." On September 28, a visitation center worker informed Agency that father had "made a verbal threat toward the relative caregivers of Sage"; that father had said, " 'I am going to get [one of Sage's caregivers] somewhere where he can't call the cops and beat the hell out of him' "; that the visitation center worker told father not to make such comments in the presence of minors; that earlier that day before the visit, father had sent this same caregiver of Sage disparaging text messages, in which father used profanity; and that as a result of father's threat, Sage's caregiver wanted to cancel father's visits and consider obtaining a restraining order against him.

Agency described an incident at the visitation center on October 12 involving father. Two workers reported that father became upset when Delilah refused to use the restroom at the center because it had an "automatic flushing toilet" that scared Delilah. Father's agitation grew when one of the workers pointed out to father that Sage was standing on a chair. After Sage refused father's commands to sit, father spanked Sage three times in front the workers. Next, when Delilah stood on a chair, father counted to three and when Delilah did not get down, he "got up, stomped his feet on the floor, and thrust himself forward toward Delilah, who was startled, stepped back, and hit her head against the wall. . . . Delilah cried and became very emotional due to her father's emotional state during the visit. The monitor notified her supervisor of the incident. Delilah then said ' "I want to go home." ' "

Because of Delilah's emotional state, father was told the October 12 visit was ending. When father attempted to hug Delilah, she moved away, headed toward the door, and repeated she wanted to leave. Father then started " 'loudly bang[ing]' " toys that he was putting away into canisters as Delilah continued to cry. Father then accused the workers of assisting Agency to take away his visits, as he continued " 'slamming toys loudly' " into the canisters. While the workers were trying to calm Delilah, father then stated in minors' presence, " 'Thanks for all of your fucking help[,]' " which father repeated when he was unsuccessful in getting Delilah into her car seat after the visit had ended. As a result of this incident, the visitation center coordinator informed Agency that father's behavior, which was not new, had put the minors and visitation center workers at risk of harm and that the center would no longer supervise father's visits with Delilah and/or Sage.

The day after Delilah hit her head on the wall, an Agency social worker called father. When father answered, he "immediately began talking hysterically about how he was lost in Hillcrest and could barely see where he was going," even before the social worker identified himself and the reason for his call. The record shows toward the end of October, father called Agency to discuss resumption of his visits. During that call, father denied spanking Sage during the October 12 visit. He also denied minors became afraid of him during that visit. When the Agency social worker informed father that his version of events contradicted the summary of events in a report prepared by the visitation center, father stated, " 'She [i.e., Delilah] was scared of me? That's the biggest crock of shit! ' " and then accused the visitation center workers of being at fault in the October 12 visit.

In mid-October 2016, Delilah's caregivers reported to Agency that father had recently text-messaged "and called them during which he yelled at the caregiver and displayed distraught, chaotic, and paranoid language. The father reportedly talked about the Agency conspiring to take Delilah, and stated that this was the Agency's plan all along. The caregivers reported that, during the father's last call to the family, he manically talked about killing himself."

In connection with its recommendation that parental rights be terminated and a permanent plan of adoption be ordered for Delilah and Sage, Agency's November 29 report stated that, although Delilah's current caregivers wanted to adopt Delilah, if they were unable or unwilling to do so, there were 44 other families in San Diego County who were willing to adopt a child matching Delilah's characteristics; that Sage's caregivers also wanted to adopt Sage; and that if Sage's parental caregivers were unwilling or unable to do so, there were 40 other families in San Diego County willing to adopt a child matching her characteristics.

Agency noted that, although father's visits throughout the case have been generally positive, "his lack of insight into how his verbal and physical behavior might impact the children, and his inability to keep his emotions and anger in check during visits, represents a threat to the emotional and, potentially, physical well[-]being of the children. The father's behavior is also a threat to his ability to form a healthy parent-child relationship with Delilah and Sage. In his own way, the father clearly loves his children, but the love that his children have for their father is not equally reciprocal, despite the fact that the children have been excited to see him at weekly visits. During visits, the children and father have fun. The children might refer to the father as 'daddy,' but at their age, and the fact that, until recently, they saw [him] a few times per week, the children see their father as more of a playmate, than someone who provides them with daily care, comfort, love, and security. The children's caregivers are the primary parental figures in the children's lives, as both children have lived with their respective caregivers for more than a year and a half. The children's primary attachment is toward their caregivers. Therefore, no significant parent-child relationship exists between the father and children that would outweigh the benefits of adoption by the current caregivers."

Agency's November 29 report noted that, while Delilah and Sage enjoy visits together and have fun, "they have not shared common experiences, and they do not significantly miss each other between visits. Therefore, no sibling exception exists in this case."[4]

On November 29, Agency also petitioned the court under section 388 to change its earlier order allowing father "liberal supervis[ion]" with Delilah and Sage to a new order suspending all such visits subject to further court order. Agency cited the October 12 incident at the visitation center, and father's threating statement concerning one of Sage's caregivers made to a visitation center worker on September 28, as the reason for the need to change the court order.

Agency in its November 15, 2016 addendum report (filed on Nov. 29, after its § 366.26 report) provided additional, detailed evidence in support of its section 388 petition. This evidence included a four-page, single-spaced handwritten report prepared in connection with the October 12 incident; and a two-page, handwritten report concerning the September 28 incident.

The record shows the court at the November 29 hearing found that Agency had made a prima facie showing of a change in circumstances in connection with its section 388 petition and that it was temporarily suspending visits between father and the minors. During this hearing, the record shows father had several outbursts. The court toward the end of the hearing warned father he would be removed from the proceeding unless he controlled himself.

Agency, in its January 27, 2017 addendum report prepared in connection with the section 366.26 hearing, reported that Agency learned on November 17, 2016, that father had called Delilah's caregiver on November 5 after 9:00 p.m. and had " 'spent 15 minutes ranting about being in a [bar] fight . . . over drugs and then said that he was going to kill himself and hung up' "; and that the same caregiver later received that night text messages from father which "were 'each at least 3 screens long and very manic.' The caregiver stated that the father later texted for more photos of Delilah and he seemed fine, as if he did not recall his previous ranting call or text messages." Agency's January 27 report noted that Sage's caregiver reported Sage's behavior had improved since visits with father had stopped. Finally, that report noted father also had text-messaged Delilah's caregiver on November 30 ranting about this case; and that the caregiver asked Agency to inform father he was not to contact the caregiver " 'unless he wants to call and speak with Delilah.' "

On December 3, 2016, the record shows father was "arrested for possession of a non-narcotic drug ([Health & Saf. Code,] § 11375[ subd. ](A)) and illegal use . . . of tear gas/etc. ([Pen. Code, §] 22810[ subd. ](A))." Per the January 27 addendum, father also was arrested on December 6 for felony vandalism (Pen. Code, § 594, subd. (b)(1)). That day at about 12:30 p.m. father "drove onto the property of his ex-girlfriend . . . and broke the windshield and dented the side of her car. The father then proceeded to back his truck into another vehicle with enough force to move the entire vehicle four to six feet sideways from where it was parked, until that vehicle hit and dented a third vehicle." The addendum noted there was a personal witness to the crime; that the witness saw father drive off at a high rate of speed; and that father, on arrest, claimed he had been home all day and when he asked his mother to support that statement, his mother "told police that [father] had been gone most of the day."

The January 27 addendum noted father later became "agitated" and "talkative" with police, told his history with his ex-girlfriend and her boyfriend, including admitting he and the boyfriend had fought "several" times; and father admitted he had sustained a broken arm because of one such fight. Shortly thereafter, father confessed to vandalizing the vehicles, but told police in a raised voice " '[t]hey had it coming for what they have done to me.' " The police report noted that father repeatedly told police that "it was the fault of his ex-girlfriend and her boyfriend, because they drove him to do it, due to 'all of their deceitful actions.' "

The addendum also reported that mother had been staying with father in his house in Jamul, as relayed by father's mother (i.e., Delilah and Sage's paternal grandmother) to Delilah's caregiver when the caregiver called the grandmother on Christmas Day. According to the caregiver, the grandmother stated father and mother had left together shortly before the caregiver called.

Moreover, on December 29 the previous Agency social worker assigned to this case saw father in his truck parked in Agency's lot where the social worker worked. When father saw the social worker, he drove his truck near where the social worker had stood. Afraid, the social worker hid behind a wall. Father in response drove off.

The January 27 addendum noted the respective caregivers of Delilah and Sage expressed concern about father's mental health and the safety of minors.

The CASA submitted a supplemental report on March 7, 2017. The CASA noted Sage's caregiver reported an increased difficulty in getting Sage to eat solid food. With respect to Delilah, the CASA noted that during a visit in mid-February, the CASA saw firsthand the issues Delilah had with "emotional regulation and negative attention-seeking behaviors." This included Delilah attempting to throw a piece of apple at the CASA when the CASA spoke to Delilah's caregiver during snack time; and when playtime ended, Delilah refusing to clean up, becoming "distraught" and throwing herself on the floor, and screaming and crying when the caregiver attempted to clean up.

The CASA report noted Delilah and Sage were both "deeply cared for" and "love[d]" by their respective caregivers, where each had spent most of their lives. It further noted that both girls would benefit from additional services; that such additional services might not be available unless the girls were adopted, as opposed to remaining in the dependency system; that the "dependency process has had a serious impact on the girls' developmental progress"; and that, because the girls were very young, they would benefit from permanency with their respective caregivers, as they "deserve stability in their lives so that they can grow to their fullest potential."

In its March 10 addendum report, Agency noted father called Delilah on her birthday as prearranged by the caregiver. However, Delilah did not want to talk to father, which upset him. The caregiver reported hearing father tell Delilah, " 'Daddy wants to see you, but CPS won't let me, and the mean social worker won't let me give you presents for your birthday.' " The caregiver also heard father say other negative things about Agency during his phone call with Delilah. According to the caregiver, Delilah became very upset by the phone call and the caregiver soon ended the call.

At the March 10 section 366.26 hearing, father called an Agency social worker to testify and also took the stand himself. After hearing oral argument, receiving the additional reports summarized, ante, and photographs and similar evidence proffered by father, the court found by clear and convincing evidence that it was likely minors would be adopted if parental rights were terminated; that while father loved his children and they loved him, none of the exceptions listed in section 366.26, subdivision (c)(1)(B) existed; and that the court could not find the benefit of continuing father's relationship with minors outweighed adoption because of father's ongoing inability to regulate his emotions, which the court found had been a problem throughout the dependency process. The court thus terminated all parental rights and referred minors to Agency for adoptive placement. The court found that "[a]doption is in the best interests of the children"; that the permanent plan of adoption was "appropriate" and the "preferred plan"; and that Agency's section 388 petition to suspend father's visits therefore was moot.

DISCUSSION

I

A. Beneficial Parental Relationship

Father contends the juvenile court erred by failing to find the beneficial parental relationship existed and constituted an exception to adoption as a permanent plan both for Delilah and Sage. According to father, he maintained regular visitation and contact with minors before visitation was suspended, and the court recognized the positive and beneficial loving connection between him and minors.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several " 'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception, in this case, father, carries the burden of establishing an exception to termination of parental rights. (See In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Evid. Code, § 500.)

Termination of parental rights may be detrimental to the minor when the "parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "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.).)

To prove the beneficial parental relationship exception applies, a parent "must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527 (I.W.).) Moreover, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349; see In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).) "[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) A juvenile court's decision that a parent has not satisfied this burden may be based on either or both of two component determinations—whether a beneficial parental relationship exists and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)

When the juvenile court finds the parent has not established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (I.W., supra, 180 Cal.App.4th at p. 1528.) When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion. (K.P., supra, 203 Cal.App.4th at pp. 621-622.)

Here, father cannot show as a matter of law the requisite "beneficial . . . relationship" between him and minors. (See K.P., supra, 203 Cal.App.4th at p. 622.) The record shows that father visited regularly with minors until the visit on October 12, 2016. During that visit, which led to the suspension of all further visitation between father and minors, father spanked Sage three times for standing on a chair after he had become agitated when Delilah was unwilling to use an "automatic toilet." When Delilah next stood on a chair, father counted to three and, when Delilah refused to sit down, father in response got up and lunged at Delilah, startling her and causing her to fall backwards and hit her head on the wall.

According to the visitation center workers, Delilah in response became extremely emotional and said she wanted to leave. When father was informed the visit was ending because of Delilah's emotional state, father became even more agitated as he "loudly" put away toys and as evidenced by his comment to the visitation workers in the presence of the minors, " 'Thanks for all of your fucking help[,]' " which father repeated when he was unsuccessful in placing Delilah into her car seat at the end of the visit. Thus, from on or about mid-October 2016 until the section 366.26 hearing in March 2017, father had no visits with either Delilah or Sage.

However, even when father was visiting Delilah and/or Sage, the record shows he often complained and used negative language about Agency and various Agency social workers—including one in particular—in minors' presence. Father also used profanity during visits; in some visits, father turned his back on minors and started talking to himself for 30 seconds to a minute; in others, father threatened Agency social workers.

The record further shows that Sage had been removed at birth—February 23, 2015—as a result of mother's incarceration and her lack of sobriety. Thus, Sage had never lived with father, who initially was not even sure he could care for Sage as he was then caring for toddler Delilah (until Delilah was removed from his care in March 2015). Father also did not participate in medical appointments with the minors, and rarely called the caregivers to check-in and keep up to date with minors and their well-being. In fact, the record shows father actually threatened physical harm to one of Sage's caregivers and neither Sage's nor Delilah's caregivers would participate in visits with father because of father's erratic and negative behaviors toward them.

On this record, we conclude father cannot establish as a matter of law that he occupied a parental role in the life of either Delilah or Sage for purposes of the beneficial relationship exception to adoption. (See I.W., supra, 180 Cal.App.4th at p. 1528.)

We also conclude the juvenile court did not abuse its discretion when it found the benefit to the minors as a result of preserving father's parental rights was not sufficiently compelling to outweigh the benefit achieved by the permanency of their adoption. (See K.P., supra, 203 Cal.App.4th at pp. 621-622.) The record shows father's house in Jamul was unsuitable for minors, as it had been without running water and electricity since May 2015 and sat on a hill without an adequate foundation. While father claimed he was saving money to rent a new home, the record shows at the time of the section 366.26 hearing he had not done so.

In addition, the record shows that, while father was Delilah's caretaker, Delilah was substantially underweight and had a flat spot on the back of her head; that father missed medical appointments for Delilah in connection with her need to gain weight; and that father allowed Delilah to ride with him on his small motorcycle without a helmet or other safety gear. What's more, while Delilah was living at the Jamul home, on inspection an Agency social worker found it dirty and unsafe, as noted. Also while Delilah was living in the home, father admitted using marijuana on a weekly basis. He also allowed his girlfriend to keep methamphetamine and drug paraphernalia in his home.

While Delilah was living with father, he allowed mother to return to his home after she was released from custody, transported to KIVA, and left the program that same day. The record shows mother also used father's Jamul address as her own on certain court documents. And once Delilah was removed, it was reported that mother, as recently as Christmas 2016 and January 2017, had resumed living with father.

The record further shows father repeatedly refused to take medication, despite being diagnosed with a " 'mental disability' " that " 'render[ed] him unable to fully care for his children in a safe and secure home.' " In fact, father repeatedly denied having such a disability, and instead claimed it was Agency social workers—or Sage's caregiver(s), or his former girlfriend and her boyfriend, or the court, among others—who were the problem. Indeed, there is ample evidence in the record to support the juvenile court's finding that father was unable to control his emotions and regulate his behavior, including in the presence of minors.

The record shows Delilah was in services for emotional outbursts and negative behaviors at the time of the section 366.26 hearing and that Delilah's CASA experienced firsthand such negative behaviors by Delilah during a February 2017 visit. The CASA opined that Delilah needed additional services to control such behaviors; that the "dependency process" had had a "serious impact" on Delilah and on Sage; and that both Delilah and Sage were benefiting from the stability and permanency provided by their respective caregivers.

Also shortly before the section 366.26 hearing, the record shows that father was arrested for possession of a non-narcotic drug and for felony vandalism; that father on one occasion was surveilling an Agency social worker father particularly disliked in an Agency parking lot; that when Delilah did not want to speak with father on the telephone on her birthday, father became upset and said negative things about Agency and its social workers, which caused Delilah to become "very upset" and required the caregiver to terminate the phone call; and that before the section 366.26 hearing, father called Delilah's caregiver after 9:00 p.m. and spent 15 minutes "ranting" about how he had been in a bar fight "over drugs" and was going to "kill himself." Thus, although father loves his children and made some progress in services in connection with his case plan, the record supports the court's finding that father's compliance with his case plan was "technical."

Finally, the record also shows that both Delilah and Sage were living with caregivers who wanted to adopt them; that each child was, in any event, generally adoptable as there were 44 other families in San Diego County willing to adopt a child matching Delilah's characteristics and 40 such families willing to adopt a child matching Sage's characteristics; that Delilah and Sage were loved by their respective caregivers; and that Delilah and Sage were very bonded to their respective caregivers.

On this record, we conclude the juvenile court did not abuse its discretion when it found that father failed to show Delilah and/or Sage had a significant, positive, emotional attachment to him that outweighed the well-being each child would gain in a permanent home with adoptive parents. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord Jasmine D., supra, 78 Cal.App.4th at p. 1345.)

II

The ICWA

Father also contends Agency failed to investigate adequately his allegation that he had Native American heritage as required under the ICWA. Specifically, father contends that Agency "mixed-up" which parent claimed to have Indian heritage; and that Agency erroneously stated on the ICWA notices that mother claimed Indian heritage when in fact it was father who claimed such heritage. Agency disagrees and argues that it complied with its duty of inquiry under the ICWA. Agency further argues it was in fact mother who claimed Indian heritage and father expressly denied under penalty of perjury on at least four occasions having any Indian heritage.[5] We agree with Agency.

For purposes of the ICWA, an "Indian child" is one who 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).) "The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. [Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115, 118-119.)

"The Indian status of the child need not be certain to invoke the notice requirement. [Citation.] Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary." (In re Desiree F. (2000) 83 Cal.App.4th 460, 471; see 25 U.S.C. §§ 1903(8) & 1912(a).)

Here, the record shows Agency in its February 27 and its March 23, 2015 detention reports for Sage and Delilah respectively, noted father stated on February 24, 2015, that "he may have a 'little bit of Blackfoot through Illinois on his paternal side.' " The record further shows, however, that father retracted this statement—if it was even made by, or applicable to, him, as discussed, post—when he signed under penalty of perjury form ICWA-020 titled "Parental Notification of Indian Status" in connection with Sage's dependency. Father filed this form with the juvenile court on March 2, 2015, and stated he had no Indian ancestry. That same date, father also signed under penalty of perjury and filed with the court a form titled "Parentage Inquiry[,] Father's Questionnaire and Offer of Proof" where he once again denied having "any American Indian heritage" under the section titled "Inquiry—Biological Parentage."[6]

More than three weeks later, Father confirmed in connection with Delilah's dependency that he had no Indian heritage when he again signed under penalty of perjury form ICWA-020 and the parentage inquiry form, both of which he filed with the court on March 24, 2015.

But there's more. At the hearing on March 24, 2015, lodged in connection with Agency's motion to augment, counsel of father (who represented father throughout the lengthy dependency proceeding, including at the § 366.26 hearing in Mar. 2017), stated father "provided the court with a JB020 [form], indicating no native American heritage." Based on this representation, the court found the ICWA did not apply to father.

Although mother is not a party to this appeal, the record shows during the same March 24 hearing mother's counsel recognized that for Sage, mother had indicated the ICWA may apply, but for Delilah, that it did not apply. As a result of this inconsistency, the juvenile court ordered Agency to make an ICWA notice. In so doing, the court stated: "A lot of times I find—and I am going to put this on the record—people decide they want to be Indians, until they decide they have to fill out a five-page form. Then all of a sudden they don't want to be anymore. That's not the way we do this here. [¶] There was a claim of Indian heritage. She is not specifying anybody else. Just notice the DIA [i.e., the Bureau (or Department) of Indian Affairs] to cover ourselves. [¶] This is important stuff if the appellate court sees it. We are not going to turn it upside down because people don't want to be burdened by this form."

The record shows the court next briefly questioned mother and it was mother who said she may have "Black[feet]" Indian heritage. The court ordered mother to fill out form "030 to the best of [her] ability" and submit that form before leaving court that day because the court found it could not "go forward without these notices on any of these cases." The court then retracted the finding as to mother that the ICWA did not apply and instead that notices would be sent on her behalf including to the Blackfeet Tribe. Significantly, the record shows father and his counsel were silent during this portion of the hearing when the juvenile court insisted that mother fill out the necessary paperwork because of her possible Indian heritage.

Here, we note the two references to father having Indian heritage was made only by Agency, and despite being in two documents, was based on the same February 24, 2015 reference and even then, only in connection with the respective section 300 petitions filed on behalf of Delilah and Sage. However, after February 24, the record unambiguously shows father disavowed having any Indian heritage and that it was mother, not father, who suggested she might have such heritage. As such, we conclude cases holding a parent cannot waive ICWA rights do not apply here. (Compare, In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425 [noting a parent cannot waive ICWA rights by his or her silence because the protected interest belongs to the tribes, "independent from any rights held by either parent"]; In re Nikki R. (2003) 106 Cal.App.4th 844, 849 [noting the issue of ICWA notice is not waived even when the parents fail to raise it in the trial court].)

Nor do we find applicable cases holding that the juvenile court or a child protective services agency must make an inquiry when a parent suggests his or her child "might" be an Indian child through the grandparents, even if the parent is unable to provide a tribal affiliation and/or is not himself or herself an enrolled member of a tribe. (See In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1405, 1407-1408; see also In re Miguel E. (2004) 120 Cal.App.4th 521, 549 [noting the "notice requirement applies even if the Indian status of the child is uncertain" and further noting the "showing required to trigger the statutory notice provisions is minimal"].) We conclude neither the juvenile court nor Agency was required to make additional inquiry concerning ICWA noticing when father unambiguously stated under penalty of perjury on at least four separate occasions after the February 24 Agency reference that he did not have any Indian heritage.

DISPOSITION

The order of the juvenile court terminating father's parental rights is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.