Opinion
F061729 Super. Ct. No. AD000052
10-25-2011
In re TATUM L. et al., Minors. JUAN E., Petitioner and Respondent, v. JOHNNY L., Objector and Appellant.
Gorman Law Offices, Seth F. Gorman, under appointment by the Court of Appeal, for Objector and Appellant. Lampe & Fromson, Christopher W. Lampe, for Petitioner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe, Judge.
Gorman Law Offices, Seth F. Gorman, under appointment by the Court of Appeal, for Objector and Appellant.
Lampe & Fromson, Christopher W. Lampe, for Petitioner and Respondent.
Appellant Johnny L. (father) appeals from the trial court's order terminating his parental rights pursuant to Family Code section 7822. He contends that the trial court failed to comply with various statutory requirements, the court investigator's report was inadequate, and there was no substantial evidence to support termination of parental rights.
Subsequent statutory references are to the Family Code unless otherwise noted.
We agree that the trial court erred by failing to ask the parents whether the children are Indian, as required by the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) In all other respects, we conclude that father has not established reversible error. As a result, we remand to the trial court for the limited purpose of fulfilling its duty of inquiry under ICWA.
FACTUAL AND PROCEDURAL HISTORIES
Brenda E. (mother) and father married in 1995 and separated in 2005. They had two children together, Tatum L., born in 1998, and Bryan L., born in 2000. In 2006, the family court entered a judgment of dissolution of marriage, with custody, visitation, and support orders as approved by the parties in a settlement agreement. The agreement provided mother with sole legal and physical custody of the children. Father was to "have reasonable visitation at [mother's] discretion until he provide[d her] and the Courts with a clean hair follicle [drug] test." Father admits he has a history of using methamphetamine. Mother and father agreed that visitation "may be changed to meet the needs of the children as they grow older." They also agreed that father would not be responsible for child support at that time.
In 2007, mother married Juan E. Tatum and Bryan live with mother, Juan, and his biological children.
On August 4, 2009, in a family court proceeding (not part of this appeal), father filed, in propia persona, for an order to show cause seeking visitation with Tatum and Bryan. Father requested mediation to determine visitation, explaining that he had given the children "space and time to handle the [marital] separation" but now believed "they are ready to see [him] and need both parents in their life."
On September 2, 2009, in the present case, Juan filed a petition to declare Tatum and Bryan free from father's parental custody and control and a request to adopt them. Juan alleged that he has had custody of the children since June 15, 2007, and he treats them as his lawful children. Father opposed the petition and adoption request, and he was appointed counsel.
On December 17, 2009, mother and father attended an orientation hearing regarding father's order to show cause seeking visitation. Mediation was set for December 30, 2009. Mother did not attend the scheduled mediation. Both parents attended the rescheduled mediation on January 19, 2010. The mediator summarized the parents' statements. They reported that domestic violence had occurred within the last five years, resulting in father being arrested. Father stated that the last time he saw the children was on Mother's Day 2006. He called around Christmas 2008 to see them. He knew that he was supposed to complete a hair follicle test as part of the dissolution agreement, but he never took this test. He reported that he was supposed to have reasonable visits but this was not occurring. Father stated that he had used methamphetamine but he stopped in 2007. Mother reported that there had been no contact between the children and father because he was using methamphetamine and was violent.
The mediator recommended that father be required to complete a body hair follicle test, after which father could return to mediation. No visitation plan was recommended for father. The children were referred to counseling "to explore their thoughts and feeling[s] regarding the adoption request and visitation with the father." On January 27, 2010, the court adopted the mediator's recommendations as the temporary order of the court. Father never submitted drug test results to the mediator.
Meanwhile, in the present case, on November 9, 2009, the court appointed a court investigator to interview the children and parties involved and prepare a report and recommendation regarding the petition to terminate father's parental rights. On December 3, 2009, the court considered whether to appoint counsel for Tatum and Bryan. After the parties agreed that it was unnecessary, the court declined to appoint counsel. The court re-referred the matter to the court investigator to meet with the children and parties.
The court investigator's report was filed with the court on July 14, 2010. The same day, at a status review hearing, the court observed that the report and recommendation had been prepared and counsel for each party had been provided a copy. In the report, the investigator wrote that the focus of the investigation was the children, their wishes and desires, their understanding of the proceedings, and their feelings about the proceedings. The investigator interviewed both children.
Tatum was 11 years old at the time of her interview. The investigator reported that she understood the nature of the proceedings and the consequences of the petition to terminate father's parental rights. Tatum stated that she usually refers to Juan by his first name but occasionally calls him dad. She had known him since she was a little girl. Their families attended the same church and she was friends with Juan's daughter before her mother married Juan. The investigator wrote, "All discussions regarding [Juan] were very positive." Tatum reported that she was nervous about the court process, but she had no concerns about Juan adopting her. She told the investigator she would like to change her last name so she has the same last name as her stepsiblings. Tatum remembered father but had not seen him for four or five years. She did not appear interested in visiting him again.
Bryan was 10 years old at the time of his interview. He also appeared to understand the nature of the proceedings and the consequences of terminating father's parental rights. Bryan "spoke very positively about [Juan] and stated that he sometimes calls him Dad." He did not have memories of his father because he was very young when he last had contact with him. "When asked how he felt about visiting with his father again, he responded that he was interested in finding out what his father has been 'up to' but only for a day. He also reported that he was a little nervous about the adoption process but he has no reservations about his step-father adopting him."
Neither child wanted to attend the court hearing. The investigator recommended that the best interests of the children would be served by granting the petition and terminating father's parental rights. As to each child, the investigator noted that the minor "DOES NOT wish to attend the hearing."
The trial on the petition to terminate father's parental rights began September 13, 2010. The court took notice of the court files of the dissolution of parents' marriage and the family court case regarding father's recent order to show cause seeking visitation. Four witnesses testified: (1) father; (2) the paternal grandmother, Bernadette. L; (3) mother; and (4) Juan.
Father testified that mother kept him from having contact with his children, although he did know where they were located. He acknowledged that mother allowed the children to see his mother, Bernadette, but father was not allowed at his mother's house if the children were present.
In 2006, he was still seeing the children by picking them up after school. A few months after the divorce, however, mother told him that Tatum did not want him to pick her up from school anymore because she was scared of him. Father admitted that the children were afraid of him.
In 2007, father wrote the children letters once a week. He said his letters to the children tapered off in 2007 because mother told him that they "were starting to get scared of some of the stuff [he] was writing." Father never e-mailed the children. Although he stopped writing letters, father sent the children cards with money on Christmas and for their birthdays.
The last time father saw Tatum and Bryan was on March 31, 2007, at his mother Bernadette's house. He knew mother did not want him present when the children were visiting their paternal grandmother, but he had to pick up a spare tire. Father saw the children for about five minutes. The last time father spoke to mother was when he called mother after her grandfather passed away in 2007.
Father testified that he learned about his children's activities through his mother, Bernadette, who would keep him updated on how they were doing in school and what sports they were playing. She updated him on a weekly basis.
With respect to monetary support, the last time he supported his children was in 2005. He lost his job that year and cashed out his 401k. He received about $5,000; he kept $500 and gave the rest to mother. Father was unemployed from 2005 until August 2009, although he had a temporary job for three months. Father testified that he has had two more children since the divorce (who were three years old and one year old at the time of trial), and he supports them.
Father was convicted of a domestic violence charge in 2005, but the charge has been expunged. Father admitted that he had a problem with drugs, but stated he has been clean since 2007. He reported that he never took a drug test prior to the mediation in January 2010. After mediation, he took a body hair follicle test, and the result was clean.
Father stated, "I did give [the children] space. But I did try to contact their mother to talk to them. The divorce decree said I should have been given reasonable visitation, and I did not get no visitation." Mother told him if he took the drug test, he could start writing letters again, but she would not let him have contact with them. Father explained that he did not want to pay for a drug test if mother was not going to let him see the children. Father stated that he did not seek a modified visitation order from the court earlier because he was afraid that, if he took mother to court, she would stop allowing Bernadette to see the children. Father testified that he never intended to abandon his children.
Bernadette testified that, in 2007, father told her, "'I'm going to see the kids.'" Then Bernadette talked to mother, who told her the children were not ready to see father. Bernadette testified, "So he would back away because I would tell him no, not to go." Father has stopped taking drugs. According to Bernadette, father has "straightened his life up," and he "would be a really good father."
Bernadette sees Tatum and Bryan on a regular basis. She has a good rapport with mother, who never tried to stop her from seeing the children. Mother also indicated to Bernadette that she would not stop her from seeing her grandchildren after the court proceeding. Bernadette agreed that mother is "a very good mom."
Mother testified that father had problems with drugs and he was physically abusive toward her during their marriage. At the time of the divorce, father did not want to sign the divorce papers because he was concerned about child support. She told him, if he agreed to the divorce, she would not ask for child support. Since the divorce, father never provided mother with a clean drug test.
In 2007, father called mother after her grandfather died and told her he wanted to start seeing the children. She told him he had to have a clean drug test before he could see them. Mother testified, "I didn't turn him away. I didn't not talk to him. I asked him to do the drug test, and then that we would go from there." She continued, "It had been a long time since he had talked to the children. So I told him that we could start out slow with letters and then phone calls and then eventually work up to him seeing the children.
But he never did anything after that. He never did the drug test, and I never received any more calls from him after that."
Mother acknowledged that father sent the children birthday and Christmas cards via his mother. Father wrote letters to the children in 2006. The children did not write back and he stopped sending letters. Mother did not recall any other communication between father and the children.
Mother told Bernadette that she did not want father to see the children when they were at Bernadette's house. Bernadette sees the children once a week. Mother testified that the visits would continue, and Bernadette is a good grandmother whom the children love very much.
Juan testified that he married mother in September 2007. He has four biological children who live with them. Juan has bonded with Tatum and Bryan. They sometimes call him "dad," and he goes to their sports and school activities.
At the conclusion of the trial, counsel made closing arguments. Juan's counsel urged the court to "look at the [court investigator's] recommendation." He asserted that the children were afraid of father, and "[t]hey have no familiarity with him." Father's counsel argued that father did not intend to abandon his children. He stated that father "communicated with his children regularly through cards over the last few years," "talked to his mother about them all the time," and "never forgot about [them]."
On December 9, 2010, the court issued a written ruling granting the petition to terminate father's parental rights. The court observed that there was no dispute that (1) the children had been in the care and custody of mother since 2006, (2) father did not pay child support from 2007 through 2010, and (3) communication between father and the children was minimal. There was no physical contact between father and the children since at least March 2007, he never e-mailed them, he spoke to them on the telephone once from 2007 through 2010, and he sent birthday and Christmas cards. The court found father's communications with the children to be "token." The court further found not credible father's claims that he frequently asked Bernadette about the children and that he never intended to abandon them. The court wrote, "Actions do speak louder than words. It appears to the Court that Father had the means, but not the will or desire to recommence his relationship with the minor children. All that stood in his way was a negative drug test." The court concluded, "[T]he facts are abundantly clear that Father did in fact abandon [the children] to be raised by Mother and later by Mother and Petitioner. A change of heart years later does not mitigate or eliminate the statutory effect and resulting consequences."
Father filed an appeal on January 25, 2011.
DISCUSSION
"Upon enumerated statutory grounds, an interested party may file a petition for the purpose of having a minor child declared free from the custody and control of either or both parents. (§§ 7802, 7840, 7841.)" (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.) Here, the trial court granted stepfather Juan E.'s petition to declare Tatum and Bryan free from father's custody and control pursuant to section 7822, which concerns abandoned children.
Under section 7822, the court has authority to terminate parental rights where "[o]ne parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent, with the intent on the part of the parent to abandon the child." (§ 7822, subd. (a)(3).) The statute provides that, "failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents." (Id., subd. (b).)
On appeal, father contends that the trial court failed to consider the wishes of the children, failed to interview the children, and failed to receive and consider the court investigator's report into evidence, all of which are required by statute. Father also contends that the investigator's report was inadequate, there was no substantial evidence to support termination of parental rights, and the trial court failed to comply with ICWA.
We agree that the case must be remanded to the trial court to comply with ICWA's duty to inquire. In all other respects, we affirm the trial court's decision.
I. Receiving and considering the court investigator's report
"When a petition is filed for an order or judgment declaring a child free from the custody and control of either or both parents, the court must notify the appropriate person or agency (as specified in the statute), who shall immediately investigate the child's circumstances and the alleged basis for ordering the child free from parental custody and control. (§ 7850.) This person or agency shall, in turn, render to the court a written report of the investigation with a recommendation of the proper disposition to be made in accordance with the best interest of the child. (§ 7851, subd. (a).)" (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 168.) Section 7851, subdivision (d), provides: "The court shall receive the report in evidence and shall read and consider its contents in rendering the court's judgment."
Here, the trial court referred the matter to the court investigator, who conducted an investigation and filed a report with the court. Prior to trial, the court noted that the report had been completed and that counsel for the parties received copies. The court investigator's report, however, was not received into evidence. Father argues that the trial "court erred by failing to receive the court investigator's report into evidence and considering its contents." While the record demonstrates that the report was not received into evidence, we disagree with father's assumption that the trial court failed to consider its contents.
Father relies on Neumann v. Melgar, supra, 121 Cal.App.4th 152. In that case, an evaluator's report was filed prior to trial, but "[n]either party requested that the report be admitted into evidence or considered by the court." (Id. at p. 168.) At a hearing on the father's motion for a new trial, "the court initially believed it had reviewed the evaluator's report, but noted the record did not reflect such a review, and [the court] was willing to defer to the record. The court also recalled the report was outdated, although counsel for both parties agreed it was not." (Id. at pp. 168-169.) Based on these circumstances, the appellate court concluded that the trial court had not reviewed the evaluator's report. (Id. at p. 169.)
The Neumann court observed that "the court's obligation to 'receive the report in evidence' seems dependent upon a party first offering it into evidence." (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 169.) The trial court's duty to review the report, however, did not hinge on a party offering the report into evidence; rather, it was "the trial court's obligation to read and consider the report sua sponte." (Ibid.) As a result, the trial court was required to consider the report even though no party offered it into evidence. The failure to consider the evaluator's report, not the failure to receive the report into evidence, was the trial court's error. (Ibid.)
The Neumann court concluded that the trial court had not reviewed the evaluator's report in part because no party requested the court to consider it, and the trial court's own statements indicated that it had not reviewed the report. Here, in contrast, Juan's counsel urged the court to look at the court investigator's report. In his closing argument, counsel argued, "[L]ook at the recommendation.... [¶] [W]hat does it say? Basically that these children ... [are] afraid of this man. They have no familiarity with him." Although there is no mention of the report in the trial court's decision, it is equally true that there are no statements from the court indicating that it did not review the report or did not remember the report. (Cf. Neumann v. Melgar, supra, 121 Cal.App.4th at pp. 168-169.)
In addition, there is no doubt that the trial court was aware of its duty to consider the report. In a letter to counsel for the parties dated May 24, 2010, the court said, among other things, that "[t]he 'trial court's obligation to read and consider the report [is] sua sponte,'" quoting Neumann v. Melgar, supra, 121 Cal.App.4th at page 169. For these reasons, we conclude that the trial court did consider the court investigator's report as required by section 7822. Consequently, we reject this claim of error.
Since a report was prepared in this case and we conclude that the trial court reviewed it, the cases cited by father in which no investigation was conducted or no report was prepared are inapposite.
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II. Considering the wishes of the children
"Statutes authorizing an action to free a child from parental custody and control are intended foremost to protect the child. [Citation.] Typically, such statutes are invoked for the purpose of terminating the rights of one or more biological parent, so the child may be adopted into a stable home environment. [Citations.]" (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 162.) In deciding whether to terminate a parent's parental rights, the trial court is required to consider the wishes of the child. (§ 7890 ["the court shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child"].)
Father argues that the trial court did not consider the wishes of the children in this case. Father observes that, in its written decision, the court did not discuss the preferences of the children or mention that it had considered their wishes pursuant to section 7890. The statute, however, does not require the court to make an express finding regarding the children's wishes, and father offers no authority for the proposition that a court's failure to mention the children's wishes is error.
Father points out that the court did not receive the court investigator's report into evidence, did not appoint counsel for the children, and did not interview them. In addition, there was no testimony from the witnesses about the children's preferences. In effect, father argues that there was no evidence of the wishes of the children before the court, and therefore it had no basis for taking their wishes into consideration in making its decision. We disagree. As we have discussed, the court considered the court investigator's report, which addressed the children's wishes. The report showed that both children spoke very positively about Juan and neither had any concerns about being adopted. Tatum remembered father and was not interested in visiting him again. Bryan had no memories of his father and was interested in finding out what father had been up to, but "only for a day."
Father contends that we may not take the court investigator's report into account; his contention is based on the proposition that an appellate court does not consider evidence that was not before the trial court. Father cites In re Albert G. (2003) 113 Cal.App.4th 132, 134, footnote 3, in which the appellant filed a declaration with the appellate court that had not been part of the trial court record. The declaration was stricken because it had not been before the trial court. (Ibid.) Here, in contrast, the court investigator's report was filed with the trial court and is part of the record on appeal. (Cal. Rules of Court, rule 8.122(b)(3)(A).) Since the report was filed with the court, the trial court clearly had access to it. Consequently, there is no merit to the claim the court investigator's report was not before the trial court.
The court in this case was well aware of its duty to consider the wishes of the children. In its May 24, 2010, letter to counsel, the court wrote, "The trial court shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child." The court cited Neumann v. Melgar, supra, 121 Cal.App.4th at page 169, which, in turn, quoted section 7890. Since the trial court had the court investigator's report and knew of its obligation to consider the wishes of the children, we presume the court followed the law and considered Tatum's and Bryan's wishes when it made its decision. (Evid. Code, § 664; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308 ["We must presume that the court knew and applied the correct statutory and case law"].)
III. Interviewing the children
Section 7891 provides:
"(a) Except as otherwise provided in this section, if the child who is the subject of the petition is 10 years of age or older, the child shall be heard by the court in chambers on at least the following matters:
"(1) The feelings and thoughts of the child concerning the custody proceeding about to take place.
"(2) The feelings and thoughts of the child about the child's parent or parents.
"(3) The child's preference as to custody, according to Section 3042.
"(b) The court shall inform the child of the child's right to attend the hearing. However, counsel for the child may waive the hearing in chambers by the court.
"(c) This section does not apply if the child is confined because of illness or other incapacity to an institution or residence and is therefore unable to attend."
In this case, Tatum and Bryan were both 10 years of age or older, but the trial court did not interview them in chambers. Juan argues that the children did not want to attend the hearing, and, under the circumstances, "it was entirely reasonable for the court to conclude that it had sufficient information concerning the wishes and the best interest of the children to not require them to come to court to be interviewed." We cannot agree. The statute requires the court to interview children who are at least 10 years old and are the subject of a petition to terminate parental rights. The only statutory exception is for children who are unable to attend because of confinement to an institution or residence. (§ 7891, subd. (c).) Juan provides no authority for the proposition that we should read in another exception for children who simply do not wish to attend the court proceeding. The trial court had a duty under section 7891 to interview the children in chambers, and its failure to do so was error.
We apply a harmless-error analysis and reverse if it is reasonably probable that the outcome would have been different in the absence of the error. (See In re Jesusa V. (2004) 32 Cal.4th 588, 622, 624 [applying harmless-error analysis when statutory mandate is disobeyed]; In re Celine R. (2003) 31 Cal.4th 45, 59-60 [reviewing court reverses under harmless-error analysis "only if it finds a reasonable probability the outcome would have been different but for the error"].)
In this case, the court investigator's report disclosed that the children spoke very positively about their stepfather and had no concerns about being adopted. Their last communication with father was so long ago that Bryan, who was 10 years old at the time he was interviewed by the court investigator, had no memories of him. Tatum had no interest in having visitation with father, and Bryan was interested in learning what he was up to, but only for a day. Given these statements by the children, it is not reasonably probable that the result would have been different if the trial court had interviewed them in chambers.
Father posits, "It may be that the children, if explained that they would have no legal right to continued contact with their grandmother [Bernadette], or ability to compel such contact with their grandmother," may have decided they did not want to be adopted. He does not explain, however, how the ability of the children to visit with their grandmother is linked to father's parental rights. Mother, the fit custodial parent, has the fundamental right to control with whom Tatum and Bryan associate. (See Troxel v. Granville (2000) 530 U.S. 57, 65-67; Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1109.) It is doubtful the children could "compel" visitation with their grandmother against mother's wishes. Juan further points out that section 3104 provides a mechanism for a grandparent to seek visitation with a grandchild even when a stepparent has adopted the child. (§ 3104, subds. (a) & (b)(5).) As a result, Bernadette's statutory right to seek visitation is independent of father's parental rights. Consequently, even if the court had discussed potential grandparent visitation issues with the children, it is not reasonably probable the outcome would have been different.
IV. Adequacy of the court investigator's report
Under section 7850, the court investigator was given the task of "investigat[ing] the circumstances of the child and the circumstances which are alleged to bring the child within any of the provisions of Chapter 2 (commencing with Section 7820)." Section 7851, subdivision (b), provides guidance on the contents of the report. "The report shall include all of the following: [¶] (1) A statement that the person making the report explained to the child the nature of the proceeding to end parental custody and control. (2) A statement of the child's feelings and thoughts concerning the pending proceeding. [¶] (3) A statement of the child's attitude towards the child's parent or parents and particularly whether or not the child would prefer living with his or her parent or parents. [¶] (4) A statement that the child was informed of the child's right to attend the hearing on the petition and the child's feelings concerning attending the hearing."
Father argues that the court investigator's report in this case failed to provide the court with an adequate investigation. He does not contend that the report failed to address the four elements required under section 7851. Rather, he asserts, "Although the court was supplied with testimony by petitioner and his wife, and conflicting testimony by father, the court was deprived of the independent investigation which may have shed light on the question, and bolstered father's claims that he was prevented from contact by mother." In the report, the court investigator addressed the children's feelings about the possibility of adoption by their stepfather and visitation with father. The report also demonstrated that the children had no communication with father for four or five years. This was sufficient. We are not persuaded that the court investigator's report was inadequate because it failed to "bolster" father's case.
V. Substantial evidence
"[A] section 7822 proceeding is appropriate where 'three main elements' are met: '(1) the child must have been left with another; (2) without provision for support or without communication from ... his parent[] for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done "with the intent on the part of such parent ... to abandon [the child]."' [Citation.]" (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.)
We review the trial court's findings for substantial evidence. (Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1010-1011; In re Amy A. (2005) 132 Cal.App.4th 63, 67.) We resolve all conflicts in the evidence in favor of the respondent, and all legitimate and reasonable inferences must be indulged in to uphold the judgment. (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
Father contends no substantial evidence supports the trial court's order terminating parental rights under section 7822. First, he argues there is no substantial evidence to support a finding of failure to support. Termination of parental rights may occur when a parent leaves a child in the other parent's custody for a period of a year "without any provision for the child's support, or without communication from the parent ...." (§ 7822, subd. (a)(3).) Since the disjunctive "or" is used in the statute, evidence of either a parent's failure to support his child or his failure to communicate with the child is sufficient to support a finding of abandonment.
In this case, the trial court found there was no physical contact between father and the children for over three years, and his communication with them through annual birthday and Christmas cards was "token." Father testified that he had not seen his children since March 2007, and he agreed with Juan's counsel that his communication for the previous three years "was almost at zero." This was substantial evidence that the children were left "without communication from [father]." (§ 7822, subd. (a)(3).) Since there was substantial evidence of a failure to communicate, the second element of the "three main elements" was established. We need not address father's argument that there was no substantial evidence of failure to support because it would not affect the outcome.
Next, father argues there was no substantial evidence that he "left" the children within the meaning of section 7822. A parent "leaves" a child by voluntarily surrendering the child to another person's custody. (In re Amy A., supra, 132 Cal.App.4th at p. 69.) "Case law consistently focuses on the voluntary nature of a parent's abandonment of the parental role rather than on physical desertion by the parent." (Ibid.) "[A] parent will not be found to have voluntarily left a child in the care and custody of another where the child is effectively 'taken' from the parent by court order [citation]; however, the parent's later voluntary inaction may constitute a leaving with intent to abandon the child [citation]." (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504.)
In In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at page 496, the parents divorced, and the court awarded the mother sole legal and physical custody of the children. The father was ordered to participate in a psychological evaluation and to have no contact with the minors pending completion of the evaluation. (Ibid.) The father did not see his children for many years, did not seek modification of the custody and visitation order for over three years, and, among other things, "made no effort to comply with the conditions that would have allowed him to contact the minors." (Id. at p. 505.) The court found the father's inaction to be substantial evidence that he had voluntarily surrendered his parental role and left the children within the meaning of section 7822. (In re Marriage of Jill & Victor D., supra, at p. 506.)
Likewise, in this case, father has not seen his children since March 2007, and he waited more than three years after the dissolution of marriage was entered to file an order to show cause seeking visitation. He claims that he has not used drugs since 2007, but he made no effort before 2010 to complete a hair follicle test, which would have allowed him further contact with the children. Father's inaction was substantial evidence that he left Tatum and Bryan in mother's custody and care within the meaning of section 7822.
Finally, father argues there was no substantial evidence that he intended to abandon Tatum and Bryan. We are not persuaded. "[F]ailure to communicate is presumptive evidence of the intent to abandon." (§ 7822, subd. (b).) If the parent has made only token efforts to communicate, the court may declare the child abandoned. (Ibid.) In this case, the evidence supported a finding of only token efforts to communicate. Father never saw the children after March 2007, he stopped writing them letters in 2007, he never e-mailed them, and he sent cards only twice a year. Father's failure to communicate was presumptive evidence of an intention to abandon. (§ 7822, subd. (b).)
A trial court is not required to believe a parent's testimony regarding his own intent (In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 506), and, in this case, the trial court did not believe father. The court found not credible father's testimony that he frequently asked Bernadette about the children and that he did not intend to abandon them. The trial court observed that "[a]ctions do speak louder than words," and father never took a drug test, which was all that stood in the way of a relationship with the children. The trial court implicitly found that father failed to rebut the presumption of intent to abandon. We cannot say that father overcame the presumption as a matter of law; consequently, we affirm the trial court's finding that father intended to abandon his children. (See Ibid. [findings of trial court must be sustained unless presumption of abandonment raised by token efforts to communicate is overcome as matter of law].)
In sum, there was substantial evidence that father left the children in their mother's custody for more than one year, without communication, and with the intent to abandon.
VI. ICWA
"ICWA sets forth minimum substantive and procedural standards to protect the interests of Indian children, Indian families and Indian tribes. [Citations.] To fully effectuate ICWA in state Indian child custody proceedings, the California Legislature enacted a comprehensive reorganization of statutes related to the application of ICWA ...." (In re Jack C. (2011) 192 Cal.App.4th 967, 977.) In a proceeding to terminate parental rights, the court, the court investigator, and the party seeking termination of parental rights all "have an affirmative and continuing duty to inquire whether a child is or may be an Indian child ...." (Cal. Rules of Court, rule 5.481(a).)
Father points out that the record in this case reveals no inquiry by the court, the court investigator, or Juan, into whether the children have Indian ancestry. On appeal, Juan concedes the point and agrees the case should be remanded to the trial court to comply with the requirements of ICWA. We will remand the case with directions to inquire whether Tatum and Bryan are of Indian ancestry. (In re J.N. (2006) 138 Cal.App.4th 450, 461-462 [where record showed mother was never asked whether she had any Indian ancestry, matter was remanded to juvenile court with instructions to inquire of mother whether child was an Indian child].)
DISPOSITION
The order granting the petition is vacated. The matter is remanded with directions to inquire whether the children are, or may be, Indian children within the meaning of ICWA. If the inquiry produces evidence that the children are, or may be, Indian children, then the court shall direct the appropriate agency to give notice of the underlying proceedings and any upcoming hearings in compliance with ICWA to the Bureau of Indian Affairs (BIA) and any identified tribes. (25 U.S.C. § 1912.) The agency shall document its efforts to provide notice by filing any documentation and responses received with the court. (Cal. Rules of Court, rule 5.482, subd. (b).) If the BIA or any tribe responds by confirming that either child is or may be eligible for membership within 60 days of sending proper notice under ICWA to the BIA and any identified tribes, the court shall proceed pursuant to the terms of ICWA. If the inquiry produces no evidence that the children are, or may be, Indian children, or there is no confirmation that the children are, or may be, eligible for Indian tribal membership, the court shall reinstate the prior order. In all other respects, the order is affirmed.
Wiseman, Acting P.J.
WE CONCUR:
Levy, J.
Kane, J.