In re J.R. CA2/1 ( 2021 )

Filed 3/1/21 In re J.R. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.R., a Person Coming B308011
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP04130)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.V.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, D. Brett Bianco, Judge. Affirmed.
Vincent Uberti, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
The Los Angeles County Department of Children and
Family Services (DCFS) initiated juvenile dependency
proceedings concerning then-seven-month-old J.R. The juvenile
court later sustained an amended dependency petition alleging
that J.R.’s mother’s substance abuse posed a substantial risk of
serious physical harm to J.R., and that J.R.’s father failed to
protect J.R. from this risk. Although the juvenile court initially
released J.R. to his parents’ custody, it later sustained a
supplemental petition under Welfare and Institutions Code
section 387,1 removed J.R. from mother and father, and ordered
father to submit to a psychiatric evaluation.
Father appeals each of these rulings, and further argues
that the juvenile court and DCFS violated their duty to inquire
whether J.R. is or may be an Indian child for the purposes of the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.) and its related state law provisions.
1 Undesignated statutory citations are to the Welfare and
Institutions Code. Section 387 provides in pertinent part: “An
order changing or modifying a previous order by removing a child
from the physical custody of a parent . . . and directing placement
in a foster home . . . shall be made only after noticed hearing
upon a supplemental petition. [¶] . . . The supplemental petition
shall be filed by the social worker in the original matter and shall
contain a concise statement of facts sufficient to support the
conclusion that the previous disposition has not been effective in
the . . . protection of the child . . . .” (See § 387, subds. (a)–(b).)
2
We reject father’s challenges to the ruling sustaining the
supplemental petition and the removal order because substantial
evidence shows that father and mother prevented DCFS from
assessing whether their home was safe for J.R. We also uphold
the juvenile court’s order requiring father to submit to a
psychiatric evaluation because the lower court reasonably
suspected that father’s domineering behavior interfered with the
agency’s ability to conduct a home assessment. Lastly, father’s
ICWA claim fails because father identifies only one source of
relevant information concerning J.R.’s potential status as an
Indian child, the paternal grandmother (PGM), and substantial
evidence shows that PGM refused to speak with DCFS’s
employees. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts that are relevant to this
appeal.
1. The dependency petition, the non-detain report, and
the July 1, 2019 detention hearing
On June 28, 2019, DCFS filed a juvenile dependency
petition alleging jurisdiction over J.R. under section 300,
subdivisions (a) and (b)(1).2 In particular, the petition alleged
2 Section 300, subdivision (a) provides that dependency
jurisdiction is proper if “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
inflicted nonaccidentally upon the child by the child’s parent or
guardian.” (§ 300, subd. (a).) As pertinent here,
subdivision (b)(1) authorizes a juvenile court to exercise
jurisdiction if “[t]he child has suffered, or there is a substantial
risk that the child will suffer, serious physical harm or illness, as
3
that on May 28, 2019, mother pushed maternal grandmother
(MGM), twisted MGM’s fingers, and caused MGM to sustain a
nasal fracture (counts a-1 and b-2); and mother had “a history of
substance abuse and is a current abuser of amphetamine,
methamphetamine and alcohol, which render[ed] the mother
incapable of providing regular care and supervision of the child,”
and father “knew of the mother’s substance abuse and failed to
protect the child in that the father allowed the mother to reside
in the child’s home and to have unlimited access to the child”
(count b-1). Attached to the petition was an ICWA-010(A) Indian
child inquiry attachment form, which was completed by a social
worker and indicated that mother reported that J.R. “has no
known Indian ancestry.”
Accompanying the petition was a “non-detained
detention report.”3 (Boldface and capitalization omitted.)
On May 28, 2019, mother reported to DCFS that she had been
“sad and depressed about” the fact that approximately one month
prior, she and father “broke up and decided to live apart from
each other for a while.” She claimed that on the night of the
incident in which “she grabbed MGM[’s] hands and pushed her
away,” mother “had [a] couple of beers.”
a result of the failure or inability of his or her parent or guardian
to adequately supervise or protect the child, . . . or by the
inability of the parent or guardian to provide regular care for the
child due to the parent’s . . . substance abuse.” (See id.,
subd. (b)(1).)
3 The remainder of this paragraph and the following two
paragraphs summarize relevant aspects of the non-detain
detention report.
4
Mother agreed to take a drug test and on June 6, 2019, the
test results indicated the presence of amphetamine and
methamphetamine. When DCFS informed mother of the drug
test results on June 7, 2019, mother admitted to using
methamphetamine several weeks earlier at a friend’s house, and
mother claimed that she left J.R. in MGM’s care on that day.
During that interview, mother reiterated that “she was stressed,”
and stated that father “left her and did not want to be with her.”
The non-detain detention report also noted that mother had been
arrested on April 11, 2017 and October 8, 2018 for driving under
the influence of alcohol.
On June 7, 2019, father told DCFS that he knew that
“mother has a problem with drinking,” but he claimed “he never
knew that the mother was using drugs.” At DCFS’s request,
mother entered an in-patient substance abuse treatment program
on June 17, 2019; J.R. accompanied mother to the program’s
facilities. Mother received negative test results for drug tests
conducted on June 17 and 25, 2019.
Prior to the detention hearing held on July 1, 2019, father
filed an ICWA-020 parental notification of Indian status form,
wherein father indicated he “may have Indian ancestry” but the
name of the tribe to which his ancestors may have belonged was
“[u]nknown.”
The juvenile court asked father at the July 1, 2019
detention hearing why he believed he had Indian ancestry, and
father replied that his parents stated “they have Indian blood in
them.” After father indicated that PGM was still alive and that
she may have additional information regarding this issue, the
juvenile court ordered DCFS to contact PGM and “to more fully
explore with [father] any additional information he may have.”
5
Nonetheless, the court found that, “[w]ithout any more specific
information, . . . it ha[d] no reason to know ICWA applies to this
case.” The court also found a prima facie showing that J.R. was a
person described by section 300, allowed J.R. to remain in his
parents’ custody on the condition that mother continue to have
negative drug test results, ordered DCFS to provide family
preservation services to J.R. and his parents, and ordered the
parents to make J.R. available for unannounced home visits.
2. The August 5, 2019 jurisdiction/disposition report and
the August 19, 2019 adjudication hearing
On August 5, 2019, DCFS filed a jurisdiction/disposition
report.4 On July 24, 2019, mother, who at that time was 35 years
old, stated that she had used methamphetamine on a daily basis
from the ages of 29 to 31, and, at the age of 31, she became a
heavy alcohol drinker. Mother claimed to have ceased using
methamphetamine on a daily basis “two summers ago,” and to
have consumed the substance only twice since then. Mother said
that the last time she used methamphetamine was on the night
of her physical altercation with MGM, and that she had
consumed alcohol on that evening as well. She also claimed that
although father was not aware that she was drinking alcohol, he
suspected that was the case because he could smell the substance
on her.
On July 26, 2019, father conceded that he suspected mother
had been drinking alcohol, but he stated he “ ‘was not going to
judge her’ ” and “ ‘[s]he was never slurring or not looking
4 The remainder of this paragraph and the following
paragraph summarize relevant aspects of the August 5, 2019
jurisdiction/disposition report.
6
normal.’ ” “Father indicated that he did not have any knowledge
that mother had used methamphetamines and continues to be in
disbelief”; “[f]ather stated that he believed mother had stopped
using” the drug. Additionally, although father once again
acknowledged that “PGM had mentioned that she possibly had
Indian Ancestry,” he “refused to provide” DCFS with “PGM[’s]
contact information, and indicated that he did not want PGM to
be involved.”
At the adjudication hearing held on August 19, 2019, the
juvenile court reiterated that it did not “have a reason to know
that ICWA applies.” The court dismissed counts a-1 and b-2, but
sustained a version of count b-1 that was amended to allege that
mother was a “recent abuser of amphetamine, methamphetamine
and alcohol,” as opposed to a “current abuser” of those
substances. The court declared J.R. a dependent of the court,
authorized him to remain in his parents’ custody, and approved a
case plan that required: (1) mother to complete a full drug and
alcohol program, submit to weekly and random drug and alcohol
tests, take a developmentally appropriate parenting class, and
participate in individual counseling to address case issues; and
(2) father to attend meetings at an Alcoholics Anonymous
program. Significantly, the court ordered both parents to make
the child available for unannounced home calls and “keep DCFS
advised of [their] addresses and telephone/cell phone numbers.”
7
3. The February 8, 2020 status report and the
February 18, 2020 review hearing
DCFS filed a status report on February 8, 2020.5 Since
mother was discharged from an in-patient substance abuse
treatment program on November 14, 2019, J.R. has been under
the care of his mother and father. On November 18, 2019, J.R.’s
parents reported that they were homeless, and that the family
spent their nights in shelters and in the homes of friends and
family members.
“During monthly interviews with both parents, [DCFS
personnel] witnessed both parents arguing with each other.
While mother was still residing at [her in-patient substance
abuse treatment program], the mother texted the following [to a
social worker] on 10/12/19: ‘I need your assistance and help. . . .
My child’s father is being verbally abusive to me. I worry he will
not return the baby when he wants him.’ ” When a social worker
met with the parents at a DCFS office on January 8, 2020,
mother and father started arguing because “father complained
that he had to do services ordered by the court”; those remarks
had “upset” mother because she stated that father “is expected to
support his family.”
On February 18, 2020, the juvenile court held a review
hearing pursuant to section 364.6 The court found that
5 The remainder of this paragraph and the following
paragraph summarize relevant aspects of the February 8, 2020
status report.
6 Section 364 governs review hearings held after “an order
is made placing a child under the supervision of the juvenile
court pursuant to Section 300 and in which the child is not
removed from the physical custody of his or her parent or
8
“[c]ontinued jurisdiction [was] necessary because conditions
exist[ed] which justify jurisdiction,” and that DCFS provided
reasonable services to meet J.R.’s needs. The court instructed
DCFS to provide family maintenance services to J.R. and his
parents, ordered the parents to “continue to participate in their
programs,” and declared that its prior “Order of Home of Parents
remain[ed] in full force and effect.”
4. The protective custody warrant, the supplemental
petition, the August 3, 2020 detention report, and the
August 6, 2020 detention hearing
On July 27, 2020, DCFS filed an application seeking an
order removing J.R. from his parents’ custody because mother
and father did not allow DCFS to conduct a safety assessment of
J.R.’s home. The juvenile court granted the application and
issued a protective custody warrant later that day.
On August 3, 2020, DCFS filed a supplemental petition
pursuant to section 387. The supplemental petition alleged two
counts: (1) mother failed to comply with juvenile court orders to
(a) make J.R. and his home available to be assessed by DCFS and
(b) submit to weekly and random/on-demand drug and alcohol
testing (count s-1); and (2) father failed to comply with juvenile
court orders to (a) make J.R. and his home available to be
guardian . . . .” (See § 364, subd. (a).) “At a section 364 review
hearing, ‘[t]he court shall terminate its jurisdiction unless the
social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which
would justify initial assumption of jurisdiction under Section 300,
or that those conditions are likely to exist if supervision is
withdrawn.’ [Citation.]” (In re D.N. (2020) 56 Cal.App.5th 741,
755, fn. 10.)
9
assessed by DCFS and (b) participate in Alcoholics Anonymous
meetings (count s-2).
Also on August 3, 2020, DCFS filed a detention report.7
From November 14, 2019 to April 7, 2020, the parents did not
provide a physical address to DCFS, but they continued to bring
J.R. to the DCFS office for monthly visits. During these monthly
interviews with the parents, mother often “refused to be
interviewed individually” and stated that she does not keep
secrets from father. In March 2020, a DCFS social worker tried
to discuss the minor’s safety with mother, and she responded: “
‘He will be upset I am telling you anything I have to delete these
messages right now’ ”; the text message itself does not explicitly
identify the person that mother referred to as “[h]e” therein. On
April 1, 2020, when a DCFS social worker called mother to
discuss her case plan, “father answered the phone and started
yelling at [the social worker].”
On April 7, 2020, both parents provided MGM’s address as
their residential address, and DCFS assessed the home on
April 10, 2020. In May 2020, “the parents tried hard” to meet
with a DCFS social worker in a location other than the minor’s
home, “such as a clinic or a business place,” although mother
ultimately “agreed to meet” with a social worker at MGM’s home.
DCFS did not visit J.R.’s home in June 2020.
On July 13, 14, 16, and 17, 2020, a DCFS social worker
called and text messaged the parents to schedule an appointment
to visit J.R. at his home, and mother and father did not respond
to the agency. On July 17, 2020, the social worker contacted
7 The remainder of this paragraph and the following four
paragraphs summarize relevant aspects of the August 3, 2020
detention report.
10
mother’s drug treatment center’s instructor, who provided a new
telephone number for mother. Later that day, the social worker
called mother at this new telephone number and told mother that
the worker needed to make an appointment for a home visit;
“mother responded[, ‘]I will call you later[, ’] and hung up . . . .”
The social worker then sent a text message to mother to schedule
an appointment, and mother stated that she would meet the
social worker at DCFS’s office at 3:00 p.m. The social worker
reiterated that the social worker “would need to see child [J.R.] at
his home to assess his safety.” When the social worker sent the
mother a text message again on July 20, 2020 to schedule an
appointment for a home assessment, mother did not respond to
that message.
On July 21, 2020, DCFS personnel went to MGM’s home
and spoke with maternal grandfather, who stated that mother
and J.R. were not in the home but they were still living there.
On July 27, 2020, a social worker text messaged both parents to
schedule an appointment for the following day to interview the
family, and, although mother responded “ ‘ok’ ” and added a
thumbs-up image to the text response, the parents did not attend
their scheduled appointment. On July 28, 2020, DCFS employees
went to MGM’s home to serve the warrant to detain J.R., but no
one answered the front door. On July 30, 2020, a social worker
and one or more police officers traveled to MGM’s home, located
J.R., and took him into protective custody pursuant to the
removal warrant.
Additionally, DCFS claimed that mother failed to report for
a random drug test on July 17, 2020, and that father “has not
followed through with” the Alcoholics Anonymous services
ordered by the juvenile court.
11
The juvenile court held a detention hearing on
August 6, 2020. The court ordered DCFS to detain J.R. in shelter
care pending the next hearing and authorized mother and father
to have monitored visits with the child, although mother and
father were barred from visiting the child together.
5. The September 9, 2020 jurisdiction/disposition report
and the September 21, 2020 hearing on the
supplemental petition
DCFS filed a jurisdiction/disposition report on
September 9, 2020.8 On August 27, 2020, father told DCFS “his
child was ‘kidnapped’ and that he did not believe that truthful
information was presented in the Detention Report.” Mother
failed to participate in two scheduled telephone appointments
with DCFS, and, as a consequence, the agency was unable to
interview mother in connection with the jurisdiction/disposition
report. Mother missed drug tests on August 6 and 10, 2020, but
she received a negative result for her August 20, 2020 drug test.
On September 21, 2020, the juvenile court held a hearing
on the supplemental petition. At the outset of the hearing, the
court admitted into evidence the August 3, 2020 detention report
and the September 9, 2020 jurisdiction/disposition report, and
took “judicial notice of the case file and its contents . . . .” The
court thereafter sustained both counts of the supplemental
petition, and found that “the previous disposition [was]
ineffective in ensuring the safety of the child.”
Next, the juvenile court removed J.R. from his parents’
custody, and approved a case plan that, among other things,
8 The remainder of this paragraph summarizes relevant
aspects of the September 9, 2020 jurisdiction/disposition report.
12
required: (1) mother to submit to random or on-demand drug
tests; and (2) father to (a) participate in Alcoholics Anonymous
meetings, (b) submit to a psychiatric evaluation pursuant to
Evidence Code section 730,9 and (c) participate in individual
counseling. In the course of ordering father to submit to the
psychiatric evaluation, the court remarked: “The court believes
and agrees with the assessment that there is more to this
dysfunctional family than meets the eye, and we need to figure
out what that is. I think I can take a guess—there’s power and
control issues involved.”
On September 28, 2020, father timely appealed the findings
and rulings issued at the September 21, 2020 hearing.10
9 Evidence Code section 730 provides in pertinent part:
“When it appears to the court, at any time before or during the
trial of an action, that expert evidence is or may be required by
the court or by any party to the action, the court on its own
motion or on motion of any party may appoint one or more
experts to investigate, to render a report as may be ordered by
the court, and to testify as an expert at the trial of the action
relative to the fact or matter as to which the expert evidence is or
may be required.” (Evid. Code, § 730.)
10 The notice of appeal identifies the order being
challenged as follows: “On 09/21/2020 the Court found the
387 petition to be true and removed the child from the parents.”
DCFS argues that this description does not confer upon us
jurisdiction to review the order requiring father to submit to a
psychiatric evaluation. We hold that, liberally construed, the
notice of appeal encompasses this ruling, notwithstanding the
fact that father did not specifically identify each and every aspect
of the September 21, 2020 order that he intended to challenge.
(See In re J.F. (2019) 39 Cal.App.5th 70, 75 [“A notice of appeal
shall be ‘ “liberally construed so as to protect the right of appeal if
it is reasonably clear what [the] appellant was trying to appeal
13
DISCUSSION
A. Substantial Evidence Supports the Juvenile Court’s
Decision to Sustain the Supplemental Petition
“Under section 387, DCFS may bring a supplemental
petition for an order changing or modifying a previous order by
removing a child from the physical custody of a parent.
[Citation.] ‘A section 387 petition is ordinarily required when the
petitioner . . . seeks to modify a dispositional order by
establishing the need for a “more restrictive level” of custody.’
[Citation.] DCFS ‘has the burden to show by a preponderance of
the evidence that the factual allegations alleged in the petition
are true. If the court finds the factual allegations are true, then
the court determines whether the previous disposition is no
longer effective in protecting the child . . . .’ [Citation.]” (In re
A.O. (2010) 185 Cal.App.4th 103, 109–110 (A.O.).)
“We review an order sustaining a section 387 petition for
substantial evidence.” (A.O., supra, 185 Cal.App.4th at p. 109.)
“ ‘ “ ‘In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues
of fact and credibility are the province of the trial court.’
[Citation.] ‘We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.’ ” ’ ”
(In re S.R. (2020) 48 Cal.App.5th 204, 219 (S.R.).)
from, and where the respondent could not possibly have been
misled or prejudiced.” ’ [Citation.]”].)
14
Father argues that “[s]ubstantial evidence . . . does not
support a finding that the parents failed to make [J.R.’s] home
available to DCFS” because mother and father “still made [the
minor] available for in-home visits a large majority of the time”—
i.e., 11 out of the 12 months in which the case had been pending
at that point.
Assuming arguendo that mother and father failed to make
J.R. available for a home assessment in only the month of
July 2020, there still is substantial evidence establishing that
placement with the parents “has not been effective in the . . .
protection of the child . . . .” (See § 387, subd. (b).) The
August 3, 2020 detention report indicates that from July 13, 2020
to July 30, 2020, DCFS attempted to schedule an assessment of
the minor’s home, but during that time, one or both of the
parents failed to respond to DCFS’s telephone calls or text
messages, to agree to schedule an appointment for the home visit,
and to show up for a scheduled appointment.11 Furthermore,
dependency jurisdiction over the minor was established on
account of mother’s substance abuse and father’s failure to
protect J.R. therefrom, meaning the juvenile court had found that
absent its and DCFS’s supervision, the parents posed a
substantial risk of serious physical harm to J.R. (See § 300,
subd. (b)(1).) In addition, father does not challenge the juvenile
11 Father argues that “DCFS is at least partly to blame for
not seeing [J.R.] [in July 2020] because [the agency] declined an
appointment with the family.” This assertion is misleading.
Although mother arguably offered to meet a social worker at a
DCFS office on July 17, 2020, the social worker responded by
“remind[ing] the mother that [the social worker] would need to
see child [J.R.] at his home to assess his safety.” (Italics added.)
15
court’s finding that mother had failed to submit to drug testing
(as alleged in count s-1 of the supplemental petition).
Given J.R.’s very young age (i.e., 20 months old in
July 2020), and the fact that for more than two weeks, J.R.’s
parents repeatedly failed to allow DCFS to assess the minor’s
home to determine whether mother’s substance abuse and
father’s obliviousness thereto threatened his safety, we conclude
that substantial evidence supports the juvenile court’s finding
that placement with the parents has not been effective at
protecting the child.12 (In re Drake M. (2012) 211 Cal.App.4th
754, 766–767 [“ ‘[C]ases finding a substantial physical danger
tend to fall into two factual patterns. One group . . . . involves
children of such tender years that the absence of adequate
supervision and care poses an inherent risk to their physical
health and safety. [Citations.]’ [Citation.]”].)
Father also challenges the juvenile court’s ruling
sustaining the allegation that he failed to attend Alcoholics
Anonymous meetings. As discussed below, we decline to reach
this issue.
“As a general rule, a single jurisdictional finding supported
by substantial evidence is sufficient to support jurisdiction and
render moot a challenge to the other findings.[13] [Citation.] We
12 Father maintains that “DCFS provided no evidence of
harm to [J.R.], aside from some relatively minor medical issues
which the parents obtained treatment for.” “We reject [this]
argument out of hand because ‘ “[t]he court need not wait until a
child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child.” ’ [Citations.]”
(S.R., supra, 48 Cal.App.5th at p. 219.)
13 With regard to section 387 petitions, “ ‘[t]he ultimate
“jurisdictional fact” necessary to modify a previous placement
16
nonetheless retain discretion to consider the merits of a parent’s
appeal [citation], and often do so when the finding ‘(1) serves as
the basis for dispositional orders that are also challenged on
appeal [citation]; (2) could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings
[citations]; or (3) “could have other consequences for [the
appellant], beyond jurisdiction” [citation].’ [Citations.]” (In re
M.W. (2015) 238 Cal.App.4th 1444, 1452 (M.W.).)
Father does not identify any reason why we should exercise
our discretion to review the juvenile court’s ruling that he failed
to attend Alcoholics Anonymous meetings. Nor do we. We need
not review this finding so that father may avoid being deemed an
offending parent because we have already concluded substantial
evidence supported the juvenile court’s finding that both parents
failed to make J.R. available for a home assessment. (In re
Quentin H. (2014) 230 Cal.App.4th 608, 613 [“[W]hen . . . the
outcome of the appeal could be ‘the difference between father’s
being an “offending” parent versus a “non-offending” parent,’ a
finding that could result in far-reaching consequences with
respect to these and future dependency proceedings, we find it
appropriate to exercise our discretion to consider the appeal on
the merits.”].)
Additionally, father does not challenge the dispositional
rulings to the extent they hinge on the validity of the juvenile
court’s finding that he failed to participate in Alcoholics
Anonymous meetings. (See M.W., supra, 238 Cal.App.4th at
p. 1452 [noting that an appellate court may reach the merits of
with a parent or relative is that the previous disposition has not
been effective in the protection of the minor.’ [Citation.]” (A.O.,
supra, 185 Cal.App.4th at p. 110.)
17
an otherwise moot jurisdictional challenge if the finding “serves
as the basis for dispositional orders that are also challenged on
appeal”].) Accordingly, we affirm the juvenile court’s
jurisdictional findings vis-à-vis the supplemental petition without
passing upon this issue.
B. Substantial Evidence Supports the Juvenile Court’s
Order Removing J.R. from His Parents’ Custody
Under section 361, subdivision (c)(1), “[a] dependent child
shall not be taken from the physical custody of his or her
parent . . . with whom the child resides at the time the petition
was initiated, unless the juvenile court finds clear and convincing
evidence . . . [¶] [that t]here is or would be a substantial danger
to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and
there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the
minor’s parent’s . . . physical custody.” (See § 361, subd. (c)(1).)
“ ‘[A]ppellate review of the sufficiency of the evidence in
support of a finding requiring clear and convincing proof must
account for the level of confidence this standard demands. . . .
[W]hen reviewing a finding that a fact has been proved by clear
and convincing evidence, the question before the appellate court
is whether the record as a whole contains substantial evidence
from which a reasonable fact finder could have found it highly
probable that the fact was true. Consistent with well-established
principles governing review for sufficiency of the evidence, in
making this assessment the appellate court must view the record
in the light most favorable to the prevailing party below and give
due deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and
18
drawn reasonable inferences from the evidence.’ [Citation.]”
(In re V.L. (2020) 54 Cal.App.5th 147, 155 (V.L.), quoting
Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996.)
Father claims that “any lack of contact or visits between
the parents, [J.R.], and DCFS is due to the parents’ housing
problems,” and that father’s and mother’s poverty alone cannot
support the juvenile court’s removal order. Father does not cite
any evidence to support this claim.
Furthermore, his argument does not address the parents’
failure to inform DCFS in July 2020 that they had a new
telephone number, or their failure to return the agency’s
telephone calls and text messages or attend the appointment
they scheduled with DCFS for July 28, 2020. Although mother
and father claimed not to have a physical address from
November 14, 2019 to April 7, 2020, father does not allege, let
alone identify any evidence showing, that he and mother lacked
access to a working telephone in July 2020. Rather, the evidence
in the record suggests the following: At an unspecified point in
time prior to July 17, 2020, J.R.’s parents stopped using the
telephone number they had given to DCFS in April 2020; in
July 2020, the agency was unsuccessful in its attempts to contact
J.R.’s parents at their old telephone number because they
violated a court order requiring them to apprise DCFS of any
change in telephone numbers; and, after DCFS obtained a new
telephone number for mother, she responded to several (but
seems to have ignored many) of DCFS’s text messages during
that month. Given that J.R was a very young child, DCFS
rightfully could be concerned if it lost contact with J.R. because
his parents failed to keep DCFS apprised of a new telephone
19
number at which they could be reached and mother ignored
DCFS’s text messages.
Additionally, as we found in Discussion part A, ante, there
is substantial evidence that for nearly two and a half weeks,
mother and father prevented DCFS from ascertaining whether
their toddler lived in a safe home environment, even though the
juvenile court found that without DCFS and court supervision,
the toddler’s parents posed a substantial risk of serious physical
harm to him. Without being able to access J.R. in his home
environment, “a reasonable trier of fact could have found it
highly probable that placement of [J.R.] with [mother and] father
would pose a substantial risk of [him] being harmed by [mother’s
substance abuse and father’s apparent indifference thereto], and
that there were no reasonable means to protect [J.R.] without
removal from [his parents’] physical custody.” (See V.L., supra,
54 Cal.App.5th at pp. 156–157.) We thus affirm the removal
order.
C. The Juvenile Court Did Not Clearly Abuse Its
Discretion in Ordering Father to Submit to a
Psychiatric Examination
“ ‘The juvenile court has broad discretion to determine
what would best serve and protect the child’s interests and to
fashion a dispositional order accordingly. On appeal, this
determination cannot be reversed absent a clear abuse of
discretion. [Citation.]’ ” (In re Briana V. (2015) 236 Cal.App.4th
297, 311–312 [applying this standard in reviewing an order
requiring a father to attend counseling].) The parties agree that
the clear abuse of discretion standard applies to the court’s
dispositional order requiring father to submit to a psychiatric
evaluation under Evidence Code section 730.
20
The record contains evidence supporting the juvenile
court’s suspicion that father’s domineering behavior may have
prevented DCFS from conducting a home assessment in
July 2020. In October 2019, mother reported to DCFS that father
was “ ‘verbally abusive’ ” toward her, and in January 2020,
“father complained that he had to do services ordered by the
court . . . .” In March 2020, a DCFS social worker tried to discuss
the minor’s safety with mother, and mother responded: “ ‘He will
be upset I am telling you anything I have to delete these
messages right now.’ ” A reasonable factfinder could infer that
mother used the male pronoun “he” to refer to father because
mother and father were living together at that time. In
April 2020, father “yell[ed]” at a social worker over the telephone.
In August 2020, father complained that DCFS had “ ‘kidnapped’ ”
J.R., even though the agency had a warrant authorizing it to
remove the child from his parents’ custody. Thus, the juvenile
court did not clearly abuse its discretion by ordering father to
submit to an examination to determine whether and, if so, to
what extent, father’s overbearing disposition interfered with the
court’s attempts to safeguard the minor.
Father counters that “ ‘power and control issues’ . . . . are
common to dependency cases and certainly not ‘sufficiently
beyond common experience that the opinion of an expert would
assist the trier of fact.’ ” We reject this assertion because father
does not cite any authority establishing that a judicial officer is
presumptively capable of ascertaining the psychological cause(s)
of, and potential solutions for, a parent’s aberrant behavior. (See
Evid. Code, § 801, subd. (a) [“If a witness is testifying as an
expert, his testimony in the form of an opinion is limited to such
an opinion as is: [¶] . . . [r]elated to a subject that is sufficiently
21
beyond common experience that the opinion of an expert would
assist the trier of fact,” italics added].) Indeed, father concedes
that the psychiatric evaluation could “tell the court the source of
those [power and control] issues.”
In sum, the juvenile court did not err in ordering father to
submit to a psychiatric evaluation.
D. The Juvenile Court and DCFS Did Not Violate Their
Duty to Inquire Whether J.R. Is or May Be an Indian
Child
“ ‘ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards a state court must follow before removing an Indian
child from his or her family. [Citations.] For purposes of ICWA,
an “Indian child” is an unmarried individual under age 18 who is
either a member of a federally recognized Indian tribe or is
eligible for membership in a federally recognized tribe and is the
biological child of a member of a federally recognized tribe.
[Citations.]’ [Citation.]” (See In re A.M. (2020)
47 Cal.App.5th 303, 314–315 (A.M.).)
Under “section 224.2, subdivision (a), . . . the court and
child protective agencies remain under ‘an affirmative and
continuing duty to inquire whether a child . . . is or may be an
Indian child.’ That duty to inquire begins with initial contact
[citation] and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child.’ [Citations.]” (In re T.G. (2020)
58 Cal.App.5th 275, 290 (T.G.).) “In addition, [California Rules of
Court], rule 5.481(a)(4) mandates further inquiry if a social
worker or investigator ‘knows or has reason to know or believe
22
that an Indian child is or may be involved.’ ” (T.G., at p. 291.)
“[T]he requisite ‘further inquiry’ ‘includes: . . . interviewing the
parents and extended family members . . . .” (In re Austin J.
(2020) 47 Cal.App.5th 870, 883 (Austin J.); see also Cal. Rules
of Court, rule 5.481(a)(4)(A) [same].) Further, “[n]otice to a[n
Indian] tribe is required, under federal and state law, when the
court knows or has reason to know the child is an Indian child.”
(A.M., supra, 47 Cal.App.5th at p. 315.)
At the September 21, 2020 hearing on the supplemental
petition, the juvenile court made no explicit finding that DCFS
had discharged its duty to inquire into whether J.R. is an Indian
child. Nonetheless, the court is deemed to have made this
finding, given that it had “an affirmative and continuing duty to
inquire whether a child for whom a petition under Section 300 . . .
has been filed[ ] is . . . an Indian child,” and it did not order DCFS
to further investigate J.R.’s status. (See § 224.2, subd. (a);
cf. A.M., supra, 47 Cal.App.5th at pp. 318, 320 [concluding that,
at the hearing at which the juvenile court issued the order being
appealed, the court implicitly found that ICWA did not apply];
Austin J., supra, 47 Cal.App.5th at p. 885 [“[A] finding [that
ICWA does not apply] implies that . . . social workers had fulfilled
their duty of inquiry.”].)
“We review a court’s ICWA findings for substantial
evidence. [Citations.] ‘We must uphold the court’s orders and
findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in
favor of affirmance.’ [Citation.] . . . [A]ppellant[ ] ‘has the burden
to show that the evidence was not sufficient to support the
findings and orders.’ [Citation.]” (Austin J., supra,
47 Cal.App.5th at p. 885.)
23
Father complains that even though he informed DCFS and
the juvenile court that PGM had mentioned that she possibly had
Indian ancestry, “[t]here is no evidence that DCFS asked her
about Indian ancestry during any of [the agency’s] contacts” with
her. Because father seems to argue that DCFS’s obligation to
interview PGM arose because of the information he provided to
the agency, father seems to contend that it failed to discharge the
duty of further inquiry. (See T.G., supra, 58 Cal.App.5th at
p. 291 [indicating that a social worker must conduct further
inquiry if the worker obtains information giving him or her “
‘reason to know or believe’ ” the minor is or may be an Indian
child].) For the reasons set forth below, we reject father’s claim
that DCFS did not make an adequate inquiry under ICWA when
it failed to interview PGM about J.R.’s Indian status.
The August 3, 2020 detention report indicates that during
the first few occasions in which DCFS personnel encountered
PGM, father was present. This is significant because father had
told the agency that he did not want PGM involved in the case. A
social worker reported that when the worker greeted PGM on two
of those occasions, she did not respond to that greeting. Further,
DCFS personnel reported that when they encountered PGM in
July 2020, she repeatedly said to them, “ ‘I will not provide you
with any information[,]’ ” and she did not respond to the social
workers’ questions. Because DCFS need not interview a relative
who “refuse[s] to talk to” the agency, substantial evidence
supports the juvenile court’s implied finding that DCFS fulfilled
its duty of further inquiry. (See A.M., supra, 47 Cal.App.5th
at p. 323.) Furthermore, we reject father’s argument that “the
juvenile court [also]. . . failed to meet [its] ongoing duties under
ICWA” because this appellate claim appears to be premised solely
24
on his contention that DCFS should have interviewed PGM. (See
Austin J., supra, 47 Cal.App.5th at p. 885 [“[A]ppellant[ ] ‘has the
burden to show that the evidence was not sufficient to support
the findings and orders.’ [Citation.]”].)
DISPOSITION
We affirm the juvenile court’s orders sustaining the
supplemental petition, removing J.R. from his parents’ custody,
and requiring father to submit to a psychiatric evaluation
pursuant to Evidence Code section 730.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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