IN RE C.B

ldren loved mother and their wish was to continue contact with her. But, unlike In re S.B., there was no testimony from a psychological expert, no less one who had conducted a bonding study, that termination of parental rights would be detrimental to the children. While the court had to consider each child's wishes, it was required to act in each child's best interest (§ 366.26, subd. (h)(1)) and a child's wishes are not necessarily determinative of the child's best interest (see In re Michael D. (1996) 51 Cal.App.4th 1074, 1087 [ 59 Cal.Rptr.2d 575]).

At the time of the section 366.26 hearing in October 2009, M.B. was nine years old and C.B. was 10 years old. They had been in protective custody for about two years and had lived with the paternal aunt and uncle since January 2009. The children had previously lived with them from November 20, 2005, until February 23, 2007, when mother had voluntarily placed them there because she was unable to care for them. The aunt and uncle were providing for the children's daily needs and mother acknowledged that they appeared to love the children. Social worker Ransom found the children were content and secure in the aunt and uncle's home, they were bonded to them and their cousins, and they felt part of their family. The children understood the meaning of adoption, had voiced no objection to adoption, and were thriving in the home of the paternal aunt and uncle. Both had expressed to the social worker that they "greatly enjoyed" living with their aunt and uncle. Mother had never progressed beyond supervised visitation. Ransom did not testify that termination of parental rights would be harmful to the children.

The juvenile court determined that the parents no longer served a parental role for the children; rather, the aunt and uncle met their everyday needs. Appellants contend that the court incorrectly focused on the aunt and uncle's provision of day-to-day care. This appellate court and others have stated that "[t]o meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits — the parent must show that he or she occupies a parental role in the life of the child. ( In re Derek W. (1999) 73 Cal.App.4th 823, 827 [ 86 Cal.Rptr.2d 739].)" ( In re I.W. supra, 180 Cal.App.4th at p. 1527.) The juvenile court was entitled to evaluate the strength and quality of the children's relationship with their mother and could properly observe that the children's daily needs were being met by the aunt and uncle. Its comments do not demonstrate that it was improperly requiring mother to have day-to-day contact with the children or to be the primary attachment for application of the parent-child relationship exception. "A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." ( In re Casey D. (1999) 70 Cal.App.4th 38, 51 [ 82 Cal.Rptr.2d 426].)

In this case, the juvenile court implicitly found that there was substantial, positive emotional parent-child attachment despite the lack of day-to-day contact. The court observed that the children were "of an age where they are intellectually and emotionally aware of whom their parents are." It stated: "The Court had [the] opportunity to observe the children in the presence of their parents, and there is no doubt that the children love their parents and would choose to be with their parents if at all possible. It was clear to the Court, by the eye contact and the smiles, that the children were happy to be sitting in the same room as the parents. The Court heard the children testify that they would be `mad' and `sad' if they were not able to have contact with their mother, though they also testified that they would like to be adopted and do not want to move from their current home. The children testified that they have been assured by their aunt that even if they are adopted, they will be able to continue having phone calls and visits with their mother." The court also observed that "[t]hese children know their parents as their parents" and "view [them] as their parents . . . ."

The court then moved on to the weighing process. The court recognized that, "given the ages of the children, . . . the Court's analysis of the benefits of adoption compared to the benefits of maintaining the parent-child relationship is slightly different than it would be if the children were infants or toddlers." It found that "these parents have very little to offer these children except for the loving connection that currently exists between them."

The juvenile court ultimately concluded that "[t]he overwhelming benefits to children that accompany the permanent plan of adoption — stability, security, permanence — are not easily outweighed, and they are not outweighed in this case." It reached that conclusion based, at least in part, upon the expectation that the children's aunt and uncle would permit the children to have continued contact with mother after they were adopted.

The court stated: "There is no evidence that that [loving] connection [between mother and the children] would be severed if the Court were to terminate parental rights. The Court cannot see that terminating parental rights would `greatly harm' the children pursuant to In re Brittany C. Instead, the children will have the best of both worlds. They will have stability, predictability, nurturing, love and warmth in their adoptive home; and because they are placed with relatives, they will maintain the connection to their parents."

In In re Brittany C. (1999) 76 Cal.App.4th 847, 853 [ 90 Cal.Rptr.2d 737], this court stated: " Autumn H.'s requirement that the parent prove that the child would be greatly harmed by termination of parental rights must be seen in context. Where a parent has failed to reunify with his or her child, and the juvenile court has found that the child is likely to be adopted, then the burden shifts to the parent to show exceptional circumstances. ( In re Brian R., supra, 2 Cal.App.4th 904, 923-924.) To require that the parent need only show some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law. . . ."

Appellants argue that evidence of past visitation and phone call problems "demonstrates the aunt will likely stop the contact. . . ." This argument is essentially a request that this court reweigh the evidence, which we cannot do. In applying the substantial evidence test, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts." ( In re L. Y. L. (2002) 101 Cal.App.4th 942, 947 [ 124 Cal.Rptr.2d 688].) "Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. ( In re Autumn H., supra, 27 Cal.App.4th at p. 576.)" ( Ibid.) Here, both the children and social worker Ransom indicated that the aunt would permit contact between the children and mother to continue.

Citing In re S.B., supra, 164 Cal.App.4th 289, appellants next argue that, in evaluating the parent-child relationship exception, "it is improper . . . for the court to rely on a belief the relatives will maintain the children's relationship with [mother]." In In re S.B., the juvenile court "recognized that S.B. would benefit from continuing her relationship with [the father] and based its decision to terminate parental rights in part on the grandparents' willingness to allow [the father] to continue to visit S.B." ( Id. at p. 300.) The appellate court concluded that a parent should not be "deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parents." ( Ibid.)

We agree that in this case, like in In re S.B., the juvenile court injected an improper factor into the weighing process, namely, the prospective adoptive parents' willingness to allow the children to have continued contact with mother. It is important to remember that once the legal parent-child relationship is permanently severed by termination of parental rights, a substantial, positive emotional attachment between a child and a parent has no legal protection even if depriving the child of that attachment by disallowing contact would greatly harm the child. "In dependency proceedings, an order terminating parental rights is not only conclusive and binding upon the birth parents, but also effectuates a complete and final legal termination of the parental relationship. (Welf. Inst. Code, § 366.26. subd. (i); In re Angelia P. (1981) 28 Cal.3d 908, 915-916 [ 171 Cal.Rptr. 637, 623 P.2d 198]; In re Robert J. [(1982)] 129 Cal.App.3d 894, 904-905 [ 181 Cal.Rptr. 188].) The parent-child relationship enjoys no legal recognition after termination of parental rights. ( In re S.B., supra, 164 Cal.App.4th 289, 300.)" ( In re Noreen G. (2010) 181 Cal.App.4th 1359, 1391 [ 105 Cal.Rptr.3d 521].)

Although the Legislature has declared that "some adoptive children may benefit from either direct or indirect contact with birth relatives, including the birth parent or parents after being adopted" and recognized postadoption contact agreements (Fam. Code, § 8616.5, subd. (a)), such agreements are entirely voluntary (see Fam. Code, § 8616.5, subds. (a), (b); see also Welf. Inst. Code, § 366.26, subd. (a) ["Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily."]). Even where there is an agreement for postadoption contact with a biological parent, the subsequent refusal of an adoptive parent to comply with the agreement does not affect the adoption. (See Fam. Code, § 8616.5, subd. (e)(1) [a postadoption contact agreement must contain a warning that "the adoption cannot be set aside due to the failure of an adopting parent . . . to follow the terms . . ." of the agreement].)

We conclude that if a juvenile court determines that a parent has "maintained regular visitation and contact" (§ 366.26, subd. (c)(1)(B)(i)), that there is a "substantial, positive emotional attachment" between child and parent benefitting the child ( In re Autumn H., supra, 27 Cal.App.4th at p. 575), and that the benefit from continuing that parent-child relationship in a tenuous placement "promotes the well-being of the child to such a degree as to outweigh" the benefit that child would gain from the stability and permanency of adoption ( ibid.), then the parent-child relationship exception is established. In those circumstances, the court cannot nevertheless terminate parental rights based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent, even if substantial evidence supports that expectation. The purpose of the parent-child relationship exception is to protect the parent-child relationship when its continuation is more beneficial to the dependent child than a permanent plan of adoption and, in such case, a court cannot leave the protection of such a relationship dependent upon the hoped-for good will of the prospective adoptive parents.

We will remand to allow the court to reconsider, under the proper legal standard, whether the evidence establishes that the parent-child relationship exception applies.

3. Sibling Relationship Exception

An exception to termination of parental rights exists where a "court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v); see In re L. Y. L., supra, 101 Cal.App.4th at pp. 951-952.)

"Reflecting the Legislature's preference for adoption when possible, the `sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. ( In re L.Y.L.[, supra,] 101 Cal.App.4th 942, 952-953)" ( In re Celine R., supra, 31 Cal.4th at p. 61.)

In this case, both children testified to the importance of their relationship with their older sister C. The court recognized that they had been raised together for much of their lives and had shared common experiences. The court observed that the three siblings each testified to a close bond but they had not lived together for some time. The court stated that "[C.]'s current circumstances prevent her from being much of an emotional support to [C.B. and M.B.] She has been on the run since June 2009, has not been attending school, is reported to be pregnant, and has been unwilling to comply with any court orders to return to placement. Though the children all clearly love one another, it is difficult for the Court to conclude that ongoing contact with [C] outweighs the benefits of adoption." The court concluded that the parents had not established the sibling relationship exception.

Appellants assert that there is no indication in the record that "the stability and permanence that the children had with [their aunt and uncle] would be adversely affected" by implementing a permanent plan of guardianship rather than adoption. Even if the aunt and uncle could provide the children with a stable and permanent environment through legal guardianship, once the court has found it is likely the children will be adopted, "the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child." ( In re Celine R., supra, 31 Cal.4th at p. 53; see § 366.26, subd. (a) ["The procedures specified herein are the exclusive procedures for conducting these hearings. . . ."].)

Appellants further contend that the court lacked substantial evidence to support its finding that the benefits of adoption outweighed the benefit of continuing the children's sibling relationship with their older sister C. The "366.26 WIC Report" indicated that C. had attended many of the visits with her mother and siblings between October 2007 and December 2008 but only irregularly due to conflicts with school and other activities. Since the children's placement with their aunt and uncle in January 2009, there had not been regular contact between the children and C. and C. had not visited with them. It was also reported that C. had "not maintained phone contact with her siblings." In fact, at the time the report was prepared, C.'s whereabouts were unknown. An addendum report, signed August 12, 2009, stated that C. "continue[d] to be on runaway status."

When C. appeared at the section 366.26 hearing in late October 2009, her testimony confirmed that she did not talk with M.B. and C.B. much by phone. Thus, despite the strength of their feelings for each other, C. had been largely absent from the children's lives since they had been placed with their aunt and uncle in January 2009. She had not lived with her siblings since they and she were taken into protective custody on October 19, 2007. Before the dependency, the children had previously lived with their aunt and uncle for over a year but C. had never lived with her brother and sister at her aunt's house. There was no evidence that, if the children were not adopted, but instead placed in legal guardianship, C. would be able to live with them or would be in closer contact with them.

Appellants contend that the court erred in considering C.'s activities and noncompliance with its orders. The juvenile court could properly consider the strength and quality of the children's sibling relationship with C. and whether ongoing contact was in their best interest. (§ 366.26, subd. (c)(1)(B)(v).) The fact that the court mentioned C.'s current circumstances did not mean it was improperly focusing on C.

Appellants point to court-ordered psychological evaluations attached to an addendum report filed in July 2008 for the sixth-month review, which were not before the court at the section 366.26 hearing. Although those earlier psychological evaluations indicated the children's regular sibling visitation with C. was important and should be maintained, appellants did not present any expert evidence to that effect at the section 366.26 hearing. In any event, the court recognized that the children's sibling relationships with C. were significant relationships that were important to the children. But, at the time of the section 366.26 hearing, when adoption of the children was under consideration, social worker Ransom could not say that the children would be harmed if they lost all contact with older sister C. because there was not a lot of contact between them.

The juvenile court could reasonably conclude, based on the evidence, that, even if adoption would interfere with the children's sibling relationships with C, the benefit of continuing those relationships with C. was outweighed by the benefit of adoption and, therefore, the sibling relationship exception to termination of parental right did not apply.

The determination that the sibling relationship exception is inapplicable does not necessarily prevent postadoption sibling contact with C. (See Fam. Code, § 8616.5; Welf. Inst. Code, § 366.26, subd. (a); see also Welf. Inst. Code, §§ 366.3, subd. (g)(7) [report for § 366.3 hearing after termination of parental rights must include "[w]hether the final adoption order should include provisions for postadoptive sibling contact pursuant to Section 366.29"], 366.29, subd. (a) ["With the consent of the adoptive parent or parents, the court may include in the final adoption order provisions for the adoptive parent or parents to facilitate postadoptive sibling contact."].)

4. Indian Child Exception

An exception to termination of parental rights exists where the juvenile court "finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to: ¶ (I) Termination of parental rights would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights. ¶ (II) The child's tribe has identified guardianship, long-term foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child." (§ 366.26, subd. (c)(1)(B)(vi), italics added.)

Even though the children did not meet the statutory definition of an "Indian child," the court analyzed the section 366.26 issues as if ICWA applied "[o]ut of an abundance of caution." It concluded, based upon information provided by ICWA expert Osborn that "termination of parental rights will not interfere with the children's membership rights" or their connection to the tribe and the tribe would not oppose the planned adoption by paternal relatives in this case.

Appellants assert that the juvenile court erred in finding that the Indian child exception did not apply by "focus[ing] only on the Cherokee Nation" and by "terminating parental rights before at least the children's enrollment was completed." They point out that the children appear to have both Choctaw and Cherokee heritage and the court did not have any information whether termination of parental rights would interfere with their potential Choctaw membership. They also complain that Osborn's conversation with a representative of the Cherokee Nation was hearsay and "[t]he Cherokee Nation did not authorize [him] to determine the membership status in the tribe." They further claim that the evidence before the court did not show that the Cherokee Nation would prefer adoption over legal guardianship for these children. Without citing any authority, they insist that "tribal membership of the children should be resolved before parental rights are terminated."

Appellants have not cited any authority permitting the court to postpone the section 366.26 hearing for some unknown period to allow time for the children to become members in some Indian tribe and, thereby, qualify as Indian children under federal law. At the 12-month review hearing after expiration of the standard period for family reunification services, the juvenile court has limited options. (§ 366.21, subd. (g); see § 361.5, subd. (a)(1).) Where there is no basis for continuing the case for up to six months for a permanency review hearing (§ 366.21, subd. (g)(1); see § 361.5, subd. (a)(3)) and no basis for determining that "there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interest of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship" (§ 366.21, subd. (g)(3)), the only statutory choice remaining to the court is to "[o]rder that a hearing be held within 120 days, pursuant to Section 366.26. . . ." (§ 366.21, subd. (g)(2).)

As far as any hearsay objections are concerned, they were waived by the failure to object below. (Evid. Code, § 353; see In re Lorenzo C, supra, 54 Cal.App.4th at p. 1341, fn. 7.) (14) Further, "` "[i]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding."' [Citations.]" ( People v. Panah (2005) 35 Cal.4th 395, 476 [ 25 Cal.Rptr.3d 672, 107 P.3d 790].) "[W]hen inadmissible hearsay . . . is admitted without objection, [Evidence Code section 140's definition of `evidence'] makes it clear that it constitutes evidence that may be considered by the trier of fact." (Cal. Law Revision Com. com., 29B pt. 1 West's Ann. Evid. Code (1995 ed.) foil. § 140, p. 15; cf. McDaniel v. Brown (2010) 558 U.S. ___, ___ [ 175 L.Ed.2d 582, 130 S.Ct. 665, 672] ( per curiam) ["a reviewing court must consider all of the evidence admitted at trial when considering a Jackson [insufficiency of the evidence] claim"].)

Appellants also assert that Osborn's declaration did not show that termination of parental rights would not "substantially interfere" with the children's ability to become members of the Cherokee Nation because the representative's statement, which was quoted in his declaration, did not state that membership could be finalized after termination of parental rights. We observe that ICWA expert Osborn testified that, according to his conversations with the Cherokee tribe, it was his understanding that termination of parental rights did not prevent the children from becoming members of the tribe. As stated, on review, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts." ( In re L. Y L., supra, 101 Cal.App.4th at p. 947.)

Finally, a parent claiming an exception to termination of parental rights has the burden of proof. (See, e.g., In re Scott B., supra, 188 Cal.App.4th at p. 469; In re I. W., supra, 180 Cal.App.4th at p. 1527; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [ 98 Cal.Rptr.2d 844]; In re Jasmine D, supra, 78 Cal.App.4th at p. 1350; see also In re L. Y L., supra, 101 Cal.App.4th at pp. 952, 954; Evid. Code, §§ 115 [" `[b]urden of proof means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court"], 190 [" `Proof is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court."].) "The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact." (Evid. Code, § 550, subd. (b).) The "`[b]urden of producing evidence' means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue." (Evid. Code, § 110; see 2 McCormick, Evidence (6th ed. 2006) Burden of Proof and Presumptions, § 336, p. 471 ["The burden of producing evidence on an issue means the liability to an adverse ruling . . . if evidence on the issue has not been produced."].) Here, appellants did not introduce evidence sufficient to make a prima facie showing that the Indian child exception applied. (§ 366.26, subd. (c)(1)(B)(vi).) The juvenile court properly concluded that the exception did not apply.

C. Active Efforts

Appellants argue that the juvenile court and DFCS failed to comply with ICWA's "active efforts" requirements. Section 1912, subdivision (d), of ICWA provides: "Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." ( 25 U.S.C. § 1912(d), italics added.) In California, ICWA's "active efforts" requirement is implemented by section 361.7.

Section 361.7 states: "Notwithstanding Section 361.5, a party seeking an involuntary foster care placement of, or termination of parental rights over, an Indian child shall provide evidence to the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (§ 361.7, subd. (a), italics added.) The section further provides: "What constitutes active efforts shall be assessed on a case-by-case basis. The active efforts shall be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe. Active efforts shall utilize the available resources of the Indian child's extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers." (§ 361.7, subd. (b).) For purposes of California dependency proceedings, "Indian child" is generally "defined as provided in Section 1903 of the Indian Child Welfare Act ( 25 U.S.C. Sec. 1901 et seq.)." (§ 224.1, subd. (a).)

Section 366.26 expressly states that "[t]he court shall not terminate parental rights . . ." "[i]n the case of an Indian child" if "[a]t the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7." (§ 366.26, subd. (c)(2)(B).) Although the phrase "active efforts" is not defined by either federal or state statute, California courts have construed "active efforts" to be "essentially equivalent to reasonable efforts to provide or offer reunification services in a non-ICWA case . . . . (In re Michael G. [(1998)] 63 Cal.App.4th [700,] 713-714 [ 74 Cal.Rptr.2d 642].)" ( Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 998 [ 48 Cal.Rptr.3d 605]; see Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 [ 97 Cal.Rptr.2d 303].) There is no claim in this case that active efforts to provide or offer mother remedial services and rehabilitative programs, aimed at preventing the family's breakup, were not made.

Rather, appellants' argument is that the court lacked substantial evidence to support a finding that the Department used active efforts to pursue the children's enrollment in the Cherokee Nation. This contention is based on rules 5.484(c)(2) and 5.482(c). Rule 5.484(c) states: "In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful, [f] (1) The court must consider whether active efforts were made in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child's tribe, [ f] (2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers." (Italics added.) Rule 5.482(c) further provides that "[i]f after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child." (Italics added.)

In October 2007, mother indicated in a parental notification of Indian status form that the children were or might be members of, or eligible for membership in, a Cherokee tribe. In November 2007, father indicated in a parental notification of Indian status form that he was or might be a member of, or eligible for membership in, a Cherokee tribe.

Initially, it must be pointed out that the statutory "active efforts" requirements under federal and state statute apply only to an "Indian child" as defined by ICWA. ( 25 U.S.C. §§ 1903(4), 1912(d); Welf. Inst. Code, §§ 224.1, subd. (a), 361.7.) The children were not Cherokee Indian children under ICWA, even though the Cherokee Nation's response indicated they were eligible for membership, since they were neither members of the Cherokee Nation nor were they biological children of a member of the Cherokee Nation. ( 25 U.S.C. § 1903(4).) Moreover, ICWA's "active efforts" mandate does not require a juvenile court to proceed "as if a child is an Indian child when a noticed tribe's response indicates that the child is eligible for membership if certain steps are followed. (See 25 U.S.C. § 1912(d); see also Welf. Inst. Code, § 361.7.) We question whether rule 5.482(c) and rule 5.484(c) are consistent with the controlling statute.

Under the California Constitution, the Judicial Council may not adopt rules that are "inconsistent with statute." (Cal. Const., art. VI, § 6, subd. (d).) Section 265 provides: "The Judicial Council shall establish rules governing practice and procedure in the juvenile court not inconsistent with law."

Further, to the extent appellants may be attacking earlier dependency proceedings on the ground that the court failed to proceed as if the children were Indian children and direct the Department to provide active efforts to secure tribal membership for the children in the Cherokee Nation, those earlier orders are not reviewable on this appeal. (See In re A.A., supra, 167 Cal.App.4th at p. 1318.) The juvenile court did proceed as if the children were Indian children at the section 366.26 hearing by making the necessary findings.

In any event, the record supports the conclusion that the Department made reasonable efforts to pursue "any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe." (Rule 5.484(c)(2).) The Department received a letter, dated June 12, 2008, from the Cherokee Nation advising that the children could be traced in the tribal records through an enrolled paternal ancestor (a great-great-great-great-great-grandfather) and that relationship made the children "eligible for enrollment and affiliation with Cherokee Nation by having direct lineage to an enrolled member." It stated that the Cherokee Nation could not intervene unless the children or eligible parent applied and received membership.

The letter was attached to an addendum, filed July 23, 2008, to the six-month status review report. In the addendum report, the social worker stated that she "ha[d] completed the registration documents for the Cherokee Nation Tribe" and was "awaiting their Certificate of Degree of Indian Blood." In another addendum report, also filed July 23, 2008, the social worker indicated that birth certificates for paternal relatives were needed and that, on July 2, 2008, she had notified the paternal grandmother, paternal aunts, and father of the needed documents and she was "awaiting the family's compliance in providing" them.

The June 12, 2008 letter from the Cherokee Nation was also attached to the 12-month status review report. The 12-month status review report reiterated that the Cherokee Nation had confirmed that the children may be eligible for enrollment in the tribe. Social worker Avery reported that she had been "working with the paternal relatives to obtain the needed documentation to prove the lineage from enrolled member to the children." She indicated in the report that the paternal grandmother was no longer cooperating with documentation efforts but another relative had obtained needed documents and the social worker had sent the application packet back to the Cherokee Nation on December 4, 2008. She had been informed by the Cherokee Nation that the enrollment process could take up to seven months.

A letter from the Cherokee Nation, dated December 17, 2008, was attached to the "366.26 WIC Report," dated May 7, 2009. The letter advised that the children's membership applications were required to be accompanied by "State Certified Birth and/or Death Records for all individuals tracing back" to an enrolled member and, consequently, the photographic copies were being returned along with the applications.

In the "366.26 WIC Report," Avery gave this update: "As stated in the 12 month Status Review report dated 12/17/08, the children may be eligible for enrollment in the Cherokee Nation. On 12/17/08, the Cherokee Nation notified this worker that the children's application would be kept on file, however State Certified Birth/Death Certificates were needed for all individuals to establish lineage to the enrolled tribal member. This worker notified the paternal grandmother [O.G.] and requested original birth certificates and/or death certificates for the family members to establish lineage to the registered] tribal members. This worker has not received any of the original documents needed to enroll the children in the tribe. Ms. [G.] has indicated to this worker in a letter dated 11-5-08 that she will not be providing the documents as she does not believe the children should be enrolled in the tribe and has withdrawn her own enrollment from the tribe."

At a May 7, 2009 hearing, the deputy county counsel stated, with respect to the applications to the Cherokee Nation, that the social worker had been trying to get the birth and death certificates from the family but had not obtained them yet. The deputy county counsel remarked that "if the family does want to enroll and wants to enroll the children, then I think they will need to work with the tribes directly to see if there's anything that can be done about missing records."

The record of the hearing on June 15, 2009, indicates that the children's paternal great-aunt V.C. had obtained certified copies of birth and/or death certificates from different states, including Texas and Oklahoma, to support the children's Cherokee Nation applications. After a discussion indicating some confusion regarding whether the tribe wanted originals or certified copies, the deputy county counsel stated that "if the tribe comes back and says certified copies are appropriate, then at that time we are wondering if she would provides these because you can always get more certified copies." Whea the court stated that it assumed that the social worker "would have to figure out where to get [the certified copies], pay the money and take the time to do that," the deputy count)' counsel replied, "No, it's their application. It would have to come from them, the certified copies." The paternal great-aunt unsuccessfully attempted to give the documentation that she had obtained to the court. The deputy county counsel indicated that the paternal great-aunt should send the documents to the tribe and agreed that the Department would provide the address. The court indicated that it saw no problem with the paternal great-aunt sending the documents and that the deputy county counsel would provide needed information. The paternal great-aunt left the courtroom. The deputy county counsel indicated that the social worker would prepare a cover letter for the great-aunt's signature specifying the case number and the children's names and providing the great-aunt's address so that the tribe could contact her if it had further questions.

An addendum report, dated August 17, 2009, prepared by social worker Ransom who had recently taken over the dependency cases, stated the following with regard to efforts to enroll the children as members of the Cherokee Nation. It stated: "On 8/13/09, the undersigned received a letter regarding the children . . . from the Cherokee Nation stating that they can be traced in the tribal record of the Cherokee Nation. . . . This relationship makes the children, eligible for enrollment and affiliation with the Cherokee Nation by having direct lineage to an enrolled member." A letter and an "Application for Citizenship in the Cherokee Nation" were attached to the report. The application instructions explain that to obtain a certificate of degree of Indian blood, the applicant "must apply and provide documents that connect [the applicant] to an enrolled lineal ancestor. . . ." The application instructed: "If no one in the family has received certification, attach ORIGINAL STATE CERTIFIED DOCUMENTS (BIRTH/DEATH) CERTIFICATES beginning with the applicant back to the enrollee." The social worker stated in her report that she would complete the membership applications for the children.

At a hearing on Monday August 17, 2009, the deputy county counsel stated that "one tribe, the Cherokee Nation of Oklahoma, has said the children may be eligible for enrollment under certain circumstances, which include the rest of the paternal line enrolling in the tribe." Paternal great-aunt V.C. indicated to the court that social worker Avery had prepared a cover letter for her and mailed it to her the previous Friday but V.C. had not yet picked it up from the post office. Consequently, she had not yet mailed the cover letter and the birth and death certificates to the Cherokee Nation. There was no indication that V.C. was not going to follow through with mailing the documents to the Cherokee Nation once she picked up the cover letter.

On October 28, 2009, at the contested section 366.26 hearing, the court indicated that it had "received countless letters from a paternal relative named [V.C.] around the Indian Child Welfare Act." It was the court's understanding that she was "attempting to get the family registered" but had "not yet gotten herself registered." The deputy county counsel indicated that she had no personal knowledge.

Although appellants now complain that the juvenile court "failed to direct the Department to complete necessary enrollment documents so that their tribal membership could be realized," the record indicates that the Department did immediately complete and submit membership applications on behalf of the children. After the Cherokee Nation indicated that membership applications must include "State Certified Birth and/or Death Records for all individuals tracing back" the direct lineage to the enrolled ancestor, the Department worked with the family to obtain the supporting documentation. The social worker first attempted to obtain the needed documentation through the paternal grandmother, who withdrew her cooperation. By the time of the June 15, 2009 hearing, however, paternal relative V.C. had obtained birth and death certificates. Although there was some confusion at that hearing about who was responsible for sending that supporting documentation to the Cherokee Nation, the record indicates that, before the August 17, 2009 hearing, the Department had sent V.C. a cover letter to enable her to send the birth and death certificates to the Cherokee Nation. At that August 17, 2009 hearing, it appeared that V.C. would be mailing them once she picked up the cover letter from the post office.

The Department's ongoing efforts to work with family members to obtain the supporting documentation and its provision of the cover letter to a cooperative and willing extended family member were consistent with taking the "steps necessary to secure tribal membership" for eligible children and attempting to use "the available resources of extended family members" as stated in rule 5.484(c)(2). The Department was not required to do more under the circumstances. Although appellants assert that a deputy county counsel "erroneously informed the court that the children could only be enrolled in the Cherokee Nation if all of their paternal relatives were also enrolled," the apparent misstatement had no bearing on the adequacy of the efforts made by the agency.

Appellants insist that the Department should have tried to obtain the state-certified copies of the birth and death certificates itself. They contend that "the Department failed to conduct even a minimal amount of investigation to ascertain that the records the tribe required were available to non-family members." They assert that, because California and other states, such as Oklahoma, make birth and death records available with a court order, the Department might have been able to directly secure the supporting documentation. Even if that were possible, we think it is unreasonable to interpret rule 5.484(c)(2) as requiring the DFCS to use its limited resources to attempt to obtain numerous certified copies of birth and death certificates from various states to support a membership application of a dependent child.

Further, we have no reason based on the record before us to conclude that the Cherokee Nation does not have the children's applications or that V.C. did not promptly follow through by mailing the birth and death certificates after the August 17, 2009 hearing, using the cover letter prepared by a social worker. The record does not disclose that the Department failed to take any reasonable steps necessary to secure tribal membership for the children and substantial evidence supports the court's "active efforts" finding.

D. Adequacy of ICWA Notices

1. Notice Requirement

ICWA provides 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.) California law implements ICWA by requiring that notice be sent to the minor's parents and the minor's tribe whenever "it is known or there is reason to know that an Indian child is involved [in a Indian child custody proceeding], and for every hearing thereafter . . . unless it is determined that the Indian Child Welfare Act ( 25 U.S.C. Sec. 1901 et seq.) does not apply to the case in accordance with Section 224.3." (§ 224.2, subds. (a), (b), italics added; see § 224.1, subd. (c); 25 U.S.C. § 1903; rules 5.480, 5.481(b).) Notice must "be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe in accordance with subdivision (d) of Section 224.1, after which notice need only be sent to the tribe determined to be the Indian child's tribe." (§ 224.2, subd. (a)(3).)

ICWA provides that "[n]o . . . termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary. . . ." ( 25 U.S.C. § 1912(a).) California law generally requires that "[n]o proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs. . . ." (§ 224.2, subd. (d); see rule 5.482(a)(1).) The Indian child's tribe has a right to intervene at any point in a proceeding for the termination of parental rights. ( 25 U.S.C. § 1911(c); Welf. Inst. Code, § 224.4; see rules 5.482(e), 5.534(i).)

California law also requires that, to the extent required by federal law, notice "be sent to the Secretary of the Interior's designated agent, the Sacramento Area Director, Bureau of Indian Affairs." (§ 224.2, subd. (a)(4).)

Under the implementing federal regulation, the required ICWA notices must include "[a]ll names known, and current and former addresses of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information." ( 25 C.F.R. § 23.11(a), (d)(3) (2010), italics added.) California law requires that the notices contain substantially the same data, including " any other identifying information, if known." (§ 224.2, subd. (a)(5)(C), italics added.) The Judicial Council has prescribed a mandatory form, entitled "Notice of Child Custody Proceeding for Indian Child (Indian Child Welfare Act)" (ICWA-030 [new Jan. 1, 2008]). (See Gov. Code, § 68511.)

In this case, appellants contend that the order terminating parental rights of both mother and father must be reversed because the ICWA notices contained incomplete and incorrect information with respect to the children's potential membership in the Choctaw and Seneca tribes.

2. Choctaw

The "366.26 WIC Report" filed by the DFCS social worker indicated that she had been notified by the paternal grandmother O.G. that the children might be eligible for enrollment in the Choctaw Nation. The social worker had notified the Choctaw Nation in December 2008 and received a response in January 2009.

The December 2008 ICWA notice for C.B. named "Jennie Wingate," "Billy Jackson," and "Phebe Wingate" as paternal great-great-grandparents. It stated Billy Jackson's enrollment number was 9905 but gave no enrollment number for "Phebe Wingate." The December 2008 ICWA notice for MB. named "Jennie Wingate" as her paternal great-great-grandmother and named "Billy Jackson" and "Phebe Wingate" as paternal great-great-great-grandparents. It gave the same enrollment number for Billy Jackson and, in addition, gave an enrollment number of 9906 for "Phebe Wingate." The notices were sent to the Choctaw Nation of Oklahoma.

A letter from the Choctaw Nation of Oklahoma, dated January 6, 2009, regarding the Indian status of the children and their older sister C. stated that it had researched its records with the information provided and had been unable to establish Indian heritage. The letter explained that, under its constitution, all lineal descendants of Choctaw Indians whose names appear on the final rolls of the Choctaw Nation were members. It also stated, "Please note that all records are pulled by maiden names and date of birth, therefore, the lack of this information may hinder the process."

In the "366.26 WIC Report." the DFCS social worker further reported that she had received a letter in January 2009 from the children's paternal grandmother O.G. The letter indicated that her father's death certificate omitted his parents' names and she was in the process of having the death certificate amended to show that his parents were Lee Andrew Bynum and Jennie Jackson. The social worker received another letter in February 2009 indicating that the grandmother had an appointment to speak with a lawyer about her father's death certificate but, at the time of the report, had not received any further information from her.

On June 15, 2009, at the hearing held to specifically deal with ICWA notice issues, father's counsel indicated that she had spoken with the paternal grandmother, who had said that her mother was married to a man, "Purvis [ sic] Bynum," whose mother was Jenny Jackson. In addition, the grandmother O.G. had said that Jenny Jackson was married to a Levi Bynum. She had also said that Jenny Jackson's mother was Phoebe Jackson, whose Choctaw enrollment number was 9906 or 1906, and Phoebe was married to Henry Jackson, whose Choctaw enrollment number was 1905 or 9905.

ICWA notices of the pending section 366.26 hearings were mailed in July 2009 to, among others, the Sacramento area director of the BIA (Bureau of Indian Affairs), the Secretary of the Interior, Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians in Louisiana, and the Mississippi Band of Choctaw Indians. The notices named "Jennie Wingate Bynum" in the relative information section but did not identify her relationship to the children. They also named the children's paternal great-great-great-grandmother as "Phoebe Wingate Jackson" with a Choctaw enrollment number of 9906 or 1906 and their paternal great-great-great-grandfather as "William Henry Jackson" with an enrollment number of 9905 or 1905.

Appellants contend that the July 2009 notices failed to provide legally adequate notice to the Choctaw tribes because they did not correctly identify the children's great-great-grandmother as having the maiden name of Jennie Jackson and as being the daughter of Phoebe Wingate Jackson and William Henry Jackson. They also argue that the notices, in addition to providing only the name "Jennie Wingate Bynum," failed to specify her relationship to the children and, consequently, failed to "connect the children's lineage to the Choctaw ancestors."

By letter stamped July 22, 2009, the U.S. Department of the Interior, Bureau of Indian Affairs informed the DFCS that its records showed that both Billy Jackson, roll No. 9905, and Phoebe Jackson, roll No. 9906, never had any children. The letter indicated that they "did not find a Jennie Wingate Bynum enrolled." By letter dated July 28, 2009, the Jena Band of Choctaw Indians informed the DFCS that its records did not indicate that the children or their relatives were members or eligible for membership in the Jena Band. Letters from the Mississippi Band of Choctaw Indians similarly stated that the children and the parents were neither enrolled nor eligible for enrollment.

Here, the notices provided the tribes with a meaningful opportunity to determine the children's possible Choctaw heritage based upon their purported Choctaw great-great-great-grandparents. Any asserted error in failing to provide a maiden name of "Jennie Jackson" and identify her as the children's great-great-grandmother in the notices was necessarily harmless since any purported Choctaw heritage was asserted to be through direct lineal descent from enrolled members Billy Jackson and Phoebe Jackson and the BIA's records established that those members had no children. ( In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576 [ 79 Cal.Rptr.3d 189] ["where notice has been received by the tribe . . ., errors or omissions in the notice are reviewed under the harmless error standard"].)

3. Seneca

Appellants assert that the DFCS should have sent corrected notices to the Seneca tribes before the section 366.26 hearing because previous notices to which the tribes responded had incomplete and incorrect information. They claim the January 2008 notice, which listed the children's maternal great-grandmother with a last name of "Senna," was prejudicially defective because it did not list her as having any tribal affiliation and stated "N/A" for "Tribe, band and location," which they claim indicated she had no Seneca heritage. They further assert that the July 2009 notice similarly failed to demonstrate Seneca heritage because it did not provide the name "Senna" for the children's maternal great-grandmother and did not specify the maiden names for the children's mother or grandmother. In any event, they point out the July 2009 notice was not sent to the Seneca tribes. Respondent counters that adequate notice was sent to the Seneca tribes, which found the children were neither members nor eligible to enroll, and "[t]here is no more information that the Department could have provided that would have brought a different answer from the Seneca tribes."

They also assert that the notices sent to the Seneca tribes misidentified a maternal great-grandfather as being Seneca and Cherokee. Even assuming that the grandfather was not Indian, appellants have failed to show that the error was prejudicial. (Cf. In re Cheyanne R, supra, 164 Cal.App.4th at pp. 573-574, 576 [complete omission of information regarding non-Indian side of the family was harmless error].)

In a parental notification of Indian status form, filed in October 2007, mother indicated that she might have Seneca Indian ancestry in addition to the children possibly being members or eligible for membership in a Cherokee tribe but she did not identify any particular Seneca tribe. The court ordered ICWA notice to be given by the social worker.

An ICWA notice sent in November 2007 identified the children's mother as Seneca and Cherokee. It named the children's maternal grandmother C.K. and listed the maternal great-grandmother as "Elsie Margaret Hamilton." As to that great-grandmother's tribe or band and location, the notice stated "N/A." A maternal great-grandfather, Pasquali Sarpi, was identified as "Cherokee, Sennca [ sic]." The notice was sent to, among others, the BIA in Sacramento, the Cayuga Nation of New York, the Seneca-Cayuga Tribe of Oklahoma, the Seneca Nation of Indians in New York, and the Tonawanda Band of Senecas in New York.

By letter dated November 29, 2007, the Seneca-Cayuga Tribe indicated that the children, their sister C, and their parents were not members of the tribe or eligible for membership.

Another notice was sent to the same recipients on January 10, 2008, and again identified the children's mother as Seneca and Cherokee. It provided a more complete name for the maternal grandmother and listed the maternal great-grandmother as "Elsie Margaret Hamilto [ sic] Senna." It again stated with regard to that great-grandmother's band or tribe and location, "N/A." A maternal great-grandfather, Pasquali Sarpi, was again identified as "Cherokee, Sennca."

A letter dated January 14, 2008, from the Seneca Nation of Indians quoted its enrollment ordinance, which made clear that membership was based upon matrilineal descent and eligibility to enroll was available only to those persons whose mother is a member of the Seneca Nation. It found the children and their older sister C, mother and father, their grandmother C.K., Elsie Margaret Hamilton, and other named relatives were not enrolled members of the Seneca Nation of Indians and were not eligible for enrollment.

In a letter dated February 1, 2008, the Tonawanda Seneca Nation stated that the children, their sister, and their parents were not members and they were not eligible for membership. In a letter dated March 10, 2008, the Cayuga Nation stated the children's parents did not have ancestry with the Cayuga Nation and the parents, the children, and sister C. were not eligible for enrollment.

On May 20, 2008, further ICWA notices were sent to, among others, the Sacramento area director of the BIA, the Secretary of the Interior, the Cayuga Nation of New York, the Seneca-Cayuga Tribe of Oklahoma, the Seneca Nation of Indians in New York, and the Tonawanda Band of Senecas in New York. The maternal great-grandmother was listed as both "Elsie Margaret Senna" and "Elsie M[a]rgaret Hamilton." Her birth date and birthplace were also listed. Her tribe or band was listed as unknown. A maternal great-grandfather, Pasquali A. Sarpi, was again listed but, this time, his tribe or band was listed as unknown.

By letter dated October 28, 2008, the Seneca Nation of Indians again confirmed that the children, mother and father, and other named relatives were not enrolled members or eligible to enroll.

ICWA notices regarding the 12-month review hearing set for December 17, 2008, were sent to the Sacramento area director of the BIA and the Secretary of the Interior but not to any Seneca tribe.

At a hearing on May 7, 2009, the children's maternal grandmother C.K. stated that her parents were not enrolled members of any Seneca tribe but the grandmother stated that her aunt was a member and lived on a reservation in Arizona. The court acknowledged that a corrected notice might have to be sent. C.K. indicated that her mother's maiden name was Senna and her mother's grandmother's married name was Chase. C.K. said that she could not remember her great-grandmother's maiden name and would have to check her records, which were in storage. The deputy county counsel asked for a hearing at which parents and other relatives would bring all identifying information because "so many different items [had been] sent at different times" and she did not know what information was correct. The court accepted that suggestion and ordered the parents to appear on June 15, 2009, for the purpose of ensuring proper ICWA notice.

The maternal grandmother never provided the court with the name of her maternal aunt, who was not the children's lineal ancestor, and did not bring her up again at the June 15, 2009 hearing. None of the noticed tribes received notice in Arizona. We have no reason to believe on this record that the DFCS did not adequately inquire into the grandmother's claim.

At the June 15, 2009 hearing, father's counsel informed the court that, prior to the hearing, maternal grandmother C.K. had said that her paternal grandfather, George Senna, "at one point he may have had relations" with a woman that was "[N]ative American and had children" but C.K. had not known the name of the Native American woman or the names of any children resulting from their relationship. Grandmother C.K. then spoke up, stating that her grandfather was George Senna (the children's great-great-grandfather) and she had heard that his father (the children's great-great-great-grandfather) married an Indian woman after his first wife, who was not Indian, passed away. She had been told by her older sister that when men married Indians, "they take on the wife's name." The grandmother then stated, "So I am not sure which way other than they have children. That could be where [the name] Senna came in, those children." When the court asked whether she was descended from the first wife or second wife and indicated some confusion, C.K. stated she was "very confused too."

In July 2009, ICWA notices regarding the section 366.26 hearing were sent to the Sacramento area director of the BIA and the Secretary of the Interior but not to any Seneca tribe.

As previously stated, under California law, notice must generally be sent to "all tribes of which the child may be a member or eligible for membership. . . ." (§ 224.2, subd. (a)(3), italics added.) The phrase "all tribes" in subdivision (a)(3) of section 224.2 has been "construed as requiring notice to all federally recognized tribes within the general umbrella identified by the child's parents or relatives." ( In re Alice M. (2008) 161 Cal.App.4th 1189, 1202 [ 74 Cal.Rptr.3d 863] [notice to all federally recognized Apache tribes required]; see In re J.T. (2007) 154 Cal.App.4th 986, 993-994 [ 65 Cal.Rptr.3d 320] [notice to all of the federally recognized Cherokee and Sioux tribes required].)

California appears to impose more demanding notice requirements than does ICWA. Under federal regulations, notice to the child's tribe is only required where the identity and location of the child's tribe is known. ( 25 C.F.R. § 23.11(a) (2010).) Conversely, where the identity or location of the child's tribe cannot be determined, notice of the pendency of any involuntary child custody proceeding involving an Indian child in a state court must be sent to the appropriate area director of the BIA. ( 25 C.F.R. § 23.11(b) (2010).) Subdivision (d) of section 224 commands that "[i]n any case in which this code or other applicable state or federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child, or the Indian child's tribe, than the rights provided under the Indian Child Welfare Act, the court shall apply the higher standard."

We are not persuaded by appellants' claim that the January 2008 notice was defective because "N/A" was entered in the space for the tribe or band of the children's maternal great-grandmother Elsie Margaret Hamilton Senna. The record does not establish that the great-grandmother was affiliated with any particular Seneca tribe or band. The abbreviation "N/A" or "N.A." or "NA" can mean "not available" as well as "not applicable." (See Webster's 9th New Collegiate Diet. (1990) p. 1380; Prince's Bieber Diet. of Legal Abbreviations (6th ed. 2009) p. 420; "N/A" http://www.allacronyms.com/N/A [as of Nov. 18, 2010]; see also Evid. Code, § 451, subd. (e).) The January 2008 notice provided the great-grandmother's name and birth date. Appellants have not affirmatively shown that the "N/A" entry as to the grandmother's tribe or band in the January 2008 notice rendered it defective and prevented meaningful notice to the Seneca tribes.

We note that the July 2009 notice states "No information available" in the space for the tribe or band of the children's maternal great-grandmother.

Furthermore, the Seneca tribes were again noticed in May 2008 and the notices stated the children's maternal great-grandmother's married name and her maiden name of "Elsie Margaret Senna," her birth date and place, and indicated that her tribe or band was "unknown" rather than "N/A." The noticed Seneca tribes did not respond and revise their prior determinations. "A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe . . . shall be conclusive." (§ 224.3, subd. (e)(1).) There is no basis for supposing that the noticed Seneca tribes' determinations regarding the children's ineligibility for membership might have been erroneous due to incorrect information regarding that great-grandmother's tribe or band.

Appellants also contend that the notices to the Seneca tribes "lacked some of the known information regarding maternal ancestors" and, therefore, new notices should have been sent to them before the section 366.26 hearing. At the June 15, 2009 hearing to collect all information necessary for proper ICWA notice, maternal grandmother C.K. theorized that the father of her grandfather George Senna (the children's great-great-grandfather) might have taken the name "Senna" from a second Indian wife and the surname "Senna" might have come into the family through their children. But the grandmother did not actually provide the name of her great-grandfather (the children's great-great-great-grandfather) or his second wife to the court or did not seem to know whether she was related to the second wife. The grandmother admitted to being very confused and was unable to provide any concrete information regarding the supposed Seneca ancestor. The grandmother's conjecture did not require the Department to send new notices that included the children's great-great-great-grandmother whose name was uncertain. But information concerning the children's great-great-grandfather George Senna was not previously included in the notices sent to the Seneca tribes. "`[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors.' ( 25 C.F.R. § 23.11(b) (2003).)" ( In re Karla C. (2003) 113 Cal.App.4th 166, 175 [ 6 Cal.Rptr.3d 205].) This additional information should have been provided to those tribes before proceeding with the section 366.26 hearing. (See §§ 224.2, subd. (a)(5)(C), 224.3, subds. (e), (f); cf. 25 C.F.R. § 23.11(b), (d)(3) (2010).)

DISPOSITION

The December 17, 2009 order terminating parental rights and selecting adoption as the permanent plan is reversed for the limited purposes of providing adequate ICWA notice to the Seneca tribes and allowing the court to reconsider, under the proper legal standard, whether the parent-child relationship exception to termination of parental rights applies (§ 366.26, subd. (c)(1)(B)(i)). Upon remand, the juvenile court shall direct that proper notice, including all known maternal direct lineal ancestors, be given to Seneca tribes and the BIA in accordance with California law and ICWA. Following at least 10 days after receipt of such notice, if no Seneca tribe intervenes, the court shall determine whether the parent-child relationship exception to termination of parental rights applies (§ 366.26, subd. (c)(1)(B)(i)). If no Seneca tribe has intervened and the court determines that the parent-child relationship exception is inapplicable, the court shall reinstate the order. If the court determines that the parent-child relationship exception does apply, it shall hold further proceedings under section 366.26 to select the children's permanent plan. If any Seneca tribe intervenes, the court shall hold a new section 366.26 hearing in accordance with applicable law.

Rushing, P. J., and Premo, J., concurred.