Filed 7/13/17 In re Daniel G. CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re DANIEL G. et al., Persons Coming Under the Juvenile Court Law.

TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

MICHAEL A. et al,

Defendants and Appellants.
F074560

(Super. Ct. Nos. JJV066949A, JJV066949B, JJV066949C)

OPINION

APPEAL from an order of the Superior Court of Tulare County. Robert Anthony Fultz, Judge.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant Michael A.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant Eden G.
Kathleen Bales-Lange, County Counsel, and John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
 
Appellants Michael A. (father) and Eden G. (mother), a married couple, have two daughters, now four-year-old S.A. and two-year-old P.A. Mother and Sergio G. have a son, Daniel, now five years old. Daniel, S.A., and P.A. are the subjects of this appeal. The juvenile court denied all three parents reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(13) at a contested dispositional hearing in April 2016, and set a section 366.26 hearing to implement a permanent plan. Three months later, mother filed a modification petition under section 388, requesting reunification services. In August 2016, the juvenile court denied mother’s section 388 petition and terminated parental rights.
Mother contends the juvenile court abused its discretion in denying her section 388 petition. She and father (collectively the parents) contend Tulare County Health and Human Services, Child Welfare Services (the agency) failed to notify the Jicarilla Apache Nation and Lummi Nation tribes of the proceedings as required by the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We concur that the agency failed to comply with ICWA’s notice requirements and conditionally affirm the juvenile court’s orders, and remand for the limited purpose of ensuring ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Dependency Proceedings
This case marks the second dependency petition concerning the family. In April 2013, the agency took then 17-month-old Daniel and newborn S.A. into protective custody after mother and S.A. tested positive for amphetamine, methamphetamine, and benzodiazepine. Father was incarcerated on charges of being a felon in possession of a firearm. He admitted drug use (methamphetamine and marijuana) and acknowledged a lengthy criminal history and gang involvement.
The parents and Sergio each executed a “Parental Notification of Indian Status” (ICWA-020), and mother and Sergio claimed no Native American Indian ancestry. However, father indicated he may have Apache Indian ancestry.
The agency completed the “NOTICE OF CHILD CUSTODY PROCEEDINGS FOR INDIAN CHILD” (ICWA-030), and mailed it to the Bureau of Indian Affairs (BIA), the United States Department of the Interior, as well as to eight federally recognized Apache Tribes, including the Jicarilla Apache Nation. The agency received responses from all but the Jicarilla Apache Nation tribe and one other, stating that S.A. was not a tribal member or eligible for enrollment.
The juvenile court found Sergio to be Daniel’s biological father and father to be S.A.’s presumed father. The court adjudged Daniel and S.A. dependent children and set the matter for disposition. The court also granted the agency discretion to place Daniel with Sergio as long as Sergio was living with his mother, Kimberly.
In July 2013, the juvenile court found the ICWA did not apply and placed Daniel with Sergio under family maintenance services. The court removed S.A. from her parents and ordered them to participate in reunification services, which included substance abuse services.
The juvenile court provided 12 months of reunification services to all three parents. According to the agency, the parents “perpetually struggled” with substance abuse and consistently failed to submit to random drug testing. During the first six months, mother failed three attempts at recovery, entering and leaving outpatient drug treatment twice and residential drug treatment once. However, by the 12-month review hearing in June 2014, the parents had fully complied with their reunification services and demonstrated they could safely parent Daniel and S.A. Also, during that time, mother gave birth to P.A., who remained in their custody. Mother and Sergio shared custody of Daniel who continued to live with Sergio in Kimberly’s home. At the 12-month review hearing, the juvenile court returned S.A. to the parents’ custody with family maintenance services, and in December 2014, terminated its dependency jurisdiction as to S.A. and Daniel.
Current Dependency Proceedings
These dependency proceedings were initiated in January 2016, after Kimberly took then four-year-old Daniel to the emergency room after noticing bruises and cuts on his body. One of the bruises was on his left rib cage and was consistent with the shape of an adult hand. Daniel also had several small abrasions on his feet and face, and a cut on his left foot. Daniel told the on-call social worker at the hospital that father threw a glass at his mother, which broke. Daniel accidentally stepped on the glass, cutting his left foot. He refused to disclose how he obtained the bruises on his left rib cage.
During a series of home visits and interviews, the agency was able to assess the children’s safety and living environment. The parents’ home was filthy, cockroach-infested, reeking an odor of urine, and there was very little food. The parents denied using physical discipline and could not explain how Daniel was injured. They also denied engaging in domestic violence and refused to drug test, stating they would test positive for marijuana. Sergio agreed to drug test and tested positive for methamphetamine. He also had an active warrant and recent criminal history, including public intoxication.
The agency took Daniel, two-year-old S.A., and 20-month-old P.A. into protective custody and placed them together in foster care. Daniel told his foster mother that father spanked him and left the marks on his body. The foster mother told the agency S.A. and P.A. also had bruises on their bodies when they arrived at her home.
Petition and Detention
The agency filed an original dependency petition under section 300, alleging the children were minors described in subdivisions (a) (serious physical abuse), (b) (failure to protect), and (g) (abuse of sibling), citing as factual support that mother and/or father physically abused Daniel and that their drug abuse and domestic violence placed the children at a substantial risk of harm. The petition also alleged under subdivision (b) that Sergio’s drug abuse placed Daniel at a substantial risk of harm.
The juvenile court detained the children pursuant to the petition and ordered the agency to provide the parents services, pending its disposition of the case. Father executed the ICWA-020, indicating he may be eligible for membership in a federally recognized Indian tribe.
On January 29, the agency completed the ICWA-030 forms for S.A. and P.A. and mailed them by certified mail, return receipt requested, to the BIA, Secretary of the Interior, and to nine federally recognized Apache tribes, including the Lummi Nation and the Jicarilla Apache Nation. The agency received responses from four of the tribes stating that S.A. and P.A. were not members or eligible for membership.
The agency also obtained police reports documenting severe domestic violence between the parents between June 2015, and January 2016. In one incident, the police found mother with bruises all over her body, including a large bruise on her chest, her left inner bicep, her left forearm, and on the front and back of her legs that appeared to be handprints. She also had a cut above her right eyebrow and a large mark on her forearm that appeared to be a bite mark. The police arrested father for felony domestic violence. The police reported that the home was extremely dirty with large quantities of trash and bugs throughout. There was only one bed in the bedroom and dog feces and urine all over the floor. The children appeared as if they had not bathed in several days and neither had clean clothes. There was a small amount of food inside the residence.
The agency made an appointment for the parents for a substance abuse assessment and provided them referrals for random drug testing, domestic violence education, and one-on-one parenting. Mother agreed parenting would be useful but did not think they needed domestic violence education. Father said he completed a domestic violence course in 2005. When the social worker reminded them law enforcement had been to their home for domestic violence, mother said it was not their fault, the neighbors kept reporting them to the police. Father said they had “‘the perfect family.’”
Jurisdiction and Disposition
In its report for the jurisdictional/dispositional hearing, the agency recommended the juvenile court deny all three parents reunification services under section 361.5, subdivision (b)(13). In support of its recommendation, the agency provided an overview of the parents’ substance abuse history. With respect to mother, it reported she tested positive for substances at the time of S.A.’s birth in April 2013. She participated in inpatient drug treatment but continued to use drugs. Although she denied using methamphetamine, she tested positive for trace amounts of amphetamine. Father attended outpatient drug treatment and continued to use drugs. Both parents admitted to daily use of marijuana while caring for the children. The agency did not believe it would be in the children’s best interest for their parents to receive reunification services given the parents continued drug use, despite 18 months of combined family reunification and family maintenance services. The agency also cited the fact that the parents engaged in domestic violence almost immediately after reunifying with the children in December 2014.
The agency also reported the parents attended every visit and arrived on time. However, there were significant concerns regarding the quality of visitation. The parents regularly argued in front of the children and mother cussed and swore. The children had to stop father’s repeated attempts to kiss them by telling him to stop and trying to get away from him. Occasionally, the children refused to sit near or be held by their parents. The agency recommended the court reduce their visitation to once a week for two hours.
In addendum reports filed for the jurisdictional/dispositional hearing, the agency described unusual behavior by Daniel as conveyed by his foster mother. It occurred when the foster mother placed Daniel in time out. He bit himself and stated, “Hit me. Hit me. I want you to hit me!” The agency also reported the parents were not complying with their voluntary services or making themselves available to the agency. Mother completed a substance abuse assessment in February 2016, and was referred to an outpatient drug treatment program. Around the same time, she tested positive for marijuana twice, then subsequently failed to drug test three consecutive times. She met with her clinician one time but missed her second appointment and the clinician was unable to contact her. She was given instructions for enrolling in a domestic violence program but did not respond. Father was also referred to an outpatient drug treatment program and was on a waiting list. However, staff were unable to contact him when an opening became available and disenrolled him from the program. He also missed appointments to meet with a clinician and to complete a domestic violence assessment, and he failed to drug test in February and March 2016.
In March 2016, the juvenile court convened the jurisdictional/dispositional hearing. By that time, the children were in relative placement. Father and Sergio’s attorneys submitted jurisdiction on the agency’s report and mother’s attorney presented argument only. The juvenile court sustained the petition on the subdivision (b) and (j) allegations only, having found the subdivision (a) allegations not true. The court set a contested dispositional hearing for April 8.
In an addendum report for the dispositional hearing, the agency updated the juvenile court on the children’s status. S.A. and P.A. were placed with a paternal cousin and Daniel remained placed with Kimberly. The children were doing extremely well and their aggressive behavior had dramatically decreased. The relatives were willing to adopt the children and Kimberly was willing to adopt all three. The agency also reported that Michael began outpatient drug treatment on March 11, but was discharged on March 31, due to excessive absences.
On April 8, the juvenile court convened the contested dispositional hearing. Mother’s attorney made an offer of proof that mother entered a residential treatment program on April 6. Prior to that, she participated in two weeks of outpatient treatment. She drug tested twice but had not called in for at least a few weeks because she did not have a telephone. The court accepted her offer of proof. Later, during argument, mother’s attorney clarified that the results of the two drug tests were diminishing levels of marijuana and that mother missed three drug tests, which counted as presumptive positive results. Father’s attorney did not make an offer of proof but informed the court that father visited the children regularly and had a significant bond with them. In addition, he was participating in outpatient treatment.
The juvenile court denied the parents and Sergio reunification services under section 361.5, subdivision (b)(13), and reduced visitation to one time a week for two hours. The court also found the ICWA did not apply and set a section 366.26 hearing for July 27.
Contested Hearing Pursuant to Sections 388 and 366.26
In its report for the section 366.26 hearing, the agency informed the juvenile court that Daniel remained separately placed from his sisters and the children’s care providers wanted to adopt them and preserve the sibling relationships. In addition, the agency considered the children adoptable and recommended the juvenile court terminate parental rights.
The agency also reported that the parents regularly visited the children and interacted appropriately with them. As to mother, it further reported the children did not appear to be bonded to her and did not cry or ask for her. On one occasion, mother attempted to force her daughters’ care provider to write a letter to the court stating that she (mother) was doing well. When the care provider told mother she did not feel comfortable writing a letter, mother threatened to have the children removed from her.
The agency also updated the court on the tribal responses. On June 1, the agency sent notice of the section 366.26 hearing to the five tribes that had not responded to the ICWA-030 notice. By mid-July, all of the tribes had responded stating the children were not eligible for tribal membership except the Jicarilla Apache Nation and Lummi Nation tribes. The agency had information, however, that the Jicarilla Apache and Lummi Nation tribes received notice of the section 366.26 hearing based on letters from the postal service, stating notice was delivered to the tribes. The postal letters include the scanned images of the recipients’ signatures; only the signature associated with the Lummi Nation is legible. In addition, the agency corresponded by email with Robert Ludgate, lead caseworker at the Lummi Children’s Services, concerning the children’s affiliation with the Lummi Nation. A copy of the email is not contained in the appellate record. However, the record contains a letter from Ludgate to the agency referencing the email and informing the agency the children were not members of the Lummi Nation based on the information provided by the agency in the email. The agency attached Ludgate’s letter and the postal letters to its report for the section 366.26 hearing.
On July 22, mother’s attorney filed a section 388 petition on her behalf, asking the juvenile court to provide her reunification services. She alleged that since the hearing in April 2016, she completed the 30-day residential phase of a substance abuse treatment program and was in aftercare, consistently attended Narcotics/Alcoholics Anonymous (NA/AA) meetings, and completed a family nutrition class, two of four parenting classes, and a two-hour domestic violence presentation. She also completed a mental health assessment and did not have any issues requiring treatment. As to why she believed reunification services would be better for the children, she alleged “I do not believe it is in my children’s best interest to be split apart. I believe that my children want to come home to live with me. Now that I am clean, sober and healthy, I will be able to parent them appropriately.”
Father’s attorney also filed a section 388 petition, requesting reunification services based on his alleged completion of a two-hour domestic violence presentation, enrollment in a batterer’s intervention program, and for random drug testing.
The juvenile court scheduled the parents’ section 388 petitions to be heard on the day set for the section 366.26 hearing.
The agency recommended against granting the parents’ section 388 petitions, citing their ongoing relationship, cohabitation, failure to address their domestic violence, and consistently drug test. In addition, although mother remained consistent in her substance abuse program and enrolled in aftercare, she tested positive for marijuana after completing her program.
On August 26, the juvenile court convened the contested section 366.26 hearing in conjunction with a hearing on the parents’ section 388 petitions. The parents appeared with counsel. The juvenile court began with the parents’ section 388 petitions. Mother’s attorney offered as evidence a document entitled, “Medi-Cal Specialty Mental Health Program Notice of Action,” dated June 8, which indicated that mother was not eligible for specialty mental health services. Mother’s attorney argued that mother was engaged in her services and making significant changes. Father testified he made a “major change” in the previous four to five months by achieving sobriety. He also said he did not get angry anymore and lived in peace. On cross-examination, however, he admitted he had not completed a substance abuse program. He also denied hitting Daniel.
The juvenile court denied the parents’ section 388 petitions, finding they failed to establish a change in circumstances. The court found it would not be in the children’s best interests to grant father’s petition but did not make an express best interest finding as to mother’s petition. After ruling on the section 388 petitions, the court conducted the section 366.26 phase of the hearing. Mother testified about the quality of her visits with the children. Following testimony, the parents’ attorneys argued the beneficial parent/child relationship exception to termination of parental rights applied. (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court found the exception did not apply and terminated parental rights. The court also found the ICWA did not apply.
DISCUSSION
I. Mother’s Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her request under section 388 for reunification services. In her view, the evidence established she made significant changes in her sobriety and that it was in the children’s best interests to grant reunification services. We disagree.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child.” (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
“A petition for modification is ‘committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.’” (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.)
“Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order.” (In re A.A., supra, 203 Cal.App.4th at p. 612.)
Section 388 serves as an “‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) It is not enough for a parent to show an incomplete reformation or that he or she is in the process of changing the circumstances, which led to the dependency. “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.” (Ibid.) “‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent ... might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.’” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
Here, the order mother sought to change by her section 388 petition was the juvenile court’s order denying her reunification services under section 361.5, subdivision (b)(13). As we stated, subdivision (b)(13) applies where the parent has a “history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment.” (See fn. 1, ante). Subdivision (b)(13) describes one of a number of exceptional circumstances listed in subdivision (b) reflecting a legislative determination that in certain situations attempts to facilitate reunification do not serve the child’s interests. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202.) When the juvenile court determines by clear and convincing evidence that subdivision (b)(13) applies, the court is prohibited from ordering reunification services unless it finds by clear and convincing evidence that “reunification is in the best interest of the child.” (§ 361.5, subd. (c).)
The evidence at the time the juvenile court made its ruling was that mother had a history of drug abuse that necessitated agency intervention in April 2013. After a year of court-ordered services and a series of recovery attempts, she successfully completed residential drug treatment in February 2014. A year later, the agency intervened again, prompted by Daniel’s physical abuse. However, there was evidence of ongoing and severe domestic violence, child neglect, and continuing drug abuse. In the several months between the time the children were taken into protective custody in January 2016, and the court conducted the dispositional hearing in April 2016, mother either missed drug tests or tested positive. On the day of the hearing, she was two days into a 30-day residential treatment program. Meanwhile, the children were doing extremely well in their foster care placements.
In denying mother reunification services, the juvenile court determined that any further efforts to reunify mother with the children was futile and not in their best interests. In rendering its decision, the court was emphatic in its assessment that she had not committed to making positive changes to protect the children. The court found mother’s lack of effort “egregious” and had no confidence that she would follow through if it ordered reunification services for her.
Three months later, through her section 388 petition, mother demonstrated that she completed the 30-day residential program and was compliant with aftercare, regularly attended NA/AA meetings, and attended parenting classes and a two-hour domestic violence presentation. The question was, however, whether that evidence established a change of circumstances under section 388. In other words, whether mother had so altered her circumstances that it compelled shifting the focus away from permanency for the children to reunification.
The juvenile court found mother failed to make the requisite showing that her circumstances had changed and we concur. Given mother’s extensive history of drug abuse, three months of treatment does not necessarily signal a good prognosis for sustained sobriety. Indeed, even a showing of great effort is not necessarily persuasive when a parent has an extensive history of drug use. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.) Further, aside from attending a two-hour presentation, mother made no effort to address the domestic violence in her relationship with father.
Our conclusion that the juvenile court did not err in finding mother failed to establish a change in circumstances obviates the need to review her contentions with respect to the children’s best interests.
II. ICWA Notice
Appellants contend the agency failed to comply with the ICWA because it mailed the ICWA-030 to the wrong address for the Lummi Nation and to the wrong addressee for the Jicarilla Apache Nation. Respondent concedes the error and we accept its concession.
“Congress enacted ICWA to further the federal policy ‘“that, where possible, an Indian child should remain in the Indian community.”’” (In re W.B., Jr. (2012) 55 Cal.4th 30, 48.) “Among the procedural safeguards included in ICWA is a provision for notice, which states in part: ‘In 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).)” (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.)
ICWA notice requirements are not onerous. “To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, [a social service agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [(Cal. Rules of Court, rule 5.664 [formerly rule 1439(f)], rule 5.664 repealed effective Jan. 1, 2008.)] Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)
We emphasized this two-step procedure and the importance of ICWA compliance in In re H.A. (2002) 103 Cal.App.4th 1206, specifically requiring the agency to complete and serve the SOC 319 (“‘NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD’” [currently the ICWA-030 notice form]) (notice form) along with a copy of the dependency petition, and file the completed notice form with the juvenile court along with copies of the proof of the registered mail or certified mail and the return receipt(s). (Id. at p. 1215.) In addition, we advised social service agencies for future reference that the BIA periodically publishes a list of designated tribal agents for service of notice, along with the appropriate mailing addresses in the Federal Register. (Id. at p. 1212.)
The pertinent BIA list of designated tribal agents for service of notice and their addresses required the agency to serve notice to “Jicarilla Apache Nation, Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health” at “P.O. Box 546, Dulce, NM 87528.” (79 Fed.Reg. 72009, 72027 (Dec. 4, 2014).) Although the agency used the correct address it did not address it to the designated agent, instead addressing it to “Monica L. Carrasco, Director.” With respect to the Lummi Nation, the BIA listed “Amy Finkbonner, Lummi Children’s Services Manager” as the tribal agent at “P.O. Box 1024 Ferndale, WA 98248.” (79 Fed.Reg. 72009, 72022 (Dec. 4, 2014).) Instead, the agency served notice to “ICWA Representative, 2616 Kwina Rd., Bellingham, Washington 98226.”
As is evident, the agency failed to notify the Jicarilla Apache and Lummi Nation tribes of these dependency proceedings as required under ICWA because it used the wrong address and/or designated agent. Further, there is no other evidence in the record to verify they received notice such as a return receipt or letter from them addressing the children’s Indian status. Nor could the postal letters or Ludgate’s letter be construed as ICWA notice since they do not satisfy the form notice requirements.
“Unless a tribe has participated in or expressly indicated no interest in the proceedings, the failure to comply with ICWA notice requirements [citation] constitutes prejudicial error.” (H.A., supra, 103 Cal.App.4th at p. 1213.) The agency concedes that the notice procedures of ICWA were not followed and the record here is consistent with that concession. Thus, we conditionally affirm the juvenile court’s orders and remand for ICWA compliance.
DISPOSITION
The juvenile court’s orders denying mother’s section 388 petition and terminating parental rights are affirmed, and the matter is remanded to the juvenile court with directions to order the agency to notify the Jicarilla Apache Nation and Lummi Nation of the pending dependency proceedings as required by the ICWA, if it has not already done so. If after proper notice under ICWA it is determined that S.A. and P.A. are Indian children and ICWA applies to these proceedings, any interested party is entitled to petition the juvenile court to invalidate orders that violated the ICWA. (See 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486 [petition to invalidate orders].) If there is no confirmation that the children are or may be Indian children, the court may proceed accordingly.


SMITH, J
WE CONCUR:



LEVY, Acting P.J.



PEÑA, J.