In re O.A.

Filed 5/20/08 In re O.A. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, S. Patricia Spear, Judge. Order reversed with directions.

Merrill Lee Toole, under appointment by the Court of Appeal, for Objector and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, for Respondent.

In this dependency case (Welf. & Inst. Code, 300 et seq.),^[1]April A., the mother of the minor children O.A. (born February 2000) and E.A. (born June 2005), has appealed from a section 366.26 order terminating her parental rights to the child E.A. She contends proper notice was not given under the Indian Child Welfare Act (25 U.S.C.  1901 et seq., the ICWA). The respondent in the case, the Los Angeles County Department of Children and Family Services (the Department) concedes reversible ICWA error and argues for limited remand.

Mother also contends the trial court failed to make an order that provides for visitation between herself and the minor children. The Department has requested that we take judicial notice of an order entered by the dependency court subsequent to the filing of this appeal. Such order contains specifics regarding Mothers contacts with O.A. by telephone and letters, but does not address visitation by Mother with E.A. While the Department asserts that the subsequent order renders Mothers appellate contentions moot, Mother disagrees because visitation with E.A. is not addressed.

Additionally, Mother complains that the childrens maternal aunt in Texas was not given proper consideration as someone who can care for E.A. under the Interstate Compact on Placement of Children (Fam. Code, 7900 et seq., Cal. Rules of Court, rule 5.616, ICPC).

Based on the record in this case, we find that the only issue raised by Mother that has merit is the one concerning ICWA notice. We will reverse the section 366.26 order terminating the parents parental rights and remand the case with directions for compliance with the ICWA.

BACKGROUND OF THE CASE

1. Mothers Prior Appeal

We have reviewed this case in the past. On November 13, 2006, we issued an unpublished decision in Mothers prior appeal. (B189905.) We take judicial notice of that opinion, and we therefore do not set out in this opinion the facts of the case that are related in the prior one.

The prior opinions history of the case ended with the February 7, 2006 jurisdiction/disposition hearing. At that hearing, the court adjudicated that the minors are persons described by section 300; determined that removal of the minors from the parents custody was necessary to protect the children; declared the minors dependents of the court; denied reunification services to the parents because they had been convicted of a violent felony (attempted murder), and because providing reunification services would be detrimental to the minors; ordered a relative placement for O.A. (who was living with her maternal uncle and his wife, the Gs); ordered suitable care for E.A., who was living with the foster mother with whom she was placed when she was one month old, Ramona G. (foster mother); ordered permanent placement services for the minors; and continued the case to July 25, 2006 for a section 366.26 hearing.

Mother filed a notice of intent to file a writ petition regarding the setting of the section 366.26 hearing. However, we deemed the notice to be an appeal from the disposition order because the issues raised by Mother in her writ papers were not issues stemming from the setting of the section 366.26 hearing.

2. Department Reports and Court Hearings Subsequent to the
February 2006 Disposition Hearing

The Departments July 25, 2006 status review and section 366.26 reports show that due to O.A.s behavior problems at the Gs home, (she was reported to be defiant and manipulative, and aggressive to the Gs son who is two years younger than her), O.A. was removed from their home and placed in a respite care foster home from December 23, 2005 to January 9, 2006. Then she was replaced to her former baby sitters home on January 10, 2006, and returned to the Gs home on February 4, 2006. The Gs reported O.A.s behavior had improved both at their house and in school since she was returned to their care. O.A. told the social worker she wants to stay with the Gs and does not want to live anywhere else. The Gs indicated they were interested in becoming her legal guardians.

The Gs and E.A.s foster mother were providing sibling visits for the girls once or twice a month, and agreed to continue the visits indefinitely. E.A. had been living with her foster family since July 2005, was very emotionally bonded with them, and the foster parents indicated they wished to adopt her. However, they were willing to become her legal guardians to preserve the family bond. There was no attempt to place the two girls together because E.A. is so bonded with her foster family and O.A.s therapist advised against placing her with her sister because O.A. can be aggressive. The Department recommended legal guardianship for both minors.

Both children were present at the July 25, 2006 hearing but O.A.s therapist recommended that the minor not have contact with Mother. The childrens attorney indicated that O.A. needed to be seen at Childrens Hospital Los Angeles for a neurological examination and possible seizure disorder, and the attorney questioned whether a legal guardianship for E.A. is appropriate. Progress hearings for September 20, and November 1, 2006 were set, as well as a January 23, 2007 section 366.26 hearing. A letter from O.A.s therapist sets out the therapists diagnosis for the minor, the treatment being given to the child, and the positive results from the treatment and the care of the Gs.

According to reports for the January 23, 2007 hearing (status review and section 366.26 reports), E.A. was referred to Regional Center because she had not yet begun to speak. She was reported to be a happy child and very attached to the foster family and they to her, and the foster family was meeting the minors needs. The foster family continued to be interested in adopting her and providing her with a permanent home.

O.A. was reported to be doing well in kindergarten but was still a handful in the Gs home. However, the reports note she had improved considerably since she was first placed with the Gs and began therapy, and the Gs remained committed to a legal guardianship of O.A. Sibling visits continued. The issue of O.A. needing a referral to Childrens Hospital remained because the minors doctor had yet to make a referral despite requests by many persons involved with the minor; however, it was learned that neither Mother, the Gs, nor O.A.s therapist had seen evidence of seizures or a seizure disorder, and the issue only arose because Mother reported to the social worker that the family had a history of seizures. The reports state that the case plan for O.A. was a legal guardianship with the Gs. and the case plan for E.A. was adoption by the foster mother.

At the January 23, 2007 hearing, the G.s gave testimony indicating their desire and intent to become O.A.s legal guardians and the court found that legal guardianship as the permanent plan for O.A. was proper. Thereafter the matter was twice continued because the parents had not been brought to court from their places of incarceration.

The report for the July 24, 2007 section 366.26 hearing states O.A. was excelling academically in school, doing well in the home of the Gs., and visiting regularly with E.A. E.A. was doing well in her foster familys home, they continued to provide her with appropriate care, they continued to want to adopt her, and their home study had been approved. In reviewing O.A.s situation at that hearing, the court found she was not adoptable because she was living with a relative who does not wish to adopt her. The G.s were appointed as her legal guardians and letters of guardianship issued that day. The court ordered visits between O.A. and her parents once a week as arranged by the legal guardians. The contested section 366.26 hearing was continued to September 18, 2007, because Father was not able to be brought to court from his incarceration. At the September 18, 2007 contested section 366.26 hearing the parents parental rights were terminated as to E.A. so that she can be adopted. Mother filed a notice of appeal the following day.

CONTENTIONS ON APPEAL

Mother contends the dependency court erred when it did not permit her to address, at the section 366.26 hearing, whether E.A. should be placed for adoption with a nonrelative person or should be placed with an aunt living in Texas.

Mother also contends the notice requirements of the ICWA were not complied with. Additionally, she asserts error in that specific provisions were not made for visitation between her and the two minors.

DISCUSSION

1. The ICPC Issue

a. History of the ICPC Matter

At various times during the pendency of this case in the trial court, Mother stated her belief that E.A. should be placed with a maternal aunt living in Texas, Heather C. The placement issue first arose three weeks after the Department filed its section 300 petition. At a hearing on August 3, 2005, Mothers attorney asked that the Department initiate an ICPC for placement of E.A. with aunt Heather. The court ordered the Department to do so, and the court observed that the Department should probably call her and make sure shes available and interested in placement. Mother was present at that hearing but she did not indicate that she had already spoken with aunt Heather and that the aunt was interested in caring for E.A. At that point in time, E.A. was nearly two months old and had been in the care of her foster family for about a month.

An addendum report for the September 21, 2005 pretrial resolution conference hearing shows that the social worker followed up on the courts suggestion that the Department contact aunt Heather and attempt to determine her position on caring for E.A. The report states that a Department investigator made numerous attempts to contact the aunt through the coordinated efforts of O.A.s maternal uncle who gave the investigator aunt Heathers home and cell phone numbers and the number of aunt Heathers father. The Department investigator found that the aunts home phone was disconnected. The investigator left two messages on the cell phone but received no reply from aunt Heather. The investigator contacted the aunts father and he agreed to tell the aunt why it was that the investigator was attempting to get in touch with her. As of September 20, 2005, aunt Heather had not returned the investigators calls. The Departments report also noted that the investigator had spoken with a therapist on the multidisciplinary assessment team and the therapist indicated that she has used the same cell phone number for aunt Heather but the aunt had not returned her calls either, and the aunts father had promised that he would pass on information to the aunt. The report states that when the investigator spoke with Mother and explained that aunt Heather was not responding to these efforts to speak with her, Mother said she would find someone else to care for E.A. Mother did not say she would call the aunt herself and have the aunt contact the Department. Thus, by the time of the September 21, 2005 hearing, Mother had already indicated she was no longer interested in having aunt Heather care for E.A.

Despite this disinterest by the Texas aunt in making a connection with the Department, and despite Mothers indication that she would find someone else to care for E.A., at the July 25, 2006 hearing Mothers attorney complained that the Department had not initiated an ICPC inquiry and had not returned what he described as aunt Heathers numerous calls to the Department. Mothers attorney even asserted that the Department had made no effort to contact aunt Heather. The trial court ordered the Department to initiate the ICPC in an abundance of caution for both E.A. and O.A. to see if the Texas aunt would be available and approved.^[2]

A September 20, 2006 Department report states that although the Department had made an ICPC referral to Texas on aunt Heather, the assessment of the aunts home required a signed minute order. At the September 20, 2006 hearing the court clerk explained that a signed minute order was made at the August 3, 2005 hearing at which the topic of a ICPC was first raised. The court directed that the ICPC be pursued.

The Departments January 23, 2007 report states the social worker received a report from Texas regarding the ICPC. The Texas report states aunt Heathers home study was closed and denied because contact could not be made with the aunt, and Texas considered the interstate case closed. The Texas report, dated December 7, 2006, states that on three occasions a Texas agency sent forms for aunt Heather to fill out but they were never returned by the aunt to the agency. The Texas report states the forms were sent once in October 2006 and twice in November 2006, twice by regular mail and once by certified mail. There is also e-mail from the maternal uncle who is caring for O.A. to aunt Heather in Texas in which the uncle states that the social worker has not been able to make contact with aunt Heather. The uncle also states in the e-mail to aunt Heather that Mother has also called aunt Heather several times but the aunt has not taken her calls. The maternal uncle suggests that aunt Heather make contact concerning the issue of taking E.A into her home. Heather e-mailed him back stating she had personally taken paperwork to the local Texas Department of Protective and Regulatory Services, she had recently been in contact with Mothers attorney and someone from Los Angeles County Child Court Services, and she remained committed to having E.A. placed with her and would be teleconferenced into the court proceedings. Regarding Mothers not being able to make contact with the aunt, the aunt stated she does not have a land line telephone and her cell phone does not take collect calls so there is no way I could take/or not take her calls.

At the January 23, 2007 hearing, the matter of whether aunt Heather had attempted to comply with the Texas agencys mailings was addressed. Mothers attorney stated the aunt had faxed to him a copy of what she described (to the attorney) as the papers she had faxed to the Texas ICPC agency on December 6, 2006. The dependency court indicated the aunt should be given another opportunity to have her home evaluated by the Texas agency, and it ordered the Department to complete the ICPC.

The Departments April 24, 2007 report states that in February 2007, another ICPC was made for aunt Heather by the Department and the Department received a second ICPC report from Texas denying the aunts home. The Departments report shows that a notice was sent, to the Departments own social worker from the Departments own ICPC coordinator, Nita Carlton, and the notice from Carlton states that the second Texas denial was attached to that notice and [t]he aunt fails to follow through w/home study. ICPC services on the case are now closed. There are two documents attached to Ms. Carltons notice. One is from the Texas Department of Family and Protective Services and bears a date of March 1, 2007. It states the ICPC was denied and the Texas case is closed. The other is an Interstate Compact Placement Request form sent to Texas from the Department. In the portion filled in by the Texas agency, it states placement shall not be made and that notation is signed and dated March 1, 2007. Included with those two documents is a December 7, 2006 memorandum form from Texas that was sent by Texas when it first denied the ICPC.

Included with the Departments report for a June 6, 2007 progress hearing is a copy of the form that the Department sent to the Texas agency in February 2007. The form states: On 12/7/06 Texas ICPC denied placement with the maternal aunt, Heather [C.], due to her noncompliance. On 1/23/07 Mrs. [C.] informed Los Angeles Dependency Court that she does not recall any contacts from TX DFPS staff. Court has now re-ordered the ICPC on the [C.] home in [Texas]. Please make every effort to contact the Proposed Placement Resource by mail, phone and/or an unannounced home visit. Thank you for yours and your local agencys efforts on behalf of this CA child. Also included with the Departments June 6, 2007 report is an e-mail correspondence from the Departments ICPC person, Nita Carlton, to the Texas agency dated March 8, 2007, in which Carlton stated that aunt Heather had indicated to the Department and to the court that she was still interested in caring for E.A. Ms. Carlton asked if the Texas worker would consider initiating a relative study for the aunt. The e-mail also notes that the earlier (December 2006) Texas agency memorandum had been included with the more recent March 2007 documents from Texas, and Ms. Carlton asked if there was a more recent memorandum from the Texas worker. The Texas agency replied to Ms. Carlton stating: This request was denied twice due to non compliance. The worker has attempted phone calls, left messages, sent certified letters. The worker has spoken to Heather [C.] and Ms. [C.] reports that she will turn in the necessary paperwork but still has not responded. The Departments social worker indicates in the Departments June 6, 2007 report that Mother indicated that aunt Heather was insisting that she did respond to the Texas agency but the Texas agency did not follow up with the aunt. The Department social worker requested that the dependency court order yet another ICPC request for Texas.

At the June 6, 2007 progress hearing, Mothers attorney asked that aunt Heather be permitted to testify, by telephone, at the upcoming review hearing and contested section 36626 hearing on July 24, 2007. The attorney stated that Mother represented to him that aunt Heather disputes the Texas agencys assertion that she was nonresponsive to its attempts regarding the ICPC. The court responded that such testimony did not appear to be relevant because the aunt has no standing, however the testimony would be permitted if it is relevant. The minors attorney voiced her opinion that Mother and the aunt were working together to string this thing along and their effort was based on Mothers hope that she would prevail in her criminal appeal and would be able to regain custody of the minors.

The Departments report for the July 24, 2007 hearing states: The second ICPC referral was made on 02/01/07 on behalf of Heather C.[]. [The Department social worker] worked closely with the [Department] ICPC coordinator for Texas, Nita Carlton. . . .  [The Department social worker] received a second ICPC 100A and report from Texas denying the maternal aunts home. According to the attached ICPC report, the ICPC study was closed due to Ms. Heather C.[] not following through with the homestudy. Per Ms Nita Carlton, this will be the final denial from ICPC in Texas.

At the July 24, 2007 hearing, Mothers attorney again brought up the aunt in Texas and asserted that the Department had not carried out the courts orders regarding ICPC. The court disagreed with Mothers attorney, saying that Texas has received the ICPC request and denied it twice and thats as much as the court can do, and [E.A.] cannot be placed there. Based on that conclusion, the court ruled aunt Heathers testimony would not be relevant at the section 366.26 hearing.

The section 366.26 hearing was continued to September 18, 2007. At that time, Mothers attorney objected to references in the Departments reports to aunt Heather not having complied with ICPC requests regarding possibly placing E.A. with her. The attorney argued that the aunt was available to testify and there was documentation showing she responded to the Texas agency when it contacted her, and the Departments failure to consider her as a placement was contrary to [Mothers] rights as a parent while reunification was still in effect to have the child placed with a relative. The court ruled Mothers objection lacked merit and it was overruled.

b. The Parties Appellate Positions on the ICPC Issue

On appeal, Mother asserts she has standing to challenge the trial courts denial of her request to present documentary evidence on whether aunt Heather had in fact responded to the ICPC inquiry of the Texas agency and testimony from aunt Heather on that issue, and standing to challenge the trial courts overruling of her objection to statements in the Departments reports that the aunt had failed to facilitate the ICPC investigation. She contends the standing comes from the fact that placing E.A. with someone who is not a family member, such as the minors foster family, means that Mothers contacts with the child will end. Mother contends her due process rights were denied when the trial court would not address relative placement at the section 366.26 hearing.

Mother also contends the trial court had a statutory duty to consider placing E.A. with a relative before it proceeded to the permanency planning hearing. Mother asserts that the California Legislature has a stated preference for adoption by family members and the trial courts failure to take evidence concerning whether aunt Heather had complied with the directives of the Texas agency thwarts that stated preference. Mother cites section 361.3, and Family Code section 8714.5.

Mother complains that although an ICPC inquiry was originally ordered in August 2005, it was not until July 2006 that the Department pursued that inquiry after the trial court again directed such pursuit. Mother states that the Department then submitted the same documentation rather than have Texas social services re‑initiate the ICPC investigation and Texas social services apparently did not made [sic] concerted efforts to contact Heather.

The Department challenges Mothers positions. It observes that this court has already found that there is no merit to Mothers assertion that E.A. should have been placed with aunt Heather. In our earlier opinion we stated there was no evidence that aunt Heather sought placement of E.A. with her, there was evidence that the Department made an effort to locate aunt Heather, and the trial court, subsequent to that effort to locate the aunt, instructed the Department to attempt the ICPC again.

The Department also challenges Mothers assertion of standing to complain that E.A. was not placed with aunt Heather,^[3]and it further contends that even assuming arguendo Mother has standing, her complaints are moot because placement of E.A. with the foster family occurred prior to Mothers earlier appeal and should have been challenged then. The Department also contends the dependency court had no duty to take testimony or documentary evidence at the section 366.26 hearing regarding aunt Heathers ICPC efforts because only two matters are at issue in determining whether to terminate a parents parental rightswhether there is clear and convincing evidence that it is likely the child will be adopted, and whether there was a previous determination that reunification services should be terminated. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.) The Department observes that (1) Mother no longer had reunification services, and (2) although on appeal Mother asserts she was not allowed to challenge E.A.s adoptability, in actuality at the section 366.26 hearing she made no issue of the question whether E.A. can be found to be adoptable. Nor does she explain how, with the foster family repeatedly asserting its desire to adopt E.A. and the adoptive home study being approved, the trial court could reasonably find that the minor is not adoptable.

Like the Department, we find Mothers appellate position to be without merit. Even if we overlook the issue of Mothers standing to raise relative place in this appeal, even if we overlook the fact that we have already determined there was no ICPC/relative placement error by the time Mother filed her first appeal and we have further determined that the second directive by the trial court to make an ICPC inquiry also made the relative placement issue moot at that time, and even if we assume for purposes of argument only that at a section 366.26 hearing a court may sometimes have a duty to consider a relative placement issue in addition to the two traditional section 366.26 issues (whether a child is adoptable and whether a parents reunification period has ceased), without question the record in this case does not support Mothers appellate position that failure to take evidence on the issue of placing E.A. with aunt Heather constitutes reversible error.

The record shows that (1) the issue of relative placement was raised at various times during the case, (2) each time it was raised the trial court addressed it and directed the Department to make an ICPC inquiry in Texas, and (3) each time the Department took action on the courts orders. The record shows that in August 2005, when E.A. had only been with her foster family for a few weeks, the question of relative placement with aunt Heather in Texas was raised and the Department attempted to make contact with the aunt but to no avail. The record further shows that upon learning that the Department was not succeeding in contacting the aunt, Mother indicated she would find someone else to care for E.A. Thus, by September 2005, Mother had waived the prospect of having aunt Heather care for E.A.

It was not until late July 2006 that Mother again indicated she wanted the aunt to take the minor. By that time, E.A. had been with her foster family for a year and was quite bonded with them, and the disposition hearing had taken place in February 2006. Section 361.3, subdivision (d) states that after the disposition hearing is held, if a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable. Here, the record shows that (1) it did not become necessary to replace E.A. after the disposition hearing was held and (2) prior to the disposition hearing Mother had already waived additional action on her initial section 361.3 relative placement request by telling the Department social worker that she would find someone other than aunt Heather for E.A. to live with since the aunt was not responding to the Departments overtures.

Thus, by the time of the July 2006 hearing, there were no section 361.3 issues pending. Nevertheless, at that July 2006 hearing when Mother renewed a request for placement of E.A. with the Texas aunt, the court instructed the Department to make the ICPC inquiry even though there was no showing by Mother that a replacement of the minor had to be made ( 361.3, subd. (d)). Texas then denied the matter based on what it said was the aunts failure to submit the necessary paper work, and when the ICPC inquiry was made a second time by the Department, Texas again denied it. After the second denial the dependency court reasonably responded that it could not make Texas engage in pursuing the ICPC. Moreover, in her appellate briefs Mother fails to discuss the ICPC statutory framework respecting ICPC inquiries, rights and remedies and how that framework supports her position that the trial courts refusal to take evidence on the relative placement issue at the section 366.26 hearing constitutes reversible error.

We also note that a review of the statutes cited by Mother respecting the Legislatures preference for placing children with family members shows that each statute requires overt action by the relative. Family Code section 8714.5 directs a relative desiring to adopt a child to file a petition. Section 361.3, subdivision (a), states that preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. (Italics added.) Regardless of what aunt Heather asserts that she did in regards to promoting her home as a place where E.A. should be placed, the record shows that she resisted the Departments 2005 attempts to make contact with her, and she resisted the directives of the Texas agency regarding ICPC.

Mother essentially contends that the trial court should have deemed the Department and the Texas agency to be lying about the aunts response to their ICPC inquiries. Moreover, section 361.3, subdivision (a) states that before a child is placed with a relative who requests such placement, the Department and the court must determine whether placement is appropriate, and must consider such things as the safety of the relatives home; the ability of the relative to provide the minor with a safe, stable environment, the necessities of life, protection from the minors parents, and effective and proper care and control; and the ability of the relative to facilitate the minors visitation with other relatives. Although there was an extended effort made to do that in this case, the trial court had evidence that the Texas aunt did not cooperate with the inquiries.

2. The ICWA Issue

a. Background of the ICWA Issue

The dependency courts minute order from a November 22, 2006 progress hearing notes the filing, on November 13, 2006, of our opinion in Mothers prior appeal wherein we stated the Department must comply with ICWA notice provisions. The minute order directs the attorney representing the Department to review the file, ascertain that all tribes were properly noticed, if green receipts have been received, and, if not ensure same for the next hearing date.

At the January 23, 2007 status review and section 366.26 hearing, the Departments attorney informed the court that her review of the both the courts file and the attorneys file revealed nothing. The court ordered the Department to comply with ICWA notice requirements. The matter was continued to April 24, 2007 for a contested section 366.26 hearing.

The Departments April 24, 2007 report states that a Department investigator had sent both parents contact letters in July 2005 in which the investigator requested ICWA information, if applicable. The report also states that in September 2006, the social worker twice sent ICWA contact letters to the parents. To date neither mother nor father have returned any information to [the social worker or the investigator] regarding possible Indian heritage.

We note that on July 13, 2005, Fathers signed ICWA parental notification of Indian status form was filed and in that form he stated that as far as he knows, he has no Indian ancestry. We also note that at the July 13, 2005 detention hearing, mother stated that father had never told her he is related to American Indians. However, Mother indicated she had been told that she is part Cherokee and/or Blackfoot but were not registered. She stated she did not have any parents or older generation people in her family who would have information about that. The Department was ordered to give notice to all Cherokee and Blackfoot tribes and the BIA.

There is a copy of a Judicial Council form JV-135 Notice of Involuntary Child Custody Proceedings for an Indian Child form attached to the Departments April 24, 2007 section 366.26 report. The form states that a parent reported Indian heritage in a Blackfoot or Cherokee tribe. The parents names, birth dates, and the states in which they were born are listed on the form, as well as the parents prison addresses and former addresses. That is the extent of the information provided to the Tribes. Thus, no information was supplied concerning, for example, the names, dates and places of birth and death, and addresses for the minors grandparents and great grandparents. A certificate of mailing states the form was mailed on April 19, 2007 to the BIA in Sacramento, the Secretary of the Interior in Washington, D.C., the Blackfeet Tribe in Montana, and three Cherokee tribes, two in Oklahoma and one in North Carolina.

At the April 24, 2007 section 366.26 hearing, the court observed that the ICWA notices had not been sent until April 19, 2007, were not timely for that hearing, and ordered them sent again for the July 24 hearing in a timely fashion.

The June 6, 2007 progress report includes notices from the Blackfoot Tribe indicating the minors and the parents are not listed on tribal rolls and stating that therefore the minors are not Indian children under the ICWA. Similar letters were received with respect to the two Oklahoma Cherokee Nation/Band notices. There is no response from the North Carolina Eastern Band of Cherokee Indians.

At the June 6, 2007 progress hearing, the court noted the responses from the ICWA inquiry and made a finding that this is not an ICWA case.

b. Mothers Contentions

Because Mother never bothered to return any of the three ICWA contact letters that she was sent, the Department had no ancestry information from her which the Department could include on the JV-135 forms that it sent to the various tribes. Mother complains that the ICWA social worker never made inquiries of O.A.s caretaker maternal uncle and the maternal grandfather in Texas regarding Indian ancestry. She contends that without an inquiry of the maternal uncle and grandfather as to whether they could supply ancestry information respecting possible Indian heritage, and without including on the JV-135 any information that those relatives could provide, it was not possible for the Tribes to make an informed determination whether the minors are Indian children. Therefore, she concludes, it was reversible error for the trial court to find that this is not an ICWA case. Additionally, she argues that reversible error is shown by the fact that the Department did not submit the proper proof of mailing to the court (the certificates of mailing or the return receipts), and therefore a finding that the Eastern Band of Cherokee Indians had been noticed was not reasonably made since that Band did not send a reply letter. The Department concedes the errors.

3. The Visitation Issue

Mother contends she has participated in programs while she [is] incarcerated but the court has never provided for visitation between her and the minors. Mother also contends that the orders denying or limiting mothers visits with the children must therefore be reversed and the matter remanded to the juvenile court for findings on whether visitation should be permitted by letters, phone calls and visits.

We reject Mothers position. To begin with, any orders that were made prior to the order from which Mother has currently appealed should have been challenged by her when those orders first became appealable if she found them objectionable. Mother has not explained why she should be permitted to challenge orders from which the time to appeal has expired.

Moreover, visitation is not an essential part of a case when the parent does not have reunification services. (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Section 361.5, subdivision (f) gives the dependency court discretion as to whether visitation will be ordered when reunification services are not granted because of, among things, a violent felony conviction. The exception to such exercise of discretion is that visitation is not allowed if it would be detrimental to the minor. (In re J.N., supra, 138 Cal.App.4th at p. 458.) Mother misreads section 361.5, subdivision (f) when she asserts that [v]isitation may only be denied upon a finding that visitation would be detrimental to the child. That is not what the statute says, and Mothers citation to In re J.N. to support her misreading of the statute also misreads what the In re J.N. court said about those provisions. (In re J.N., at p. 458.)

In this case, at the disposition hearing in February 2006, the court denied reunification services to the parents because of their convictions for a violent felony and because the court found it would not be in the minors best interest to reunify with the parents. If Mother was dissatisfied that no specific visitation orders were made for her at that February 2006 hearing, she should have objected to the trial court at that time, and then challenged the trial courts order if she still was not satisfied. Indeed she could have challenged each subsequent order that did not provide her with specific visitation. Her written complaint given to the court at the September 2007 section 366.26 hearing at which her parental rights were terminated could not undo her past failure to object to what she contends was inadequate visitation between herself and the minors.

Additionally, there have been orders for visitation since the trial court, at the disposition hearing in February 2006, denied reunification services to the parents. At the July 24, 2007 hearing, when the letters of guardianship for the Gs were issued, the court ordered visits between O.A. and her parents once a week as arranged by the legal guardians. The visitation order was made in the signed guardianship order.

Moreover, after Mother filed this appeal, the trial court issued an additional order respecting visitation between O.A. and Mother. The Department requested that we take judicial notice of that order and its motion was granted. The February 25, 2008 minute order states that mother may have one monitored phone call per week with [O.A.]. The social worker is to assist in arranging the schedule. Mother not to call collect. Mothers letters to minor are to be directed first through the social worker. Any letters from the minor or legal guardian to the mother are to be sent first through the social worker. There is no indication in the minute order why the interaction with the social worker was deemed necessary. Regarding Mothers objection that E.A. was not included in those visitation orders, that is something Mother can address upon remand of this case to the trial court, where the court will again have an opportunity to exercise its section 361.5, subdivision (f) discretion respecting visitation between Mother and E.A.

DISPOSITION

The section 366.26 order terminating the parents parental rights is reversed. The matter is remanded with directions to the dependency court to (1) order the Department to solicit information from the minors maternal uncle and grandfather regarding possible Indian heritage, and to comply with the ICWA notice provisions, and (2) thereafter make a new determination whether proper ICWA notice has been given and whether the ICWA applies to this case. If and when the court determines that proper ICWA notice has been given, that the minors A.O. and E.O. are not Indian children, and that the ICWA does not apply to the case, the dependency court shall reinstate its section 366.26 order and proceed accordingly. Alternatively, if the court determines that the minors are Indian children and the case is governed by the ICWA, the court shall proceed according to pertinent statutes and Rules of Court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J. ALDRICH, J.

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^[1] Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.

^[2] For that July 25, 2006 hearing, the trial court was presented with a letter from a legal advocate at an organization called Justice Now. The letter to the court states that Mother informed the organization that she wants aunt Heather to adopt E.A.. The letter further states that aunt Heather represented to the organization that she (aunt Heather) had been contacted by the Department investigator in the second week of July 2005 (which was two weeks before the issue of an ICPC first came up at the August 3, 2005 hearing) and she explained to the investigator that she had just lost her job and would need one or two months to obtain another, and the investigator told her she had about six months to obtain custody of E.A. No one ever contacted her again and so in March 2006 she contacted Mothers attorney and he gave her the phone number of the childrens attorney and after the aunt had placed a minimum of five calls to the childrens attorney, the childrens attorney returned the calls and gave the aunt reasons why the attorney believed it would not be good for E.A. to be placed with her.

^[3] In Cesar v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035, the court addressed section 361.3, which provides preferential placement status to relatives of minor children in dependency proceedings when the children must be removed from their parents care and placed in another home. The court found that a grandmother had standing under section 361.3 to challenge a decision to not place her grandson in her home after the child was removed from his fathers care. However, the court ruled the childs father did not have standing to challenge the placement decision since he no longer had reunification rights. The court stated it [could] not see how the denial of placement with [the grandmother] affects [the fathers] interest in reunification with the children.