Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. CK42968, S. Patricia Spear, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Dion B. appeals from the order terminating his parental rights to his daughter, Lolita. We reverse, but only so that DCFS and the court can comply with the ICWA.
Facts
In April 2003 when Lolita was three years old, she was observed walking down a street alone, wearing only a shirt. Police and DCFS were called. Lolita had been living with her mother (not a party to this appeal), who reported that appellant was Lolita's father and that his whereabouts were unknown. Lolita's mother had herself been a dependent of the court. DCFS reported that jurisdiction over her was terminated in 2001, when she was 18.
Lolita was placed in foster care and a Welfare and Institutions Code section 300 petition was filed. In June, the court sustained the petition under section 300, subdivision (b), and also found that appellant was an alleged father. He had not yet appeared, and no reunification services were ordered for him.
All further statutory references are to that code.
In May of 2003, DCFS reported that Lolita had temper tantrums and might need to be evaluated if behavior problems continued. In December, Lolita's foster mother described her as "a smart little girl" and a "good little girl" who got along well with the other children in the home. The author of a December 2003 adoption assessment wrote that Lolita had "no behavioral or emotional challenges" and appeared to be developmentally on target, but the record also reflects that Lolita began therapy in December and was diagnosed with "Reactive Attachment Disorder, Inhibited Type with Depressive Disorder Not Otherwise Specified."
By the December 2003 review hearing, appellant had contacted DCFS. He asked for a paternity test, and in February 2004 after the test established that he is Lolita's biological father, the court ordered visits and reunification services. Also in February, Lolita was moved to a new foster home, because her first foster mother did not want to adopt.
In April 2004 Lolita's therapist wrote that she was responding slowly to therapy and needed long term mental health services to provide her with support in the possible transition to her father's care. About this time, Lolita was evaluated by the Regional Center, which found that she had low average to average cognitive skills and borderline to adequate adaptive skills, but no "substantial handicapping condition" which would make her eligible for their services.
DCFS reported that Lolita did not talk very much, but that she had taken a liking to appellant's girlfriend (and the mother of his two other children), Katrina H., who sometimes came along on visits. She had "begun to open up," and get along with the other children in her placement and with her half sisters. Her teacher reported that she was doing well in school, although she was very quiet. She did not talk to most of the children, but had formed a friendship with another little girl.
In July 2004 reunification services were terminated for Lolita's mother, but continued for appellant, on findings that he was in partial compliance with his case plan. In October, the foster family agency reported that Lolita presented with a flat affect, had difficulty playing with other children and would scream if she did not get her way. She "selects when she desires to speak with adults," and often avoided eye contact with unfamiliar people. Lolita's teacher said that she was at an average or above average developmental level.
In December 2004 DCFS recommended that Lolita be placed with her father or with family maintenance. A 60-day visit was ordered as part of the transition. In January 2005 DCFS reported that Lolita was making "extremely good progress" with her father. She was more open, verbal, and expressive, had formed a bond with Katrina H., with whom appellant was living, and clearly wanted to remain in that home.
In January, Lolita was placed with appellant and DCFS was ordered to provide family maintenance services. Appellant arranged to have Lolita transferred to the Lancaster office of her therapist's agency, and was on a waiting list for family preservation services.
The case was accepted by the Antelope Valley Family Preservation Network in April, but the case was terminated at the end of May because appellant did not cooperate. In May and June, he did not respond to DCFS's attempts to contact him, or keep up with the cojoint therapy with Lolita, which the court had ordered.
Then, in June, Katrina H. contacted DCFS and reported that she and appellant were no longer living together, that appellant had left Lolita with her and disappeared for long periods, and that he had not enrolled Lolita in school. She also reported that he had been arrested for battery on a spouse and possession of marijuana, and in another incident broke into her house and tried to drag her out of the house. DCFS detained Lolita and filed a section 342 petition, although Lolita continued to live with Katrina. In July, DCFS reported that Lolita told the social worker that she loved Katrina and wanted to live with Katrina, and did not want to live in another foster home, with people she did not know. When asked whether she wanted to live with her father, she did not answer. In August, DCFS reported that Lolita was "in very good emotional health," and that Katrina said she was very attached to her sisters.
The section 342 petition was sustained in August, under section 300, subdivisions (b) and (g), on the factual allegations that appellant failed to comply with court orders, left Lolita with an unrelated caretaker without making a plan for her care, and broke into Katrina's home. The court ordered reunification services for appellant, and monitored visits.
In March 2006 DCFS reported that since late September, appellant had been visiting all three of his children regularly. However, he was not in compliance with other parts of his case plan, notably, domestic violence counseling. The court terminated reunification services.
Lolita was still very happy with Katrina, to whom she was extremely bonded. She told DCFS that she wanted to stay in that home forever. It was not to be. In June, DCFS learned Katrina was living in a battered women's shelter, and that there was ongoing domestic violence between Katrina and appellant. Lolita was moved to a new foster home. Her new caregiver reported that she was "helpful, very respectful and bright," and got along well with the other children in the house. By September 2006 Lolita no longer wished to live with Katrina or with appellant. DCFS described her as "a happy and smart child," although her caregiver reported that she did not talk about her family.
Appellant had not contacted the social worker or made himself available to DCFS. On one occasion in December 2006 and on one occasion in January 2007 he arranged visits with Lolita, but cancelled each time due to car trouble.
By March, Mr. and Ms. B., relatives of Katrina's (and thus of Lolita's half siblings) had been identified as a potential adoptive family. They had weekend overnight visits with Lolita. DCFS reported that the visits were "going exceptionally well," and that Lolita had formed a strong attachment to them. In April, Lolita was placed in their home. DCFS reported that the B.s were committed to adoption and that Lolita said that she would like to be adopted by them.
In May, the author of a Specialized Foster Care Program referral form wrote that Lolita might be suffering from not being with her parents, that she had "grief and loss issues," and that "previous caregiver" had reported that Lolita had tantrums and at times appeared to be sad.
Appellant visited Lolita twice in May. He was late for both the visits and spent much of his time talking on his phone. He visited once in July. He scheduled a second visit, then rescheduled the visit, but did not show up on the new date.
The court terminated parental rights in August. Our record also includes a DCFS report for a September 11 review of permanent plan hearing which said that Lolita had been placed into a new foster home, after the B.s had complained that she was acting out and had demonstrated disrespect for them. Lolita was once again in therapy.
The record is not entirely clear about how much therapy she received at earlier times in the dependency.
Discussion
1. "Adoptable"
Appellant challenges the trial court's finding that Lolita was adoptable, contending that there was no evidence to support the finding, and considerable evidence to the contrary. He contends that the social worker's report included only vague and conclusory statements about Lolita's placement with the B.s and cites Lolita's April 2004 diagnosis of "Reactive Attachment Disorder, Inhibited Type with Depressive Disorder Not Otherwise Specified," reports her reluctance to engage with adults, her sadness and tantrums when she was removed from Katrina's care, and the B.'s much more recent statements about her behavior.
This is a sad and difficult case, but we find substantial evidence for the trial court finding. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) The record does reflect that the frequent changes in placement and many disappointments had an effect on Lolita. It could hardly be otherwise. There was evidence that she was sad, sometimes had tantrums, and that she was quiet, perhaps mistrustful. It is also true that the 2003 assessment that Lolita had no "challenges," was at odds with her diagnosis of Reactive Attachment Disorder, a serious matter. (In re Jayson T. (2002) 97 Cal.App.4th 75, 82, overruled on another ground by In re Zeth S. (2003) 31 Cal.4th 396.)
However, there was evidence that throughout the dependency, Lolita did well in preschool and kindergarten, and behaved well in those settings. Her teachers and caretakers frequently reported that she was bright and respectful. She was healthy, and had no "substantial handicapping condition." In her many placements, she was able to form new friendships and new bonds. The diagnosis of Reactive Attachment Disorder was made in 2004, before Lolita began any therapy.
This case is thus distinguished from In re Asia L. (2003) 107 Cal.App.4th 498, on which appellant relies. In that case, the children displayed significant emotional and psychological problems requiring specialized placement. There was no evidence that Lolita was such a child. There was thus no substantial evidence that nothing about Lolita's "age, physical condition, and emotional state," meant that she was not adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
2. Section 366.26, subdivision (c)(1)(A)
Section 366.26, subdivision (c)(1)(A), provides that parental rights should not be terminated if "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Appellant argues that he did maintain regular visits. He also points to the evidence that Lolita was happy when she was placed with him and Katrina and suffered when she had to leave that home, and makes arguments concerning the ways in which Lolita would benefit by continuing the relationship with him.
We need only say that the only evidence in record is that he did not maintain regular visits in the pertinent period before termination of rights. Instead, the record reflects that when Lolita was placed with appellant, he often left her with Katrina, and "disappeared," and that after Lolita was removed from Katrina's care, his visits were few. At several hearings, appellant argued that he was visiting more frequently, but argument is not evidence.
3. ICWA
"ICWA requires a court, if it 'knows or has reason to know that an Indian child is involved' in any involuntary proceeding, to give notice to the Indian child's tribe of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).) California Rules of Court, rule 1439 implements ICWA's notice provisions in California courts. It provides that the court and DCFS have an 'affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.' (Cal. Rules of Court, rule 1439(d).)" (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941-942.) Appellant contends that DCFS and the trial court did not fulfill their duty under the ICWA because they made no inquiry about mother's Indian heritage. (The court did inquire of appellant, at his first appearance.) We agree.
The rule now provides that the duty of inquiry is "affirmative and continuing." (Cal. Rules of Court, rule 5.482, subd. (a).)
The first DCFS report in this case, the detention report, states that "The Indian Child Welfare Act does not apply." The next two reports (May and December) repeat that statement and add "Parents have not been available for interview regarding American Indian Heritage." This case is thus distinguished from In re Aaliyah G., supra; In re E.H. (2006) 141 Cal.App.4th 1330; In re S.B. (2005) 130 Cal.App.4th 1148 and the other cases on which DCFS relies. In those cases, the Court inferred the inquiry from the social worker's affirmative representation that ICWA did not apply. Here, DCFS wrote that it did not speak to the parents about Indian heritage. We thus cannot infer that it did.
As DCFS argues, it did provide the court with a copy of a report from the dependency proceedings concerning another child, Preston P., whom DCFS asserts is Lolita's cousin. That report states "The Indian Child Welfare Act does not apply." It does not, however, tell us the basis for this conclusion, or even whether Lolita's mother and that child's mother were full siblings. It is not substantial evidence (In re J.T. (2007) 154 Cal.App.4th 986, 991) for the trial court finding.
Nor can we agree with DCFS that appellant has failed to show prejudice, and that given that mother did not reunify with Lolita, tribal intervention could have accomplished nothing. We do not believe that the question of notice under the ICWA is subject to that kind of harmless error analysis. (In re J.N. (2006) 138 Cal.App.4th 450, 461.)
DCFS argues that because mother's whereabouts are now unknown, compliance will be impossible. The solution to that problem may lie in DCFS's own records. The single report on Lolita's cousin cannot suffice to show mother's lack of Indian heritage, but it may well be that the records of her own dependency will. Finally, though, we agree with DCFS that only a limited reversal is required. (In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1452; In re Justin S. (2007) 150 Cal.App.4th 1426, 1437.)
Disposition
The judgment terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order DCFS to comply with the inquiry provisions of the ICWA. If after such inquiry, no notice is required, the judgment terminating parental rights shall be reinstated. Similarly, if the notice is required, but after notice no tribe claims Lolita as an Indian child, the judgment terminating parental rights is reinstated.
We concur: MOSK, J. KRIEGLER, J.