1

Filed 1/10/14 In re Elise W. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re Elise W., a Person Coming Under the 

Juvenile Court Law.

SONOMA COUNTY HUMAN 

SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

Danielle D.,

Defendant and Appellant.

 A136845

 (Sonoma County

 Super. Ct. No. 3718-DEP)

Danielle D. (Mother) appeals from an order terminating her parental rights to her 

daughter, Elise W. The court had previously ordered a bypass of reunification services in 

the case based on Mother’s failure to reunify with Elise’s older half-siblings. We 

affirmed that order on writ review. Mother argues the termination order should be 

reversed because (1) Elise’s father reported Indian ancestry and Indian Child Welfare Act 

(ICWA; 25 U.S.C. § 1901 et seq.) notice requirements were not satisfied; (2) Mother was 

denied a proper hearing on her request to represent herself at the contested termination 

hearing; (3) Mother’s petition for modification of the order bypassing services was 

improperly denied without a hearing; and (4) the trial court erred in ruling that the 

beneficial parental and sibling relationship exceptions to termination of parental rights 

did not apply. We conclude the trial court’s finding that the Sonoma County Human 

Services Department (Department) fulfilled ICWA notice requirements is not supported 
2

by substantial evidence and we order a limited remand to correct the error. In all other 

respects, we reject Mother’s arguments on appeal.

I. BACKGROUND

Even before Elise was born in 2011, Mother had a long history of substance abuse 

and domestic violence issues and had been the subject of multiple child welfare referrals 

involving Elise’s half-siblings, Adan (born in 2002) and Eden (born in 2004) (hereafter

Siblings). In January 2008, Mother and the Siblings were found living in a home with no 

heat or electricity and the children were hungry and cold; local police identified Mother 

as a known methamphetamine user. In May 2008, another domestic violence incident 

occurred between Mother and the Siblings’ father—at least the fourth such incident 

between the two—and Mother had alcohol on her breath at the time of the incident. In 

June 2008, Mother was found with Eric W. (Elise’s father; hereafter Eric), who was 

under an order to stay away from Mother because he had broken her jaw in a previous

domestic violence incident. In September 2008, the family home was found to be filthy 

and without edible food. An adult male, D.W., was living there with Mother and 

methamphetamine and marijuana pipes were openly displayed in the bedrooms. In 

December 2008, the home was again found to be filthy and unsafe. D.W. was again 

present, and he and Mother were both uncooperative with investigating officers, while 

another man in the home was arrested on outstanding warrants.

A. Siblings’ Dependency Case

In December 2008, the Department filed a juvenile dependency petition on behalf 

of the Siblings pursuant to Welfare and Institutions Code section 300.

1

The petition

alleged that Mother failed to provide the Siblings with adequate food, clothing, shelter or 

medical care, in part due to her substance abuse, and that Mother had a history of 

domestic violence that exposed the children to the risk of harm. At a January 2009 

 

1 All statutory references are to the Welfare and Institutions Code unless otherwise 

indicated.
3

jurisdiction and disposition hearing, the court sustained an amended petition, ordered the 

children removed, and granted reunification services to both parents.

During 2009, Mother completed an inpatient alcohol abuse treatment program, 

participated in therapy, and was positive and appropriate during visits with the Siblings. 

After successful overnight visits, the Siblings were placed with Mother on a trial home 

visit in November 2009. At a 12-month review hearing in December 2009, the court 

granted Mother an additional six months of reunification services and scheduled a status 

review hearing for February 2010.2 Mother made further progress and, at a March 2010 

status review hearing, the court formally returned the children to Mother’s care and 

granted Mother six months of family maintenance services.

In May 2010, Eric came to Mother’s home uninvited and intoxicated, stole money 

from Mother, tried to get her to drink vodka, threatened to kill her, punched her in the 

head, dragged her by the hair, and choked her to the point of her almost causing her to 

lose consciousness. Mother was able to get someone to take the children out of the home 

and call the police, and she cooperated with the police investigation and obtained a 

restraining order against Eric. In July 2010, Mother was found in her home with a man 

who had a known substance abuse problem and a criminal history, although Mother did 

not show signs of intoxication. In other respects, the Siblings’ stay in Mother’s care was 

going well. The children were happy and doing well developmentally, the home was 

usually clean and stocked with food, and Mother continued to test negative for drugs and 

alcohol and to participate in services. At a September 2010 hearing, the court extended 

Mother’s family maintenance services for an additional six months.

B. Birth of Elise

In January 2011, Mother gave birth to Elise. Eric was incarcerated for the 

May 2010 assault on Mother and was scheduled to be released in June. Mother said she 

did not want to resume her relationship with Eric, but she wanted him to have a 

relationship with Elise if he changed his lifestyle. In January 2011, Mother allowed the 

 

2

The Siblings’ father’s services were terminated.
4

Siblings’ father to stay overnight in her apartment, and he verbally and physically 

assaulted Mother while she was in bed with Eden. Mother agreed to limit her contact 

with him and to return to individual therapy. At a March 2011 status review hearing, the 

court granted Mother an additional six months of family maintenance services, but 

expressed concern about Mother’s ability to handle Eric’s possible demands to see Elise 

when he was released from custody.

In July 2011, Mother allowed Eric into her home following his release from prison

in violation of a restraining order. He was reincarcerated for violating the order and was 

scheduled to be released again in six months. That same month, Mother’s home was 

found to be filthy and unsafe and the children were left in the care of Jason J., a parolee 

with an outstanding arrest warrant who appeared to be under the influence of a drug, 

possibly methamphetamine. The following month Mother missed three drug tests. On 

August 15, she was found walking with her children and Jason J., who had alcohol on his 

breath and initially fled when he saw police. Mother also smelled of alcohol and had a 

backpack that contained a partially consumed 40-ounce beer. On August 19, Mother was 

pulled over for failing to stop at a stop sign. The officer discovered that Mother was 

driving with a suspended license and without insurance, and the inside of her car was 

filthy, foul-smelling and unsafe. All three children were in the car. Mother was arrested 

for felony child endangerment and violation of probation, and the children were taken 

into protective custody.

C. Dependency Petition for Elise and Bypass of Services

On August 24, 2011, the Department filed a juvenile dependency petition on 

behalf of Elise pursuant to section 300, subdivisions (b), (g), and (j). The petition alleged 

Mother’s substance abuse history and recent relapse, her domestic violence history, the 

circumstances of her August 19 arrest, Eric’s substance abuse and domestic violence 

history (including the May 2010 incident), the parents’ incarceration, and the sustained 

petitions and removal (but subsequent return) of the Siblings. A supplemental petition 

was also filed on behalf of the Siblings, and all of the children were removed from 

Mother’s care. Elise was placed in foster care and adjusted well to her placement, 
5

appearing happy and healthy. Mother minimized the allegations of the new petition, but 

her visits with Elise were appropriate and engaging and she was gracious toward the 

foster parent.

The Department recommended a bypass of services in Elise’s case for Mother.

3

 

The Department acknowledged that Mother had several strengths as a parent, but 

observed that she “continue[d] to bring people and situations into her children’s lives that 

jeopardize[d] their safety.” Despite years of services, four significant incidents in the 

previous nine months had forced the Department to question Mother’s judgment. 

“[Mother] has managed to raise two extremely resilient children and one very happy 

baby. But love and ingenuity are not enough to protect children. [Mother’s] long history 

of domestic violence and addiction has undoubtedly scarred her children and the 

Department can no longer stand by and allow it to happen.”

The Department also recommended a bypass of services for Eric, who had an 

extensive criminal history. Eric was incarcerated at San Quentin and scheduled to be 

released on December 2, 2011. He appeared in court with counsel on December 12 and 

requested paternity testing, which the court ordered.

At a January 17, 2012 contested disposition hearing, the focus was on whether 

Mother had made reasonable efforts to treat the problems that had led to the removal of 

the Siblings.4 (See § 361.5, subd. (b)(10).) After taking the matter under submission, the 

court announced its ruling on January 24, reconsidered the ruling sua sponte, and

announced a new ruling on February 7. The court declared Elise a dependent child, 

removed her from Mother’s custody, and ordered a bypass of services for both parents. 

Mother challenged the order by writ petition, which we denied. (Danielle D. v. Superior 

Court (May 21, 2012, A134645) [nonpub. opn.].)

 

3

In the Siblings’ case, the Agency recommended removal and termination of 

services for Mother. At a November 2011 hearing, the court removed the Siblings, 

terminated Mother’s services, and set a section 366.26 hearing on termination of parental 

rights for March 29, 2012.

4 As of January 17, 2012, Eric’s whereabouts were unknown.
6

Elise’s section 366.26 hearing was scheduled for June 7, 2012. In a May

section 366.26 report, the Department recommended termination of parental rights in 

Elise’s case.5 Elise was living in a foster home with the Siblings and had a positive 

relationship with them. She had a healthy attachment to the foster parents, who were 

planning to adopt her while maintaining the sibling relationship. Visits with Mother had 

been positive and appropriate, but the foster parents reported that Elise was showing 

signs of confusion about Mother’s role in her life. Adoption specialists who reviewed 

Elise’s case concluded that the benefits of maintaining Elise’s relationship with Mother 

did not outweigh the benefits of the permanency of adoption for Elise.

At the June 7, 2012 hearing, Eric was present and the parties had documentation of 

his biological paternity. Both parents requested a contested section 366.26 hearing, 

which was ultimately scheduled for September 18.

6

D. Section 388 Petition

On July 9, 2012, Mother filed a section 388 petition to modify the order bypassing 

services and setting the section 366.26 hearing. She asked that Elise be returned home 

with family maintenance services or that her visitation be increased and the 

section 366.26 hearing delayed or cancelled. In opposition to similar petitions filed in the 

Siblings’ case, the Department submitted two police reports, which disclosed the 

following. Mother reported to police a January 30–31, 2012 domestic violence incident 

perpetrated by Eric after he was released from custody. Eric approached Mother and 

asked to talk. Because she was afraid he would become violent if she refused, she agreed 

and walked with him away from Mother’s companions. As they approached a trailer, 

Eric grabbed Mother, held a screwdriver to her throat, dragged her under a canopy where 

the others could not see them, and urged her to go with him to a tent where he was 

 

5

In March 2012, the Department had recommended termination of parental rights 

and adoption as the permanent plan for the Siblings.

6 On September 18, 2012, Eric signed a statement regarding paternity 

acknowledging he was Elise’s father and the Department stipulated that he was Elise’s 

biological father.
7

staying. She stalled and apparently passed out. “Her next memory was waking up in 

[Eric’s] tent.” She tried to leave the tent, but Eric became mad and hit her hard in the 

stomach and chest, dragged her down by the hair, threatened to kill her, and put his hands 

around her throat. She begged him to let her go and he eventually released her, but he 

said if he saw her with another man he would slit their throats. Based on the report, Eric

was charged with kidnapping, false imprisonment, assault with a deadly weapon, 

domestic violence, and making criminal threats. About four months later, apparently on 

the very day Eric was released from custody following his arrest for the January incident, 

an officer saw Mother walking with Eric at about 11:00 p.m., and Eric was arrested for 

violating a restraining order.7

The section 388 petitions were discussed at a July 13, 2012 hearing and are

described in more detail post. After both sides were heard on the matter, the court denied 

a hearing on the petitions.

E. Section 366.26 Hearing

At Elise’s section 366.26 hearing on September 18, 2012, the testimony focused 

on whether the beneficial parental relationship exception to termination of parental rights 

applied. At the conclusion of the hearing, the court ruled that the beneficial parental 

relationship exception did not apply and terminated Mother’s parental rights.

II. DISCUSSION

A. ICWA Notice

Mother argues the trial court erred in finding that ICWA notice requirements were 

satisfied and that ICWA did not apply to Elise. We review such findings for substantial 

evidence. (In re J.T. (2007) 154 Cal.App.4th 986, 991.) We conclude the court’s ICWA 

findings are not supported by substantial evidence and we order a limited remand to 

resolve the error.

 

7

In her section 388 petition, Mother wrote, “I recently encountered [Eric] in 

Sebastopol and had a brief conversation to see if he was staying in town or not, so that I 

could determine whether to find another place to stay. He was taken into custody for 

violating the Criminal Protective Order.”
8

1. Factual Background

In its September 2011 jurisdiction and disposition report, the Department wrote 

that the ICWA does or may apply to Elise. Eric had reported that his father and 

grandfather were enrolled members of the Cherokee Nation. Eric had also provided the 

following family history: “[Eric] was born . . . in Philadelphia, Pennsylvania to 

Diane [F.] and Alfred [W.] His parents were married at the time of his birth [in 1977]; 

however, they divorced when [he] was about four years old. [He] has a younger brother 

who was born in 1979 and currently resides in Hampton, Connecticut. At the age of six 

or seven, [Eric] and his brother moved to Hampton, Connecticut with their mother who 

worked full-time as a hair dresser.” The Department also reported that Eric was 

incarcerated at San Quentin as of July 21, 2011, and was scheduled to be released on 

December 2, 2011.

On October 3, 2011, the Department sent ICWA notices to the Cherokee Nation in 

Tahlequah, Oklahoma, the United Keetoowah Band of Cherokee in Tahlequah, 

Oklahoma, the Eastern Band of Cherokee in Cherokee, North Carolina, the Bureau of 

Indian Affairs (BIA), the Secretary of the Interior, and the parents. The notices provided 

the name, birthdate and place of birth for Elise and Mother, the name and birthdate of 

Eric, the names and birth places (states only) of Eric’s father and grandfather, and some 

information about Mother’s parents and Eric’s mother and grandmother.8 The 

Department filed a copy of the notice in the trial court record. A photocopy of 

overlapping return receipts from the three tribes, BIA and Secretary of the Interior is 

included in the appellate record, but the photocopy does not clearly show signatures 

confirming receipt by the Cherokee Nation, United Keetoowah Band, or Secretary of the 

Interior. It is not clear whether the original return receipts or the same photocopy was 

filed in the trial court.

 

8

In September 2011, the Department had filed and mailed a different version of 

the ICWA Notice that apparently included some errors. When the Department sent the 

October notice, it told the tribes to disregard the earlier notice.
9

In the February 7, 2012 jurisdiction and disposition order (which included the 

order to bypass services), the court adopted an ICWA finding the Department had 

initially proposed in its September 2011 jurisdiction report: “There is currently 

insufficient information to determine if the minor may be an Indian child[.] [T]he parents 

are ordered to assist the Department in its investigation, and the Department will update 

the Court by the next hearing and seek the appropriate ICWA findings.”9

In its May 2012 section 366.26 report, the Department wrote: “On January 24, 

2012, the Court found that there was insufficient information to determine . . . if the 

minor may be an Indian child and requested that the parents assist the Department. The 

undersigned has reviewed the case file and has determined that the requested information 

has not been obtained. The Cherokee Nation has requested the maternal grandfather’s 

middle name and date of birth, and the paternal great grandmother’s maiden name, 

middle name, and date of birth. The undersigned has sent a written request for 

information to the mother and father and will provide[] the Cherokee Nation[] said 

information upon receipt.” “The undersigned” was Patricia Ramano, a social worker who 

was assigned to the case in March 2012, or earlier. The response from the Cherokee 

Nation is not in the record. In this report, the Department wrote that Eric’s whereabouts 

were unknown.

Eric was present at a June 7, 2012 hearing. A “court officer” informed the court, 

“I did note in the report, the social worker is very specific about some un[res]olved 

[ICWA] issues, specifically related to [Eric], [and] needing information about the 

paternal [grandparents] . . . . I did speak to [Eric] this morning. He said he did not have 

that information and the person that would have that information is his [m]other, 

Diane [F.] and he did provide a phone number for her. I would be talking to [the social 

worker] in an effort to obtain that information.”

At the September 2012 section 366.26 hearing, Ramano testified that she had 

received the name and number of Diane F. on June 7 and had “called her on several 

 

9

The same finding was in the superseded January 24, 2012 order.
10

occasions” left at least one message, but had not heard back from her. When later asked 

to specify how many times she had called Diane F., Ramano said, “I know I’ve called her 

at least a couple of times and left a message.”10 Ramano had also “sent letters to both 

[parents] requesting” the maternal grandfather’s middle name and date of birth, but never 

received the information. She testified that she let the Cherokee Nation know in late June 

that she was not able to get the information. When Mother’s counsel attempted to crossexamine the social worker about the notices sent to the tribes, the social worker was not 

able to answer because she did not have the notices with her and she had not personally 

sent out the notices, a task that is performed by the Department’s legal/clerical 

department. Minor’s counsel asked whether the social worker had contacted other 

relatives who might have the information. The social worker answered, “Like I said, I 

only got the information back from the Court Officer on June 7th which indicated that 

[Diane F.] would have this information.”

On this testimony and without argument by counsel, the court found that ICWA 

notice requirements had been satisfied and there was no basis to find that the ICWA 

applied.

2. Analysis

The ICWA requires that “[i]n any involuntary proceeding in a State court, where 

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), italics added.)

Noncompliance with ICWA notice requirements has been a persistent problem in 

this state’s juvenile courts. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1254–1255.) In 

2006, the Legislature addressed the problem by enacting strict notice requirements that 

 

10 Ramano identified the number as one with a 510 area code (which covers the 

area immediately east of San Francisco Bay) and Eric had previously suggested that his 

mother lived in Connecticut. However, Eric was at the hearing and did not protest.
11

had previously been included in nonbinding federal regulations. (In re J.T., supra,

154 Cal.App.4th at p. 993; § 224.2; 25 C.F.R. § 23.11(a), (d), (e) (1994); see also In re 

W.B. (2012) 55 Cal.4th 30, 52, 56 [purpose of 2006 legislation was to increase 

compliance with ICWA]; § 224, subd. (d) [any applicable law that provides a higher 

standard of protection prevails over ICWA].) As relevant here, the 2006 enactments 

(which are still in effect) provide that notice must include “all of the following 

information: [¶] . . . [¶] (C) All names known of the Indian child’s biological parents, 

grandparents, and great-grandparents, or Indian custodians, including maiden, married 

and former names or aliases, as well as their current and former addresses, birthdates, 

places of birth and death, tribal enrollment numbers, and any other identifying 

information, if known.” (§§ 224.2, subd. (a)(5), 224.3, subd. (d); see also Cal. Rules of 

Court, rule 5.481(b).)

11

 The social services agency must continue to provide notice of 

each hearing unless and until the court finds the ICWA does not apply to the case. 

(§ 224.2, subd. (b).) Moreover, even after the court makes such a finding, the agency 

must send supplementary notice if it thereafter receives new information that should be 

included in an ICWA notice if known. (§ 224.3, subd. (f).)

The 2006 enactments also impose affirmative duties to inquire about and 

investigate a child’s potential Indian child status. Section 224.3 provides that the court 

and the social services agency “have an affirmative and continuing duty to inquire 

whether a child [in dependency proceedings] is or may be an Indian child . . . .” (§ 224.3, 

subd. (a); see also rule 5.481(a)(1).) This duty is triggered if a person having an interest 

in the child “provides information suggesting the child is a member of a tribe or eligible 

for membership in a tribe or one or more of the child’s biological parents, grandparents, 

or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b)(1); see also 

rule 5.481(a)(5).) Upon receiving such information, the social worker “is required to 

make further inquiry regarding the possible Indian status of the child, and to do so as 

soon as practicable, by interviewing the parents, . . . and extended family members to 

 

11 All further rule references are to the California Rules of Court.
12

gather the information” that should be included in the notice if known, and must 

“contact[] the [BIA] and the State Department of Social Services for assistance in 

identifying the names and contact information of the tribes in which the child may be a 

member or eligible for membership in and contact[] the tribes and any other person that 

reasonably can be expected to have information regarding the child’s membership status 

or eligibility.” (§ 224.3, subd. (c); see also rule 5.481(a)(4).)

Finally, the 2006 enactments require the social services agency to create a record 

in the trial court of its notice efforts. “Proof of the notice, including copies of notices 

sent and all return receipts and responses received, shall be filed with the court in 

advance of the hearing,” with exceptions not relevant here. (§ 224.2, subd. (c); see also 

rule 5.482(b).) If adequate notice has been provided and neither a tribe nor the BIA 

provides a determinative response within 60 days of receiving the notice, the court may 

determine that the ICWA does not apply. However, if the tribe or BIA later confirms that 

the child is an Indian child, the court must reverse its determination. (§ 224.3, 

subd. (e)(3); rule 5.482(d).)

As far as the record before us shows, the Department did not fully comply with

these requirements. First, the Department failed to make an adequate record of its notice 

efforts. The Cherokee Nation’s response is not in the record and we cannot determine 

whether legible copies of the return receipts are in the trial court record. Without these 

documents, the trial court could not properly determine whether the notice requirements 

were satisfied. (See In re Mary G. (2007) 151 Cal.App.4th 184, 210–211 [finding ICWA 

notice error in part because tribal response was not filed in the record].) Second, the 

record before us suggests that the Department failed to fulfill its affirmative duty of 

inquiry and investigation. In the September 2011 jurisdiction report, the Department 

acknowledged it had insufficient information to determine if Elise was an Indian child 

and that it would benefit from assistance from the parents. However, nothing in the 

record indicates that it sought assistance from the parents between September 2011 and 

June 2012, when a court officer finally obtained family contact information from Eric. 

The Department had the ability to contact Eric in the fall of 2011, and again from 
13

February to about May 2012, when he was incarcerated. The Department also had been 

given substantial information about Eric’s extended family, including the name of the 

city where his mother and brother were, or had been, living. But there is no evidence it 

attempted to use that information to gather more detail about Elise’s possible Indian 

ancestry.

More specifically, it does not appear that the Department fulfilled its affirmative 

duty to follow up on the response it received from the Cherokee Nation. Although the 

record does not indicate when the response was received, it likely was received in the fall 

of 2011, as the statutory waiting period for tribal responses is 60 days. (§ 224.3, 

subd. (e)(3); rule 5.482(d).) The first mention of the response, however, is in the 

May 2012 section 366.26 report. Ramano writes that she only obtained information 

about ICWA compliance by reviewing the case file. Similarly, at the September 2012 

hearing, she was unable to testify fully about the Department’s ICWA compliance efforts 

because she did not have the file in her possession, and explained she had not done the 

work herself. Even after she obtained a phone number for Diane F. in June 2012, 

Ramano apparently only made two phone calls and left one message to attempt to obtain 

the needed information.

12

On these facts, we cannot conclude that substantial evidence supports the trial 

court’s finding that the ICWA did not apply to Elise’s case. (See In re A.G. (2012) 

204 Cal.App.4th 1390, 1397 [reversal where notice was incomplete and evidence was 

insufficient that agency adequately inquired and investigated to obtain missing 

information].)

The Department complains that Mother and Eric failed to provide the needed 

information. The parents’ failure to act, however, does not excuse noncompliance where 

 

12 Two other ICWA notice errors are apparent from the record, although Mother 

does not discuss them in her appellate briefs. First, the information on the notices was 

incomplete, as the amended October 2011 notices did not include Eric’s birthplace even 

though it was reported in the September 2011 jurisdiction report. Second, the 

Department apparently did not continue to send ICWA notice of hearings in the case up 

to the September 2012 hearing when the court found that the ICWA did not apply.
14

the information was or might have been available from other sources. On the related 

issue of a parent’s failure to object to ICWA findings in the trial court, courts have 

repeatedly held that “ICWA notice issues cannot be forfeited for appeal by a parent’s 

failure to raise them in the juvenile court, because it is the tribes’ interest, not the 

parents,’ that is at stake in dependency proceedings that implicate ICWA. [Citations.]” 

(In re A.G., supra, 204 Cal.App.4th at p. 1400.) 

3. Harmless Error

The Department urges that any deficiencies in ICWA notice were in any event 

harmless. We reluctantly disagree.

“ ‘Deficiencies in an ICWA notice are generally prejudicial, but may be deemed 

harmless under some circumstances. [Citations.]’ [Citation.]” (In re S.E. (2013) 

217 Cal.App.4th 610, 615.) The Department argues Mother failed to demonstrate 

prejudice because she made no showing on appeal that additional information relevant to 

Elise’s possible status as a Indian child would have been available had the Department 

conducted a more thorough inquiry. The Department argues it is “mere supposition” that 

more relevant information was available. Some courts have held that notice errors are 

harmless error where the relevant parent never asserted, either in the trial court or on 

appeal, Indian heritage. (In re N.E. (2008) 160 Cal.App.4th 766, 770–771; In re 

Rebecca R. (2006) 143 Cal.App.4th 1426, 1431; but see In re J.N. (2006) 

138 Cal.App.4th 450, 461–462.) Here, however, Eric claimed in the trial court that his 

father and grandfather were enrolled members of the Cherokee Nation. In similar 

circumstances, another division of this District held that an agency’s failure to adequately 

inquire into and investigate a father’s claim of Indian heritage was not harmless error 

even though the father had “not made an ‘affirmative representation that further 

information showing Indian connection sufficient to invoke ICWA is indeed available,’ 

or ‘sa[id] what that information is.’ ” (In re A.G., supra, 204 Cal.App.4th at p. 1401.) 

Distinguishing In re N.E., where the appellant made “ ‘[no] showing whatsoever that the 

interests protected by the ICWA [we]re implicated in any way,’ ” the In re A.G. court 

wrote, “Here, in sharp contrast, Father expressed his claim of Indian heritage from the 
15

beginning, and he provided the Agency with sufficient information to trigger its 

obligation to make further inquiry,” but the agency’s inquiry and notice to the tribes was 

inadequate. (Ibid.; see also In re Mary G., supra, 151 Cal.App.4th at pp. 211–212 [where 

parents disclosed Indian ancestry below but agency investigation was allegedly 

inadequate, parents do not need to show on appeal that further investigation would show 

minor was Indian child]; cf. In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414 

[omission of information from notice was harmless where record demonstrated that 

omitted information was not relevant to determining whether minor was Indian child].)

Other cases relied on by the Department are distinguishable. In re Levi U. (2000) 

78 Cal.App.4th 191 was decided before the 2006 changes in state notice requirements. In 

In re K.M. (2009) 172 Cal.App.4th 115, the “Agency gave notice to the tribes identified 

by K.M.’s grandmother and provided the names of K.M.’s grandfather and grandmother 

and great-grandmother and great-grandfather and all other information the Agency was 

able to obtain from [the mother] and grandmother. The record shows the Agency 

attempted on several occasions to elicit further information from the child’s family, but 

was unsuccessful due to the family’s hostility toward the Agency.” (Id. at p. 119.) The 

mother nevertheless argued that termination of her parental rights should be reversed 

because the Agency did not interview the child’s great-grandmother. However, the 

grandmother had refused to provide contact information for the great-grandmother, and 

none of the tribes that had been contacted suggested K.M. was or might be a tribal 

member. (Id. at pp. 118–119.) Here, in contrast, one of the tribes requested specific 

additional information, which suggested Elise might be member of that tribe, and 

Ramano made only a belated and limited effort to contact Eric’s mother (or other 

relatives) to obtain the additional information the tribe needed. We further note that Eric 

did not make a vague claim of possible Indian ancestry generations in his past, but stated 

that both his father and grandfather were enrolled members of a tribe. (Cf. id. at p. 117 

[mother claimed “she was, or might be, a member of the ‘Cherakia’ tribe,” and agency 

notified the Cherokee tribes].)
16

All of the cases we discuss were decided prior to the very recent decision of the 

United States Supreme Court in Adoptive Couple v. Baby Girl (2013) 570 U.S.___

[133 S.Ct. 2552] (Adoptive Couple). While not directly applicable to the ICWA notice 

issues presented here, the Supreme Court considered application of ICWA to 

circumstances where, as here, the parent alleging Indian heritage never had custody of the 

Indian child. (Id. at p. 2560.) The high court found that “[W]hen an . . . Indian child . . .

has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ 

that would be ‘discontinu[ed]’ [consistent with the definition of ‘breakup’] . . . by the 

termination of the Indian parent’s rights” (id. at pp. 2562–2563), and that “. . . ICWA’s 

primary goal of preventing the unwarranted removal of Indian children and the 

dissolution of Indian families is not implicated.” (Id. at p. 2561.) In Adoptive Couple, 

however, unlike the instant case, the non-Indian mother voluntarily relinquished the 

child. Here in contrast, Mother, who is a “parent” under literal language of the ICWA 

(25 U.S.C. § 1903(9) [“ ‘parent’ means any biological parent . . . of an Indian child”]), 

actively contests the termination of her parental rights on ICWA grounds. However, the 

implicit rationale of Adoptive Couple appears to be that an “Indian family” (which is not 

defined in the ICWA) does not exist unless the Indian parent has had custody of the 

child, thus implicating the law’s purpose of “preventing the unwarranted . . . dissolution 

of Indian families.” (Id. at p. 2561, italics added.) Because Eric never had custody of 

Elise, under the reasoning of Adoptive Couple his “continued custody” is not at issue and 

the ICWA would not be implicated in the section 366.26 determination insofar as Mother 

was concerned. Under such circumstances, remand for ICWA compliance would change 

nothing regarding termination of Mother’s parental rights and any ICWA error would be 

harmless as to her. “Parents unable to reunify with their children have already caused the 

children serious harm; the [ICWA] rules do not permit them to cause additional 

unwarranted delay and hardship, without any showing whatsoever that the interests 

protected by the ICWA are implicated in any way.” (In re Rebecca R., supra, 

143 Cal.App.4th at p. 1431.)
17

But application of Adoptive Child to the differing circumstances presented here

was never considered in the trial court or briefed by the parties here, nor was the effect of 

lack of adequate ICWA notice in the first instance a factor before the Supreme Court in 

Adoptive Child. These questions may, or may not, arise on remand in the event a tribe, 

after proper notice, seeks to intervene. It is therefore premature for us to consider what 

application, if any, Adoptive Child may have in this case. On this record, we cannot 

deem the notice violations harmless.

B. Mother’s Requests for New Attorney or Self-Representation

Mother argues the trial court violated her due process rights by failing to hold a 

hearing on her request to represent herself at the contested section 366.26 hearing. We 

affirm.

1. Factual Background

In May 2012, Mother’s attorney notified the court that Mother wanted new 

counsel or permission to represent herself. The court held a Marsden-type hearing,

13

where Mother complained that her counsel had failed to submit certain evidence to the 

court, object to misrepresentations made on the record by opposing counsel, challenge the 

jurisdictional allegations, and take certain unspecified actions to improve her chances at 

reunification. She also complained that, after she fired her first attorney, her case was 

transferred to an attorney in the same dependency counsel contract firm without her 

knowledge. After hearing counsel’s response, the court noted that there were “several 

previous attorneys [Mother was] unhappy with” and advised her that “you don’t get to 

appoint your own attorney.” The court told Mother that any replacement counsel would 

have to be appointed from the contract law firm, and asked Mother is she wished to 

withdraw or maintain her Marsden request. Mother chose to withdraw her Marsden

request. At this hearing, she did not specifically ask to be allowed to represent herself.

At the start of the September 2012 section 366.26 hearing, Mother raised a number 

of objections on her own behalf—she wanted a friend in the courtroom to take notes 

 

13 People v. Marsden (1970) 2 Cal.3d 118.
18

because she had been unable to get transcripts of prior hearings, and she wanted the case 

heard by a judge rather than a commissioner. When her requests were denied in part 

because they were untimely, she said, “[E]very time I try and discuss something I’m 

informed that I have counsel that is responsible for doing that. I have addressed this issue 

with counsel already, and it hasn’t been addressed to the Court. I also asked that these 

two pages be submitted into the record requesting a continuance and . . . to represent 

myself pro per or be appointed new counsel immediately [¶] . . . [¶] . . . We had less than 

an hour before you guys at the settlement [conference]. I am not getting a fair trial right 

now. . . . He and I both are supposed to have our points heard, . . . .” The court denied 

her requests without further discussion or inquiry.

2. Analysis

Mother had a statutory right to self-representation during the dependency 

proceedings. (In re A.M. (2008) 164 Cal.App.4th 914, 923; In re Angel W. (2001) 

93 Cal.App.4th 1074, 1083.) Section 317, subdivision (b) provides that the court shall

appoint counsel for an indigent parent in a case where the children have or might be 

removed from the home “unless the court finds that the parent or guardian has made a 

knowing and intelligent waiver of counsel . . . .” (Italics added; see also rule 5.534(g), 

(h).) A request for self-representation may be denied if the court in its discretion 

determines that granting the request would cause substantial disruption or delay in the 

proceedings. In exercising its discretion, the court must weigh the parent’s right to selfrepresentation against the child’s right to a prompt and fair disposition of the case. (In re 

A.M., at pp. 924–926.) The standard is similar to the standard a trial court applies when a 

represented defendant wishes to dismiss his attorney during trial and represent himself: 

“ ‘[T]he trial court shall inquire sua sponte into the specific factors underlying the 

request[,] thereby ensuring a meaningful record in the event that appellate review is later 

required[,] . . . [and consider] other factors . . . [including] the quality of counsel’s 

representation of the defendant, the defendant’s prior proclivity to substitute counsel, the 

reasons for the request, the length and stage of the proceedings, and the disruption or
19

delay which might reasonably be expected to follow the granting of such a motion.’ ” 

(Id., at p. 926, quoting People v. Windham (1977) 19 Cal.3d 121, 128–129.)

We again find a very limited record to review. Mother proffered two pages 

“requesting a continuance and . . . to represent myself pro per or be appointed new 

counsel” and asked that they be filed, but they are not in the record. Without the benefit 

of either Mother’s papers or of further on-the-record inquiry by the court, we cannot 

know whether Mother elaborated in writing, or could have elaborated orally, specific 

reasons for her request for self-representation at that particular hearing. We also do not 

know whether her request for self-representation was contingent on a grant of her request 

for a continuance or, if so, the extent of the continuance she had requested.

We conclude, however, that any error was harmless. The parties disagree about 

the applicable standard of reversible error. Mother argues denial of self-representation is 

structural error that is reversible per se. She notes that the California Supreme Court has 

held the right to appointed counsel in dependency proceedings is one of the “significant 

due process safeguards . . . built into the dependency scheme” to protect parents’ “basic 

civil right” to the care, companionship and custody of their children. (In re James F.

(2008) 42 Cal.4th 901, 904.) She argues the juvenile court’s alleged denial of a hearing 

on her request for self-representation was a due process violation that should be deemed 

structural error. However, the James F. court also held, “If the outcome of a proceeding 

has not been affected, denial of a right to notice and a hearing may be deemed harmless 

and reversal is not required. [Citation.]” (Id. at p. 918.) In other words, harmless error 

analysis applies. Mother next argues that, if harmless error analysis applies, we should 

apply the Chapman14 standard for federal constitutional error. The underlying right to 

self-representation here, however, is not a constitutional but a state statutory right. 

Therefore, we apply the Watson15 standard: we must decide whether there is a reasonable 

 

14 Chapman v. California (1967) 386 U.S. 18.

15 People v. Watson (1956) 46 Cal.2d 818.
20

probability that, had Mother been allowed to represent herself at the section 366.26 

hearing, the outcome of the hearing would have been different.

We conclude any error by the court was harmless under the Watson standard. 

First, insofar as the record discloses, the court acted within its discretion in refusing to 

allow Mother to represent herself at the hearing. There were no apparent deficiencies in 

counsel’s performance. Mother’s orally stated reasons for the request referred to past 

disputes with her attorney that did not directly relate to the presentation of her case at the 

section 366.26 hearing. Mother’s request was tardy: although Mother had previously 

presented and withdrew a Marsden motion, she did not assert her right to selfrepresentation until the commencement of the final hearing in the case. Granting the 

request would almost certainly cause delay, and Elise had an interest in obtaining 

permanency as soon as possible, an interest that was particularly salient at the 

section 366.26 stage of the proceedings where the focus has shifted from the parents’ 

interest in their children to the child’s interest in stability. (See In re Marilyn H. (1993) 

5 Cal.4th 295, 309 [“[o]nce reunification services are ordered terminated, the focus shifts 

to the needs of the child for permanency and stability”].) Second, Mother has made no 

showing that if she had been allowed to represent herself she would have presented 

evidence or argument that could have changed the outcome of the case. Instead, she only

makes unsupported assertions that she could have presented additional evidence. Mother 

testified at the hearing and cites nothing in the record that demonstrates she was restricted 

from presenting her full case to the court. We conclude there was no reversible error.

C. Mother’s Section 388 Petition

Mother argues the trial court erred in denying her a full evidentiary hearing on her 

section 388 petition. We affirm.

1. Factual Background

As noted ante, Mother filed a section 388 petition in July 2012 asking that Elise be 

returned home with family maintenance services or that her visitation be increased and 

the section 366.26 hearing delayed or cancelled. As changed circumstances, she cited her 

return to therapy in recent weeks, cooperation with the prosecution of Eric in 2012, 
21

avoidance of Eric and Jason J., participation in a domestic violence program, 

employment, plans to complete a paralegal program, sobriety and participation in A.A., 

and plans for stable housing that would accommodate her and her children. To 

demonstrate why changes to the court’s orders would be in the children’s best interest, 

she cited the strong bond between her and the children, her regular participation in 

visitation, and the benefit of keeping all of the siblings together.

In opposition to similar petitions filed in the Siblings’ case, the Department 

submitted the two police reports discussed ante, which described the January 30–31, 

2012 domestic violence incident involving Eric and the June 2012 contact between 

Mother and Eric after his release from custody.

At a July 13, 2012 hearing, the court gave the parties an opportunity to be heard on 

the section 388 petitions for all three children. The Department asked the court to deny 

the petitions without a hearing. It argued the allegations of the petitions were vague or 

conclusory and thus failed to establish a prima facie case, particularly in light of the 

police reports: “She still is going from a group of people, going to go off by herself with 

[Eric] to deescalate the situation. That’s classic codependence. [¶] He was then 

incarcerated. The day he gets out of jail, we have this second police report from June 5th, 

2012, where the police officer saw the two subjects, [Eric] and [Mother], walking 

eastbound together. [¶] . . . [¶] So, . . . as far as change of circumstances, there is nothing 

that supports that. [¶] As to . . . the best interests of the children, the Court’s got the 

[section 366.26] report.” Mother argued the petitions should be liberally construed for 

purposes of determining whether to schedule a hearing and that her petitions met the 

prima facie standard.

The court confirmed with Mother that she had received and had an opportunity to 

review the police reports, then denied a hearing on all three section 388 petitions. “The 

Court is most persuaded by the very recency of the 11:00 p.m. meeting with [Eric] that 

. . . is clear evidence that there’s no change of circumstances here. . . . [T]he Court, 

frankly, cannot accept [it] as happenstance . . . [as it] occurred on the very day he was 

released from jail . . . .”
22

2. Analysis

A parent “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 . . . . [¶] 

. . . [¶] . . . If it appears that the best interests of the child . . . may be promoted by the 

proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, 

subds. (a)(1), (d).) “The court may deny the petition ex parte if: [¶] . . . the petition . . . 

fails to state a change of circumstance or new evidence that may require a change of 

order . . . or . . . that the requested modification would promote the best interest of the 

child . . . .” (Rule 5.570(d)(1) [“Denial of hearing”].) “A petition for modification must 

be liberally construed in favor of its sufficiency.” (Rule 5.570(a).) If a hearing is held, 

the party that brings the petition bears the burden of persuasion. (Rule 5.570(h)(1).) The 

juvenile court’s ruling on the petition is reviewed for abuse of discretion. (In re 

Stephanie M. (1994) 7 Cal.4th 295, 318.)

Mother raised the same objections she makes here in her appeal of the termination 

order in the Siblings’ case. (In re Adan R. (June 6, 2013, A136151) [nonpub. opn.].) In 

our opinion in that appeal we found no error, and we reiterate that analysis here. “The 

trial court did not abuse its discretion in denying a full evidentiary hearing on the 

petitions. The court could have denied the petition ex parte. On the issue of changed 

circumstances, the petitions alleged at most changing circumstances, i.e., a renewal of 

Mother’s efforts to address the problems that led to the children’s dependency: her return 

to therapy, her alleged avoidance of men who were substance abusers and perpetrators of 

domestic violence (and cooperation in [Eric’s] prosecution), her enrollment in a domestic 

violence counseling program, and her efforts to obtain gainful employment and stable 

housing. However, ‘[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 child’s best interests. [Citation.]’ (In re 

Casey D. (1999) 70 Cal.App.4th 38, 47, italics added.) The changed circumstances 

alleged in Mother’s petitions on their face were too little and too late in the three-and-
23

one-half-year dependency case to justify further delay in adopting a permanent plan for 

the children. (Cf. In re Kimberly F. (1997) 56 Cal.App.4th 519, 526–527 [changed 

circumstances existed where ‘home was no longer in an unsafe and unsanitary condition,’ 

where condition of home had led to the dependency].)

“Mother argues the court applied an incorrect legal standard when it required a 

‘material change of circumstances’ even though the statute only requires a ‘change of 

circumstances.’ We disagree. Common sense dictates that the ‘change of circumstance’ 

standard must include a materiality element as measured by the purpose of the statute; 

otherwise, the mere passage of time would suffice to reopen prior orders upon an appeal 

to the children’s best interests. Courts recognize this implicit materiality standard by 

referring to ‘a genuine change of circumstance’ (In re Anthony W. (2001) 87 Cal.App.4th 

246, 250) and a change of circumstances ‘which may make the modification of a prior 

order appropriate’ (In re Daijah T. (2000) 83 Cal.App.4th 666, 674) when discussing the 

section 388 standard.

“Finally, Mother argues her due process rights were violated because ‘the court 

neither summarily denied mother’s petition[s] nor did it grant mother a hearing. Instead, 

the court heard argument from the parties regarding mother’s petition[s] before denying 

the petition[s] without allowing mother a full evidentiary hearing.’ We agree there was 

some ambiguity in the court’s actions. The court ruled that it would ‘deny the hearing’ 

on the petitions, presumably because the allegations of the petition failed to make a prima 

facie showing. However, in explaining its reasons, the court cited evidence: the police 

reports and the bonding study. The court even took pains to verify that Mother had 

received the opposition evidence and had had an opportunity to review it, apparently to 

allay any concerns that her due process rights might be violated if the court relied on the 

evidence. Nevertheless, even if we assume that the court in fact held a hearing on the 

petitions and denied them on their merits, Mother has failed to show reversible error. 

The court was not required to conduct the hearing with live testimony, but was free to 

rely on the information contained in the petition, documentary evidence, and argument of 

counsel. (Rule 5.570(h)(2); In re E.S. (2011) 196 Cal.App.4th 1329, 1340; In re C.J.W.
24

(2007) 157 Cal.App.4th 1075, 1080–1081.) Nothing in the record suggests that the court 

denied the petitions because Mother did not offer evidence in support of the specific 

factual allegations in her petitions; rather, the court inferably concluded that those facts, 

if assumed to be true, were insufficient to justify a change in the court’s orders. 

Moreover, nothing in the record suggests that Mother was denied an opportunity during 

the hearing to challenge the police report or bonding study evidence or to offer additional 

evidence (or at least make an offer of proof) in support of her petitions. Finally, she 

makes no showing on appeal that, had she been given an opportunity to present additional 

evidence or further argument on the petitions, there was a reasonable probability of a 

different result.” (In re Adan R., supra, A136151.)

Mother has not established reversible error in the court’s disposition of the 

section 388 petition.

D. Termination of Parental Rights

Mother also challenges the court’s order terminating her parental rights to Elise, 

arguing the court should have found that the beneficial parent relationship exception 

applied.16 We affirm.

1. Factual Background

Mother testified that she had visited Elise as often as she was allowed and that 

during the visits she snuggled, fed, taught, played with, and read to Elise. She maintained

that she never ignored Elise when she was visiting all three children at once, although 

acknowledged her attention was necessarily divided at times. She never disciplined 

Elise, but would take away objects she should not be touching and distract her toward 

 

16 Mother also argues that the court should have considered the beneficial sibling 

relationship exception to termination of parental rights, even though she did not urge the 

court to apply that exception at the September 18, 2012 hearing. The party seeking 

application of the exception bears the burden of establishing that the section applies. (In 

re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) Therefore, Mother’s failure to pursue 

this argument at the termination hearing resulted in a forfeiture. In any event, the 

Department’s section 366.26 report noted that the exception did not apply on practical 

grounds: the Siblings were likely to move out of state to live with a paternal relative who 

was not willing to take Elise.
25

other activities. Elise called Mother “Mommy,” crawled into Mother’s lap, and kissed 

pictures of Mother and the Siblings. Elise was very excited to see her at the start of 

visits, and became upset when the visits ended. As the visits became more infrequent 

(Mother had not seen Elise in seven weeks as of the time of the section 366.26 hearing), 

Elise showed less distress at separation. Mother testified it would be traumatizing for 

Elise if her relationship with Mother were ended.

The Department conceded that Mother had regularly visited Elise. The social 

worker acknowledged that the visits went well: Elise was affectionate with Mother and 

receptive to Mother’s affection. However, she opined that Mother was “more of an adult 

[Elise] recognizes” than a parent figure to her. Elise showed some anxiety separating 

from her foster mother and the social worker interpreted her use of “Mommy” as 

referring to the foster mother, wondering where she had gone. At the end of the visits, 

Elise was eager to return to the foster mother. Mother asked for a continuance so that she 

could show video recordings of her visits with Elise, but the court denied the request.

In argument, Mother’s counsel contended that the evidence established Mother 

had regularly visited Elise and Elise would benefit from continuing the relationship, and 

contended Mother should not have to prove the benefit of keeping the relationship 

outweighed the benefits of adoption. Counsel noted that Mother was Elise’s sole 

caregiver during her first seven months of life, and argued Mother had played the role of 

a parent, not a friend, during her visits with Elise because she fed her, paid attention to 

her developmental milestones, taught her, and appropriately disciplined her. Counsel for 

the Department noted that Mother’s visits with Elise had never progressed to 

unsupervised visits, and “[e]ven frequent, loving contact with natural parents to whom a 

child cannot be returned may be insufficient” to support a beneficial parental relationship 

exception to termination of parental rights. Minor’s counsel supported the Department’s 

position.

2. Analysis

At a section 366.26 hearing, the juvenile must determine by clear and convincing 

evidence whether it is likely the dependent minor will be adopted. (§ 366.26, 
26

subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental 

rights and order the child placed for adoption unless, as applicable here, it finds a 

“compelling reason” that termination would be detrimental under one of the exceptions 

listed in section 366.26 subdivision (c)(1)(B). A party arguing that one of those 

exceptions applies has the burden of producing evidence that establishes the exception. 

(In re Lorenzo C., supra, 54 Cal.App.4th at p. 1343 [discussing former § 366.26, 

subd. (c)(1), predecessor of § 366.26, subd. (c)(1)(B)].)

Under the beneficial parental relationship exception, the court must find a 

“compelling reason” that termination of parental rights would be detrimental because 

“[t]he parents have maintained regular visitation and contact with the child and the child 

would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “The 

existence of interaction between the natural parent and child will always confer some 

incidental benefit to the child.” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) 

The beneficial parental relationship exception requires more, “that the parent-child 

relationship promote 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. 

[Citation.]” (Ibid.)

We review the trial court’s decision either for substantial evidence or for abuse of 

discretion; in this context, there is little difference between these standards of review. 

(In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314–1315; In re Jasmine D. (2000) 

78 Cal.App.4th 1339, 1351–1352.)

The trial court’s ruling here is supported by the record and was not an abuse of 

discretion. It was undisputed that Elise had spent the first seven months of her life in 

Mother’s care and that their visits had been nurturing and affectionate. However,

substantial evidence showed that Elise did not have trouble separating from Mother at the 

end of the visits and she had formed a parent-child bond with her foster parents. Because 

she was only an 18-month-old child, the benefits of a permanent placement were 

particularly strong in her case. There simply was insufficient evidence of a strong bond 

between Mother and Elise that might outweigh the benefits of adoption. 
27

III. DISPOSITION

The September 18, 2012 order terminating Mother’s rights is vacated. The case is 

remanded to the juvenile court with directions to order the Department to make a 

complete record of ICWA notice efforts and to reconsider, consistent with the views 

expressed in this opinion, whether the Department complied with ICWA notice 

requirements and order further efforts if necessary. If further efforts are required and, 

after proper notice, the court finds the child is an Indian child, the court shall proceed in 

conformity with ICWA. If, after proper inquiry and notice, the court finds the child is not 

an Indian child, the order terminating Mother’s rights shall be reinstated.

_________________________

Bruiniers, J.

We concur:

_________________________

Simons, Acting P. J.

_________________________

Needham, J.