Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BK06128. Marguerite Downing, Judge.
John Cahill, under appointment by the Court of Appeal, for Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This case involves minor A.S., born January 2001. The father of the minor (hereinafter “appellant”) appeals from an order terminating his parental rights with regard to A.S. contending the Juvenile Court erred: (1) in failing to apply the exception within Welfare & Institutions Code section 366.26, subdivision (c)(1)(B)(i); and (2) when it found notice sufficient under the Indian Child Welfare Act (ICWA)(25 U.S.C., § 1901 et seq.). We conclude the court did not err in failing to apply the exception under section 366.26, subdivision (c)(1)(B)(i) but that the matter must be reversed and remanded for the limited purpose for the juvenile court to comply with the ICWA.
All further references will be to the Welfare & Institutions Code unless otherwise noted.
In this section we set out the facts regarding the detention and proceedings since then as they relate to appellant’s claims made with regard to the exception under section 366.26, subdivision (c)(1)(B)(i).
A.S. was detained by the Department of Children and Family Services (DCFS) on March 5, 2005, when appellant abandoned her with a stranger, L.F. L.F. saw appellant walking down the street with A.S. and he appeared to be under the influence of a controlled substance. Ms. F. spoke with appellant who claimed he had just had a fight with his girlfriend. Ms. F. offered to call the police and appellant took off running. The police were called and they took A.S. into custody. Later, appellant returned to Ms. F’s house and demanded A.S. Ms. F called the police who came and noticed that appellant had alcohol on his breath and appeared to be under the influence of a controlled substance. Appellant was arrested.
DCFS filed a petition with a number of counts alleged pursuant to section 300, subdivisions (b) and (j). It alleged: (1) appellant was under the influence of drugs while A.S. was under his care and he left her with a person with whom he was not acquainted for an extended period of time; (2) appellant has a history of substance abuse and frequent use of illicit drugs, including heroin, which renders him incapable of providing regular care for A.S.; (3) A.S.’s mother, A.V., has a history of illicit drug usage and continues to abuse drugs; (4) A.V. used drugs in the presence of A.S.’s sibling, E.S., and permitted E.S. to possess and use drugs in the home; and (5) A.S.’s two siblings, E.S. and A.V.2, are prior dependents of the juvenile court and were returned to A.V.’s care.
An initial hearing was conducted on March 9, which was not attended by appellant. A.S. was detained and the court set a pretrial resolution conference for April 27, 2005. The court ordered DCFS to prepare the necessary papers to have appellant brought to court for the pretrial resolution conference.
On April 27, DCFS filed a first amended petition joining A.S.’s two siblings to the action. It combined allegations relating to all children with regard to appellant and A.V., restating the allegations against appellant with regard to A.S. Appellant was in court on the 27th and the court found him to be the presumed father of A.S. The matter was continued to June 1, 2005 for a further pretrial resolution conference.
On June 1, the court sustained the first amended petition and granted family reunification services in connection with A.S. The matter was continued to November 30, 2005, for a judicial review hearing, which was reset for November 23, 2005. On that date, DCFS filed a report which noted that A.S. had been moved to the home of A.V.F. and J.F., the paternal grandparents and guardians of A.S.2 (an older sibling of A.S.). The report noted that the parents of appellant and A.V. had not been compliant with court ordered services and recommended termination of family reunification services. The matter was continued to December 22, 2005 for proper notice.
On December 22, the DCFS continued to recommend termination of family services. The court continued family services and set a review hearing regarding A.S. for May 24, 2006, which was ultimately advanced to May 17, 2006. On that date, it was reported that appellant had not been in contact with the social worker since November 26, 2005.
At a continued hearing on July 18, 2006, it was reported that appellant had not been in contact with DCFS since November 2005, and was not in compliance with the case plan. It was recommended that reunification services be terminated. The hearing was continued to October 11, 2006. The report for that hearing indicated that appellant still had not been in contact with DCFS and recommended termination of family reunification services. The court agreed and terminated the services. Appellant did not appear at the hearing but was represented by counsel.
Because of problems relating to A.V.F. and J.F., the court terminated the legal guardianship of A.S.2 and declared A.S.2 and A.S. a sibling group. The children were placed with foster parents who decided they wanted to adopt only one child, A.S.2. A.S. was relocated in the home of Mr. and Mrs. K. It was later determined that A.S.2 and A.S. were no longer a sibling group.
On June 6, 2007, a section 366.26 hearing was conducted. In the report for the hearing it is reflected that in April appellant told the social worker he had not visited with A.S. for at least six months because he had relapsed into his “disease.” He requested visitation and had a visit on May 22, 2007. At that point he said he had 35 days “sober, was employed and was trying to get his life together.” Appellant appeared at the hearing and requested visitation with A.S. The matter was continued to October 3, 2007, and the court gave DCFS discretion to liberalize visits with A.S. Family counseling was also ordered.
The report for the hearing of October 3 indicated that visitation had occurred between A.S. and appellant between May and September 2007 on seven occasions, but that A.S. had increasing temper tantrums resulting from the visits. Mrs. K kept a log and noted that from the beginning of placement A.S. had temper tantrums which had diminished until visitation with appellant began taking place. The tantrums increased after the visits and occurred multiple times during the day until they began decreasing four days after the visits. Mrs. K was of the opinion that the visits were detrimental to A.S., as was A.S.’s therapist, and DCFS recommended all visitation be discontinued. By then the adoption home study for Mr. and Mrs. K had been completed and approved. It was recommended that parental rights be terminated and A.S. be freed for adoption. The court continued the matter for a contested hearing on November 28, 2007, and it permitted monitored visits between appellant and A.S., with the approval of A.S.’s therapist.
The report for November 28 indicated that appellant had visited A.S. with the approval of the therapist and that A.S.’s behavior had substantially improved. The social worker recommended that parental rights over A.S. be terminated.
The court conducted a contested hearing at which appellant testified that he had been solely responsible for A.S. between the ages of two and four at which time she was originally detained by DCFS. He opposed termination of his rights and believed it was in A.S.’s best interest that he remain in her life and he wanted the best for her. He admitted that he had first visited with A.S. in May 2007 after her detention in March of 2005.
The social worker testified she had been on A.S.’s case since December 2006. A.S. wanted to stay with her prospective adoptive parents and had become an outgoing person who made her wants and needs known, something she hadn’t done before. She believed it was in A.S.’s best interest to be adopted by the K’s because it had been years since she had been detained from parental care and appellant, who had plenty of time to reunify, had failed to do so and A.S. was now in a stable home which she needed. The proposed adoptive parents had been asked if they wanted legal guardianship over adoption and they wanted the permanence of adoption.
A.S. testified that while she wanted to continue seeing appellant, she wanted to remain with Mr. and Mrs. K.
A.S.2 also testified. She stated she had been with A.S. since A.S. had been born and they had been subjected to appellant’s substance abuse over the years. Appellant had become clean only recently and she did not believe it best to return A.S. to him because he wanted her only because appellant’s mother wanted her back.
The court heard argument and then took the matter under submission.
Mr. and Mrs. K. filed a petition to become A.S.’s de facto parents and a section 388 petition requesting that appellant’s visitation be terminated. It was reported that A.S. suffered from a generalized anxiety disorder resulting from appellant’s visits. The matter was set for hearing on January 16, 2008.
A report was filed by DCFS on December 18, 2007. The report indicated that A.S.’s therapist recommended A.S.’s visits with appellant be terminated because her behavior had regressed with the resumption of the visits. She stated that A.S.’s behavior was directly attributed to the visits. The social worker reported that she had monitored at least three visits and at each A.S. was upset and refused to cooperate. A.S. was happy to go with the prospective adoptive parents at the end of the visits. The court modified appellant’s monitored visits to take place in a therapeutic setting. The social worker monitored on a visit between appellant and A.S. on January 9, 2008. It took 20 minutes to get A.S. in the car to go to the visit.
On January 16, 2008, the court found by clear and convincing evidence that A.S. was adoptable and that it would be detrimental to return her to the custody of her parents. The court terminated appellant’s parental rights.
DISCUSSION
Termination of Parental Rights:
If the court determines by clear and convincing evidence that “it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subdivision (c)(1).) Appellant does not argue that A.S. is not adoptable. He only argues the court erred in not applying the exception contained within section 366.26, subdivision (c)(1)(B)(i).
That exception provides: “(B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
We review the record to determine if the court’s decision is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citation.]” (Id., at 576.)
The court in Autumn H. construed the exception listed within section 366.26, subdivision (c)(1)(A), the forerunner to subdivision (c)(1)(B)(i), as follows:
“In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.
“Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at 575; italics added.)
Reviewing the entire transcript we find substantial evidence to support the trial court’s finding.
A.S. was detained on March 5, 2005. Appellant did not visit her until May 2007 and had only seven visits between then and September 2007. Appellant made no attempt to comply with any of the reunification orders prior to the time reunification was ordered discontinued. Appellant’s visits with A.S. were not the type of visits which could result in a “significant, positive, emotional attachment from child to parent.” (Ibid.) Instead, they resulted in great anxiety for A.S. which was reduced only by the intervention of a therapist which ultimately led to a court order that A.S.’s visits with appellant be under therapeutic conditions.
Notice Under ICWA:
Appellant contends that insufficient notice was provided under the ICWA. Respondent concedes the issue and requests a limited remand for compliance with the notice requirements. We agree that is the appropriate procedure to use. (In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1451.)
DISPOSITION
The court’s finding of adoptability is affirmed. The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court for the sole purpose of compliance with the Indian Child Welfare Act, including ordering the Department of Children and Family Services to comply with the notice provisions of the Indian Child Welfare Act and the holding of a hearing to determine whether the Indian Child Welfare Act applies. If neither the Bureau of Indian Affairs nor any tribe responds indicating A.S. is an Indian child within the meaning of the Indian Child Welfare Act, or fails to respond within the designated period after the notice is sent (§ 224.3, subd. (e)(3)), the order terminating parental rights shall be reinstated. If the Bureau of Indian Affairs or any Navajo tribe determines A.S. is an Indian child within the meaning of the Indian Child Welfare Act, the juvenile court shall conduct further proceedings, applying the appropriate provisions of the Indian Child Welfare Act, the Welfare and Institutions Code, and the California Rules of Court.
We concur: MALLANO, P. J., ROTHSCHILD, J.