Opinion
B234032
12-21-2011
In re S. U., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANTHONY O., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O'Crowley, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK75734)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline Lewis, Juvenile Court Referee. Reversed with directions.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O'Crowley, Deputy County Counsel, for Plaintiff and Respondent.
Anthony O. (Father) appeals from juvenile court dependency orders (1) denying his petition for a modification and (2) terminating his parental rights to his daughter S. U. (Welf. & Inst. Code, §§ 388, 366.26.) Father also challenges the court's failure to make any findings about S.'s Indian heritage, under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
The child's name is also spelled "Saraiya." All undesignated statutory references in this opinion are to the Welfare and Institutions Code.
The court's orders are supported by substantial evidence, and there was no abuse of discretion. However, the court failed to address a statement Father made in a Judicial Council form indicating "possible" Indian ancestry, and it never made a finding on the record that ICWA does not apply to S. through Father. The case must be remanded for the limited purpose of having the juvenile court address S.'s status as an Indian child under ICWA.
FACTS
S. U. was born in December 2008. Her mother J. U. (Mother) exhibited signs of mental illness at the hospital: she talked to herself, could not answer questions appropriately or follow simple instructions, and had hallucinations and a history of psychiatric hospitalizations. A physician determined that Mother was psychotic, and she was placed on an involuntary psychiatric hold. S. was taken into protective custody by the Department of Children and Family Services (DCFS) because Mother was hospitalized and the identity of the child's father was unknown. No paternal name is listed on S.'s birth certificate.
Mother is not a party to this appeal.
The dependency petition alleged that Mother has mental and emotional problems and is unable to provide regular care for S. On December 24, 2008, the court found a prima facie case for detaining S. At the detention hearing, maternal cousin Bridget A. and her spouse Joseph A. asked to have S. placed in their home. The A.'s had "an inkling" that S.'s father is named Anthony, but they had no other information about him. S. was placed with the A.'s, who are eager to adopt if reunification fails.
An amended petition was filed on January 29, 2009, the day that Father made his first appearance in dependency court. The petition alleged that Father has mental and emotional problems that required psychiatric hospitalization and prevent him from working. He receives government benefits for a psychological disability, but does not take his prescribed medications. The petition alleged that Father is unable to provide regular care for S.
A DCFS investigator interviewed Mother for a jurisdiction report. Mother stated that she has had psychiatric hospitalizations on prior occasions, and was diagnosed with schizoaffective disorder in 2005. Mother has two older children, born in 1994 and 2000. When asked where her children are, Mother replied, "Who knows at this point." When asked if she has any siblings, Mother replied, "Who knows." Mother believes that she is capable of caring for S., but her answers to the investigator's questions were bizarre and incoherent. Mother identified Anthony O. as S.'s father: she stated that they met in a mental hospital and he may have a psychiatric disorder.
A hospital social worker indicated that Mother "was unable to answer basic questions and was delusional." Mother seemed "dazed" and was diagnosed as a paranoid schizophrenic. There were no plans to discharge Mother from the hospital, which had filed a conservatorship petition for Mother. Mother's prognosis is not good because she does not realize how ill she is and refuses to take appropriate medications. Bridget A. recalled that Mother has had frequent psychiatric hospitalizations, and was diagnosed with schizophrenia and bipolar disorder. Father met Mother in a mental hospital, and abandoned her when she was seven months pregnant with S. S.'s maternal grandmother has a long history of mental illness, says "off the wall things," and is occasionally violent. Joseph A. noted that Mother is mentally ill and can be violent.
In his interview, Father stated that he met Mother when they were both hospitalized, while he was being treated for back problems. After Mother became pregnant, Father learned that she has a history of mental illness. Father was hospitalized in 1998 for depression and takes a medication for anxiety. Father has received Social Security benefits (SSI) since the age of 15 due to his emotional problems. He is unemployed and lives with his mother (PGM). Father believes that he and the PGM can take care of S.
The PGM was interviewed and stated that Father was diagnosed with bipolar disorder at age 15, but he is fine so long as he takes medication. He is not currently medicated and receives SSI for his disability. She and Father can take care of S., and worry that they will not receive custody of her. Father had juvenile arrests for theft, robbery, drug sales, and lewd acts with a child under the age of 14.
Father requested DNA testing to banish any doubts about paternity. He completed a Judicial Council form regarding ICWA: he indicated he "possibly" has Indian ancestry "through paternal grandfather John [O.] in Texas," but the name of the tribe is "unknown." Father also checked a box saying "I have no Indian ancestry as far as I know." At the hearing on January 29, 2009, ICWA was not discussed; however, the minute order for that date gives a finding that ICWA does not apply to this case. The ambiguity in Father's ICWA form was not resolved. Father was authorized to have monitored visits with S. while his DNA test was pending.
In March 2009, DCFS reported that Father has never visited S., though he was scheduled to see her every Saturday. DCFS was trying to determine the extent of Father's mental disabilities, which qualify him for SSI. Father had not demonstrated the desire or ability to care for a baby, and was caught sneaking out of Mother's board and care facility. Father's psychiatrist stated that Father has a mood disorder, panic disorder with agoraphobia, polysubstance dependence (alcohol and marijuana), and has had numerous psychiatric hospitalizations. The psychiatrist noted that Father's diagnosis requires that she "rule out major depressive disorder and rule out bipolar affective disorder." However, Father came in only once, on February 10, and did not return. The psychiatrist remarked that Father "has a lot of issues," but does not regularly obtain treatment for his condition.
To receive SSI for anxiety, a person must have at least two of the following symptoms: a marked restriction in daily living; marked difficulties in social functioning; marked difficulties in maintaining concentration; repeated episodes of decompensation.
The court conducted a jurisdictional hearing on the allegations against Mother on March 4, 2009. Mother's conservator waived her appearance at the hearing. The court sustained allegations that Mother has mental and emotional problems, including schizophrenia, which resulted in her hospitalization. Mother is unable to provide regular care for S., and her condition puts the child at risk of physical and emotional harm. The court asserted jurisdiction over S., and placed custody and control with DCFS.
In April 2009, DNA tests confirmed that Father is S.'s biological parent. DCFS filed a subsequent petition with allegations relating to Father's drug and alcohol abuse, psychiatric issues, and a sexual assault charge. Police reports were submitted showing that Father was arrested in 1998 for robbing a 13-year-old girl at gunpoint and selling marijuana to an undercover police officer. In 2000, Father was charged with forcing a 13-year-old girl to have sexual intercourse. At the time, Father was 16 years old. There is no evidence that Father has completed a drug or sex offender program to address his past conduct, and he has not received consistent psychiatric treatment. Father continued to insist that he met Mother while he was being treated for back pain. Father agreed to participate in a psychotherapy program with random substance abuse testing: he met with the psychiatrist six times between February and May 2009, but failed to appear for any of his dual diagnosis appointments.
At a hearing on April 8, 2009, the court found that Father is a noncustodial parent. Father was not living with Mother at the time S. was born, so he was not given custody. Father indicated that he moved out of the house he and Mother were renting in October 2008, two months before S. was born.
In a meeting between the DCFS social worker and Father in May 2009, it was determined that Father has had six psychiatric hospitalizations. Four of the hospitalizations occurred in 2000, when he was diagnosed with bipolar disorder, mood disorder, panic disorder with agoraphobia, and polysubstance abuse. Father conceded that he met Mother during a psychiatric hospitalization in January 2008. Father had not complied with his treatment plan, failing to show up for three scheduled appointments for individual therapy. The social worker expressed concern that Father is unable to care for a young child, and should first participate in a parenting class, random drug and alcohol testing, individual therapy, and continue to take his medications.
In a statement regarding parentage, Father claimed that he visits S. for two hours weekly. He maintained that during visits he feeds, plays and cuddles her, changes her diaper, and acts in a parental manner. He brings her toys or an outfit to wear. Father visited S. three times in April and three times in May. DCFS noted that Father generally arrived late, left the visits 30 to 40 minutes early, and did not handle S. or change her diaper.
In June 2009, the social worker informed the court that the PGM "was providing all of the care for the baby during the visits with the father." Father's ability to care for S. himself could not be assessed "because his mother is always the one interacting with the baby during the visits. Father has not changed the baby's diaper or handled the baby for more than a few minutes." DCFS requested that Father attend at least half of the visits without the PGM.
At the adjudication hearing on June 9, 2009, Father submitted on the basis of the social worker's reports, and waived his right to a trial. The court sustained an allegation that Father "has unresolved mental and emotional issues for which he has been under psychiatric care. Father has also on various occasions failed to take the psychotropic medications that have been prescribed to address the problems, and has instead 'self-medicated' with marijuana. These unresolved problems place the minor, age 7 months at the time of the sustaining of this petition, at risk of harm in the care of the father."
The court dismissed allegations that Father committed a rape, or that he has an unresolved history of using marijuana and alcohol.
Following the recommendations of DCFS, the court gave Father reunification services, and required him to continue in psychiatric treatment, have individual counseling, take prescribed medications, complete a drug program with random drug and alcohol testing, and take a parenting class. He was authorized to visit S. twice weekly, with a monitor. Father signed the disposition plan. Over Father's objections, Mr. and Mrs. A. were granted de facto parent status on July 7, 2009: because the A.'s are S.'s full-time caretakers, they are in a unique position to provide the court with information about the child.
A six-month review hearing was conducted in September 2009. DCFS reported that S. is developing normally and has no known medical problems. Father was in compliance with the case plan and expressed a strong desire to parent S. He completed a 10-session parenting program, consistently attended a drug counseling program, and tested negative for substances on June 2 and 17, July 6 and 21, and August 13, 2009. He participates in weekly therapy to address anxiety and develop coping skills. He is active in therapy and has made progress. Father brings age-appropriate toys to visits, and demonstrated an ability to care for S.'s basic needs by preparing food and feeding her. He supplies an infant booster chair and safely restrains S. during mealtimes. DCFS liberalized Father's visits, allowing unmonitored day visits. By contrast, Mother continued to show signs of mental illness, and stated that S. died at birth. She is disoriented and has difficulty communicating with the social worker. The social worker felt that S. would be at high risk if placed in Father's care and very high risk if placed in Mother's care. The court noted Father's progress and found him in compliance with the case plan. Father was authorized to have unmonitored overnight visits. Reunification services were continued for another six months, with a substantial probability that S. could be released to Father's care.
In a December 2009 interim review, DCFS reported that one-year-old S. lives with the A.'s, but also has consistent weekend visits with Father, who resides with the PGM and two siblings. Father was in compliance with the case plan and court orders. At Father's home, S. was appropriately attired, was supplied with toys, and behaved in a calmed and relaxed manner with Father. There is a positive bond between Father and S., and Father is eager to have S. with him every day. DCFS recommended that S. be allowed to live with Father, and that he be provided with family maintenance services.
A status review was conducted in February 2010. S. is healthy, developing normally, and attached to her caregivers. Father continues to receive services at Pacific Clinics: he is in individual counseling and has psychiatric treatment for substance abuse and mental health issues. Father tested negative for substances on September 10 and 14, October 15, November 16, December 7 and 29, 2009, and on January 7 and February 16, 2010. On January 26, 2010, Father tested positive for cannabinoids: he denied using marijuana and attributed the result to his attendance at a party where he was exposed to second-hand marijuana smoke. On August 25, 2009, Father tested positive for codeine, which he attributed to a cold and cough medicine. Since September 2009, Father was having appropriate, unmonitored weekend visits with S.; however, after Father tested positive for marijuana, DCFS temporarily reinstituted monitoring because Father's denials showed a lack of personal responsibility with respect to drugs, and S. is too young protect herself from Father's behavior. Father agreed to participate in two weekly drug groups and Narcotics Anonymous. DCFS no longer recommended that S. be placed with Father.
DCFS asked the court to give Father further family reunification services and unmonitored visits, so long as he maintained 100 percent compliance with his drug testing with no positive results. DCFS expressed concern that Father was self-medicating with marijuana instead of using his prescribed medications. The PGM sought to have S. placed with her, complaining that the child sustained injuries at the home of her caretakers, the A.'s. S. was examined by the social worker and a physician. No scars, marks or bruises were found on S., save for a bruise on her cheek that occurred when she attempted to stand up and toppled onto the edge of a coffee table. The A.'s subsequently moved the table to the side of the room and covered its edges with cloth padding. The court declined to move S. from her placement with the A.'s.
On March 16, 2010, the court found that conditions continue to exist that justify its jurisdiction, and returning S. to parental custody would create a substantial risk of detriment to her. There was partial parental compliance with the case plan, with the court noting a "failure to participate in and make substantive progress in court-ordered treatment." The court warned Father that if S. could not be returned home in June 2010, reunification services could be terminated and a permanent plan implemented. That same day, Father tested positive for marijuana.
In April 2010, DCFS filed a petition seeking to overturn Father's right to unmonitored visits, after Father tested positive for marijuana on March 16, 2010. He denied using drugs, but could not explain the positive test. Given Father's failure to accept responsibility, coupled with his history of mental illness and self-medication with marijuana, his positive tests for drugs in January and March 2010, and S.'s tender age, DCFS asked the court to require a monitor for Father's visits. The court granted the request and implemented monitored visitation on April 8, 2010.
A status review report was submitted in June 2010. S. is attached to her de facto parents, the A.'s, who have taken care of her since December 2008. She is walking, attempts to feed herself, and shows no signs of mental illness. Father was noncompliant with his medication appointments, missing four of six dates. He did not attend dual diagnosis therapy from December 10, 2009 until June 3, 2010. He tested negative for drugs on February 16, March 1, April 14 and 30, May 14 and 20, and June 1, 2010. He had an "invalid result" on February 9, and a positive result for marijuana on March 16, 2010. He had monitored visits with S. three times in April, four times in May, and once so far in June 2010. During one visit, Father was observed to be playing with S. with appropriate toys, fed her, and changed her diaper. He is responsive to her behavior and needs, and wanted to resume weekend visits. He continues to deny drug usage, saying that he ate a meal at a night club that was laced with marijuana, causing a positive test result. Father admits that his anxiety has increased, and he continues to take his prescribed medication. Although he agreed to participate in a 12-step program, he has not attended any meetings.
DCFS recommended that the court terminate family reunification services because Mother and Father have mental health issues; Father is not in compliance with the case plan or court orders, and denies his substance abuse, which limits his capability to care for S. S.'s attorney agreed with the DCFS recommendation, and asked the court to terminate reunification services because Father presents a substantial risk of harm to S. Father contested the termination of services, and contended that he is compliant. The matter was set for a contested hearing.
The contested hearing began on October 25, 2010. Bridget A. testified that S. has been in her care for 22 months. During that time, Father consistently visited S., except for a period during the spring of 2010, when he tested positive for marijuana. A supplemental DCFS report on Father's drug testing was submitted. He tested negative for drugs on July 1 and 16, August 3 and 17, September 2 and 17, and October 4 and 21, 2010. He was not in compliance with court-ordered drug counseling and individual counseling. He continued to visit S. weekly.
Father testified that is being treated for acute anxiety attacks by a psychiatrist, and consistently takes an antidepressant for his condition, for the last six years. He claims he attended a dual diagnosis program from October 2009 until it was cancelled for budgetary reasons in September 2010. The purpose of the program is to avoid mixing prescribed medications with nonprescribed drugs. He has had five psychiatric hospitalizations. Father lives with his mother and younger siblings, and visits S. every Sunday from 9:00 until 5:00. During visits, they go to the park. He regularly tests for drugs.
On December 2, 2010, the court found that returning S. to parental custody would create a substantial risk of detriment to her safety and emotional well-being. Father has partially alleviated the causes necessitating placement; however, two years into the dependency proceeding, he has failed to comply with the case plan, missing medication appointments and skipping his dual diagnosis program. Plus, he tested positive for marijuana on several occasions. Because Father had not progressed beyond monitored visitation, and S. is under the age of three, the court terminated reunification services and set a permanent plan hearing, with adoption as the goal.
In January 2011, DCFS reported that S. was thriving with her prospective adoptive parents, Mr. and Mrs. A., who were participating in an adoption home study. The A.'s sent a letter to the court stating that S. knows them as her parents, and they consider her to be their own child. The A.'s acknowledge that S. could inherit mental health issues from her biological parents, but they would never abandon her even if problems arise because they love more than anything on earth. The PGM asked to be considered as an adoptive parent, but was rejected because Father resides with her. The court ordered that Father continue to have monitored eight-hour visits every Sunday.
A permanent plan report was submitted to the court in March 2011. Father continued to have weekly visits with S. that are monitored by the PGM. DCFS assessed the A.'s as adoptive parents. They have been married for four years and are employed. They have no children and no criminal history. S. has lived with them since she was 12 days old. They love S. and are committed to meeting all of her needs. DCFS asked the court to terminate parental rights and allow S. to be adopted.
Father filed a petition for a modification on March 30, 2011. He asked that the court release S. to his custody because he has had 18 consecutive clean drug tests since March 2010, and has attended nine psychotherapy sessions on his own since reunification services were terminated. Father is no longer self-medicating, and has resolved the issues that led to S.'s detention. He has had weekly, eight-hour monitored visits and is more than a playmate for S. The court set the matter for a hearing.
The record contains the results of five drug tests between January 6 and March 16, 2011. Two of the tests did not include cannabinoids.
Father was interviewed by a dependency investigator. He is unemployed, lives with the PGM, and receives disability benefits for anxiety, which is treated with an antidepressant. He plans to return to college to complete a dental assistant program. He no longer has a prescription for medical marijuana, and now that he is 27 years old, he no longer hangs out with people who use marijuana. He receives weekly counseling and goes for nonrandom drug testing twice a month. Father stopped attending programs after family reunification services were terminated because "I freaked out . . . ." S. calls him "dada" during visits. Father acknowledged that S. is bonded to the A.'s because they take care of her all the time. The report notes that Father tested positive for marijuana in 2010, but refuses to admit that he used anything, causing the court to reinstitute a monitoring requirement for visits with his child. "Father could not resolve a substance abuse problem he claimed did not exist." Father has attended individual counseling sessions since January 13, 2011, but is not in a drug program. During sessions, he discusses parenting issues and coping with anxiety. DCFS concluded that Father has not provided proof that his circumstances have changed and he is now able to care for his child. After the report was submitted, Father attended two psychotherapy sessions in April and three sessions in May 2011. He had negative drug tests on April 7 and 27, and on May 6, 2011.
In June 2011, the court conducted a combined hearing on Father's petition for a modification and to select a permanent plan. At the hearing, the dependency investigator testified that there was no change in circumstances because (1) Father is not having random drug tests (he selects the dates he wanted to test), and (2) Father is not in drug counseling. Father's anxiety prevents him from going out to participate in drug programs. Father consistently sees S. once a week. She is having more difficulty coming with him and cries; she is happy to return to the foster caregiver at the end of visits. The DCFS investigator noted that Father had two years to complete the case plan, but did not become motivated until his reunification services were terminated.
Father testified that he currently participates in individual counseling, and has had 12 sessions. During the sessions, he discusses parenting and his past history of drug use. His last dirty drug test was in March 2010, and "it wasn't intentional." Father also sees a psychiatrist once a month, to assess his medications. Father is not bipolar, according to his psychiatrist, but has acute anxiety disorder. Father visits S. every Sunday from 9:00 until 5:00. They usually go to Father's house or the park, but if the weather is fine they go to Griffith Park for the pony rides or to the Natural History Museum. He has not had overnight visits with S. since he tested positive for drugs in January 2010. He had five weekend visits with her before his overnight visits were suspended. The PGM was there during the visits, and the visits went well. S. does not want to leave when the visits end: she says, "No, I don't want to go home" and "I want to stay here." Father feeds and diapers S. during visits.
Father has observed that S. currently does not want to go Bridget A. at the end of her visits with Father, although she will go to Joseph A. Father has seen "severe gashes" on S.'s chin on six occasions, which left a scar. These incidents were investigated and were attributed to "natural causes." At the end of visits, S. says, "Bye Daddy" and that she will see him next week. He is upset that S. has developed more of a bond with the A.'s than with him because she spends most of her time with them. He feels that it is in S.'s best interests to be returned to him because "I'm her father," he cares for her, and he would like to raise her. He feels it is detrimental and confusing for S. to refer to two sets of people as her mother and father.
Father stated that his dual-diagnosis and drug counseling programs were terminated, and he had difficulty finding another program that would accept his insurance. He has been in individual counseling since January 2011, and believed that the dual diagnosis and drug programs satisfied all of his counseling requirements. The social worker did not give him referrals for a drug rehabilitation program. He has been compliant in his medications for two years.
The PGM testified that Father was misdiagnosed with bipolar disorder at the age of 16. Father was depressed and sad, and it was hard for him to leave the house when he was a teenager. His anxiety disorder still makes it difficult for him to leave the house, though now that he is older, he is learning how to deal with it. Father has always lived with her. She has never seen him under the influence of drugs. The PGM monitors Father's visits with S., and has observed a close bond between them. S. loves Father a lot and cries and wants to stay with when he drops her off with the caretakers at the end of visits: two weeks earlier, S. said that she wants to stay with Father. During visits, Father pays attention to S., plays and talks to her, and has activity toys for her. When he had overnight visits, Father did all of the caretaking, getting up at night to feed her, and bathing her.
The court first addressed the petition for a modification. It found that there were changing circumstances, not changed circumstances, and expressed doubt that Father was ready to assume full custody right then and there. The court found that S.'s best interests would not be served by removing her from the home where she has lived her entire life. While expressing regret for Father, who has worked to comply with the case plan, the court observed that Father is a visitor for S. compared to the A.'s, who have taken care of her every day for two and a half years. The court said, "unfortunately, the reality is it's too little too late." S. was under the age of three, and in these circumstances, the Legislature prescribes only six months of reunification, so that the child can have permanence. It is not beneficial to disrupt S.'s stability "to take a chance" to see if Father could succeed with extended visits. The court denied Father's petition for a modification.
Moving to the permanent plan, the court found that Father is a friendly visitor, and S. enjoys going to the park and playing with him; however, he is not in a parental role, which involves day-to-day care, tending to the child's illnesses, dealing with temper tantrums and doctor's appointments. Given S.'s young age, the court could not find that her friendly relationship with Father outweighs the benefits of a permanent and stable home. The court found that S. is adoptable and resides in an adoptive home with an approved home study. It would be detrimental for her to be returned to parental custody. The court terminated parental rights. Father filed a timely notice of appeal.
DISCUSSION
Father's Petition for a Modification
When the court terminates reunification services and schedules a permanent plan hearing, a parent may revive the reunification issue only by demonstrating that a return to parental custody is in the child's best interests, due to changed circumstances. (§ 388; In re Nolan W. (2009) 45 Cal.4th 1217, 1235; In re Kimberly H. (2000) 83 Cal.App.4th 67, 72.) The petitioning parent bears the burden of showing a change of circumstances and a benefit to the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) In making its determination, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) We will not reverse unless there is a clear abuse of discretion, if the court made an arbitrary, capricious or patently absurd determination that exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re A.S. (2009) 180 Cal.App.4th 351, 358; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
a. Changed Circumstances
Father argues that he established changed circumstances by participating in reunification services from the time of detention in December 2009 until he filed his petition in March 2011. During the dependency period, Father regularly visited S. Further, he tested clean for 14 continuous months after March 2010. The record supports Father's argument that he participated in services. But the record does not support a conclusion that circumstances have changed.
In arguing that DCFS could have better investigated Father's current circumstances (and should be estopped from claiming an absence of changed circumstances), Father improperly attempts to shift the burden of proof onto DCFS.
Father has a history of self-medication, using marijuana to allay his acute anxiety instead of taking prescribed medications. This practice of self-medication formed the basis for the sustained allegation against Father. Father's psychiatrist indicated that Father has "a lot of issues" but does not regularly seek treatment for his condition. As a result, Father has had six psychiatric hospitalizations and receives SSI for his disability. Father is in denial about his condition, insisting for months that he met Mother in a hospital while he was being treated for back pain, rather than conceding that they met in a psychiatric unit.
After the dependency proceeding began, Father seemingly renounced his practice of self-medication; however, during the period when he was authorized to have overnight visits with S., Father twice tested positive for marijuana. He did this on the eve of obtaining custody of S., when DCFS was advocating on his behalf. Father will not admit to using marijuana, implausibly blaming his positive tests on second-hand smoke and marijuana-laced food. At the 2011 hearing on his petition for a modification, Father testified that the positive test "wasn't intentional," showing that he has not yet come to terms with the problem underlying the dependency petition. Father cannot overcome a drug problem if he refuses to see that a problem exists.
Although Father has continued to test negative, the testing has not been random, occurring on dates of Father's choosing. Father reneged on his promise to attend a 12-step program like Narcotics Anonymous. In 2010, Father became noncompliant with his prescription medication program, missing four of six sessions. Father was in counseling, but not in a drug program. In counseling sessions he discussed parenting and anxiety, not drug use. It was not until trial in June 2011 that Father claimed he was receiving drug counseling. Given Father's continuing adamant refusal to admit any marijuana use over the course of this proceeding, the juvenile court could reasonably find that there is no evidence of changed circumstances.
b. Best Interests of the Child
In determining the child's best interest, the court considers (1) the seriousness of the reason for dependency jurisdiction; (2) the strength of the bonds between the child, the parent and the caretakers; and (3) whether the problems leading to dependency may be easily removed or ameliorated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) The primary consideration at this stage is the child's need for stability and permanency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) When foster care continues over a significant period, "'the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.'" (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
At the hearing, Father stated that his main reasons for believing that S.'s interests would be served by a change in order are that he is her father, he cares for her, and he would like to raise her. Father's reasoning focused only on his needs, while minimizing the strong bond that S. feels for the family that has raised her since birth. After spending two and half years with the A.'s, it would be wrenching for S. to be removed from the only permanent home she has known, in the hopes that Father might overcome the self-medication problem that he still refuses to admit he has. While occasionally using marijuana does not, on its face, seem to be an intractable problem, it becomes a serious problem when marijuana is used in lieu of prescribed medications. Father's hospitalizations demonstrate what can occur without proper treatment. Father did not carry his burden of showing that removing S. from the foster caregivers is in her best interests.
Termination of Father's Parental Rights
When reviewing an order terminating parental rights, we determine if there is any substantial evidence to support the conclusions of the dependency court. All conflicts are resolved in favor of respondent and all legitimate inferences are drawn to uphold the court's order. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) We cannot reweigh the evidence or substitute our judgment for that of the lower court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)
At the selection and implementation hearing, the court must select adoption as the permanent plan and terminate parental rights if it finds that the child is likely to be adopted. (§ 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 49; In re Jamie R., supra, 90 Cal.App.4th at p. 773.) Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826; In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) A parent may avoid termination of parental rights by showing that it would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.)
Father does not dispute that S. is likely to be adopted.
Father argues that termination of parental rights would be detrimental because he has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) He carries the burden of showing that the statutory exception applies, and that termination would be detrimental to S. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) The parent/child relationship must promote the child's well-being in a way that outweighs the benefit of a permanent home with adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
a. Regular Visitation and Contact
Father's visitation has been largely consistent. Respondent points out that Father initially failed to visit S.: he was given visitation rights when he first appeared in court in January 2009, but did not start visiting the child until April 2009. When Father began visiting, he generally arrived late, left 30 to 40 minutes early, and did not handle S. for more than a few minutes. By September 2009, Father demonstrated an ability to care for S., preparing food and feeding her, and bringing appropriate toys. Thus, there was an initial nine-month period during which Father seemed disengaged from parenting. Father was fully engaged during the period when he was having unmonitored overnight weekend visits. However, after Father lapsed and tested positive for marijuana, he was reduced to monitored visitation early in 2010, and was less consistent. By the time that the permanent plan hearing was held, Father was spending eight hours with S. every weekend. On balance, it must be said that Father was sufficiently consistent in his visiting, such that S. knew him as "dada."
b. Benefit to the Child
Even if Father's visitation and contacts were regular, he still must establish that S. would benefit from continuing the relationship. The trial court determined that S.'s friendly relationship with Father is outweighed by the benefits of a permanent, stable, adoptive home. Father carries the burden of proving that S. would be "greatly" harmed by termination of parental rights, and that he holds a "parental" role with the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853-854; In re Angel B. (2002) 97 Cal.App.4th 454, 466-468.) A showing that a child would be greatly harmed is difficult to make when, as here, "the parents have . . . [not] advanced beyond supervised visitation." (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
Father's relapse into self-medication with marijuana prevented him from having unmonitored, weekend or extended visits, let alone custody. A true parental relationship would not require a third party to monitor parent-child visits. Even frequent and loving contact between parent and child is not sufficient to establish the requisite benefit to the child if Father does not occupy a parental role and is unable to take custody. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) For two and a half years, Father has continued to be in denial that he ingested marijuana during this dependency proceeding. During this period, S. has bonded with her prospective adoptive parents.
A relationship that is "pleasant" is not enough to establish a benefit to the child because "it bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship." (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Apart from that interaction, we must consider "the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (Id. at p. 576.)
S. was detained shortly after birth. None of her young life has been spent in parental custody. Father's visits are enjoyable for Father and S., and they like going to Griffith Park to ride the horses. Although he has positive interactions with his daughter, Father does not dispute that S. is thriving in her foster placement. Moreover, he testified that S. is more bonded to the caretakers than to himself, because she has spent her entire life with the A.'s. He informed the social worker that S. was recently having more difficulty coming with him, and would cry. By contrast, she went easily to foster father Joseph A. at the end of visits. The A.'s are cognizant of Mother's and Father's history of mental and emotional problems, yet they have expressed love for S. and are willing to face and handle whatever problems S. may have in the future.
The trial court's order terminating parental rights is supported by substantial evidence and must be upheld. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Balancing Father's friendly and loving relationship with S. against the security of a permanent home, it is clear that the legislative preference for adoption applies here. Adoption will provide S. with permanency, stability and security, and continued foster care or a legal guardianship is not equivalent to the stability of a permanent home. (See In re Lukas B. (2000) 79 Cal.App.4th 1145, 1156; Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 249-251.) It is extremely unfortunate that Father came so close to gaining custody of S., only to relapse twice and resume self-medication, then deny responsibility for it.
Notice Under ICWA
When the issue of ICWA first arose with respect to Father, Father had just appeared for the first time, and requested a paternity test. At the same time, he completed an ICWA form indicating that he has possible Indian ancestry through his grandfather in Texas. Inconsistently, Father also checked a box saying that he has no Indian ancestry. At the hearing on January 29, 2009, the court made no findings on the record regarding Father's Indian ancestry. Nevertheless, the minute order states that ICWA does not apply, though the issue was not discussed at the hearing. ICWA was not addressed at any subsequent hearing regarding Father.
By contrast, the court inquired about Mother's Indian heritage at the detention hearing on December 24, 2008. When told that there was no maternal Indian ancestry, the court found "no reason to know that the Indian Child Welfare Act would apply at this time as to the mother." (Italics added.)
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A proceeding to terminate parental rights is subject to specific federal procedures and standards under ICWA. Congress enacted ICWA to protect the interests of Indian children and promote the stability of Indian tribes and families. (In re Crystal K. (1990) 226 Cal.App.3d 655, 661.) If a parent claims Indian ancestry, actual notice must be given to the affected tribe(s): "The Indian status of the child need not be certain. Notice is required whenever the court knows or has reason to believe the child is an Indian child." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) If the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs. (Ibid.) "Notice is mandatory, regardless of how late in the proceedings a child's possible Indian heritage is uncovered." (Id. at p. 1424.) A parent cannot waive ICWA rights by his or her silence, because the protected interest belongs to the tribes, "independent from any rights held by either parent." (Id. at p. 1425; In re Nikki R. (2003) 106 Cal.App.4th 844, 849.)
To avoid unnecessary delay in dependency proceedings, the child protective services agency must act promptly to determine whether notice should be given, if a child's Indian status is uncertain. (In re Kahlen W., supra, 233 Cal.App.3d at pp. 1425-1426.) The agency's duty to act is triggered when "a hint" or "a suggestion" is made of Indian ancestry. (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.) An inquiry must be made when a father suggests that his child "might" be an Indian child through the grandparents, even if he is unable to provide a tribal affiliation and is not himself an enrolled member of a tribe. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1405, 1407-1408.) For the agency, "the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry." (Id. at p. 1413.)
"While the petitioning agency may have the duty to provide ICWA notice, it is the role of the juvenile court, not the agency, to determine whether the ICWA notice is proper." (In re Nikki R., supra, 106 Cal.App.4th at p. 852.) The juvenile court erred by failing to make any determination at all about Father's possible Indian heritage, or to instruct DCFS to contact paternal grandfather John O. in Texas (the person Father identified as possibly being Native American), or require that DCFS send notice to the Bureau of Indian Affairs. (In re Antoinette S., supra, 104 Cal.App.4th at p. 1413.) DCFS let the ball drop: it made no inquiry at all and sent no notices, providing the court with no information on which to base a finding that ICWA does (or does not) apply, with respect to Father. The matter was mistakenly forgotten, and the error is not harmless.
This Court follows the rule that a violation of the ICWA notice requirement does not deprive the juvenile court of its authority over the dependent child, which could endanger the safety of children who risk being returned to unfit parents. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385.) The lack of proper ICWA notice "requires a limited remand to the juvenile court for [DCFS] to comply with the notice requirements of the ICWA, with directions to the juvenile court depending on the outcome of such notice." (Id. at p. 385.) If S. is determined not to be an Indian child after proper notice is given under ICWA, and ICWA does not apply, "prior defective notice becomes harmless error." (Brooke C., at p. 385.)
DISPOSITION
The order terminating parental rights is reversed, and the matter is remanded to the juvenile court with directions to order the Department of Children and Family Services to comply with the Indian Child Welfare Act. If the court determines, after proper notice is given, that S. is an Indian child, a new hearing shall be held. If S. is not found to be an Indian child, the order terminating parental rights shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.