Opinion
B165182.
10-28-2003
In re A. J., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SANDRA A., Defendant and Appellant.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Pamela S. Landeros, Deputy County Counsel, for Plaintiff and Respondent.
This is a dependency case in which a mother appeals from orders freeing one child for adoption and appointing a legal guardian for another child. We conditionally vacate the orders because the court failed to comply with the Indian Child Welfare Act but otherwise reject the mothers claims of error.
FACTS
Sandra A. has 10 children, only two of whom (Whitney B. and A. J.) are involved in this appeal.
A.
Whitney was born in February 1991, with a positive toxicology screen for cocaine. Sandra (who had no known residence) abandoned Whitney at the hospital, and a petition was filed by the Department of Children and Family Services, with allegations that Sandra was a drug abuser, that Whitney was born drug-positive, and that five of Sandras other children were already dependents of the court. The petition was sustained and (although Sandras whereabouts were then unknown) the usual services and monitored visits were ordered. Whitney was placed with Joanne A., her maternal aunt (who with Ruby A., Whitneys maternal grandmother, was caring for Sandras five dependent children). Although Sandra did not contact the Department or appear in court, she visited her children sporadically during the next year.
Sandra and her older children have been in the system since at least 1987 when one child was born with drugs in his system. The eldest child, Lindsay J., was born in 1973 (at which time Sandra was only 14). At the time of Whitneys birth, Sandra had (in addition to Lindsay) five other children, Taneshia J., Jerome J., Joseph A., Andre B., and Anthony B., all five of whom were then dependents of the juvenile court. After Whitneys birth, Sandra had three more children, Justin J., A. J., and Wy. A.
In November 1992, Sandra (still transient) gave birth to Justin J., who tested positive for cocaine and was placed with Joanne. Later that month, the dependency court appointed Joanne as legal guardian of Whitney and two of her older siblings (Andre and Anthony) and retained dependency jurisdiction. In November 1993, the Department reported that Sandra (who had not yet appeared in court) had been receiving services and had attempted to remain drug free following Justins birth, but she disappeared again just before a November 22 hearing.
Two of Sandras other children (Joseph and Jerome) were placed in long-term foster care and jurisdiction was terminated as to Taneshia.
B.
In June 1995, Sandra gave birth to A. J., and voluntarily placed the child with Joanne. Sandra agreed to participate in drug rehabilitation, but failed to comply with the terms of a voluntary family maintenance contract, and (in December) a petition was filed with regard to A. J. In January 1996, the court sustained the petition and ordered further services. Sandra did not attend the hearing.
In July 1996, the Department reported that A. J. had bonded with Joanne and was attached to her siblings. Reunification services were terminated and a selection and implementation hearing was scheduled. (Welf. & Inst. Code, § 366.26.) An August adoption assessment reported that Sandra had not had any contact with A. J., and recommended legal guardianship. In February 1997, Joanne was appointed as A. J.s legal guardian and (as with Whitney) the court retained dependency jurisdiction. Sandra had never appeared in court.
Undesignated section references are to the Welfare and Institutions Code.
C.
In January 1998, Sandra gave birth to Wy. (who like her siblings was born with a positive toxicology for cocaine and who, along with her siblings, was placed with Joanne). A petition was filed in February and sustained in March — at which time Sandra made her first court appearance and a lawyer was appointed to represent her. In a report prepared for the March hearing, the Department described Whitney, then seven years old, as very protective of A. J., then two and one-half years old. In response to questions asked at that hearing, Sandra said she had "American Indian blood" on her fathers side of the family but she did not know which tribe.
In September, the Department reported that Joanne was interested in adopting the children in her care, and the court changed the permanent plan to adoption. As for Sandra, she was incarcerated for reasons not stated.
D.
In March 1999, a new social worker who had been assigned to the case in late 1998 reported that Joannes care had become "marginal" and that the Department had received an emergency referral in December 1998, although the report was found to be unsubstantiated. The children were happy in Joannes home, but the Department expressed concerns about their care. The court continued the section 366.26 hearing, keeping adoption as the ultimate goal.
The March 1999 report also stated that Sandra contacted her social worker in January to report that she was due to be released from prison. She gave the social worker the name of her parole officer and said she intended to enroll in a drug program. In April, the Department reported that the children appeared healthy but dirty, and that Joannes home was extremely dirty; family preservation services were ordered for Joanne. In September, the Department reported that it had not heard from Sandra since April, and that Joanne had the children on a waiting list for counseling services. In response to the Departments report and to a representation from the childrens lawyer that there were "continuing problems in this family," the court ordered the Department to consider whether adoption was the appropriate plan.
In October, Sandras parole officer reported that Sandra had been tested for drugs weekly and had been clean, and the social worker submitted a list of the actions planned for the next 60 days, including steps to enroll the children in counseling and at Regional Center programs and following up with the family maintenance unit. The social worker thereafter arranged for therapy for the children and for the family preservation unit to provide transportation.
E.
In December 1999, Sandra filed a section 388 petition in which she asked the court to liberalize her visits and return to a plan of legal guardianship rather than adoption. She claimed she had completed a parenting class and drug rehabilitation while incarcerated, that she was participating in a civil addict rehabilitation program, and that she was submitting to weekly drug tests through her parole officer (and had been testing negative). The trial court granted Sandras request for a hearing.
At the December 23 hearing, the Department reported continued concerns about Joanne as an adoptive parent, but recommended that adoption remain as the permanent goal. Whitney and A. J. were in good health, and Whitney was doing well in school. A. J. needed speech and language services. The court found adoption was not an appropriate plan and ordered the Department to closely monitor the case, commenting that Joanne did not appear "up to the task, to put it kindly," of providing the kind of care required by these children.
F.
In January 2000, the Department reported that Sandra had "changed her life" after her time in prison, and the Department confirmed that Sandra had been involved in the programs identified in her section 388 petition. She was still testing clean and was living with a niece in an apartment the social worker found suitable; she was completing her education and had completed a job readiness training program. Sandra appeared at a January hearing and told the court she was visiting the children every Sunday at Joannes home, and she requested unmonitored visits. The court ordered more visits for Sandra.
In April, the Department removed the children from Joannes custody and filed a section 387 petition. There was now a third social worker handling the case, Shana Votaw, and Whitney had told her that the children got "whoopings" all the time, that they were hit with an extension cord, belt, tree branch, and hanger, and that she wanted to run away from Joannes home. Whitney said Joanne would hit A. J., then four, when she wet her pants, and an examination by a doctor revealed healed marks on A. J.s back and arm. Justin told the social worker that the last time the children were hit was the weekend that Sandra had visited, but Justin complained that his brother frequently hit him. Andre said Sandra and Joanne did not hit the children but claimed the children hit each other. A. J. said she was hit with a hanger when she wet her pants. Therapists and others who dealt with the children told the social worker the children smelled bad, lacked hygiene, and behaved aggressively toward each other.
The Department reported that it was difficult for Joanne to meet all of the childrens needs simultaneously, as it would be for any foster parent if the children were all placed together. For that reason, the children were placed in two different foster homes (Whitney, A. J., and Wy. were in one home, the brothers in another), and one older sibling was hospitalized for emotional problems. All of the children were declared special needs minors, and the court ordered the Department to facilitate sibling visits. As the court had on past occasions, it again commended the extraordinary efforts of the social workers involved with these children.
In May, the Department reported that the children had all adjusted well to their new foster homes. In June, the siblings visited with Sandra and Joanne as well as other relatives, and the children were happy to see the adults. The Department said Andre could be returned to Joannes care under certain conditions, but that the younger children then could not return because of Andres assaultive behavior and his verbal abuse of the younger children.
G.
By the end of June, Whitney, A. J., and Wy. were placed with Jinnie S., and both Whitney and A. J. were enrolled in therapy and responding well. The section 387 petition, as amended, was sustained in August 2000, and the disposition hearing was held in February 2001. In another move, Whitney was taken from Jinnie S. and placed with Mary D., who was certified to care for fragile children with special needs, and A. J. was placed with Mr. and Mrs. E.
The Court Appointed Special Advocate (CASA) for the three girls reported to the court that all three girls had special needs, as did the boys, and that it was "very improbable" that Joanne or any individual could provide appropriate care for all of the children under the same roof. The CASA advocate questioned Joannes care and recommended that the children remain in foster care. The court and the childrens lawyer once again commended the social worker.
The court found the children could not be returned to Joanne, formally removed them from her care, and ordered reunifications services for Joanne.
H.
Sandra continued to have monitored visits but the social worker reported that she was sometimes disruptive and that the visits were difficult for the foster parents. In May 2001, the childrens therapist reported that their extreme emotional problems continued, but that Whitney and A. J. were showing positive signs and some attachment to their caretakers. The doctor said the combination of early abuse, neglect and multiple caregivers had resulted in unhappy, terrified, abused children whose abilities to engage in normal, healthy relationships is extremely limited. Sandras visits declined.
In August, the girls CASA advocate reported that they were happy in their foster homes but their therapist believed Whitney and Wy. should be placed separately because Whitney had become very aggressive. Whitney appeared fearful of any real connection, and A. J. still wet her bed and had other problems. The Department reported that Sandra had visited the children but had created problems with the caretakers by angry outbursts and other inappropriate behavior. According to the foster parents, Sandras visits were short and she did not talk to the children very much; she left earlier than the scheduled times.
At an August 2001 hearing, the court extended Joannes reunification period to the 18-month date. Reports submitted for an October hearing showed the placements were appropriate, that A. J.s foster mother wanted to become her legal guardian, and that Sandras monitored visits had continued. Reports submitted in December showed improvement in the childrens behavior, although the girls foster mothers were complaining that they were not getting enough support from the Department. At the conclusion of a contested hearing held in December, the court terminated Joannes legal guardianship over all of the children and ordered the children into long-term foster care.
I.
In April 2002, the childrens therapist reported that their attitude and behavior had improved to some extent. The CASA advocate reported "sporadic interaction" between the girls and their brothers, and the Department reported that the various placements were meeting the needs of the children. Sandra continued to have monitored visits.
By that time, there was a new social worker assigned to the case, and everyone was complaining that there had been no visits to the homes or other contact. At the request of the childrens lawyer, the court urged the Department to assign an experienced social worker to the case.
In June, the court reduced Sandras visits to one hour once each month at the convenience of the foster parents and with the consent of the therapist. In August, the therapist reported that some of the childrens relatives had "rekindled" a false hope that the children would be able to return home and that it had caused their behavior to deteriorate. By that time, a new social worker was assigned to the case, and she was able to visit the children twice before she submitted her October report. A. J. was very comfortable in her foster home, and her foster parents expressed interest in adopting her. In November, Whitneys foster mother, Joan M., informed the court she had agreed to become the childs legal guardian.
J.
At a hearing held in December 2002, the social worker reported that A. J. was a healthy second-grader and that her foster parents wanted to adopt her (and the Department recommended that she be freed for adoption). Whitney was in middle school, and her foster parents were willing to become her legal guardians (and the Department recommended a permanent plan of legal guardianship for Whitney). The CASA advocate supported both recommendations.
At a contested section 366.26 hearing held in February 2003, the social worker (who by then was assisted by other social workers from the Department) reported that Whitney had some current behavior problems at school but was happy in her foster home and "fine" with regard to the prospective guardianship. A. J. was happy in her foster home, understood what it meant to be adopted, and wanted to be adopted by her foster parents. The CASA advocate agreed with the Departments recommendations.
Sandra testified that she had some concerns about the care Whitney was receiving, and complained about Whitneys appearance and the area where her foster home was located. Whitneys lawyer and the CASA advocate disagreed with Sandra and told the court they agreed with the Departments recommendations. At the conclusion of the hearing, the court appointed Joan M. as Whitneys legal guardian and terminated dependency jurisdiction as to Whitney.
With regard to A. J., the social worker (one who had been involved for a substantial amount of time and who testified that she had reviewed the reports and talked to the other social workers and to A. J.) testified that A. J. was doing well in her foster home. Sandra testified that she had a bond with A. J., who called her "mom" and hugged her when they met, but Sandra had no information about A. J.s school and blamed the foster mother, who she said would not tell her anything. A. J.s lawyer asked the court to free A. J. for adoption. The court rejected Sandras claim of a bond with A. J., terminated Sandras parental rights, and freed A. J. for adoption.
Sandra appeals.
DISCUSSION
I.
Sandra contends, the Department concedes, and we agree that the dependency court failed to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.), which was required because Sandra told the court in March 1998 that she had "American Indian blood" from her fathers side of the family. We will conditionally vacate the courts section 366.26 orders so that the appropriate notices may be given, but (based on our conclusions below that there were no other errors) the orders shall be reinstated and deemed final unless a tribe responds that A. J. and Whitney are Indian children.
II.
Sandra contends the "lack of an assigned social worker, and the lack of any current or significant information about either [childs] relationship with [Sandra] or their siblings" prevented the court from exercising its discretion when it made its orders in February 2003. We disagree.
While it is true that the social worker who testified at the February 2003 hearing was not at that moment the social worker assigned to this case, she had been one of the most involved social workers, and she testified that she had read all of the current reports and talked to the involved parties before she testified at the hearing. As the Department points out, the required assessments were before the court, and the source of the information, if accepted by the court, is legally irrelevant. (& sect;§ 366.26, subd. (c)(1), 366.22, subd. (b); cf. In re Dakota S. (2000) 85 Cal.App.4th 494.)
The history of this case makes it clear that the orders were appropriate, and that additional reports would have served no purpose. Indeed, Sandra does not tell us additional facts would have been disclosed, and she does not suggest there had been any changes that were not brought to the courts attention. In short, all she says is that there should have been more reports, and that is simply not sufficient to support her request for reversal.
III.
In a related argument, Sandra contends the Departments adoption assessment report should have contained more information about the siblings and the siblings relationships with Sandra, and that a supplemental report should have been ordered. We disagree.
Once again, Sandra does not suggest there was other pertinent information that might have affected the courts decision, and she simply ignores the rule that an adoption assessment does not have to be complete in all respects in order to support a finding that adoption is likely. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481-1482; In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) The record before the trial court by the time it made its orders (and the record now before us) included substantial information about Sandras relationships (or lack thereof) with Whitney, A. J., and their siblings, and about the relationships among the children. The social workers involved in this case over the course of many years were regularly complimented by the court and by the lawyers for their Herculean efforts to keep the children together and, when that proved impossible, to ensure a continuing relationship among the siblings. Another set of reports would not have changed anything.
IV.
For the same reasons, we reject Sandras contention that the court should have reached a different finding as to A. J. based on her relationship with her sisters and brothers. This argument ignores the overwhelming evidence that shows the special needs of all of these children, the corresponding inability of a single family to care for more than one or two of them, and also ignores the problems that arose when the girls visited with the boys and when Whitneys aggression endangered A. J. In short, there was no evidence to support a finding that A. J.s relationship with her siblings ought to override the finding that adoption is likely. (§ 366.26, subd. (c)(1)(E); In re Angel B. (2002) 97 Cal.App.4th 454, 466; In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
V.
Sandra contends the court should have found that her relationship with A. J. was significant, and that the termination of Sandras parental rights would be detrimental to A. J. We disagree.
Sandra abandoned A. J. at birth, ignored her for several years, then visited only sporadically, and there was no evidence that the termination of the relationship between Sandra and A. J. would be detrimental to the child. Indeed, the most that A. J. could say in February 2003 was that her visits with Sandra were "okay." For a child that has been in the system for seven years, this is not a ringing endorsement of a parental relationship worth preserving. More importantly, there is absolutely no evidence that the termination of this parent-child relationship would deprive A. J. of a positive emotional attachment that would harm her. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Substantial evidence supports the trial courts findings.
DISPOSITION
The orders made at the section 366.26 hearing are conditionally vacated, and the cause is remanded to the dependency court with directions to comply with the Indian Child Welfare Act by giving notice to the tribes, the Area Director of the Bureau of Indian Affairs, and the Secretary of the Interior; if no tribe responds that A. J. and Whitney are Indian children, the orders shall be reinstated and deemed final.
We concur: SPENCER, P.J. and ORTEGA, J.