In re T.W.

Filed 9/19/07 In re T.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Christopher J. Sheldon, Judge. Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant C.C.

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant D.W.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for Minors.

I. INTRODUCTION

Appellants C.C. (Mother) and D.W. (Father) are the parents of a girl (Daughter), born in March 2000, and a boy (Son), born in April 2005. The parents appeal the juvenile courts orders terminating parental rights and placing the children for adoption. (Welf & Inst. Code,  366.26.)^[1] Mother also appeals the courts denial of her petition to modify a previous order terminating her reunification services and limiting her visits with the children to once per month, supervised. ( 388.)

Mother claims the juvenile court erred in summarily denying her section 388 petition, and that insufficient evidence supports the courts finding that the parental benefit exception to the adoption preference did not apply to her relationships with the children. ( 366.26, subd. (c)(1)(A).) Mother also joins Fathers claims to the extent they may benefit her. (Cal. Rules of Court, rule 8.200(a)(5).)^[2]

Father claims the juvenile court was without jurisdiction to terminate parental rights because insufficient notice of the proceedings was given under the Indian Child Welfare Act (ICWA). (25 U.S.C.A.  1911 et seq.) Father also claims that insufficient evidence supports the courts finding that the parental benefit exception did not apply to his relationships with the children. ( 366.26, subd. (c)(1)(A).)

The Riverside County Department of Public Social Services (DPSS) disputes the parents claims. The minors join DPSSs brief, except for the issue of compliance with the notice requirements of the ICWA. The minors counsel notes it appears that the ICWA notice omitted information on enrolled maternal relatives, and without further inquiry the juvenile court found the ICWA did not apply. Accordingly, the minors join Fathers request to remand the matter for further proceedings in accordance with the notice requirements of the ICWA.

We disagree with Father, Mother, and the minors counsel that the matter must be remanded with directions to comply with the notice requirements of the ICWA. As we explain, it is not reasonably probable that any of the complained of deficiencies in the ICWA notices affected any tribes ability to determine whether the children were Indian children. We also find the parents other claims without merit, and affirm the orders.

II. FACTUAL AND PROCEDURAL BACKGROUND

On October 29, 2004, DPSS received a confidential report that Mother had been generally neglecting Daughter. Mother was homeless, 12 weeks pregnant with her second child, Son, and had recently been arrested for possession of methamphetamine and associated drug paraphernalia. Daughter was living in the home of the maternal grandparents, and had been in their care since birth due to Mothers substance abuse problem.

Prior to the October 29 report, Mother had been temporarily living with the maternal grandparents. Earlier during October, Mother claimed her father attempted to strangle her. Mothers father explained he was not choking Mother but was attempting to physically restrain her because she was under the influence of drugs. Following this incident, Mother was involuntarily hospitalized under section 5150 because she was making suicidal statements, and maternal grandfather obtained a restraining order against her. The maternal grandparents were pursuing legal guardianship of Daughter through the probate court, but were in need of legal assistance to complete the paperwork.

Mothers brother told DPSS that Mother would attempt to fabricate allegations against the maternal grandparents because she suffered from mental health problems compounded by her use of methamphetamines. DPSS located Mother near the maternal grandparents home. Mother was living in her car. Mother was uncooperative, refused to drug test, and stated DPSS had no business investigating this case because Daughter was safe living with the maternal grandparents. Mother denied that her second child, Son, would be born with drugs in his system.

Mother had a prior history with DPSS. In July 2004, DPSS conducted a child abuse investigation involving similar circumstances in which Mother was unable to care for Daughter due to Mothers substance abuse and mental health problems. Mother was homeless at this time, and threatened to take Daughter away from the maternal grandparents. The maternal grandfather allegedly beat up Mother in the presence of Daughter. The referral was closed after Mother agreed to allow the maternal grandparents to pursue legal guardianship of Daughter through the probate court.

On December 13, the social worker interviewed Daughter, then four years old, at Daughters preschool. Daughter confirmed that Mother had dropped her off at school that day, and that she had previously spent the night with Mother in Mothers car. On December 14, the social worker told the maternal grandparents that DPSS would pursue efforts to place Daughter with Father unless the maternal grandparents pursued the legal guardianship in a timely manner.

During the afternoon of December 14, DPSS received another confidential report that Mother was hospitalized due to complaints of stomach pains. Mother was then 20 weeks pregnant with Son, and admitted to habitual marijuana use due to an eating disorder. Mother became argumentative with hospital staff and tore up her paperwork for admittance. Previously, Mother failed to follow through with hospital referrals for outpatient mental health services.

On December 15, DPSS took Daughter into protective custody and placed her in the care of Father. The social worker was concerned that the maternal grandparents were allowing Mother into their home despite the restraining order, and were allowing Mother to take Daughter in her car while she was under the influence of drugs. When Mother was informed of the removal and pending detention hearing, she reacted in a fit of rage and had to be restrained by five hospital security officers. Mother was on probation due to her October 2004 arrest for possession of controlled substances and drug paraphernalia.

On December 17, DPSS filed a petition on behalf of Daughter pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). At the detention hearing, the court ordered Daughter placed in Fathers care. Mother was granted supervised visitation upon her assessment for an appropriate substance abuse program and clean drug tests.

In a January 7, 2005, jurisdictional and dispositional report, DPSS recommended that Daughter be placed with Father under a family maintenance plan. Mother was jailed on December 20 for violating the terms of her probation. She had an unresolved substance abuse problem and a criminal record related to her drug use, and denied she needed treatment. She had also been diagnosed with bipolar disorder and had failed to comply with treatment recommendations.

Mother claimed her father had been emotionally and physically abusive to her all her life. She acknowledged she needed counseling due to the abuse she suffered as a child, and she was supportive of Daughter being in Fathers care. Father was willing and eager to have custody of Daughter and willing to participate in services as directed by DPSS.

At the January 12 jurisdictional and dispositional hearing, the parents submitted on the reports, and the juvenile court found the petition allegations true. Daughter was declared a dependent and maintained in Fathers custody. Mother was granted reunification services and supervised visitation upon the condition she attend an inpatient substance abuse program and test negative for drugs. Father was to supervise the visitation. Mothers case plan required her to obtain and maintain a stable and suitable residence, participate and complete a domestic violence program, general counseling, a parenting program, and an inpatient substance abuse program, and to randomly drug test.

In a June 24, 2005, review report, DPSS recommended that Daughter have overnight and weekend visits with Mother with the goal of returning her to Mothers care. Mother had entered an inpatient substance abuse treatment program in January 2005 and completed the program on May 6. In April, she gave birth to Son and was living with him at a sober living home. She had been testing negative for drugs and alcohol, and was attending 12-step meetings. She completed a number of additional programs while she was attending the inpatient program, including a parenting class and an anger management class. She had recently made an appointment for counseling and for a medication evaluation for her bipolar disorder. Mother had been having weekly visits with Daughter, the visits went well, and Mother and Daughter appeared to have a good relationship. Daughter wanted to return to Mothers care. Father supported returning Daughter to Mothers care, but he did not want Daughter to live with Mother in the sober living home. Mother was looking for an apartment for herself and the two children.

On July 6, 2005, DPSS filed a section 387 supplemental petition seeking to remove Daughter from Fathers care and place her with Mother. DPSS discovered that Father had not been supervising visits, and was allowing Mother to have unsupervised overnight and weekend visits with Daughter. Daughter informed DPSS she wanted to live with Mother, and was placed with Mother on July 1. In one incident, when Mother attempted to return Daughter to Fathers home, Daughter began crying and screaming. Father told Mother to pack Daughters things and take her; he did not want Daughter if she did not want to live with him. Father had testified positive for marijuana, and was in the process of moving in with his girlfriend. At a July 7 detention hearing on the supplemental petition, the court ordered Daughter removed from Fathers care. On the same day, the court held the six-month review hearing, continued Daughter as a dependent, and ordered her placed with Mother under a family maintenance plan.

Thereafter, Mother took a turn for the worse. On December 9, 2005, DPSS filed a petition on behalf of Son, then age seven months, under section 300, subdivision (b). On the same date, DPSS filed a second supplemental petition ( 387) on behalf of Daughter. The children were taken into protective custody and placed in foster care.

According to the December 12 detention report, Mother was stressed out and unable to handle caring for the children. She had failed to drug test since August 2005, was not taking her prescribed medication for her bipolar disorder and depression, and was not participating in counseling or outpatient substance abuse treatment. Daughter reported that Mother had been abusing drugs with Mothers friends. Social workers found Mothers home cluttered and were barely able to enter the home. Mother denied abusing drugs and refused to drug test. She claimed she was in the process of cleaning the home. Father had not contacted the social worker for several months, and did not recognize Son as his child. A paternity test for son was pending.

According to the December 30, 2005, jurisdictional and dispositional report, Mother was minimizing her problems and denying that her actions affected her children. She was currently unemployed. Father was still unavailable to DPSS and had not participated in his case plan. At the jurisdictional hearing on January 4, 2006, the court sustained the allegations of the new and second supplemental petitions. Both parents were granted reunification services and supervised visitation.

In a June 16, 2006, review report, DPSS recommended terminating service to both parents and setting a section 366.26 hearing. A paternity test established that Son was Fathers child. The grandparents were denied placement due to confidential reasons. Mother was continuing to have substance abuse problems, and admitted she was addicted to methamphetamine. On several occasions through May 10, 2006, Mother failed to drug test. On June 6, she enrolled in a nine-to-eighteen-month residential treatment program at Prototypes designed for patients with co-occurring diagnoses, including bipolar disorder. Mother had been participating in weekly supervised visits with the children. DPSS recommended limiting Mothers visits to once per month, supervised.

On August 7, 2006, the juvenile court received a letter from Prototypes stating that Mother was in compliance with her treatment program and had permission to have the children live with her at Prototypes. At the review hearing on August 7, Mothers counsel asked that the children be returned to Mother under a family maintenance plan. The minors counsel opposed the request, noting that Prototypes had a lengthy waiting list for children to be placed at the facility, and Daughter and Son were stable and doing well in their foster care placement. DPSS noted Mother had only recently enrolled in Prototypes. The court adopted the findings listed in the June 16 review report, terminated reunification services, and set a section 366.26 hearing. Both parents visitation was limited to once per month, supervised.

Thereafter, Mother filed a writ petition under former rule 38.1(a), seeking to vacate the order terminating services and setting the section 366.26 hearing. In a nonpublished opinion, C.C. v. Superior Court of Riverside County (Oct. 5, 2006, E041070), this court denied Mothers petition, finding there was substantial evidence to support the findings of substantial risk of detriment to the children if they were returned to Mothers custody. Accordingly, the court did not err in terminating reunification services and setting a section 366.26 hearing. (Id. at pp. 14-15.)

On November 20, 2006, DPSS filed a section 366.26 report recommending termination of parental rights and placing the children for adoption. The children had been living with their foster parents since December 2005, and the foster parents wished to adopt the children. The children were attached to their foster parents and foster siblings, and had assimilated into the family. Although Mothers visits with the children had gone well, and Father had attended one recent visit, the foster parents did not wish to enter into a post-adoption contract with the parents because they felt their safety and that of the childrens cannot be protected. Accordingly, DPSS recommended ceasing contact between the children and their biological family. DPSS opined that, although Mother had remained in a substance abuse treatment facility during the last few months and remained sober, she would still never be able to provide the appropriate support and care to the children due to her mental health.

On November 22, Mother filed a section 388 petition requesting reinstatement of her reunification services, and either placing the children with her under family maintenance or liberalizing her visitation. Mother cited her record of consistent visitation, and provided documents supporting her claims of recent improvement in her substance abuse and mental health problems.

On February 14, 2007, the juvenile court held a hearing on the section 388 petition before proceeding with the section 366.26 hearing. In arguing the section 388 petition, Mothers counsel represented that Mother had entirely immersed herself in making herself a better person since June [2006]. The court denied the petition, terminated parental rights, and ordered the children placed for adoption. Both parents timely appealed.

III. DISCUSSION

A. Mothers Section 388 Petition Was Not Summarily DeniedWithout a Hearing

Mother claims the juvenile court erred in summarily denying her section 388 petition without a hearing. She claims this violated her procedural due process rights, and that the matter must therefore be reversed with directions to conduct a full hearing on the merits of the petition. The record, however, shows that Mothers petition was not summarily denied. Instead, the petition was denied following a full hearing on its merits. This claim is therefore without merit.

1. Applicable Law

Section 388 allows a parent or other person having an interest in a dependent child to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence. The petition must be verified and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction. ( 388.) (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 310 . . . ; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1412-1414 . . . .) There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 . . . .) (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) A petition for modification must be liberally construed in favor of its sufficiency. (Rule 5.570(a); In re Heather P. (1989) 209 Cal.App.3d 886, 891.)

2. Analysis

As noted, the record demonstrates that the juvenile court did not summarily deny Mothers petition without a hearing. Instead, it granted a hearing on the petition. The hearing was ultimately held on February 14, 2007, the same date as the section 366.26 hearing.

Mother acknowledges the juvenile court held a hearing on both selection and implementation and the section 388 petition. But, she argues, the court only briefly heard argument from counsel for all parties and then denied [her] section 388 petition without holding an evidentiary hearing. (Italics added.) Thus, Mother appears to be drawing a distinction between a hearing and an evidentiary hearing. Alternatively, she appears to be suggesting that the juvenile court refused to consider additional evidence in support of her petitionthat is, evidence other than the evidence included in her petition.

These claims are without merit, because there is no indication that the juvenile court refused to consider any additional evidence on Mothers petition at the hearing on the petition. To the contrary, at the February 14 hearing, Mothers counsel proffered some updated information from Prototypes to supplement [Mothers section] 388 motion[], and another letter . . . from a counselor at Prototypes stating that [Mother] has not been prescribed any psychiatric medication while at Prototypes in this matter. Mothers counsel then asked the court to consider the petition and argued it had merit. The court denied the petition after hearing argument from Father, the minors counsel, and DPSS. At no time did Mothers counsel ask the court to hear any live testimony, allow Mother to cross-examine any witnesses, or consider any other evidence.

Mother points out that, at the close of the February 14 hearing, the juvenile court denied her request to address the court. This does not indicate that the court refused to hear her testimony or consider any other evidence. Again, Mothers counsel had every opportunity to proffer her testimony and any other evidence, but did not do so.

For the same reason, Mothers reliance on In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405 is misplaced. There, it was held that the juvenile court abused its discretion in refusing to hear mothers testimony or allow her to cross-examine other witnesses. The appellate court noted that former rule 1432(f), currently rule 5.570(h), provides for a live hearing on a section 388 petition if . . . there is a due process right to confront and cross-examine witnesses. . . . Here, however, Mothers counsel did not proffer any live testimony and did not seek to cross-examine any witnesses. There is therefore no merit to Mothers claim that the hearing did not comply with rule 5.570(h)(2)(B) (hearing must be conducted as a disposition hearing under rules 5.690 and 5.695 if there is a due process right to confront and cross-examine witnesses).

In sum, the juvenile court did not deny Mothers petition without a hearing. The court held a full evidentiary hearing on the petition, and Mother had every opportunity to present additional evidence at the hearing but did not do so.

B. Mothers Section 388 Petition Was Properly Denied on Its Merits

Mother does not argue that the juvenile court abused its discretion in denying her section 388 petition on its merits. However, in connection with her claim that her petition was erroneously denied without a hearing, she argues she met her greater evidentiary burden on the merits of her petition. We therefore address the juvenile courts denial of the petition on its merits.

1. Applicable Law

At a hearing on a section 388 petition, the moving party has the burden of showing by a preponderance of the evidence that (1) there is new evidence or a change of circumstances, and (2) the modification would serve the best interests of the child. ( 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Matthew P. (1999) 71 Cal.App.4th 841, 849.) On appeal, we will not disturb the juvenile courts ruling on a section 388 petition absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Here, we find no abuse of discretion.

2. Analysis

Regarding new evidence or changed circumstances, Mother demonstrated she was in compliance with her Prototypes treatment program, and that the Prototypes counselors supported her having extended visitation with her children and having the children live with her at the facility. She also showed she had recently completed a DUI program and a parenting class, and that she was participating in counseling and a 12-step course. She submitted records of clean weekly drug tests from June 29, 2006, through October 23, 2006.

As DPSS argues, however, Mother did not meet her burden of showing that her circumstances had changed. Before her services were terminated on August 7, 2006, and particularly during the earlier months of 2005, she completed many programs and participated in counseling. But by August 2005, she stopped participating in her case plan, was refusing to drug test, and, according to Daughter, was using drugs. By the time of the February 14, 2007, hearing, she was still undergoing treatment for her substance abuse problems, and she had only been participating in mental health counseling since January 2007.

Mother also failed to show that her requested relief, that is, reinstating her services and either liberalizing her visitation or allowing the children to be placed with her, would serve the childrens best interests. A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.] [C]hildhood does not wait for the parent to become adequate. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

Indeed, after reunification services have been terminated, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] (In re Stephanie M., supra, 7 Cal.4th at p. 317.) When, as here, the permanent plan is adoption, that presumption is even more difficult to overcome. [Citation.] (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448-449.)

As minors counsel pointed out at the hearing on February 14, 2007, both children were in need of permanency and stability. Granting Mothers petition would have meant delaying the implementation of the adoption plan for both children, based on the possibility that Mothers circumstances would change and she would reunify with the children at some point in the future. Mother had a difficult burden to meet at this late stage in the proceedings, and she did not meet that burden.

C. The Juvenile Court Properly Determined That the Parental Benefit Exception to the Adoption Preference Did Not Apply to Either Parent for Either Child

Mother and Father both claim that insufficient evidence supports the juvenile courts determination that the parental benefit exception to the adoption preference did not apply. ( 366.26, subd. (c)(1)(A).) We disagree.

1. Applicable Law

At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D., supra, 70 Cal.App.4th at p. 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the statutory exceptions set forth in section 366.26, subdivision (c)(1). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)

The parental benefit or beneficial relationship exception is set forth in section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies where the parent has maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. (In re Derek W. (1999) 73 Cal.App.4th 823, 826;  366.26, subd. (c)(1)(A).) The parent has the burden of proving that the exception applies. (In re Derek W., supra, at p. 826.) The parent must do more than demonstrate frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a parental role in the childs life. (Id. at p. 827.)

The parent must also show that his or her relationship with the child promotes the well-being of the child to such a degree as to outweighthe 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. (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)

Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

There must be a compelling reason for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a quintessentially discretionary determination. Thus, we review the juvenile courts determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . [Citations.] (Ibid.)

2. Analysis

Both parents argue that the benefits to the children of continuing contacts with the parents must be considered in light of the limited visitation the parents were permitted with the children during the time preceding the section 366.26 hearing. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537.) We agree. Indeed, day-to-day contact is not required for the parental benefit exception to apply. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Still, the parents were required to show that their visits, limited as they were, resulted in a significant, positive, emotional attachment from child to parent, and that their relationships with each child promote[d] 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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) Neither parent met this burden.

(a) Fathers Claim

Father did not avail himself of even his limited opportunities to visit the children. At the time of the section 366.26 hearing, he had only visited the children one time. He therefore failed to establish the first prong of the parental benefit exceptionmaintaining regular contact with the children. His argument that he cared for Daughter for a period of time while receiving family maintenance services and that, thereafter, he visited the children on their birthdays, does not amount to regular visitation and contact.

(b) Mothers Claim

Unlike Father, Mother regularly visited the children. Daughter remained attached to Mother, and on more than one occasion cried and begged to be allowed to live with Mother. Still, Mother did not show she occupied a parental role in either childs life, or that the benefits to either child of continuing a relationship with Mother outweighed the benefits either child would realize in a stable, adoptive home. The children were placed in the same foster home and had been living there for over one year prior to the section 366.26 hearing. Both children were attached to their prospective adoptive parents and had assimilated into the family. Son referred to his prospective adoptive parents as Mommy and Daddy. The juvenile court thus did not abuse its discretion in implicitly concluding that the parental benefit exception did not apply, and substantial evidence supports its conclusion.

D. Notice Was Properly Given Under the ICWA

Father claims DPSS failed to comply with the notice requirements of the ICWA and, therefore, the order terminating parental rights must be reversed. Mother and the minors join this contention. (Rule 8.200(a)(5).) We find it without merit.

As we explain, the complained of deficiencies are directed to DPSSs third set of ICWA notices that were mailed in November 2006. The complained of deficiencies in these notices are immaterial, because it is not reasonably probable that they affected any tribes investigation or ability to determine whether the children were Indian children.

1. The ICWA Notice Provisions

In general, the ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C.  1903(1), 1911(a)-(c), 1912-1921.) Indian child is defined as a child who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe . . . . (25 U.S.C.  1903(4).) Indian tribe is defined so as to include only federally recognized Indian tribes. (25 U.S.C.  1903(8).)

Concerning notice, the ICWA provides: [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 Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the [Bureau of Indian Affairs (BIA)] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or the [BIA] . . . . (25 U.S.C.  1912(a); see also 25 U.S.C.  1a, 1903(11).)

To enforce this notice provision, the ICWA further provides: Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian childs tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section[] . . . 1912 . . . of this title. (25 U.S.C.  1914.) (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.)

[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child. [Citation.] [Citation.] 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 [BIA]. [Citations.] (In re L.B. (2003) 110 Cal.App.4th 1420, 1424.)

The Code of Federal Regulations sets forth specific information that is to be provided to the tribes. (25 C.F.R.  23.11.) This includes a copy of the petition and, if available, the childs name, birth date and birthplace (city and state); all names known and current and former addresses of the childs biological mother, biological father, maternal and paternal grandparents and great-grandparents, including maiden, married, or former names and aliases, birth dates, and places of birth or death; and any other identifying information. (25 C.F.R.  23.11(d).) Proof of notice to the tribes, including copies of all notices sent and all return receipts and responses received, must be filed with the juvenile court. (Rule 5.664(f).)

2. Relevant Background

(a) The Initial Notice for Daughter

On January 4, 2005, shortly after Daughter was taken into protective custody and Mother was still pregnant with Son, Mother informed DPSS she believed she was half Indian. Mother said she had no idea what tribe and could not provide any identifying information regarding possible Indian heritage. On January 5, former form SOC 820 (Notice of Involuntary Child Custody Proceedings for an Indian Child) and a copy of the petition for Daughter, were mailed, by registered or certified mail, to the BIA and the Indian Child and Family Services. This notice did not contain any identifying information on any persons other than Mother and Father. It did not include the names or dates and places of birth of the maternal grandparents even though DPSS was in contact with them at this time.

On December 30, 2005, Mother told the social worker she was still unable to provide any information regarding her Indian heritage. She said, I am trying to find out that information as we speak. So I will have to get back to you on that. On May 3, 2006, Mother had completed research on her family heritage and she discovered that she might be Chitimacha, Coushatta, Jena Band of Choctaw, Tunica, Cherokee, Chicasaw, Creek, or Seminole Indian. Mother said that her Indian heritage was on her mothers side, and neither Mother nor the maternal grandmother were registered members of any tribe.

(b) The Second Set of Notices

On June 13, 2006, DPSS served form JV-135 (Notice of Involuntary Child Custody Proceedings / An Indian Child), one for Son^[3]and one for Daughter, by certified or registered mail, to the BIA, Indian Child and Family Services, and to the above listed tribes. These notices contained the names, dates, and places of birth of Mother, Father, and both maternal grandparents. However, the notices only listed one tribe, Cherokee, as the tribe or tribes for which Son and Daughter were reportedly eligible for enrollment. The notices also failed to contain Mothers birth date, even though that information was listed in the social workers report and was included in the initial January 5, 2005, notices. Fathers birth date and birth place were also excluded, but at this point there was no indication that the children had any Indian heritage on Fathers side.

In response to the notices, DPSS received a letter from the BIA indicating that the Muscogee (Creek) Nation, the Poarch Band of Creek Indians, and the Coushatta Indian Tribe had not been directly notified. DPSS also received letters from the Cherokee Center for Family Services (the Eastern Band of Cherokee Indians), the Cherokee Nation, the Mississippi Band of Choctaw Indians, and the Choctaw Nation of Oklahoma, indicating that, based on the information provided, the children were not eligible for enrollment in these tribes.

(c) The Third Set of Notices

On December 5, 2006, DPSS requested a continuance of the hearing on Mothers section 388 petition and the concurrently scheduled section 366.26 hearing, in order to provide proper ICWA noticing. The request was granted and the hearings were continued to February 14, 2007. At some point before December 5, Mother provided DPSS with identifying information on her maternal grandparents and great-grandparents, who were or may have been enrolled members of one or more indicated tribes. DPSS included this identifying information on the maternal relatives in new form JV-135, one for Son and one for Daughter. DPSS sent the new notices to each of the previously noticed tribes and several additional tribes mentioned by Mother.

The notices included Fathers date of birth but not his place of birth. In addition, the notices identified three separate persons as the maternal grandmother: (1) the actual maternal grandmother, (2) the maternal grandfather, and (2) the maternal great-grandmother. Also, two persons were identified as the maternal great-grandfather.

In response to the notices, DPSS received responses from tribes indicating that the children were ineligible for enrollment based on the information provided. Copies of the responses and return receipts were filed with the court. The proofs of service for the notices did not contain a mailing date; however, several of the responses and return receipts indicate that the notices were mailed in early November 2006. At the February 14 hearings, the court found that the ICWA notice had been properly given and that the ICWA did not apply.

3. Analysis

Father claims that the latest set of ICWA notices were fatally deficient because (1) they did not include his place of birth, (2) they stated that D.C., Sr. was the maternal grandmother rather than the maternal grandfather, and (3) the proofs of service were undated. None of these deficiencies are fatal to the notices.

First, DPSSs failure to date the proofs of service is immaterial. The ICWA requires actual notice to the tribes. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) And here, actual notice was given. The return receipts and responses from the tribes were filed with the court. These establish that the notices were sent in November 2006, well in advance of the February 14, 2007, section 366.26 hearing. (See also In re L.B., supra, 110 Cal.App.4th at pp. 1424-1425 [compliance with the ICWA deemed sufficient where no proof of service filed but responses were received from tribes, and parties did not argue there was insufficient evidence that the proper tribes were provided notice].)

The substantive deficiencies in the notices are also immaterial. Notice under the ICWA must, of course, contain enough information to constitute meaningful notice. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) Furthermore, [n]o judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. 6,  13; In re L.B., supra, 110 Cal.App.4th at p. 1426.) There is no miscarriage of justice unless it is reasonably probable that the error affected the outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Here, it is not reasonably probable that the notices failure to include fathers place of birth affected the tribes investigation, because there was never any indication that the children had any Indian heritage on Fathers side. Nor is it reasonably probable that the misidentification of any of the maternal relatives affected the outcome, because all of these persons were correctly identified as maternal relatives. The maternal grandmother, the maternal grandfather, and maternal great-grandmother were each identified as the maternal grandmother. In addition, two persons were identified as the maternal great-grandfather. According to Mother, any Indian heritage the children had emanated from the maternal grandmothers side. Thus, this misidentification of the capacities of some of the maternal relatives could not have affected the tribes investigations of the childrens ancestry. Presumably, the tribes conducted their investigations using all of the maternal relative identifying information, and which maternal relative was the maternal grandmother or grandfather, or which was the maternal great-grandfather, did not affect this investigation. It is not as though any maternal relative was misidentified as a paternal relative.

Finally, and as noted, minors counsel joins Fathers request to reverse the order terminating parental rights and remand the matter for further proceedings in accordance with the notice requirements of the ICWA, on the grounds [i]t appears that the ICWA notice[s] omitted information on enrolled maternal relatives. Minors counsel must be referring to the second set of ICWA notices that were mailed on June 13, 2006, not to the third and final set of notices that were mailed in November 2006. The June 13 notices contained no information on maternal relatives other than Mother and the maternal grandparents. But DPSS did not receive the additional information on the enrolled or possibly enrolled maternal relatives until after June 13, 2006, and included that information in the November 2006 notices.^[4]

Accordingly, we conclude that notices under the ICWA for each child were properly given well in advance of the February 14 section 366.26 hearing, and based on these notices, the juvenile court properly concluded that the ICWA did not apply

IV. DISPOSITION

The February 14, 2007, orders denying Mothers section 388 petition, terminating parental rights, and placing Son and Daughter for adoption are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Gaut

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] All further references to rules are to the California Rules of Court.

^[3] At this time, Son was also a dependent of the juvenile court.

^[4] The confusion on the part of minors counsel may stem from Mothers counsels statements at the February 14, 2007, hearing, to the effect that the most recent notices did not contain the identifying information on the other maternal relatives. It appears, however, Mothers counsel was mistakenly referring to the June 13, 2006, notices, rather than the November 2006 notices.