In re L.S.

Filed 10/16/06 In re L.S. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Kali T. appeals from juvenile court orders denying him status as a presumed father and terminating his parental rights. Appellant Rashell S. (Mother) appeals from the order terminating her parental rights. Both parties argue the court violated the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1900 et seq. We affirm the juvenile court orders pertaining to Appellant Kali T. (hereafter, Appellant). The order terminating Mother’s parental rights is vacated and remanded for compliance with the ICWA.

Background[1]

L.H. (Minor) was born in October 2004. A few days later, her mother Rashell S. (Mother) was placed on a psychiatric hold due to her disorganized thoughts and speech and her escalating paranoia. Mother’s relatives reported that she had been diagnosed with paranoid schizophrenia, and in recent years she had suffered severe psychotic breaks.

The social worker reported that there was no father identified on the birth certificate. Mother initially said the father was Kali T. (Appellant). When the Alameda County Children and Family Services Department (Department) contacted Appellant, he reacted belligerently to the Department’s intervention and accused the Department of racial bias and oppression. He insisted that he and Mother could care for the child and explained that Mother had difficulty communicating because she was a genius and an artist, but she could clearly express herself to him and he acted as her translator. Appellant said white and Asian doctors could not properly diagnose or treat Mother because she was black, and Mother could not take her prescribed medications because they were developed for white people.

Appellant and Mother had “been together” for five years but were not married. Mother’s relatives reported that she lived an isolated and transient life and was unduly influenced and controlled by Appellant. Mother’s maternal great aunt, S.R., said Appellant had two young children with another woman and he had served jail time for threatening to kidnap the children from the mother. Appellant refused to give the social worker information about any other children he might have or identifying information such as his birthdate. From January to June 2005, the Department was unable to obtain public assistance for Minor because it lacked information it needed to determine Appellant’s eligibility.

In November 2004, Mother identified the father as Dane or Dana H. The Department ran a criminal search on Dana H., whose physical description was similar to Appellant’s, and learned that he had been arrested for false imprisonment and for making a terrorist threat on an immediate family member and was convicted of false imprisonment in April 2004. Appellant eventually admitted that Dana H. was his legal name.

The Department filed a petition pursuant to Welfare and Institutions Code section 300.[2] The petition alleged that Mother’s mental health rendered her incapable of caring for Minor (§ 300, subd. (b)), that Appellant had not cooperated with the Department’s efforts to assess his ability to care for Minor and exhibited possible mental illness (§ 300, subd. (b)), and that Appellant left Minor without any provision for support. (§ 300, subd. (g)). The juvenile court detained Minor and the Department placed her with her maternal great aunt S.R., who had visited Minor in the hospital daily and had expressed an interest in adopting her.

Mother’s mental health deteriorated. On December 10, she sent S.R. an email suggesting suicidal ideation. At a December 17 visit with Minor, Mother was distraught and appeared to be decompensating. When the social worker asked Appellant about Mother’s condition, he insisted she was fine. Mother called S.R. for help on December 28, but Appellant intervened and the phone call was cut off. On December 29, police found Mother yelling, crying and screaming in the street. She was admitted to a psychiatric hospital and diagnosed with a psychotic disorder. She remained hospitalized until May 2005.

After several continuances, the jurisdictional hearing took place in January 2005. The court ordered Appellant to take a paternity test that day and to provide his date of birth and social security number to the Department.[3] At the dispositional hearing later in January, the court again ordered Appellant to obtain a paternity test. The court denied Appellant reunification services because he had not established a legal basis for receiving services, that is, he had not established presumed father status.[4] Thereafter, Appellant failed to appear for two scheduled paternity tests. In April, the Department filed a petition seeking to terminate Appellant’s visitation with Minor because he had not completed a paternity test. The court granted the petition in June.

The parents’ performance during supervised visitation was mixed. At times, Appellant acted appropriately toward Minor and appeared to be committed to parenting her. At other times, he arrived late for visits, inappropriately ignored Minor during visits, or reacted belligerently to suggestions or interventions by the social worker. Mother made some effort to care for Minor during the visits, changing her diaper, feeding her, singing to her and bringing her toys or clothes. However, she often showed disorganized speech during visits; at times did not know how to comfort Minor; attempted to nurse Minor after she almost certainly was no longer lactating; failed to respond to Minor’s cries; or simply failed to communicate with Minor. In December, Mother became very agitated at the end of a visit, shouted profanities at S.R. and banged on the car window next to Minor’s seat. A restraining order was issued to keep Mother away from the Minor and S.R. except during supervised visits. In January, Mother spent a visit questioning the social worker about the case and ended up following the social worker through the office, screaming obscenities and making threats.

Following her release from the hospital in May, Mother discontinued her medication and denied her diagnosis, claiming she merely suffered from postpartum depression. She refused to release her medical records to the Department or provide a copy of her psychological evaluation and her housing situation was unstable. Shortly before the six-month status review hearing, Mother found housing, obtained services, and complied with her prescribed medication.

At the six-month review hearing on July 13, 2005, the court found there was not a substantial probability Mother would reunite with Minor in the next six months and it terminated reunification services for Mother. The court reiterated its previous ruling that reunification services did not need to be provided to Appellant. Appellant challenged the order by writ petition, which this court summarily denied. (Kali T. v. Superior Court (Aug. 22, 2005) A110965.)

On October 31, 2005, Appellant filed a section 388 modification petition seeking presumed father status and custody of the Minor. (Appellant challenges the denial of this petition on appeal.) The changed circumstances he cited were that he had executed a Declaration of Paternity on October 13, he had a residence and regular income, and he had attended a parenting class. The court summarily denied the petition November 7 in a written order stating, “The petition fails to show how the requested modification will promote the best interest of the child.”

The section 366.26 selection and implementation hearing took place November 10, 2005. The court found by clear and convincing evidence the Minor was adoptable and terminated the parental rights of Mother, Dana H. aka Kali T. and “any unknown father.”

Discussion

I. Denial of Appellant’s Section 388 Petition

The only order properly before us on the presumed fatherhood issue is the juvenile court’s November 2005 denial of Appellant’s section 388 petition.[5] In this petition, Appellant sought presumed father status based on changed circumstances, primarily his execution of a Declaration of Paternity. If Appellant is attempting to appeal the January 2005 dispositional order denying him presumed father status, he may not because he forfeited any challenge to that order by failing to appeal it in a timely manner. (In re Cicely L., supra, 28 Cal.App.4th at p. 1705.)[6]

A. Standard of Review

Section 388 provides that “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction.” (§ 388, subd. (a).)

The juvenile court summarily denied Appellant’s petition without a hearing. We review that denial for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) To be entitled to a hearing, the petitioner must make a prima facie showing (1) of a genuine change of circumstances or new evidence, and (2) that the best interests of the child would be promoted by the proposed change of order. (Ibid.; § 388, subd. (c).) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 1432(a).[7]) “[I]f a parent makes a prima facie showing of a change of circumstance such that a proposed change in custody might be in the child’s best interest, then the juvenile court must hold a hearing.” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)

B. Appellant’s Claim to Presumed Father Status

To provide a legal context for Appellant’s claim of changed circumstances, we quote the Fourth District’s overview of the law on presumed father status, which appears in In re T.R. (2005) 132 Cal.App.4th 1202, 1208-1210: “Dependency law recognizes three types of fathers: presumed, alleged and biological. [Citations.] An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. [Citation.] A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the child's presumed father. [Citation.] A presumed father is one who meets one or more specified criteria listed in [Family Code,] section 7611 . . . “A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. [Citation.] ‘Presumed father status ranks highest.’ [Citation.] Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan. (Welf. & Inst. Code, §§ 317, subd. (a), 361.2, subd. (a), 361.5, subd. (a).) . . . One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement. [Citation.]“

C. Appellant Did Not Meet His Burden of Establishing Presumed Father Status

The trial court acted well within its discretion in denying Appellant’s petition without a hearing. At this stage of the proceedings the focus of the juvenile court is the best interests of the child. (In re Angel B., supra, 97 Cal.App.4th at p. 461.)

Appellant did not allege changed circumstances that would entitle him to presumed father status. Although he produced a voluntary Declaration of Paternity, such a declaration establishes paternity, the equivalent of biological fatherhood. (Fam. Code, § 7573.)[8] Biological fatherhood is not sufficient to establish presumed father status. “‘Presumed fatherhood, for purposes of dependency proceedings, denotes one who “promptly comes forward and demonstrates a full commitment to his parental responsibilities--emotional, financial, and otherwise[.]” ‘ [Citation.] A presumed ‘father's rights flow from his relationship (or attempted relationship) to the mother and/or child and not merely from his status as the biological father.’ [Citation.] The presumed father's commitment to the child is a key consideration. [Citation.]” (In re T.R., supra, 132 Cal.App.4th at p. 1210.)

Appellant did not demonstrate a full commitment to his parental responsibilities after Minor’s birth and during the reunification period. Appellant did not come forward promptly with a commitment to the Minor’s well-being. He consistently refused to provide the Department with identifying information necessary to access financial support for the child. He did not provide any financial support for Minor, who was supported by S.R. and public funds. Appellant’s refusal to provide accurate identification made it impossible to access his criminal record and demonstrate he would not pose a danger to the child; as eventually discovered, he had a history of arrest for threatening family members and a related conviction for false imprisonment. Appellant refused to take a paternity test to establish his biological fatherhood, despite the court’s unambiguous ruling that he must do so before he could receive reunification services and custody of Minor. Appellant’s explanation for the delay in executing a declaration of paternity was insufficient: neither a wrist injury nor incarceration would prevent a represented party from timely executing and filing the necessary paperwork. Further, Appellant continually minimized Mother’s mental health problems and discouraged her from obtaining treatment or taking her prescribed medication, conduct that endangered Minor’s safety if she were returned to Mother’s care, as Appellant urged. Representations in his section 388 petition that he had a residence and steady income enabling him to care for the Minor did not ameliorate these concerns.

Appellant thus failed to show that his changed circumstances supported a modification declaring him the presumed father and granting him reunification services and custody. Nor did he show that a modification was in the Minor’s best interests. Once reunification services were terminated for the parents, the focus of the dependency proceeding shifted from the parents’ interests to the child’s need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “[A] parent’s interest in the care, custody and companionship of the child is no longer paramount.” (In re Angel B., supra, 97 Cal.App.4th at p. 464.) Appellant’s conduct did not demonstrate a full commitment to his parental responsibilities for the Minor’s welfare, and his denial of Mother’s serious mental health problems posed a potential risk to the child. Here, Minor had been in S.R.’s custody since she was two weeks old, she was bonded to S.R., and she was doing well in her care. Focusing on the best interests of the child, the juvenile court acted well within its discretion in providing her an opportunity to establish a permanent, stable and loving home with S.R.

II. ICWA

Appellant and Mother contend the juvenile court did not comply with ICWA notice requirements and substantive requirements. We first set forth the ICWA requirements and relevant procedural background. We summarily reject the argument that Mother forfeited her claims of ICWA error by not raising them below. Finally, we analyze the ICWA notice and substantive requirements as they pertain to Mother’s appeal and then to the Appellant’s appeal.

A. ICWA Notice Requirements

“[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) The court and the county welfare department have “an affirmative and continuing duty to inquire whether a child for whom a petition . . . has been[] filed is or may be an Indian child.” (Rule 1439(d).) In dependency cases, the social worker must ask the parents if the child may be an Indian child or may have Indian ancestors, and at the parents’ first appearance in the proceedings, the parents must be ordered to complete a “Parental Notification of Indian Status” form. (Rule 1439(d)(2), (3).)

The notice required by the ICWA must contain enough information to provide meaningful notice. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) Federal regulations require notice to include “[a]ll names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, 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) (1994), emphasis added.) California courts enforce these requirements. (In re Karla C., at p. 175.)

The trial court must determine whether proper notice was given under the ICWA and whether the ICWA applies to the proceedings. (In re Asia L. (2003) 107 Cal.App.4th 498, 506.) We review the trial court’s findings for substantial evidence. (See In re Karla C., supra, 113 Cal.App.4th at pp. 178-179.)

B. Compliance with ICWA Notice Requirements

During the course of the proceedings, Mother identified Indian heritage through the Muscogee tribe and Appellant identified the Osage tribe. The Department sent notices to both tribes.

Early on in the proceedings, the Department sent ICWA notice to the Osage tribe and the Bureau of Indian Affairs.[9] At the disposition hearing on January 20, 2005, the court adopted the recommendation of the Department that the ICWA did not apply to Minor “ until [Appellant] establishes paternity.”

At a June 2005 hearing, Mother testified that she was a member of the Muscogee Tribe in Oklahoma. Shortly after, on August 4, the Department sent ICWA notices to the Muskogee tribe, the Osage tribe, and the Bureau of Indian Affairs. The notices reported that a section 366.26 hearing had been scheduled for November 10, 2005. Mother was identified as a member of the Muscogee tribe and father as a member of the Osage tribe. The notices stated that the father had acknowledged his paternity. Critical to our review of notice is the fact that the pages of the form asking for information about Minor’s grandparents were left blank. Return receipts verified that both tribes and the BIA received the August and corrected September notices.

The Muscogee tribe, through whom the Mother claimed Indian heritage, informed the Department that Minor “cannot be traced in our tribal records” and therefore she “will not be considered an ‘Indian child’ in relationship to the Muscogee (Creek) Nation as defined in [ICWA] section 1903(4).” The tribe’s letter stated in bold print, “This determination is based on the information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination.” The Department reported to the court that the Muscogee tribe concluded that the minor was not eligible for enrollment.

The Osage tribe, through whom Appellant claimed Indian heritage, informed the Department that Minor was eligible for membership if her mother was Dana H. After the Department sought clarification, the tribe wrote that it was the father, Dana Harris, who had a “CDIB card with the Osage Tribe” and was listed on the Osage Tribal Census Roll. The Department reported to the court that Dana H. was an Osage tribe member, and concluded that, “While the alleged father has not taken a paternity test and has not established paternity of the minor, his membership with the Osage Tribe does not extend to the minor and therefore, the [ICWA] does not apply.”

At the section 366.26 hearing, Appellant argued the ICWA applied to the proceedings and the court was required to make the substantive findings required by the ICWA before it terminated Appellant’s parental rights. The juvenile court found that ICWA notice requirement had been satisfied. The court did not make any of the substantive findings that would have been required if the ICWA applied.

C. Mother Has Not Forfeited Her ICWA Claims

The Department argues Mother forfeited any challenge to orders based on defects in ICWA notice because she did not raise her challenge in the juvenile court. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) We disagree. A parent cannot forfeit a tribe’s right to adequate notice. (In re Nikki R. (2003) 106 Cal.App.4th 844, 849.)

D. Inadequacy of ICWA Notice as to Mother’s Indian Heritage

The ICWA notice sent to the Muscogee tribe failed to provide all the information the Department knew or reasonably could obtain about Mother’s possible Indian heritage. Specifically, the Department left blank the second and third pages of the Notice of Involuntary Child Custody Proceedings which provided spaces for information about Minor’s maternal grandparents. “[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.” (25 C.F.R. § 23.11(b) (1994).)

We agree with Mother that the Department had at its disposal significant resources to complete the additional information. As early as October 30, 2004, the maternal grandparents contacted the Department, providing their names, address, and telephone number. In April, 2005, the grandparents filed an application for de facto parental status. Days after the birth of the Minor, the Department was in regular contact with the maternal great aunt with whom the Minor was eventually placed.

The Department’s affirmative duty to inquire whether the minor might be an Indian child mandated, at a minimum, that it make some inquiry regarding the additional information required on the ICWA notice. (See rule 1439(d); In re D. T. (2003) 113 Cal.App.4th 1449, 1455 [notice inadequate because the agency failed to include information known to the social worker, such as the names of the minors’ grandparents].) There is no evidence in the record of the Department’s efforts, if any, to complete the form.

The Muscogee tribe stated that Minor could not be traced in the tribal records based on the information provided by the Department and that omitted family documentation could change that determination. As in In re D. T., the tribe was deprived of a meaningful opportunity to determine whether Minor was eligible for membership and the error was prejudicial. We will reverse termination of Mother’s parental rights and remand to the juvenile court with directions. (See In re D. T., supra, 113 Cal.App.4th at p. 1456.)[10]

E. Adequacy of ICWA Notice as to Appellant’s Indian Heritage

ICWA notice was adequate as to Appellant’s Indian heritage. The evidence establishes that the Osage tribe was properly notified that Minor might be eligible for membership in the tribe, that she was the subject of dependency proceedings, and that a section 366.26 hearing was scheduled for November 10, 2005. The tribe had the information it needed to determine Minor’s eligibility: the tribe was told that Dana H. had acknowledged paternity of the child, and the tribe confirmed that Dana H. was a tribe member. The tribe was on notice that this Indian child was subject to child custody proceedings and that the section 366.26 hearing would take place on November 10. The tribe chose not to intervene. There was no ICWA notice violation as to the Osage tribe.

F. Failure to Apply Substantive ICWA Standards Based on Appellant’s Possible Indian Heritage

Under the substantive provisions of the ICWA, the Indian child’s tribe has “a right to intervene at any point in the proceeding.” (25 U.S.C. § 1911(c ). Regardless of whether the tribe intervenes, if the ICWA applies, a court terminating parental rights must find “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful,” as well as make other findings required by title 25 United States Code section 1912. (25 U.S.C. § 1912(d), (f).)

These findings need only be made when an agency seeks to terminate parental rights to an “Indian child.” (25 U.S.C. § 1912(d), (f).) An Indian child is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4), emphasis added.) By the express terms of these statutes, the substantive requirements of the ICWA were triggered by Appellant’s Indian heritage only if Minor was his biological child. Neither Appellant nor any other party established Appellant’s paternity. The court ordered Appellant to take blood tests to establish his paternity on at least two occasions early in the proceedings. (Rule 1413(e)(1); Family Code, § 7550.) Appellant failed and refused to undergo paternity testing and did not timely challenge the order requiring paternity testing. Not until almost one year later did he sign a voluntary Declaration of Paternity, which was not properly filed.

III. Mother’s Remaining Issues

A. Beneficial Parental Relationship Exception

The beneficial parental relationship exception to termination of parental rights requires proof of more than a friendly visitor relationship between the minor and the parent; it requires a true parent-child relationship that “promote[s] the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents.” (§ 366.26, subd. (c)(1)(A); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) The juvenile court did not err by declining to apply the beneficial parental relationship exception to the termination of Mother’s parental rights. The social worker’s accounts of Mother’s visits with Minor disclosed minimal communication between Mother and the child; lack of responsiveness to the child’s needs; and evidence that the child did not turn to Mother for comfort or physical affection. In contrast, Minor’s bond with S.R., the prospective adoptive parent, was strong and Minor was doing well in her care.

B. Denial of Continuance

Mother requested a continuance of the section 366.26 hearing so that her treating psychiatrist could testify that she had kept her monthly appointments, appeared to be taking her medication, and her symptoms seemed to be under control. The juvenile court acted within its discretion in denying Mother’s last-minute request.

Mother argued the testimony was necessary to demonstrate she was fit to regain custody of Minor. That issue was not before the court at the section 366.26 hearing and Mother had not filed a section 388 petition seeking reinstatement of reunification services. Mother cited no exceptional circumstances that could support the motion. The cases she cited are readily distinguishable because they address the use of section 352 to extend the family reunification period beyond statutory time limits in exceptional cases. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1797-1798; In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1779.)

Disposition

The order terminating Mother’s parental rights is vacated, and the matter is remanded to the juvenile court with directions to order the social services agency to make proper inquiry and to comply with the notice provisions of the ICWA. If after proper inquiry and notice, the BIA or a tribe determines that the minors are Indian children as defined by the ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing with respect to Mother’s parental rights in conformity with all provisions of the ICWA. If, on the other hand, no response is received or the tribes and the BIA determine that the minors are not Indian children, all previous findings and orders shall be reinstated. In all other respects, the orders are affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] This court received written materials from Appellant and Mother. The papers are variously described by the parties as supplementary and opening briefs. However, both parties are represented by court-appointed counsel and may not submit supplemental briefing in propia persona. The evidence is disregarded because it is not part of the trial court record (Cal. Rules of Court, rule 5(b)); it is not a proper subject of judicial notice (Evid. Code, §§ 450-459); and appellants did not follow proper procedures to augment or correct the record (Cal. Rules of Court, rules 12, 22(a), 41).

[2] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[3] At a December 2005 hearing, Appellant, appearing pro se, avoided County Counsel’s examination about paternity by excusing himself to use the restroom and not returning.

[4] Appellant forfeited any challenge to the dispositional order by failing to appeal it in a timely manner. (In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705.)

[5] The Department argues Appellant’s appeal of the denial of his November section 388 petition should be dismissed because it could only be challenged by writ petition. We need not decide this issue. Even if Appellant could only challenge the denial of his section 388 petition by a writ petition, we would have the discretion to construe his appeal as a writ petition and we would exercise our discretion to do so. (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.)

[6] At the July 2005 hearing where the court set the section 366.26 hearing, the court simply reiterated its January ruling that Appellant was not entitled to reunification services as an alleged father and noted that Appellant still had not established his paternity, a finding Appellant does not contest.

[7] All rule references are to the California Rules of Court.

[8] In fact, a declaration of paternity establishes paternity only if it “has been filed with the Department of Child Support Services” (Fam. Code, § 7573), and nothing in the record indicates that Appellant’s declaration was filed.

[9] The record reflects that the Department sent notice to the Osage tribe and BIA in January 2005. There is no evidence that the tribe received this notice. As noted below, the notice was resent.

[10] Mother argues that if Appellant’s termination order is reversed, we must reverse the termination of her rights under rule 1463. No party has properly raised the argument that if we reverse the termination of Mother’s parental rights we must also reverse the termination of Appellant’s parental rights. We do not reverse the order terminating Appellant’s parental rights. Were we to reach the rule 1463 issue, we would follow the reasoning of Los Angeles County Dept. of Children and Fam. Services v. Superior Court (2000) 83 Cal.App.4th 947, 949: “[O]ne parent . . . cannot benefit from an error in terminating the other parent’s rights ‘so as to make into error an errorless termination of [his] parental rights.’ [Citation.]”