In re Jeanna V.

Filed 3/15/07 In re Jeanna V. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.Affirmed in part and reversed in part with directions.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant C.V.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant J.V.

Ruth E. Stringer, Acting County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minors.

C.V. (the mother) and J.V. (the father) appeal from an order terminating their parental rights to their infant twins, Jeanna V. and Michael V.

Both parents contend that the juvenile court erred by denying their changed circumstances petitions. (Welf. & Inst. Code,  388 ( 388).) In addition, the mother contends that the juvenile court erred by finding that the beneficial parental relationship exception to termination did not apply. (Welf. & Inst. Code,  366.26, subd. (c)(1)(A).) Finally, the mother also contends that notice was not given as required by the Indian Child Welfare Act (the ICWA). (25 U.S.C.  1901 et seq.)

Although there was an attempt to give notice, we will hold that the notice was not in substantial compliance with the ICWA. However, we find no other error. Accordingly, we will order a limited remand for the purpose of complying with the ICWA.

I

GENERAL BACKGROUND

In December 2005, the mother gave birth to twins, Jeanna and Michael. The mother tested positive for methamphetamine; she admitted using methamphetamine a few days before giving birth. She also admitted failing to obtain any prenatal care. The Department of Childrens Services (the Department) therefore detained Jeanna and Michael and filed dependency petitions as to them.

Previously, two siblings had been removed from the custody of both the mother and the father, and a half sibling had been removed from the custody of the father, due to drug use and resulting neglect. Parental rights to these children had been terminated.^[1]

At the jurisdictional hearing, the juvenile court found that it had jurisdiction based on failure to protect and abuse of a sibling. (Welf. & Inst. Code,  300, subds. (b), (j).) At the dispositional hearing, it denied reunification services based on failure to reunify with a sibling, termination of parental rights to a sibling, and resistance to drug abuse treatment (Welf. & Inst. Code,  361.5, subd. (b)(10), (11), (13)).

In August 2006, at a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26), the juvenile court found that the twins were likely to be adopted. It declined to find that termination of parental rights would be detrimental to them. It therefore terminated parental rights.

II

THE DENIAL OF THE MOTHERS SECTION 388 PETITION

A. Additional Factual and Procedural Background.

Five days before the date then set for the section 366.26 hearing, the mother filed a section 388 petition. She sought either reunification services or the return of the children to her custody under a family maintenance plan. To show changed circumstances, she alleged: The mother . . . has completed her family reunification plan and has fully addressed all the issues that led to the removal of the minors from her custody. To show that the requested modification would be in the best interest of the children, she alleged: The mother has been consistently visiting the minors since their birth and can provide a loving and caring home for them. The minors have a significant bond and attachment with the mother that should be continued. Termination of parental rights would be detrimental to the minors. She included detailed and extensive attachments, including proof that she had successfully completed drug treatment.

The trial court set the mothers section 388 petition for hearing on the same date as the section 366.26 hearing, then continued both hearings to August 2006.

The evidence offered and admitted at the section 388 hearing consisted of the attachments to the mothers petition, the Departments written response, and the oral testimony of the mother and the social worker. We limit our consideration to this evidence, which showed the following.

The mother had been using marijuana for nine years and methamphetamine for five years. She had used drugs while pregnant with each of her five children.

In December 2005, however, the mother had enrolled in a drug treatment program. She had completed it in May 2006. Since then, she had been in an aftercare program, ending two weeks before the hearing. She had been drug tested randomly about twice a month; all of her tests had been negative. She had also been attending AA/NA meetings. She testified that she had not used any controlled substances for over seven months; this was the longest she had gone without using drugs since she first started.

In addition, the mother had completed a 40-hour parenting program, a basic life skills class, and a class in caring for your baby at home. (Capitalization omitted.) She had been employed full time for five months at a gas station. She had obtained a one-bedroom apartment.

Meanwhile, in January 2006, the children had been released from the hospital and placed with the prospective adoptive parents. The prospective adoptive parents had begun visiting them even before they were released from the hospital and had learned how to care for their special needs. Michael, for example, needed an apnea monitor.

In the opinion of the social worker, the prospective adoptive parents were the parental figures in these childrens lives. The children were attached to them. She conceded, however, that children under eight months old who must be removed from their parents custody fare well, most of the time . . . .

In May 2006, the parents had gotten married. They had been visiting the children for one hour a week. During visits, they would spend time with [the children] and . . . feed them if theyre hungry and change them if they need to be changed, and . . . play with them and read them books. The mother believed there was a bond between her and the children; she explained: I cared for them there in my stomach and . . . when I see them, I know that they know my voice, and . . . when I talk, I know that they respond to me and I can just feel the bond. When . . . they go to sleep with us, I know theres a bond by just that comfort that they feel from us.

The social worker, on the other hand, although she saw no problem with the interaction between the children and the natural parents, did not consider them to have any bond or attachment. She added, I dont believe . . . a bond can be created in one hour a week . . . .

B. Analysis.

Under section 388, a person with an interest in a dependent child may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the childs best interest. [Citations.] (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established. [Citation.] (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)  . . . The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, original quotation marks corrected, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

Here, the juvenile court found a substantial risk of relapse . . . . It also agreed with the social worker that the mother did not have a bond with the children. On the other hand, as the mother expressly concedes,  . . . Jeanna and Michael were bonded to their caretakers. Thus, the social workers testimony put it in a nutshell: [T]he children have, for all their life at this point, theyve been nurtured and cared for by [the prospective adoptive parents]. That is the family that they have bonded to. [T]heir [m]other is a recovering drug addict with a long history of abuse. [S]hes clean right now, but I dont believe shes had enough history at this point to say that shes really kicked the habit. So I dont see how its in the best interest of the children to up root [sic] them from the stability and care that they have now and take a chance on their mother.

The juvenile court reasonably could find that the mother had a substantial risk of relapse. Indeed, she acknowledges that she must fight the battle one day at a time. [R]elapses are all too common for a recovering drug user. It is the nature of addiction that one must be clean for a much longer period . . . to show real reform. [Citation.] (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days], quoting In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [120 days].) Cliffton B. held that even full compliance with a treatment plan, plus seven months of clean drug tests, does not necessarily constitute sufficiently changed circumstances. (Cliffton B., at pp. 423-424.) Here, the social worker testified that, in her opinion, the mother would have to stay sober for at least a year.

The mother argues that the children were, in fact, bonded to her. The juvenile court found otherwise, however, and that finding is supported by substantial evidence. She also argues that the childrens bonding to the prospective adoptive parents should not be dispositive, because they were very young and hence still able to become bonded to her. This ignores the obvious question ‑‑ how would this be in their best interest? As the juvenile court noted, [t]he only thing that shows it would be in the best interest of the child is the assumption . . . that return to the home of origin is always and necessarily in the childs best interest. However, [t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388. (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) To the contrary, [a]fter the termination of reunification services, . . .  . . . there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] . . .  [Citation.] (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505, quoting In re Stephanie M., supra, 7 Cal.4th at p. 317, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Here, the juvenile court was not required to find that the mother had rebutted this presumption.

We therefore conclude that the juvenile court properly denied the mothers section 388 petition.

III

THE DENIAL OF THE FATHERS SECTION 388 PETITION

A. Additional Factual and Procedural Background.

On June 26, 2006 ‑‑ five days after the mother filed her section 388 petition, and the date then set for the section 366.26 hearing ‑‑ the father filed two section 388 petitions (one for each child). He requested reunification services. To show changed circumstances, he alleged: Father has continued to attend his substance abuse program and make progress . . . . Father has tested negative on his drug tests . . . . To show that the requested modification would be in the best interest of the children, he alleged: Petitioner is the minors father and the minor would benefit from being raised by the natural parents. Father has visited with the minor and the minor has begun to recognize and bond with the father. He attached a drug treatment progress report dated May 23, 2006, drug test results from April 11 through May 31, 2006, and AA/NA attendance records from April 30 through June 16, 2006. The juvenile court denied the petitions without a hearing.

On August 10, 2006, the juvenile court denied the mothers section 388 petition and terminated parental rights.

Also on August 10, 2006, the father filed a notice of appeal, stating that the appeal was from the following orders:

August 10, 2006: Termination of parental rights[.]

August 10, 2006: Implementation of permanent plan of adoption[.]

On August 23, 2006, the father filed an amended notice of appeal. This notice stated that the appeal was from the judgment terminating parental rights, and all other orders made at a hearing pursuant to Welf. & Inst. Code,  366.26. It further stated that it was intended to encompass the denial of [a] 388 petition . . . on the same day as the order terminating parental rights.

B. Notice of Appeal.

Preliminarily, the Department (joined by the children) contends that the father failed to file a timely notice of appeal from the order denying his section 388 petition.

In general, an order denying a section 388 petition is appealable as an order after judgment. (Welf. & Inst. Code,  395; In re Shirley K., supra, 140 Cal.App.4th at p. 71; In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703.) In a juvenile dependency case, subject to exceptions not applicable here, a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. (Cal. Rules of Court, former rule 37(d)(1) (see now rule 8.400(d)(1)).) Here, the fathers notice of appeal was filed within 60 days after the order denying his section 388 petition. Thus, to the extent that his appeal was taken from that order, it was timely.

The Departments real argument is that the notice of appeal failed to specify that the appeal was taken from that order. Actually, both notices of appeal failed to specify the denial of the fathers section 388 petition on June 26, 2006. However, [t]he notice of appeal must be liberally construed . . . . (Cal. Rules of Court, former rule 37(c)(2) (see now rule 8.400(c)(2)); accord, Cal. Rules of Court, former rule 1(a)(2) (see now rule 8.00(a)(2)).) [A]n appeal will not be dismissed because of a misdescription of the judgment or order to which it relates, unless it appears that the respondent has been misled by such misdescription. [Citations.] (Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737, 739-740.)

For example, in In re Jeremy W. (1992) 3 Cal.App.4th 1407, the mother filed a notice of appeal, specifying an order entered on January 7, 1991, terminating parental rights. She did not specify the earlier order entered on January 4, 1991, denying her a hearing on her section 388 petition. The appellate court nevertheless construed the appeal as being from the denial of the section 388 petition. (Jeremy W., at p. 1413, fn. 9.)

More recently, in In re Madison W. (2006) 141 Cal.App.4th 1447, the mother filed a notice of appeal, specifying an order entered on January 13, 2006, terminating parental rights. (Id. at pp. 1449-1450.) Her opening brief, however, challenged an order entered previously, on January 10, 2006, denying her section 388 petition. (Madison W., at p. 1450.) The appellate court held that: [L]iberal construction of a parents notice of appeal from an order terminating parental rights encompasses the denial of the parents section 388 petition provided the trial court issued its denial during the 60-day period prior to the parents filing the notice of appeal. (Id. at p. 1449.)

The Department does not suggest any meaningful way of distinguishing this case from Jeremy W. or Madison W.; neither does it suggest that it was misled by the fathers notice of appeal. We therefore must construe the fathers notice of appeal as being from the order denying his section 388 petition.

C. The Merits of the Denial.

[T]he court may summarily deny [a section 388 petition] if [it] fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child. [Citation.] (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189, quoting  388, subd. (c).) The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.] (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) [C]onclusory claims are insufficient to require a hearing. Specific descriptions of the evidence constituting changed circumstances is required. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.) We review the juvenile courts summary denial of a section 388 petition for abuse of discretion. [Citation.] (In re Aaron R., supra, 130 Cal.App.4th at p. 705, quoting In re Anthony W. (2001) 87 Cal.App.4th 246, 250; accord, In re Angel B. (2002) 97 Cal.App.4th 454, 460.)

The father offered to show that he had been in drug treatment for about two months; he had not completed it, much less shown sustained sobriety. Because recovery is a long, uphill battle, the juvenile court was not required to view this, even if proven at a hearing, as a significantly changed circumstance. Similarly, the father offered to show that the children had begun to bond with him. He failed to explain why it would be in their interest to form such a bond, particularly as this would mean disrupting their opportunity for permanence with the prospective adoptive parents. As we already noted (see part II, ante), the mere fact that he was their biological parent was not evidence that it would be in their best interest to be in his custody.

The father complains that the mothers section 388 petition was set for hearing, [y]et for inexplicable reasons, [his] petition, which was nearly identical to [the] mother[]s, was denied without a hearing. The fathers section 388 petition was not nearly identical. The mother alleged far more than just two months worth of drug treatment. She alleged that she had been in drug treatment since December 2005, i.e., almost immediately after the children were born, that she had completed the program, and that she would soon be completing her aftercare. Moreover, the mother alleged that the children already had a significant bond and attachment with [her] that should be continued. Termination of parental rights would be detrimental to the minors. The father alleged no such thing.

We therefore conclude that the juvenile court did not err by summarily denying the fathers section 388 petition.

IV

THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

The mother also contends that the juvenile court erred by finding that the beneficial parental relationship exception did not apply. This may be the most unsuccessfully litigated issue in the history of law. . . . And it is almost always a loser. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Although it can have merit in an appropriate case (e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689-691), in this case, it is without merit.

A. Additional Factual and Procedural Background.

The parties stipulated that all of the evidence admitted at the hearing on the mothers section 388 petition would also be deemed admitted at the section 366.26 hearing.

In addition, the social worker reported that: Both [prospective adoptive parents] . . . are deeply attached to the twins and have bonded with them. . . . They have provided . . . truly superior care for the twins. . . .  They share a close, loving bond with their own children that is impressive to observe. . . . They are excellent parents and will provide the same loving care for Jeanna and Michael . . . .

B. Analysis.

In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (Welf. & Inst. Code,  366.26, subds. (b)(1), (c)(1).) This rule, however, is subject to six statutory exceptions. (Id., subd. (c)(1)(A)‑(c)(1)(F).) The only one relevant here is the beneficial parental relationship exception. (Id.,subd. (c)(1)(A).) It applies when [t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Ibid.)

We have interpreted the phrase benefit from continuing the relationship to refer to a parent-child relationship that promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [Citations.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

[T]he parent must show more than frequent and loving contact or pleasant visits. [Citation.] Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] [Citation.] The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.] (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.] (In re Angel B., supra, 97 Cal.App.4th at p. 468.)

We must affirm a trial courts rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.] (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) Because the parents had the burden of proof, we must affirm unless there was indisputable evidence [in their favor] â€‘‑ evidence no reasonable trier of fact could have rejected . . . . (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)

Here, while the mother clearly wanted to believe that she had a bond with the children, there was scant evidence that she did.^[2] She visited them for one hour a week. In that brief time, she fed them, changed them, played with them and read to them; sometimes they fell asleep. This rises, at best, to the level of a friendly visitor relationship, but it does not establish a parental one. The evidence is uncontradicted that it was the prospective adoptive parents who played the parental role in the twins life, and had done so since they were born. There was absolutely no evidence that the twins would be harmed ‑‑ much less greatly (see In re Angel B., supra, 97 Cal.App.4th at p. 466) ‑‑ by severing the natural parent-child relationship.

V

ICWA NOTICE

The mother contends that the Department failed to comply with the notice requirements of the ICWA.

A. Additional Factual and Procedural Background.

The mother told the social worker that she had been raised by her grandmother, Cassie.

At a prejurisdictional hearing, the mothers mother appeared and identified herself as Corina C.^[3] A cousin, M.G., also appeared. This discussion ensued:

THE COURT: Do you have Indian heritage?

MS. G[.]: We all do.

THE COURT: You show it the most.

MS. G[.]: Theres no documentation, but Im sure somewhere along the line.

THE COURT: No doubt in my mind. . . . [] . . . []

MS. G[.]: . . . [] Her mother comes from [the] Morongo tribe.

THE COURT: Have to give the Morongo Indians a letter.

MS. G[.]: I believe shes registered tribal blood.

THE COURT: Whats her name?

MS. G[.]: Casey.

THE COURT: Casey.

MS. G[.]: Maiden [M.], I believe.

The Department sent form JV‑135 to the Morongo Band of Mission Indians and to the BIA. However, the form stated that the name of the maternal grandmother was unknown. Also, it listed the name of the maternal great-grandmother as [M.] Cassey. The Department received return receipts from both the Tribe and the BIA but did not receive any responses.

Later, in connection with the mothers section 388 petition, she submitted a declaration in which she referred to her [g]randmother Casie [M.] R[.]

B. Analysis.

Under the ICWA, in light of the information that the mothers grandmother was a registered Morongo Indian, the Department was required to give notice of the proceedings to the Morongo Band of Cahuilla Mission Indians. (25 U.S.C.  1912(a); 25 C.F.R. 23.11(a); Cal. Rules of Court, former rule 1439(f) (see now rule 5.664(f)).) The Department does not argue otherwise. It merely contends that it substantially complied with the applicable notice requirements.

[O]ne of the purposes of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an Indian child. [Citation.] (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) [T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian childs direct lineal ancestors. [Citation.] [Citation.] (In re K.W. (2006) 144 Cal.App.4th 1342, 1358, quoting In re Karla C. (2003) 113 Cal.App.4th 166, 175, quoting 25 C.F.R.  23.11(b).) Thus, the notice must include the following information, if known: names . . . , and current and former addresses of the Indian childs biological mother, biological father, maternal and paternal grandparents and great grandparents . . . , including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. (25 C.F.R. 23.11(d)(3).)

Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.] (In re Christopher I. (2003) 106 Cal.App. 4th 533, 566; accord, In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1422; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 237 [Fourth Dist., Div. Two].) However, [t]he notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. [Citation.] (In re K.W., supra, 144 Cal.App.4th at p. 1356.) Accordingly, substantial compliance requires the notice to include sufficient information ‑‑ at least to the extent that it is both available and otherwise required by law ‑‑ to give the tribe a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA. [Citation.] (In re Louis S. (2004) 117 Cal.App.4th 622, 629; accord, In re Karla C., supra, 113 Cal.App.4th at p. 178.)

Here, the mothers mothers name was hardly unknown. She appeared at virtually every hearing; the social worker had talked to her about whether she or some other relative might accept placement. There can be no excuse for completely omitting her name.

This mistake might arguably have been harmless, if the notice had included sufficient information about the mothers grandmother. After all, she was the one who allegedly was a registered member of the tribe. The record shows that her maiden name was Casie (or Casey, or Cassie) M. Listing her under the erroneous name [M.] Cassey, while failing to list her married name(s), birth date, place of birth, or place of death, was insufficient to enable a tribal clerk to determine her membership status. (See In re Louis S., supra, 117 Cal.App.4th at p. 631 [notice contained no information about mothers grandmother; mothers first name and mothers mothers last name were misspelled].) The mother had been raised by her grandmother; presumably she could have supplied some of this information. Evidently, however, the Department did not ask.

We therefore conclude that the notice given was not in even substantial compliance with the ICWA. Because we have not found any other error, the appropriate disposition is a limited remand for the purpose of complying with the ICWA. (In re Terrance B. (2006) 144 Cal.App.4th 965, 971-975; In re Francisco W. (2006) 139 Cal.App.4th 695, 704-710; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343 [Fourth Dist., Div. Two].)

VI

DISPOSITION

The orders denying the section 388 petitions are affirmed. The order terminating parental rights is reversed. We direct a limited remand, as follows.

The juvenile court shall order the Department to give notice in compliance with the ICWA and related federal and state law.

Once the juvenile court finds that there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether the children are Indian children. (See Cal. Rules of Court, former rule 1439(g)(5) (see now rule 5.664(g)(5)).) If at any time within 60 days after notice has been given there is a determinative response that the children are or are not Indian children, the juvenile court shall find in accordance with the response. (Cal. Rules of Court, former rule 1439(g)(1), (4) (see now rule 5.664(g)(1), (4)).) If there is no such response, the juvenile court shall find that the children are not Indian children. (Cal. Rules of Court, former rule 1439(f)(6) (see now rule 5.664(f)(6)).)

If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.

If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with the ICWA and related federal and state law.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] A fourth older child was in the custody of the maternal grandmother, apparently as a result of an informal voluntary arrangement.

^[2] Her assertion that she had a bond with them because I cared for them there in my stomach is particularly unconvincing, as she did not bother to obtain any prenatal care; she did not even know that she was having twins.

^[3] Virtually every conceivable spelling of the maternal grandmothers first name can be found in the record, including Katrina, Karina, Corinna, and Corrina. We adopt the spelling that she used in a notarized declaration.