1 Filed 6/27/13 In re A.D. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Nevada)

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In re A.D. et al., Persons Coming Under the Juvenile Court Law.

NEVADA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v.
T.D., Defendant and Appellant. C072683 (Super. Ct. Nos. J9178, J9179)

T.D., mother of the minors, A.D. and K. D., appeals from orders of the juvenile court terminating her parental rights. (W elf. & Inst. Code, §§ 366.26, 395; unless otherwise stated, statutory references that follow are to the Welfare and Institutions Code.) Appellant, limiting her arguments to K. D., contends the court erred in failing to
find she had established the be neficial relationship exception to the preference for adoption and failed to comply w ith the notice provisions of the Indian Child Welfare Act2 (ICWA) (25 U.S.C. 1901 et seq.). We revers e for compliance with the notice provisions
of ICWA as to K.D. and affi rm the orders as to A.D.



### F ACTS AND 

### P ROCEEDINGS The minors, eight-year-old A.D. and five-year-o ld K.D., were placed in protective custody pursuant to a warrant in Decembe r 2011 after police found the minors and appellant in a home where marijuana was a ccessible to the minors. When A.D. was interviewed he disclosed he was subject to significant physical abuse by appellant’s former boyfriend. After being placed in a foster home, A.D. told the social worker he did not miss appellant and did not want to go home. K.D. said he did miss appellant a little and that the former boyfriend an d the mother spanked them. Initially, appellant had twice weekly supervis ed visits with the minors. At a visit in February 2012, A.D. sought reassurance that appellant would be nice when they came home. In a visit in March 2012, the minor s reminded appellant of a violent incident between her and a boyfriend. Appellant defl ected the issue and minimized the incident. At some visits K.D. told appellant how much he loved her, at othe rs he ignored her and did not respond when she spoke to him. The disposition report stated that K.D.’s father, Clay G. reported that his maternal grandmother Margaret M., told him there wa s Choctaw heritage in the family and he
believed he could be 1/16th Choctaw. He was not in contact with the paternal grandmother or his great-grandmother and did no t know how to contact either. He said his mother, Judith M. was born in Kansas. At the contested disposition hearing in Ap ril 2012, counsel for K.D.’s father Clay G. raised the question of the status of his Indian heritage and was told the agency was waiting for Clay G. to comple te the Indian heritage fo rm. The court, relying on In re
Jeremiah G . (2009) 172 Cal.App.4th 1514, concluded that the information Clay G. had provided constituted a bare sugg estion that K.D. was an Indi an child and was insufficient3 to trigger the notice requirements of ICWA. After further hearing, in May 2012, the court denied services to appellant and set a section 366.26 hearing to select a permanent plan for the minors. The court reduced vis its to twice a month pe nding the hearing. Appellant cancelled her scheduled vis it after the disposition hearing. The report for the section 366.26 hearing stated the mino rs were generally healthy and developmentally on target. A.D. was some what behind in school due, in part, to trauma and to his prior lack of stability. Both minors were in therapy. Appellant attended the twice monthly visits. With the decrease in visit frequency, the minors no longer had negative reactions to visits and appeared to enjoy their contact with appellant. K.D. said that appellant brought “lots of toys and stuff to eat.” The report concluded that
the minors had an unstable and chaotic childho od marked by severe abuse by appellant’s boyfriend. The majority of the abuse was di rected at A.D. whose emotional health was severely impacted resulting in both physical a nd psychological issues. K.D. appeared to be less affected by the abuse and instability but was not comfortable talking about that period to interviewers, because what appellant’s boyfriend had done to him was embarrassing for him to talk ab out. Both minors needed perm anency and stability which, in the social worker’s opinion, was best ac hieved by termination of parental rights and adoption. In October 2012, the court ordered a re lationship study to address the factors relevant to the beneficial relationship excep tion to termination of parental rights. The study, performed by Dr. Roede r, included interviews of appellant and each minor, review of reports and visit records and an observation of the inte raction between appellant and the minors. The study concluded there wa s a parent-child relationship between the minors and appellant. K.D. also had a pos itive emotional attachment to appellant although A.D. did not. It was clear that A. D. would not be greatly harmed if parental rights were terminated. The question was closer with K.D. because he did “kind of miss” appellant and wanted to return to her. However, Dr. Roeder concluded “it cannot be said4 to a reasonable degree of certainty that K.D. would be greatly harm ed if his relationship with his mother were terminated.” Thus, an ongoing relationship with appellant would not promote K.D.’s well-being to the extent that it would outweigh the benefits of a permanent adoptive home.
At the contested secti on 366.26 hearing, Dr. Roede r’s testimony was consistent with his report. He stated that K.D.’s de sire to return to appellant was genuine and deeply felt and characterized K. D.’s attachment to appellant as partial to positive. Dr. Roeder opined that K.D. did appear to have a positive emoti onal attachment to appellant
but it was a close call on whether he would be ha rmed if parental rights were terminated. He was unable to say with certainty that K.D. would be greatly harmed by termination of parental rights but acknowledge d there would be some harm. The harm could be dealt with if K.D. was able to develop a secure a ttachment with the next parental figure and if he remained placed with A.D. Dr. Roeder had reviewed the visitation logs but observed that positive visits do not really provide much information about a ch ild’s attachment to the parent. Dr. Roeder explained that the benefit of a permanent home with adoptive parents was the consistency and stability wh ich produces attachme nt, having needs met and a place the child can trust so the child can develop. The benefit to both minors of a permanent home with adoptiv e parents was clear. Appellant also testified, primarily to co rrect statements by Dr. Roeder with which she disagreed. She also testified that the minor s were happy to see her at every visit. The court found the minors were likely to be adopted in a reasonable time. The court found Dr. Roeder’s reasoning persuasive and that appellant had not met her burden to establish the beneficial relationship ex ception. The court concluded the minors deserved consistency, stability and permanence and terminated parental rights, selecting a permanent plan of adoption.5 

### D ISCUSSION
I The Beneficial Rela tionship Exception Appellant argues that the beneficial rela tionship exception was established and the
court erred in terminati ng her parental rights. At the selection and implementation hear ing held pursuant to section 366.26, a juvenile court must choose one of the severa l “ ‘possible alternativ e permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption

. [Citation.]’ [Citations.] If the cour t finds the child is adoptable, it must terminate parental rights absent circumstances under whic h it would be detrimental to the child.” ( In re Ronell A . (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be de trimental to the child.” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of estab lishing the existence of any circumstances wh ich constitute an exception to term ination of parental rights. ( In
re Melvin A. (2000) 82 Cal.App. 4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.) Termination of parental rights may be detrimental to the minor when: “The parents have maintained regular visitation an d contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1 )(B)(i).) However, the benefit to the child must promote “the well- being of the child to such a degree as to outweigh the well-being the child would gain in a permanen t home with new, adoptive parents. In other words, the court balan ces the strength and quality of the natural parent/child relationship in a tenuous placement against th e security and the sense of belonging a new family would confer. If seve ring the natural parent/child relationship would deprive the child of a su bstantial, positive emotional atta chment such that the child6 would be greatly harmed, the preference fo r adoption is overcome and the natural parent’s rights are not terminated.” ( In re Autumn H . (1994) 27 Cal.Ap p.4th 567, 575.) Even frequent and loving contact is not suffi cient to establish this benefit absent a significant positive emotional attachme nt between parent and child. ( In re Beatrice M

. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian R . (1991) 2 Cal.App.4th 904, 924.)
The evidence showed the minors had a conflicted relationship with appellant. According to visitation records, the minors ge nerally enjoyed the contact with appellant but sought reassurance that she would treat th em better if they retu rned home. When the minors raised issues of past incidents of viol ence, appellant deflecte d their statements and
minimized the incidents. Sometimes K. D. would express overwhelming love for appellant and other times woul d ignore her entirely. When the frequency of visits decreased, the minors’ negative reactions to visits diminished. Overall, the limited supervised interactions were go od. To some extent, K.D.’s enjoyment of visits appeared
to stem from the fact that appellant brought “lots of toys and stuff to eat.” Dr. Roeder’s bonding study reflected this co nflict. Dr. Roeder reported that K.D. did like his foster placement a nd would “kind of” mi ss appellant. K.D. also said he wanted to go back to appella nt. Dr. Roeder found there was a parent-child relationship between appellant and K.D. and K.D. had a positive emotional attachment to appellant but could not conclude that the relationship wa s so strong K.D. would be greatly harmed by its termination. Both appellant and Dr. Roeder testif ied. The juvenile court assessed the credibility of the witnesses and resolved conflicts in the evid ence adversely to appellant. ( In re Jason L . (1990) 222 Cal.App.3d 1206, 1214 .) We do not reweigh the evidence when assessing the sufficie ncy of the evidence. ( In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Based on the reports of the mi nor’s improving behavi or as visitation was decreased, his ambivalent conduct over the co urse of the dependency and the conclusions of the bonding study, the evidence did not es tablish K.D. would be greatly harmed if7 parental rights were terminated. The juvenile court did not err in concluding that the benefit to K.D. of a permanent and stable home outweighed the benefit of continued contact with appellant in a tenuous placement.
II The Indian Child Welfare Act Appellant contends the juvenile court erre d in concluding that K.D.’s father, Clay G., had not provided enough information abou t the minor’s possible Indian heritage to trigger the notice requirements of the ICWA. We agree. The ICWA protects the interests of Indi an children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U. S.C. §§ 1901, 1902, 19 03(1), 1911(c), 1912.) If, after the petition is filed, the court “knows or has reason to know th at an Indian child is involved,” notice of the pending proceeding a nd the right to intervene must be sent to the tribe or the Bureau of Indian Affairs (BIA ) if the tribal affiliation is not known. (25 U.S.C. § 1912; Welf. & Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481(b).) It is not necessary that th e child’s Indian status be ce rtain to implicate the notice requirements of ICWA. ( In re Desiree F . (2000) 83 Cal.App.4th 460, 471.) Relatively scant facts may be enough for one tribe to determine whether a child is eligible for tribal membership while another tribe may require an extensive genealogy and an identified blood percentage. It is the province of the tribe, not the court, to determine whether the child is eligible for me mbership in the tribe. (§ 224.3, subd. (e)(1).) N onetheless, some information provided by a parent can be “too vague and speculative to give the juvenile court any reason to believe the minor s might be Indian children.” ( In re O.K. (2003) 106 Cal.App.4th 152, 157.) In those cases, notice is not triggered. (See, e.g., In re J.D

. (2010) 189 Cal.App.4th 118, 125 [paternal grandmother suggested possible Indian heritage, but no known tribe]; In re Jeremiah G ., supra , 172 Cal.App.4th at pp. 1520- 1521 [father’s assertion, later retracted, of a possibility the great-great grandfather was8 Indian, without naming a tribe was too vague]; In re Aaron R. (2005) 130 Cal.App.4th 697, 707 [grandmother’s statement that she was a member of the Black Native American
Association in Fort Point Pres idio Historical Association fe ll far short of giving the court reason to know the minor might be Indian]; In re O.K. , supra , 106 Cal.App.4th at pp. 155-157 [grandmother’s st atement the minors may have I ndian heritage because they
were from “that section” with no identified tribe too vague]; In re Levi U . (2000) 78 Cal.App.4th 191, 194, 198 [pat ernal grandmother stated there might be Indian heritage
on her mother’s side but the tribe was unkn own was too vague].) The elements these
cases have in common is that no tribe is ev er suggested by the person claiming Indian heritage and the claim is rooted in mere possibility. The juvenile court, relying on Jeremiah G ., concluded the information provided in this case was too uncertain to trigger notice. However, the father said his maternal grandmother told him he had Choctaw heritage and he believed he wa s 1/16th Choctaw. Further, while he did not fill out the inform ation form he was able to provide some
ancestral information such as his mother’s a nd his maternal grandmother’s name. This is not a great wealth of information, but cer tainly exceeds the va gue and incomplete
information which has been fou nd not to trigger notice. Notic e of the proceedings should
have been sent to the three fe derally recognized Choctaw tribes so that they could make a
determination of whether the minors were eligible for membersh ip in the tribe.



### D ISPOSITION The orders terminating parental rights as to K.D. are reversed and the matter is remanded for the limited purpose of complyi ng with the notice prov isions of the ICWA by sending notice to the relevant tribes. Therea fter, if there is no response or if the tribe
determines K.D. is not an Indi an child, the orders shall be reinstated. However, if the tribe determines K.D. is an Indian child, th e juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.9 No issues having been raised as to A.D ., the orders terminating parental rights as
to him are affirmed.

HULL , J.

We concur:

BLEASE , Acting P. J.

BUTZ , J.