In re J.S. ( 2021 )

Filed 3/2/21; Modified and Certified for Partial Publication 4/1/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re J.S. et al., Persons B301715
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF Super. Ct. No. 19CCJP04803AB)
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
A.T.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing, Judge. Affirmed.
Judy Weissberg-Ortiz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Kim Nemoy, Principal Deputy
County Counsel for Plaintiff and Respondent.
_______________________
INTRODUCTION
A.T. (Mother) appeals from the juvenile court’s jurisdiction
findings and disposition orders declaring her 16-year-old
daughter J.S. and her 12-year-old son M.S. dependents of the
court pursuant to Welfare and Institutions Code1 section 300 and
removing J.S. and M.S. from her custody under section 361,
subdivision (c). Mother contends the evidence was insufficient to
support the jurisdiction findings and removal orders. Mother
also contends the juvenile court and the Los Angeles County
Department of Children and Family Services (Department) did
not comply with the inquiry and notice requirements of the
Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and
related California law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and M.S., Sr. (Father) are the parents of J.S. and
M.S. Mother also has an adult daughter A.T. from a prior
relationship.
A. Previous Department Involvement
In June 2006, the juvenile court sustained a dependency
petition on behalf of J.S. and A.T. finding that Mother had
“placed [A.T.] in a detrimental and endangering situation in that
[Mother] caused [A.T.] to accompany [Mother] while [Mother]
committed the crime of theft.” The juvenile court also found that
Mother had “a history of substance abuse and [was] a current
user of alcohol, including DUI’s which render[ed] [Mother]
incapable of providing regular care and supervision for the
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
children.” The juvenile court further found that Mother and
Father “have a history of engaging in violent altercations in the
presence of [A.T.].” The juvenile court declared A.T. and J.S.
dependents of the court and removed them from their parents’
custody. In April 2008, the juvenile court terminated Mother’s
family reunification services. In November 2008, Mother agreed
to a “non-court case” for newborn M.S. In January 2009, the
juvenile court granted Mother’s section 388 petition and ordered
the children returned to Mother. The court also ordered the
Department to provide family maintenance services. In June
2009, the juvenile court closed the voluntary case for M.S.
because “[Mother’s] family situation stabilized.” In August 2009,
the juvenile court terminated jurisdiction over A.T. and J.S. and
released the children to Mother.
On October 31, 2018, the Department received a referral
alleging Mother and her boyfriend Robert neglected and
emotionally abused M.S. According to the referral, with M.S. in
their vehicle, Mother and Robert stole a mail package from a
residence. The police stopped the vehicle and arrested Mother
and Robert. Although the police did not find drugs or alcohol in
the vehicle, there was “a digital scale was found in the front
passenger seat where [M.S.] was sitting.” The police charged
Mother and Robert with child endangerment (felony) and
package theft (felony). The police released M.S. to Leticia C., the
maternal grandmother. J.S. was living with maternal
grandfather Ernest T. and maternal step-grandmother
Beatrice T. According to the Department, Mother “agreed and
admitted that the children are better off in the care of her
family.” Although the Department found the general neglect
allegation to be “substantiated,” the Department submitted the
3
referral for “closure” because “the family had made an
appropriate plan and the children are safe.”
B. Current Dependency Proceeding
1. June 2019 Incident and the Department’s
Investigation
On June 13, 2019, the Department received a referral
alleging that Mother and M.S. were “homeless and currently
residing” in a motel and that Mother and Robert used “crack”
cocaine in M.S.’s presence. According to the referral, while
visiting the motel room, J.S. “witnessed [M.S.] alone in the motel
room in the presence of drug paraphernalia including pipes.”
According to the referral, “[Robert] was heard yelling at the top of
his lungs at [M.S.]. . . . Mother [was] allegedly verbally abusive
towards [M.S.]. Mother may have mental health concerns and
[she] stated that people are spying on her.” At the time of the
referral, J.S. continued to live with Ernest and Beatrice.
On June 18, 2019, Leticia told the Department that M.S.
had lived with her for about six months while Mother was
incarcerated. Upon Mother’s release from jail, Leticia returned
M.S. to Mother. Leticia reported Mother had told her that M.S.
“was misbehaving and having tantrums since his return to
[Mother’s] care.” When speaking with Mother, Leticia heard M.S.
yelling in the background that Mother “was using crack.”
Although Leticia stated Mother was “mentally unhinged,” she did
not know Mother’s diagnosis. Leticia reported that J.S. had
“found [M.S.] in the room alone and drug paraphernalia around
the room, such as, crack pipes.”
The Department and police officers made an unannounced
visit to Mother’s motel room. After the police asked Mother for
identification, Mother became “visibly upset” and stated to M.S.,
4
“[S]ee what you have done. You see what happens.” Mother told
the Department that, after M.S. overheard a conversation in
which a man at the motel was “accusing residents of dealing
drugs and knocking on doors,” M.S. “went outside yelling [that
Mother] was dealing drugs.” Mother reported “since they have
been homeless [M.S.] has not gone to school.” The social worker
observed M.S. to be in good health with no visible marks or
bruises.
Mother reported that she felt frustrated because she knew
Leticia had made the referral to the Department and that Leticia
did not like Robert and caused problems for her and Robert.
Mother “denied all allegations of drug use, Robert yelling at
[M.S.], and [M.S.] being left alone” in the motel. Mother stated
that “she was not willing to drug test as she has gone through
this before.” The social worker “informed [M]other again since
the allegations were new we needed a new drug test and it was a
red flag she was not willing to submit a drug test.” Mother stated
“it should not be a red flag her unwillingness to drug test.”
After Mother told the Department she was bipolar, Mother
stated she had been prescribed medication for the disorder, but
she needed to have the prescription refilled. Mother reported
that M.S. “has been acting out” and that she would take M.S. to
see a therapist. In response to the social worker’s inquiry about
where Robert was living, Mother responded that she and Robert
“were not together.” However, the social worker observed “a tool
box and men’s boots” and “a men’s pair of shorts” in the room.
Mother denied domestic violence in any of her relationships.
Although Mother told the Department “she did not have a
personal telephone,” the social worker saw “a cell phone sitting
on the bathroom sink counter charging.”
5
After the Department made many attempts to contact
Mother through the motel’s office, on June 26 when the
Department made an unannounced visit to Mother’s motel room,
Mother reported that the social worker “had just missed [M.S.]
acting out.” The Department observed that Mother “had a cell
phone in her hand” and that Robert was present. During an
interview with the Department, Robert reported that he drank
alcohol and smoked marijuana previously, but “denied using
substances now.” When asked if he would drug test, Robert
replied he had “drug tested for a past [Department] referral and
did not feel he should do so again.” Robert stated that, during a
2008 dependency proceeding involving his three-year-old
daughter, Robert “was incarcerated and attempted to get his
daughter back.” However, while his daughter was in the care of a
foster parent, his daughter died in a car accident. Mother
“reported this is why we have a bad taste in our mouths
regarding [the Department].” In response to the Department’s
request, Mother again declined to drug test.
On July 10, 2019, Mother told the Department that “she
[was] a victim of domestic violence and had mental health”
issues. Mother reported that there was a domestic violence
incident between her and Robert about one year ago. Mother
admitted that she argued with Robert “over financial matters.”
Mother reported that she had scheduled a mental health
appointment for M.S., but they “missed it.” Mother inquired
“about options of opening a non-court case with the Department”
and “reported she did not have a problem drug testing, but that
she was busy today and could not go today.” Mother reported J.S.
stopped visiting her and “has been upset with [Mother] for
unknown reasons.” Mother also reported that she planned to
6
take M.S. to see a doctor and that M.S. “will start school at
a nearby school instead of going to his previous school in
El Monte.”
M.S. told the Department “[h]e felt safe in [Mother’s] care.”
M.S. stated that Mother and Robert argued and that he did “not
know what they argue about.” M.S. reported that Mother
“disciplined” him by hitting “him with a belt or hanger” and that
Mother last hit him during the previous month. M.S. stated,
“Mother does not use any drugs, but [M.S.] has seen [Robert]
smoking marijuana and/or cigarettes inside the [motel] room’s
bathroom.”
On July 18, the Department interviewed Ernest, Beatrice
and J.S. Ernest “suspected [Mother] was using
methamphetamine because the signs are evident with [Mother]
picking at her skin and her behaviors.” Ernest reported Mother
and Robert “got into an argument recently, when [Mother]
learned that [Robert] had given her car battery away to another
woman.” Mother “supposedly broke up with [Robert].” After
stating “he had concerns with Robert being in the household,”
Ernest reported “he does not like Robert because ‘he is a drug
dealer, gang banger, and unemployed.’”
When J.S. entered the room during Ernest’s interview, J.S.
reported Mother “was not using drugs.” J.S. stated that Robert
was not good for Mother and that she witnessed Robert
conducting “drug deals that started with [m]arijuana and moved
to a powdery substance.” J.S. reported Mother and Robert were
still together. Although Robert was not in the motel room the
previous day when she visited M.S., J.S. “saw Robert’s belongings
and clothing and [Mother] stated Robert would be over later that
evening.” J.S. did not see “any drugs or pipes” in the motel room
7
during that visit. J.S. stated that M.S. “seemed happy.”
After reporting Mother was “typically paranoid,” J.S.
recalled an incident when Mother “had broken all cell phones in
belief ‘[c]ops were spying on her.’” J.S. reported that she saw a
“dirty” drug pipe in the bathroom of a different motel room where
Mother had stayed about a month ago. J.S. stated the pipe
belonged to Robert because it was on Robert’s side of the
bathroom sink. In response to the Department's question
whether Robert had “strange behaviors that would indicate he is
a drug user,” J.S. reported Robert “twitches, steals things, and
acts weird.” J.S. added that, although she never saw Mother or
Robert using drugs, M.S. saw Robert “using drugs” in Mother’s
previous motel room. J.S. stated that M.S. had recently broken
Mother’s television “because [M.S.] was upset by Robert being in
the home.”
J.S. stated that she did “not have a close relationship” with
Mother. J.S. reported, “[W]hen she was in [Mother’s] care,
[Mother] and Robert constantly argued every other day. J.S. did
“not believe this ha[d] changed.” J.S. reported Mother and
Robert’s “last incident of physical domestic violence occur[ed] 3
months ago.” J.S. told the Department that she last saw Father
about a year ago and that she did not know his whereabouts.
Beatrice reported that Mother and Robert had been
together for about two years and that “they have a domestic
violence history resulting in battery charges.” Beatrice reported,
“[Y]ou can look at [Mother and Robert] and tell they are using.”
Beatrice reported that she raised J.S. for most of her life, “as
agreed with [Mother].” In 2006, during the prior dependency
case when Mother was in jail for approximately one year, J.S.
began residing with Ernest and Beatrice. After Mother’s prison
8
term ended, when J.S. was one year old, Mother stated: “[I]t
appeared best to let [J.S.] reside with [Ernest and Beatrice], as
[J.S.] knew them to be her parents.”
2. Removal Order
After the juvenile court authorized the removal of J.S. and
M.S. from Mother, on July 25, 2019, two social workers
attempted to serve Mother with the removal warrant at her
motel room. Although they saw Mother through the window
curtains, Mother refused to open the door. Mother “appeared
angry and hostile” and “was yelling and pointing.” After hearing
the room’s “door slam three times,” the social workers observed
Robert leaving the motel. The social workers called for police
assistance because they believed that Mother “was a flight risk.”
After three police officers responded, Mother was “resistant and
hostile with the officers.” Mother “refused to allow [the] police to
come into the room.” One police officer “engaged [Mother]
physically by pulling [Mother] from the room.” Mother “fought
back with the officer,” and Mother “was removed from the room.”
After a social worker served Mother with the removal warrant,
Mother “yelled out the allegations were false and informed the
Police officers it was all lies.” Although Mother “asked why there
was a removal order,” Mother “continued to yell” and would not
allow the social workers to respond.
Through a telephone call with Ernest, the Department
learned that M.S. was with a maternal uncle. Although Ernest
refused to reveal the maternal uncle’s address, Ernest told the
social worker that he would retrieve M.S. from the uncle. While
the social worker spoke with Ernest, Mother followed the social
worker and yelled at Ernest through the social worker’s phone,
“[D]o not let them have [M.S.].” “During this time frame, the
9
police had to tell [M]other to back off from engaging with the
social worker.” When Ernest returned with M.S., M.S. told the
social workers that “he was doing fine.” The social workers
informed Ernest and Beatrice of the court hearing scheduled for
July 30. The Department reported that Father’s whereabouts
remained unknown.
C. Dependency Petition and Detention Hearings
On July 29, 2019, the Department filed a petition alleging
juvenile court jurisdiction over J.S. and M.S. pursuant to section
300, subdivisions (a), (b)(1), and (j). In counts a-1, b-1, and j-1,
the petition alleged, “[Mother] physically abused [M.S.] in that
[Mother] struck [M.S.] with belts and hangers. Such physical
abuse was excessive and caused [M.S.] unreasonable pain and
suffering. [Mother] has a criminal history of . . . convictions for
Child Cruelty/Possible Injury/Death and Force/Assault with a
Deadly Weapon, not a Firearm/Great Bodily Injury Likely.”
Count b-2 alleged: “[Mother] placed the children in an
endangering and detrimental situation in that on a recent prior
occasion [M.S.] was found alone in a motel room, for an extended
period of time, without appropriate parental care and
supervision.” In count b-3, the petition alleged that Mother
“established an endangering and detrimental home environment
for the children” because “drug paraphernalia including drug
pipes were found in a motel room within access of the children,”
Robert “possessed marijuana and was under the influence of
marijuana in the presence of [M.S.],” and Robert “engaged in
drug sales in the presence of [J.S.].” The count also alleged that
Mother knew about Robert’s substance abuse and that Mother
failed to protect the children.
10
In count b-4, the petition alleged, “[Mother] has a history of
mental and emotional problems including a diagnosis of [bipolar]
[d]isorder which renders [Mother] incapable of providing the
children with regular care and supervision.” Count b-5 alleged:
“[Mother] has a history of substance abuse including alcohol
which renders [Mother] incapable of providing the children with
regular care and supervision. [Mother] has a criminal history of
convictions for Driving while Under the Influence of alcohol/.08
Percent and Possession/Control Substance Paraphernalia. [J.S.]
is a prior dependent of the Juvenile Court due to [Mother’s]
substance abuse.” The count further alleged, “[Mother’s] drug
related criminal history endangers the children’s physical health
and safety, placing the children at risk of suffering serious
physical harm, damage and danger.”
At the July 30, 2019 detention hearing, after Mother
entered a general denial, the juvenile court found Father to be
presumed father of J.S. and M.S. Mother’s counsel stated,
“Mother would like the children returned to her. She
understands the low burden of proof today. Based on that low
standard of proof, she is submitting on the issue of detention,
reluctantly.” The juvenile court found a prima facie showing had
been made that J.S. and M.S. were persons described by section
300. The juvenile court detained J.S. and M.S. from Mother and
placed the children with Ernest and Beatrice under the
Department’s supervision. The court ordered monitored
visitation at Ernest and Beatrice’s home and random drug testing
for Mother. The juvenile court scheduled the jurisdiction and
disposition hearing for September 13, 2019.
11
D. Jurisdiction and Disposition Hearings
1. The Department’s Reports
J.S. and M.S. remained in the care of Ernest and Beatrice.
The Department observed J.S., a sophomore in high school, to be
“reserved, intelligent, and well-informed.” Although the
Department observed that M.S. was able to engage in age-
appropriate discourse for a fifth-grader, Mother reported that
M.S. was “in need of mental health services.” Mother reported
that “she participates in daily visitation” with M.S. and J.S.,
spending approximately three to five hours with the children
each day. Ernest and/or Beatrice monitor the visits. Mother
reported that she has a “strong bond” with M.S. and that she is
“working on her relationship” with J.S.
In J.S.’s interview with the Department, when asked if she
saw Mother hit M.S. with “belts and/or hangers,” J.S. responded
that she had not, but she was not living “in that home (motel
room).” J.S. reported she only saw Mother hit M.S. once on his
arm “to redirect him.” When asked if Mother endangered their
“physical health and safety,” J.S. responded: “No, the only risk to
[M.S.] is [Robert]. He is the reason for all of this. Before he came
around, [Mother] and [M.S.] were fine, and [she] was fine here (at
[Ernest and Beatrice’s] home).”
J.S. reported that she saw M.S. alone in Mother’s motel
room. J.S. stated, “It [was] never for more than like 20 minutes”
while Mother and J.S. went to the store. J.S. added, “We would
just tell [M.S.] to not open the door for anyone. That happened
pretty often, to be honest.” J.S. reported, “[M]ost of the time
[Mother] left [M.S.] alone was at [Robert’s] house. That was
before they started staying at that motel.” J.S. told the
Department that she did not think Mother placed M.S. at risk by
12
leaving him alone. However, she again stated that Mother
“placed [M.S.] at risk by having [Robert] around him.”
Contrary to her earlier statements, J.S. told the
Department that “she never saw any drug paraphernalia in the
motel room.” J.S. reported that she saw drug paraphernalia
including pipes laid out on a table at Robert’s house and that she
and M.S. saw Robert smoking marijuana. J.S. added, “That’s
why I told [Mother] she couldn’t bring [Robert] around me.
That’s why I haven’t seen [Mother] in a while.” J.S. stated, “It
was easy for me to move out, because of what [Robert] was doing,
and because my grandparents were all that I knew growing up.”
When asked if she ever observed Robert “under the influence of
illicit substances, while he was in the presence of [M.S.],” J.S.
responded: “That’s true, because [Ernest, Beatrice, and she] have
gone to pick up [M.S.] from Robert’s house. Robert was gone. I
don’t even think he was only on weed, but that’s what we called
it. I feel like he was on something stronger than that, because he
was completely gone and out of it.” J.S. continued, “[S]he [knew]
that isn’t the only time [Robert] was on that stuff. We have
picked up [M.S.] before, and [M.S.] has been pretty upset. He
would always say that he didn’t like staying with [Mother]
because of the way [Robert] was acting. I’m pretty sure [Robert]
used that stuff all the time.” When asked if Robert engaged in
drug sales, J.S. stated: “That’s true too. [Mother] knew about
that too. [Robert] is shady. That’s for sure. . . . [Robert] would
have random guys coming in and out of the house. Whenever the
guys would come to the house [Robert] would tell her and [M.S.]
to go to the back. [J.S. was] pretty sure [Robert] was selling
drugs, and [Mother] didn’t do anything about that. [J.S.] told
[Mother], and [Mother] said [J.S.] was paranoid and overreacting.
13
[Mother] always thinks I’m against her.”
When asked if she believed Mother had failed to protect her
and M.S. from risks associated with Robert’s behavior, J.S.
stated: “Yeah, I think [Mother] did fail to protect us. . . . [Mother]
should have taken [M.S.] away from that place. She has made a
lot of bad decisions with [Robert]. She is staying at that motel
because of [Robert]. She isn’t protecting [M.S.]. She’s relying on
[Robert], and that’s not safe for [M.S.].” J.S. added, “[Mother]
kept allowing [Robert] to be around [M.S.]. Even though she
knew what [Robert] was doing. [Mother] isn’t a bad mom. . . .
[Mother] being with [Robert] is a bad decision. Ever since
[Robert] has come into her life, everything has gone downhill
really fast. He is affecting [M.S.]. [Robert] is making [Mother]
unstable. He is a toxic guy, and he is a risk to [M.S.].”
J.S. stated that Mother’s mental and emotional problems
did not affect her ability to care for or supervise her children.
According to J.S., Mother started using methamphetamine when
J.S. was three or four years old. J.S. stated that Mother’s
methamphetamine use “was on and off until about 3 years ago.”
J.S. reported that Mother did not attend a treatment program.
According to J.S., “[Mother] just stopped using at that time. I
guess she just bounced back.” Although J.S. stated that she
never saw Mother use drugs, Ernest told J.S. that Mother “used
to use a lot,” and J.S. remembered Mother “getting really
skinny.”
In M.S.’s interview with the Department, the social worker
observed that M.S. was able to discern truthful statements from
false ones. M.S. initially reported: “[Mother] has hit [him] like
one time. It was a soft one. She hit [M.S.] because [he] was
saying bad words. [He] called her a b*tch, and [he] said f*ck you.
14
It was because [he] was mad, and [he] wasn’t getting [his] way.”
When asked if Mother had hit him on multiple occasions, M.S.
stated: “No, my mom doesn’t hit me.” The social worker
reported: “At this time . . . [M.S.] disengaged from the
conversation. [M.S.] started playing with [his] hands underneath
the table. [M.S.] no longer made eye contact with [the social
worker].” When asked why “his demeanor changed,” M.S. stated,
“No, nothing. Everything is fine. My mom didn’t do anything.
Everything is fine.” When the social worker asked M.S. if he was
being truthful, M.S. replied that he did not remember. The
social worker further reported: “[M.S.] continued to state, ‘[he
didn’t] remember,’ even when the question was referring to
something [M.S.] would know.” The social worker observed that
M.S. was “happy and energetic until [Mother] was mentioned.”
When Mother was mentioned, M.S. “avoided eye contact and
reported he did not remember pertinent information associated
with the petition allegations.”
In her interview with the Department, Mother denied that
she hit her children. According to Mother, “[She was] on the
lenient side. . . . Anyone that knows [her], knows that [she]
would never hit [her] kids. . . . [Her] outbursts have been heard
(by neighbors), because [she has] been frustrated with the way
[M.S.] has acted a few times. [She] has called the police
department, because [she didn’t] want to hit [M.S.]. When he
acts out, I don’t really know how to control him.” Mother added:
“A police officer told [her] once that is it legal to hit my son. [The
police officer] told [her] that so [she] would stop calling them
when [M.S.] acted out.”
Mother admitted that in June 2019 she spanked M.S.
Because she did not want M.S. playing a video game, Mother
15
“went on his friend’s list, and [she] started deleting people.”
Mother reported: “[M.S.] got really mad when he found out what
[she] was doing. He called [her] a f*king b*tch.” Mother stated
that she then “took the game away. [M.S.] started throwing
things, so [she] tried to keep him on the bed.” According to
Mother, “There was a lot of yelling exchanged, but [she] was just
trying to get him under control. [M.S.] started yelling that [she]
was hitting him with a belt and hangers. [She] didn’t hit [M.S.]
with any of that stuff. [She] only hit him with [her] hands. . . .
[She] hit him with an open hand on the arm.” Mother added that
she “rarely hit” her children. Because she “was in a domestic
violence relationship with Father,” Mother told the Department
that she knew “how it [felt] to be hit, and [she] would never do
that to my kids.” When asked about her prior convictions for
child cruelty and assault with a deadly weapon, Mother
responded: “That’s another fabrication and lie.” Mother denied
she had “convictions for those charges.”2 Mother “reiterated that
she is not prone to violence, so her children are not at risk of
serious physical harm, damage, or danger.”
When asked about leaving M.S. alone, Mother stated:
“California State Law has no age that it states it is appropriate to
leave your child at home alone. The times that [she] left [M.S.] at
2 According to the Department, Mother had convictions for
driving without a license (2000), driving under the influence of
alcohol (2001, 2010), driving with a suspended license (2003,
2013), and committing vandalism (2010). The Department also
reported Mother had convictions for use of force/assault with a
deadly weapon not a firearm, great bodily harm likely (2005),
grand theft (2006), possession of controlled substance
paraphernalia (2006), and child cruelty (2018).
16
home alone, he’s been fine. [She has] gone across the street to get
groceries . . . . [She has] gone downstairs to throw away the
trash. Other than that, [she has not] left [her] son alone. . . .
Sometimes he is playing video games, and he doesn’t want to go
across the street with me. [She has] never left [her] children
alone for more than 30 minutes.”
When the social worker asked Mother whether drug
paraphernalia had ever been present in her residence, Mother
stated: “[D]rug pipes were never found in my motel room. There
was no drug paraphernalia ever found here. That’s another lie
and fabrication by the [social] worker before you.” In response to
the social worker’s inquiry whether Robert “possessed marijuana
and was under the influence of marijuana in the presence of the
children,” Mother replied: “That never happened. He was never
under the influence of marijuana while the children were around.
. . . [Robert] doesn’t smoke marijuana. He just has a history of
possession and other things like that.” Mother also denied that
Robert used “other illicit substances.”
Mother stated that she had a bipolar disorder diagnosis
and that she had “the right to address my disorder how [she]
want[s] to address it.” According to Mother, she was “working
through that privately with [her] therapist and psychiatrist at
Kaiser.” Mother told the Department that her mental and
emotional problems did not affect her ability to take care of her
children. Mother added that she wanted to take medication for
her bipolar disorder, but she “just need[ed] to find the right one
for [her].” Mother “vehemently denied having any history
associated with an illicit substances.” Regarding the prior
dependency proceeding, Mother stated: “I should have fought
against those allegations back then, because I definitely wasn’t
17
dependent on drugs or alcohol. I am definitely not dependent on
those things now either.” The Department concluded that
Mother was an “illicit substance abuser.”
Father called the Department on August 30, 2019 and
scheduled a meeting with the Department for September 10,
2019. However, Father did not appear for the scheduled meeting.
2. September 2019 Hearing
At the September 30 jurisdiction and disposition hearing,3
after Mother and Father failed to appear, the juvenile court
denied their counsels’ requests for a continuance. The children’s
counsel asked the juvenile court to dismiss the counts based on
Mother’s physical abuse of M.S. (counts a-1, b-1, and j-1) and
sustain the remaining counts. Children’s counsel argued: “The
children both want me to let the court know that they want the
entire petition dismissed, specifically, [M.S.] wants the court to
know that he was lying because he was upset with Mother. He
feels that nothing should be sustained. But as minors’ [Child
Abuse Prevention and Treatment Act guardian ad litem], I
cannot ask the court to dismiss the remainder of the allegations,
b-2 through b-5 allegations. While my clients are minimizing and
recanting, now, in addition [to] other family members, minors’
counsel would ask the court to find the statements most credible
from the detention report, which prove the b-2 through b-5
allegations by [a] preponderance of evidence. These are
spontaneous statements that are contemporaneous in time.
3 At the September 13 jurisdiction hearing, the juvenile court
continued the hearing to September 25 because it was Father’s
first appearance. On September 25, the juvenile court continued
the hearing to September 30.
18
There has not been an opportunity for coaching in the meantime.
As the court knows, children do recant statements once there is a
case—there’s been an opportunity, at this time, point, for
coaching and minors’ counsel does have concerns about that. . . . I
believe that the Department met their burden with respect to
[counts] b-2, b-3, b-4 and b-5.” The Department requested that
the juvenile court sustain all counts in the petition. Regarding
counts a-1, b-1, and j-1, the Department argued: “This is based,
in large part, on [M.S.’s] own statement[s] in the detention
report, which minors’ counsel notes are particularly credible,
based on the fact they were close to in time to the incident, did
not have the possibility of being coached.” The Department
further argued, “It’s clear that this family is dealing with not only
mental health issues, but substance abuse, domestic violence and
physical abuse issues. I would note that [Mother] seems to have
a pattern of anger management issues, including when the police
came to assist with the [Department], interviewing the children,
Mother ended up having to be forcibly removed.”
Mother’s counsel asked the juvenile court to dismiss the
petition. As to count b-2 based on leaving M.S. “alone in a motel
room,” Mother’s counsel contended, “[Mother] did not leave the
motel room for an extended period of time, just for a moment
while she ran across the street. I believe there is . . . no current
risk to the children.” Mother’s counsel also argued that there
was no drug paraphernalia in the motel room. Mother’s counsel
further argued that there was no risk of harm to the children
from Mother’s “history of mental health issues” or “any previous
problems that [Mother] had [with] alcohol.” Mother’s counsel
added that Mother “was currently seeing a psychologist and a
psychiatrist.” Mother’s counsel requested: “If the court does
19
sustain any of the petition, and gets to disposition, Mother is
asking for, based on my last conversation with her, she is asking
for [home-of-parent], based on the lack of nexus with regard to
the substance abuse and dependents of the court under [section]
300.”
After dismissing counts a-1, b-1, and j-1, the juvenile court
sustained the remaining counts in the petition. The court
declared M.S. and J.S. dependents of the court pursuant to
section 300 and removed the children from Mother and Father.
The court found: “[P]ursuant to [section 361, subdivision (c)], a
substantial danger exists if these children were returned home to
their physical health safety, protection, physical and emotional
wellbeing, and they are hereby removed from [Mother]. The
court finds that it would be detrimental to their safety,
protection, physical and emotional wellbeing and they are hereby
removed [from] her, who was the previous custodial parent.” The
juvenile court ruled that Mother “needs to do random[ ] drug
test[ing], if any are missed or dirty, she is to do a full on drug
treatment program with random testing, with after care, 12-step
program.” The court ordered Mother and Father to enroll in
individual counseling and complete parenting classes. The
juvenile court also ordered an anger management program for
Mother and monitored visitation for Mother and Father.4
4 The juvenile court’s minute orders from the
jurisdiction/disposition hearing provide: “It is reasonable and
necessary to remove the child from the mother . . . and the care,
custody, and control of the parent(s)/legal guardian(s) from whom
the child is are being removed because there is a substantial
danger to the physical health, safety, protection, or physical or
emotional well-being . . . of the child and there are no reasonable
20
E. Father’s Possible Indian Ancestry
In the Indian Child Inquiry Attachment form (Judicial
Council Form CWA-010(A)) attached to the petition, the
Department stated that M.S. and J.S. had “no known Indian
ancestry.” The Department’s July 26 detention report filed on
July 29, 2019 stated that “[t]he Indian Child Welfare Act does not
apply.” On July 30, 2019, Mother submitted a Parental
Notification of Indian Status form (Judicial Council Form ICWA-
020) stating she had “no Indian ancestry as far as [she] knew.”
At the detention hearing on July 30, 2019, Mother told the
juvenile court that Father did not have any Native American
Indian ancestry. The juvenile court ruled: “So based on your
responses, the court finds that the court has no reason to know
that the Indian Child Welfare Act applies or that these are
Indian children.”
On September 13, 2019, Father filed a Parental
Notification of Indian Status form (Judicial Council Form ICWA-
020) indicating Father “may have Indian ancestry.” Father wrote
on the form that paternal grandmother Rita G. “has 58 percent
Native American.” At the hearing on September 13, the juvenile
court asked Rita, who was in the courtroom, for her contact
information and ordered the Department “to follow up.” On
September 20, Rita told the Department that she submitted her
DNA to ancestry.com to obtain pertinent information associated
means by which the child’s physical health can be protected,
without removing the child from the home and the care, custody,
and control of that or those parent(s)/legal guardian(s). . . . [¶]
The Department . . . made reasonable efforts to prevent removal
but there are not services available to prevent further detention.”
21
with the family’s lineage. Rita stated that “to her surprise, the
DNA results indicated that she had approximately 54% Native
American lineage/heritage” and that the “DNA test[ ] results did
not provide an associated tribe of descent.” After sharing that
she was “shocked” by the results, Rita added that “she is nearly
100% certain that none of her relatives/family members have
been eligible and/or enrolled in any tribe(s).”
Rita reported that her family was “of Mexican descent” and
that her grandparents moved from Mexico to the United States in
1917. When the Department asked if any relatives might know
more about the family’s potential Native American ancestry, Rita
replied: “No, I am the only person that took the DNA test. Well,
I took it and my Aunt, Maria G[.], took it. She was like 68
[percent] Native American, but she doesn’t know what tribe
either. She is elderly and she wouldn’t be able to tell you
anything about [it].” In response to the Department’s request,
Rita was unable to provide either a telephone number or other
contact information for Maria. The Department reported that
Rita “reiterated that she doubts her family is eligible for tribal
enrollment.” In its report to the juvenile court, the Department
concluded that it could not “effectuate ICWA-020 Notices to a
corresponding tribe, as there are no known tribes associated with
[Father] or [M.S.] or [J.S.], at this time.”
In response to the juvenile court’s question concerning
what the Department did “once Father indicated there may be
Indian ancestry,” the Department responded: “The Department
followed up with [Rita]. The results of that interview are on the
[September 25 Last Minute Information]. [Rita] indicates that
she did a D.N.A. test and it determined she has ancestry. It does
not provide any information about which tribes. All of this was
22
news to her. She has no additional information, and without any
tribes to notice, we’re asking the court [to] dispense with ICWA.”
The juvenile court ruled: “Based on that [recitation], the court is
going to find the court has no reason to know that the Indian
Child Welfare Act applies or that these are Indian children, but,
as always, if the grandmother does find out additional
information, and shares it with us, there may be more for the
Department to reach out and investigate.”
Mother appealed the juvenile court’s September 30 orders.
DISCUSSION
Mother challenges the sufficiency of the evidence
supporting the juvenile court’s findings and disposition order.5
5 “When a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, as here, the
reviewing court need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the
evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451;
accord, In re D.P. (2015) 237 Cal.App.4th 911, 917; In re J.C.
(2014) 233 Cal.App.4th 1, 4; In re Drake M. (2012) 211
Cal.App.4th 754, 762-763.) Accordingly, because we affirm the
juvenile court’s jurisdiction findings regarding count b-5 that
Mother’s substance abuse and related issues placed J.S. and M.S.
at substantial risk of harm, we decline to address Mother’s
challenges to the juvenile court’s jurisdiction findings related to
counts b-2, b-3, and b-4. Mother has not shown how the
resolution of those claims would have “‘a single specific legal or
practical consequence . . . either within or outside the dependency
23
As to count b-5 based on Mother’s substance abuse, Mother
argues: “The evidence was insufficient to prove that [Mother]
was incapable of providing the children with regular care and
supervision due to abuse substances including alcohol.” Mother
also contends that the juvenile court and the Department failed
to comply with the inquiry and notice requirements of ICWA and
related California law.
A. Substantial Evidence Supported the Jurisdiction
Finding Based on Mother’s Substance Abuse
1. Applicable Law and Standard of Review
The purpose of section 300 “is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”
(§ 300.2; see In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.)
“At the first stage of dependency proceedings, the juvenile court
determines whether the child is subject to juvenile court
jurisdiction; [the Department] has the burden to prove
jurisdiction by a preponderance of the evidence.”
(In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
We review challenges to the sufficiency of the evidence
underlying jurisdiction findings for substantial evidence. (In re
I.J. (2013) 56 Cal.4th 766, 773; In re Yolanda L., supra, 7
Cal.App.5th at p. 992.) “‘Substantial evidence is evidence that is
“reasonable, credible, and of solid value”; such that a reasonable
proceedings.’” (In re Madison S. (2017) 15 Cal.App.5th 308, 329;
accord, In re J.C., at p. 4.)
24
trier of fact could make such findings.’” (In re L.W. (2019) 32
Cal.App.5th 840, 848; accord, In re D.C., (2015) 243 Cal.App.4th
41, 52.) “‘But substantial evidence “is not synonymous with any
evidence. [Citations.] A decision supported by a mere scintilla of
evidence need not be affirmed on appeal.’”” (In re Joaquin C.
(2017) 15 Cal.App.5th 537, 560.) ““‘Inferences may constitute
substantial evidence, but they must be the product of logic and
reason. Speculation or conjecture alone is not substantial
evidence.’”” (Patricia W. v. Superior Court (2016) 244
Cal.App.4th 397, 420; see In re Donovan L. (2016) 244
Cal.App.4th 1075, 1093 [a “juvenile court’s conclusion ‘supported
by little more than speculation’ [is] not based on substantial
evidence”].)
“‘“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
I.J., supra, 56 Cal.4th at p. 773; accord, In re S.R. (2020) 48
Cal.App.5th 204, 219.)
“The appellant has the burden of showing there is no
evidence of a sufficiently substantial nature to support the
findings or orders.” (In re E.E. (2020) 49 Cal.App.5th 195, 206;
accord, In re D.B. (2018) 26 Cal.App.5th 320, 328-329; In re D.C.,
supra, 243 Cal.App.4th at p. 52.)
25
2. Substantial Evidence Supported the Jurisdiction
Finding
Section 300, subdivision (b)(1), provides, in relevant part,
that a child comes within the jurisdiction of the juvenile court if
“[t]he child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as 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 or guardian’s mental illness, developmental
disability, or substance abuse.” A finding of jurisdiction under
section 300, subdivision (b)(1), requires the Department “to
demonstrate three elements by a preponderance of the evidence:
(1) one or more of the statutorily specified omissions in providing
care for the child . . . ; (2) causation; and (3) ‘serious physical
harm or illness’ to the minor, or a ‘substantial risk’ of such harm
or illness.” (In re Joaquin C., supra, 15 Cal.App.5th at p. 561; see
In re R.T. (2017) 3 Cal.5th 622, 628.) “Although section 300
generally requires proof the child is subject to the defined risk of
harm at the time of the jurisdiction hearing [citations], the court
need not wait until a child is seriously abused or injured to
assume jurisdiction and take steps necessary to protect the child
[citation]. The court may consider past events in deciding
whether a child currently needs the court’s protection. [Citation.]
A parent’s ‘“[p]ast conduct may be probative of current
conditions” if there is reason to believe that the conduct will
continue.’” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-
1384; accord, In re Christopher R. (2014) 225 Cal.App.4th 1210,
1216; In re S.O. (2002) 103 Cal.App.4th 453, 461.)
26
In addition, the Legislature has declared, “The provision of
a home environment free from the negative effects of substance
abuse is a necessary condition for the safety, protection and
physical and emotional well-being of the child. Successful
participation in a treatment program for substance abuse may be
considered in evaluating the home environment.” (§ 300.2.)
There was substantial evidence to support the juvenile
court’s finding that Mother’s substance abuse and related issues
placed the children at substantial risk of harm. Mother has a
history of substance abuse. When the Department received the
referral alleging Mother’s “crack” use in June 2019, the
Department confronted Mother with the accusations of drug use
and M.S. being left alone with drug paraphernalia. Despite the
Department’s warning that her refusal to drug test would be a
“red flag” and her knowledge that she was under Department
scrutiny, Mother refused the Department’s requests to drug test.
Mother also supported Robert’s refusals to drug test for the
Department. After the juvenile court ordered Mother to submit
to random drug testing at the detention hearing, Mother still
refused to drug test. “[A] missed drug test, without adequate
justification, is ‘properly considered the equivalent of a positive
test result[.]’” (In re Kadence P., supra, 241 Cal.App.4th at
p. 1384; accord, In re Christopher R., supra, 225 Cal.App.4th at
p. 1217.) Ernest and Beatrice believed that Mother was using
illicit drugs “because the signs [were] evident.” They reported
that “you can look at [Mother and Robert] and tell they are
using.” Under these circumstances, it was a reasonable inference
that Mother continued to have a substance abuse problem.
Although the juvenile court previously found that Mother
had a substance abuse problem, Mother “vehemently” denied any
27
history with illicit substances. She also falsely denied that she
had criminal convictions for child cruelty and assault with a
deadly weapon. Despite her children’s observations of Robert’s
often impaired state, Mother also denied that Robert smoked
marijuana and that he used any illicit substances. The juvenile
court reasonably could have inferred that Mother failed to
recognize the risk of harm to her children. (See In re D.B. (2020)
48 Cal.App.5th 613, 622 [affirming jurisdiction finding where
father lacked insight and “gave no sign he would change his
conduct” towards daughter]; In re A.F. (2016) 3 Cal.App.5th 283,
293 [“‘[D]enial is a factor often relevant to determining whether
persons are likely to modify their behavior in the future without
court supervision’”].)
Mother’s refusal to drug test and the inference of continued
substance abuse cannot be viewed in a vacuum. Rather, they
must be viewed in the context of her recent conduct. Mother and
Robert continued to live together, and they had engaged in
dangerous activity in the presence of J.S. and M.S. For example,
the Department reported that, in late 2018, with 10-year-old M.S.
in the front passenger seat of their vehicle, Mother and Robert
stole a package from a residence. Although there were no drugs
found in the vehicle, when the police arrested Mother and Robert,
there was a digital scale in the front seat with M.S.
J.S. reported that Robert conducted drug deals in his
residence while the children were living there. Robert’s drug
deals started with marijuana and “moved to a powdery
substance.” When J.S. told Mother what she had seen, Mother
responded J.S. was “paranoid and overreacting.” Ernest reported
that Robert was “a drug dealer.” J.S. reported seeing Robert
“completely gone and out of it” on drugs. Based on her
28
observations, J.S. believed Robert “used that stuff all the time.”
J.S. reported Mother “kept allowing [Robert] to be around my
brother. Even though she knew what [Robert] was doing.” In the
motel room, J.S. saw drug paraphernalia. J.S. repeatedly stated
that Mother was not “protecting my brother.” M.S. had broken
Mother’s television “because [he] was upset by Robert being in
the home.”
Mother argues that her children were no longer at risk by
the time of the September 30, 2019 jurisdiction hearing.
However, there was no indication that Mother took any steps to
change her behavior. The juvenile court reasonably could have
inferred that Mother’s behavior would continue. (In re T.V.
(2013) 217 Cal.App.4th 126, 133-134 [“[a] parent’s past conduct is
a good predictor of future behavior”]; see In re Gabriel K. (2012)
203 Cal.App.4th 188, 197 [“she continued the same denials of any
wrong doing. One cannot correct a [drug] problem one fails to
acknowledge”].)
Based on the foregoing, substantial evidence supported the
conclusion that J.S. and M.S. faced a substantial risk of serious
physical harm due to Mother’s recurrent substance abuse and
Mother’s failure to protect J.S. and M.S. from Robert’s substance
use and drug sales. (See In re Kadence P., supra, 241
Cal.App.4th at p. 1384 [affirming jurisdiction finding based on
substance abuse where the mother hid her use of
methamphetamine and marijuana, avoided drug tests, and
diluted samples]; In re Christopher R., supra, 225 Cal.App.4th at
p. 1218 [affirming jurisdiction finding based on substance abuse
where the mother, among other things, initially denied cocaine
use, missed a drug test, and failed to enroll in a substance abuse
program]; In re Drake M., supra, 211 Cal.App.4th at p. 766
29
[substance abuse may be manifested by, among other things,
“recurrent substance-related legal problems” or “continued
substance use despite having persistent or recurrent social or
interpersonal problems caused or exacerbated by the effects of
the substance”].)
B. Substantial Evidence Supported the Juvenile Court’s
Order Removing J.S. and M.S. from Mother’s Custody
“‘At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361
unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child.’”
(In re D.P. (2020) 44 Cal.App.5th 1058, 1065; accord, In re G.C.
(2020) 48 Cal.App.5th 257, 265; In re D.C., supra, 243
Cal.App.4th at pp. 51, 54; see § 361, subd. (c)(1).) The juvenile
court must determine “whether reasonable efforts were made to
prevent or to eliminate the need for removal of the minor from
his or her home” and “shall state the facts on which the decision
to remove the minor is based.” (§ 361, subd. (e).)
“In determining whether a child may be safely maintained
in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B., supra, 26 Cal.App.5th at p. 332;
accord, In re N.M. (2011) 197 Cal.App.4th 159, 170.) “A removal
order is proper if based on proof of parental inability to provide
proper care for the child and proof of a potential detriment to the
child if he or she remains with the parent. [Citation.] ‘The
30
parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child.’” (In re N.M. at pp. 169-
170; accord, In re V.L. (2020) 54 Cal.App.5th 147, 154; In re D.B.,
at p. 328.)
“When 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. In conducting its review,
the court must view the record in the light most favorable to the
prevailing party below and give appropriate deference to how the
trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1011-1012 (O.B.); accord, In re V.L., supra, 54
Cal.App.5th at p. 155 [“O.B. is controlling in dependency cases”].)
We review the entire record to determine whether the removal
order is supported by substantial evidence. (In re V.L., at p. 155;
In re D.B., supra, 26 Cal.App.5th at pp. 328-329; see O.B., at
p. 1011.)
The same evidence that supported jurisdiction amply
supported the removal order. Mother nevertheless argues that at
the time of the disposition hearing clear and convincing evidence
did not support a finding that Mother “was unable to provide care
for the children.” However, as stated, the juvenile court could
have reasonably inferred that, because Robert continued to live
with Mother and Mother continued to use illicit substances, the
children could not safely remain in Mother’s custody. Based on
Mother’s false denials of her and Robert’s drug use and her prior
31
criminal convictions, including her 2018 conviction for child
cruelty, the juvenile court also reasonably could have inferred
Mother had not gained insight into the substantial risk of harm
her behavior posed to her children. (See In re Drake M., supra,
211 Cal.App.4th at p. 766 [“[t]he trial court is in the best position
to determine the degree to which a child is at risk based on an
assessment of all the relevant factors in each case”].)
Mother’s argument that “substantial evidence did not
support a finding that the Department made ‘reasonable efforts’
to prevent the removal of [J.S.] and [M.S.] from [Mother’s] home
and that there were no ‘reasonable means’ to protect them other
than removal” is unpersuasive. As stated, given Mother’s
failures to drug test, denials of drug use by her and Robert,
combativeness with the police and the Department, and failure to
appear at the disposition hearing, the juvenile court reasonably
concluded that there were no reasonable means to protect the
children other than their removal from Mother and that the
Department made efforts to attempt to eliminate the need for
removal. There was no indication in the record that Mother’s
behavior had changed or that the children would be safe in
Mother’s custody. Far from taking steps to change her behavior,
Mother refused to acknowledge that there was any risk of harm
to her children. Under these circumstances, the juvenile court
did not err in removing J.S. and M.S. from Mother’s custody. 6
6 Mother’s reliance on In re Ashly F. (2014) 225 Cal.App.4th
803 (Ashly F.) is misplaced. In In re Ashly F., the Department
removed the children from their home based on allegations that
the mother physically abused the children and that the father
failed to protect them from the mother’s abuse. (Id. at pp. 806-
32
There was substantial evidence from which a reasonable
trier of fact could have found it highly probable there was a
substantial risk of physical harm to J.S. and M.S. if they were
returned home to Mother, there were no reasonable alternatives
807.) The mother and father cooperated with the Department.
The mother removed herself from the family home following the
detention hearing, and the father “had already completed a
parenting class.” (Id. at p. 810.) In its jurisdiction and
disposition report, the Department did not describe what
“reasonable means” for protecting the children were considered,
or what “reasonable efforts” it had made to prevent the children’s
removal from their home. (Id. at p. 808.) The Department’s
report also did not reveal whether the Department had assessed
the father’s home and did not contain evidence supporting its
conclusions. (Ibid.) At the jurisdiction and disposition hearing,
when ordering the children’s removal from the custody of both
parents, the juvenile court did not state any facts supporting its
findings, nor did it consider whether the mother’s removal from
the home was a reasonable means of protecting the children.
(Ibid.) Concerned that these section 361 requirements “can
become merely a hollow formula designed to achieve the result
the [Department] seeks,” the court in In re Ashly F. reversed the
disposition order because the evidence did not support the
juvenile court’s findings that the Department had made
“reasonable efforts” to prevent the children’s removal or that
there were no “reasonable means” to protect the children other
than removal. (Id. at p. 805.) The court explained that “[a]mple
evidence existed of ‘reasonable means’ to protect [the children] in
their home.” (Id. at p. 810.) The court held that the juvenile
court should have considered whether the mother’s removal from
the home was a “reasonable means” of protecting the children.
(Ibid.) Here, Mother failed to cooperate and denied that her
conduct created a risk of harm for her children.
33
to removal, and the Department expended reasonable efforts to
eliminate the need for removal. (O.B., supra, 9 Cal.5th at
p. 1011; see In re I.J., supra, 56 Cal.4th at p. 773 [“‘[w]e do not
reweigh the evidence’”]; In re S.R., supra, 48 Cal.App.5th at
p. 219 [same].)
The juvenile court’s failure to make factual findings on the
record to support removal was error, but we conclude it was
harmless. (§ 361, subd. (e) [“[t]he court shall state the facts on
which the decision to remove the minor is based”].) The
boilerplate findings in the minute orders are not a sufficient
substitute for the juvenile court making factual findings on the
record tailored to the case. But the failure of the juvenile court to
state its factual findings was harmless because it is not
reasonably probable that, had the court expressly made findings
under section 361, subdivision (e), the findings would have been
in favor of continued parental custody. (See In re Diamond H.
(2000) 82 Cal.App.4th 1127, 1137 [“[a]lthough the court did not
state a factual basis for its removal order, any error is harmless
because it is not reasonably probable such findings, if made,
would have been in favor of continued parental custody”],
disapproved on another ground in Renee J. v. Superior Court
(2001) 26 Cal.4th 735, 748, fn. 6; In re Jason L. (1990) 222
Cal.App.3d 1206, 1218 [“cases involving a court’s obligation to
make findings regarding a minor’s change of custody or
commitment have held the failure to do so will be deemed
harmless where ‘it is not reasonably probable such finding, if
made, would have been in favor of continued parental custody’”];
see Cal. Const., art. VI, § 13 [“[n]o judgment shall be set aside . . .
for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court
34
shall be of the opinion that the error complained of has resulted
in a miscarriage of justice”].)
C. Substantial Evidence Supported the Juvenile Court’s
ICWA Finding as to Father
Mother argues: “The court and the Department failed to
make ICWA-compliant inquiry and failed to provide ICWA-
compliant notice to the Secretary of the Interior and the Bureau
of Indian Affairs (“BIA”) as required when the identity of the
claimed tribe(s) is unknown. As a result, the court’s findings that
the ICWA did not apply to [J.S.] and [M.S.’s] cases were not valid
findings.” The Department argues, “[T]he juvenile court had no
reason to know [J.S.] and [M.S.] were Indian children as defined
by the ICWA, and the notice provision was not triggered.” The
Department further argues: “The duty of further inquiry under
the ICWA also was not triggered.”
1. Applicable Law
a. ICWA inquiry requirements
“ICWA established minimum standards for state courts to
follow before removing Indian children from their families and
placing them in foster care or adoptive homes.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1048.) Under ICWA and the California law
implementing it, “‘Indian child’ means any unmarried person who
is under age eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.” (25 U.S.C.
§ 1903(4); see § 224.1, subd. (a) [adopting the federal definition];
In re D.S., at p. 1048 [“[a]n ‘Indian child’ is defined in the same
manner [under California law] as under federal law”].)
35
“ICWA itself does not impose a duty on courts or child
welfare agencies to inquire as to whether a child in a dependency
proceeding is an Indian child. [Citation.] Federal regulations
implementing ICWA, however, require that state courts ‘ask each
participant in an emergency or voluntary or involuntary child-
custody proceeding whether the participant knows or has reason
to know that the child is an Indian child.’ [Citation.] The court
must also ‘instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.’” (In re Austin J. (2020) 47
Cal.App.5th 870, 882-883; see 25 C.F.R. § 23.107(a).)
In addition, “ICWA provides that states may provide ‘a
higher standard of protection to the rights of the parent or Indian
custodian of an Indian child than the rights provided under’
ICWA. (25 U.S.C. § 1921.) Under California law, the court and
county child welfare department ‘have an affirmative and
continuing duty to inquire whether a child,’ who is the subject of
a juvenile dependency petition, ‘is or may be an Indian child.’
(§ 224.2, subd. (a); see [citation]; Cal. Rules of Court,
rule 5.481(a).) The child welfare department’s initial duty of
inquiry includes ‘asking the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child and where the
child, the parents, or Indian custodian is domiciled.’ (§ 224.2,
subd. (b).)” (In re Austin J., supra, 47 Cal.App.5th at p. 883;
accord, In re T.G. (2020) 58 Cal.App.5th 275; In re D.F. (2020) 55
Cal.App.5th 558, 566; In re D.S., supra, 46 Cal.App.5th at
p. 1049.)
“California law also requires ‘further inquiry regarding the
36
possible Indian status of the child’ when ‘the court, social worker,
or probation officer has reason to believe that an Indian child is
involved [or, under Cal. Rules of Court, rule 5.481(a)(4), “may be
involved”] in a proceeding. . . . ’ (§ 224.2, subd. (e).)” (In re
Austin J., supra, 47 Cal.App.5th at p. 883.) Former section 224.2,
subdivision (e), which is applicable to this appeal, did not define
“reason to believe.” (In re Austin J., at p. 883 [the “Legislature,
which added the ‘reason to believe’ threshold for making a
further inquiry in 2018, [had] not define[d] the phrase”].)7 “When
that [‘reason to believe’] threshold is reached, the requisite
7 The Legislature, however, has since amended section 224.2,
subdivision (e), effective September 18, 2020, to provide a
definition. (Assem. Bill No. 2944 (2019-2020 Reg. Sess.); Stats.
2020, ch. 104, § 15.) As amended, the statute now provides:
“There is reason to believe a child involved in a proceeding is an
Indian child whenever the court, social worker, or probation
officer has information suggesting that either the parent of the
child or the child is a member or may be eligible for membership
in an Indian tribe. Information suggesting membership or
eligibility for membership includes, but is not limited to,
information that indicates, but does not establish, the existence
of one or more of the grounds for reason to know [that a child is
an Indian child] enumerated in paragraphs (1) to (6), inclusive, of
subdivision (d).” (§ 224.2, subd.(e)(1).) Effective January 1, 2020,
California Rules of Court, rule 5.481(a)(4), now provides: “If the
social worker . . . or petitioner knows or has reason to know or
believe that an Indian child is or may be involved, that person or
entity must make further inquiry as soon as practicable . . . .”
(Italics added.) Notwithstanding these amendments, we refer in
our opinion to former section 242, subdivision (e), and California
Rules of Court, rule 5.481(a)(4) as they read in 2019 when the
jurisdiction/disposition hearing took place.
37
‘further inquiry’ ‘includes: (1) interviewing the parents and
extended family members; (2) contacting the Bureau of Indian
Affairs and State Department of Social Services; and
(3) contacting tribes the child may be affiliated with, and anyone
else, that might have information regarding the child’s
membership or eligibility in a tribe.’” (Ibid.; see § 224.2, subd.
(e)(2)(A)-(C); former § 224.2, subd. (e)(1)-(3).) “Contact with a
tribe shall, at a minimum, include telephone, facsimile, or
electronic mail contact to each tribe’s designated agent for receipt
of notices under” ICWA and “shall include sharing information
identified by the tribe as necessary for the tribe to make a
membership or eligibility determination, as well as information
on the current status of the child and the case.” (§ 224.2,
subd. (e)(2)(C); see former § 224.2, subd. (e)(3)). Notably, “[t]he
sharing of information with tribes at this inquiry stage is distinct
from formal ICWA notice, which requires a ‘reason to
know’―rather than a ‘reason to believe’—that the child is an
Indian child.” (In re D.S., supra, 46 Cal.App.5th at p. 1049.)
b. ICWA notice requirements
“In addition to the inquiry that is required in every
dependency case from the outset and the ‘further inquiry’
required under California law when there is a ‘reason to believe’
an Indian child is [or may be] involved, a third step—notice to
Indian tribes—is required under ICWA and California law if and
when ‘the court knows or has reason to know that an Indian child
is involved.’” (In re Austin J., supra, 47 Cal.App.5th at pp. 883-
884; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); Cal. Rules of
Court, rule 5.481(b)(1); see also In re D.S., supra, 46 Cal.App.5th
at p. 1050 [“If the inquiry establishes a reason to know an Indian
child is involved, notice must be provided to the pertinent
38
tribes.”].)
A “‘reason to know’ exists under any of the following
circumstances: ‘(1) A person having an interest in the child,
including the child, an officer of the court, a tribe, an Indian
organization, a public or private agency, or a member of the
child’s extended family informs the court that the child is an
Indian child[;] [¶] (2) The residence or domicile of the child, the
child’s parents, or Indian custodian is on a reservation or in an
Alaska Native village[;] [¶] (3) Any participant in the proceeding,
officer of the court, Indian tribe, Indian organization, or agency
informs the court that it has discovered information indicating
that the child is an Indian child[;] [¶] (4) The child who is the
subject of the proceeding gives the court reason to know [he or
she] is an Indian child[;] [¶] (5) The court is informed that the
child is or has been a ward of a tribal court[;] and [¶] (6) The
court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an
Indian tribe.’ (§ 224.2, subd. (d).)” (In re D.S., supra, 46
Cal.App.5th at pp. 1049-1050.)
Notice to a tribe “must include enough information for the
tribe to ‘conduct a meaningful review of its records to determine
the child’s eligibility for membership.’” (In re D.S., supra, 46
Cal.App.5th at p. 1050; see In re Cheyanne F. (2008) 164
Cal.App.4th 571, 576 [“[t]he purpose of the ICWA notice
provisions is to enable the tribe or the [Bureau of Indian Affairs]
to investigate and determine whether the child is in fact an
Indian child”].) This includes providing “identifying information
for the child’s biological parents, grandparents, and great-
grandparents, to the extent known.” (In re D.S., at p. 1050; see
§ 224.3, subd. (a)(5)(C).) “A determination by an Indian tribe that
39
a child is or is not a member of, or eligible for membership in,
that tribe . . . shall be conclusive.” (§ 224.2, subd. (h).)
To summarize: An initial “duty of inquiry applies to every
‘child for whom a petition under Section 300, 601, or 602 may be
or has been filed’ (§ 224.2, subd. (a)),” the “duty of further inquiry
applies when there is a ‘reason to believe that an Indian child is
involved [or, under Cal. Rules of Court, rule 5.481(a)(4), “may be
involved”] in a proceeding’ (§ 224.2, subd. (e)),” and “the duty to
provide notice to Indian tribes applies only when one knows or
has a ‘reason to know . . . an Indian child is involved.’” (In re
Austin J., supra, 47 Cal.App.5th at p. 884; see In re M.W. (2020)
49 Cal.App.5th 1034, 1047 [“a ‘reason to believe’ the minor is an
Indian child triggers requirements less rigorous than does a
‘reason to know’”].)
2. Standard of Review
Where, as here, the juvenile court finds ICWA does not
apply to a child, “[t]he finding implies that . . . social workers and
the court did not know or have a reason to know the children
were Indian children and that social workers had fulfilled their
duty of inquiry.” (In re Austin J., supra, 47 Cal.App.5th at p. 885;
see In re D.S., supra, 46 Cal.App.5th at p. 1050 [“[t]he juvenile
court may . . . make a finding that ICWA does not apply because
the Agency’s further inquiry and due diligence was ‘proper and
adequate’ but no ‘reason to know’ whether the child is an Indian
child was discovered”].) “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.’” (In re Austin J., at p. 885.) The appellant
“‘has the burden to show that the evidence was not sufficient to
40
support the findings and orders.’” (Ibid.)
3. Substantial Evidence Supported the Juvenile Court’s
ICWA Finding
In his ICWA-020 Form, Father indicated he “may have”
Indian ancestry. He wrote Rita “has 58 percent Native
American.” When the Department spoke with Rita “to discuss
the paternal relatives Native American ancestry,” she was
“nearly 100% certain that none of relatives/family have been
eligible and/or enrolled in any tribe(s).” However, she received
test results from ancestry.com that indicated “she had
approximately 54% Native American lineage/heritage.” She had
no other pertinent information to provide the Department. Rita
did not have contact information for paternal Aunt Maria, who
also received similar results from ancestry.com. Father’s only
source of information regarding his “Native American” ancestry
was Rita.
While indigenous people in the United States are often
referred to as “Native Americans,” the term “Native American”
has a different connotation for purposes of ancestry.com.
According to its website, the “Native American Ethnicity” group
includes “ethnic origins” from North America and South America,
“[s]tretching from Alaska to the tip of Argentina.”8 Under these
circumstances, because Rita’s ancestry.com results did not
contain the identity of a possible tribe or any specific geographic
region from where her ancestry may have originated, the
ancestry.com results, even if a reliable source of possible Indian
8 https://www.ancestry.com/dna/ethnicity/native-america
(last visited Feb. 22, 2021).
41
ancestry, suggested “Native American” ancestry over a vast
geographic area. As such, the information had little usefulness in
determining whether J.S. and M.S. were Indian children as
defined under ICWA.
As stated, under ICWA, an “Indian child” is 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. (25 U.S.C. § 1904(4), (8).)
“Being an “Indian child’ is thus not necessarily determined by the
child’s race, ancestry, or ‘blood quantum,’ but depends rather ‘on
the child’s political affiliation with a federally recognized Indian
Tribe.’” (In re Austin J., supra, 47 Cal.App.5th at p. 882; see
In re T.G. (2020) 58 Cal.App.5th 275, 294 (“an ‘Indian child’ is
defined in terms of tribal membership, not ancestry”].) Without
the identity of a tribe, let alone a federally recognized one, or at
least a specific geographic area of possible ancestry origin, the
Bureau of Indian Affairs (BIA) could not have assisted the
Department in identifying the tribal agent for any relevant
federally-recognized tribes. (§ 224.2, subd. (e)(2)(B); see former
§ 224.2, subd. (e)(2) [“[f]urther inquiry” includes “[c]ontacting the
[BIA] . . . for assistance in identifying the names and contact
information of the tribes in which the child may be a member, or
eligible for membership in”]; In re M.W., supra, 49 Cal.App.5th at
p. 1042 [“[w]ith that limited information [of specific tribes and
geographic regions] . . . the Department contacted the [California
Department of Social Services] and the BIA to obtain assistance
in identifying the designated tribal agents for all federally-
recognized Navajo, Apache, and Cherokee tribes”].)
Transmission of a notice to the BIA would have been an idle act.
(Civ. Code § 3532 [“[t]he law neither does nor requires idle
42
acts”].) Without more information, the Department also could
not send notices to any tribes.9
To the extent that Rita’s information constituted “reason to
believe that an Indian child is [or may be] involved,” the
Department conducted an adequate and proper investigation
under section 224.2, subdivision (e). Father’s information came
from Rita. Rita told the Department that her family came to the
United States in 1917 and that she does not know of any tribe
associated with her family. Rita had no other information, and
there were no other paternal relatives identified. To the extent
required, the Department conducted an adequate and proper
further inquiry under section 224.2, subdivision (e). (See In re
D.F., supra, 55 Cal.App.5th at p. 570 [“Based on the record before
us, we find [the Department] made a good faith effort to gather
information about the children’s membership status or eligibility.
[The Department’s] inquiry obligation is ‘not an absolute duty to
ascertain or refute Native American ancestry’”]; In re D.S., supra,
46 Cal.App.5th at p. 1054 [“the Agency followed the proper
procedures in conducting its further inquiry, but the limited
information provided by Aunt was too attenuated for the Agency
to do anything further”]; see also In re A.M. (2020)
47 Cal.App.5th 303, 323 [“ICWA does not obligate the court or
[the Department] ‘to cast about’ for investigative leads”].)
9 Mother’s reliance on title 25 of the United States Code
section 1912(a) is misplaced because that section requires notice
to the BIA when “the court knows or has reason to know that an
Indian child is involved.” Here, that threshold has not been
crossed.
43
Substantial evidence supported the juvenile court’s findings
that there was “no reason to know” that M.S. and J.S. were
Indian children and that ICWA did not apply. (In re D.F., supra,
55 Cal.App.5th at pp. 571-572 [“[The Department’s] further
inquiry did not result in a reason to know the children are Indian
children. We conclude the court’s finding that ICWA does not
apply to the children is supported by substantial evidence”];
In re M.W., supra, 49 Cal.App.5th at p. 1048 [“[t]he Department
satisfied the criteria set forth in section 224.2, subdivision (e) and
the juvenile court’s finding that, based on the evidence provided,
there was no reason to know the minor was an Indian child and
no further noticing was required, and its determination that the
ICWA did not apply were supported by substantial evidence”].)
DISPOSITION
The juvenile court’s September 30, 2019 jurisdiction
findings and disposition orders are affirmed.
DILLON, J.*
We concur:
SEGAL, Acting P. J. FEUER, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
44
Filed 4/1/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re J.S. et al., Persons Coming B301715
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
LOS ANGELES COUNTY 19CCJP04803AB)
DEPARTMENT OF CHILDREN
ORDER MODIFYING OPINION
AND FAMILY SERVICES,
AND CERTIFYING OPINION
Plaintiff and Respondent, FOR PARTIAL PUBLICATION
v. [NO CHANGE IN APPELLATE
A.T., JUDGMENT]
Defendant and Appellant.
THE COURT:
The opinion in this case filed March 2, 2021 is modified as
follows:
* Pursuant to California Rules of Court, rules 8.1105(c) and
8.1110, this opinion is certified for publication with the exception
of parts A, B, C, and D of the Factual and Procedural
Background, the first paragraph of the Discussion section before
part A, and parts A and B of the Discussion.
1
1. On page 2, in the Introduction section, delete the last
sentence, which reads “We affirm,” and replace with:
In the published portion of this opinion, we hold the
Department conducted an appropriate further inquiry, as
required by section 224.2, subdivision (e), and California
Rules of Court, rule 5.481(a)(4), into the children’s possible
status as Indian children, including with respect to the
paternal relatives’ ancestry.com results showing “Native
American” ethnic origin. In the unpublished portion, we
conclude substantial evidence supported the jurisdiction
findings and removal orders. Therefore, we affirm.
2. On page 2, in the second sentence of the first
paragraph of the Factual and Procedural Background, before
part A, delete “A.T.” after the word “daughter,” so that the
sentence reads:
Mother also has an adult daughter from a prior
relationship.
3. On page 21, in the first sentence of the first
paragraph of part E, replace “Form CWA-010(A)” with “Form
ICWA-010(A)”.
4. On page 21, in the second paragraph of part E, in the
third full sentence, add the phrase “jurisdiction/disposition”
before the word “hearing,” so that the sentence reads:
At the jurisdiction/disposition hearing on
September 13, the juvenile court asked Rita, who was in
the courtroom, for her contact information and ordered the
Department “to follow up.”
5. On page 22, in the first sentence of the last
paragraph beginning “In response to,” add the phrase “At the
continued jurisdiction/disposition hearing on September 30,
2
2019,” to the beginning of the sentence, so that the sentence
reads:
At the continued jurisdiction/disposition hearing on
September 30, 2019, in response to the juvenile court’s
question concerning what the Department did “once Father
indicated there may be Indian ancestry,” the Department
responded: “The Department followed up with [Rita].
6. On page 41, in the penultimate sentence of the first
paragraph under subheading 3, replace the word “Aunt” with
“aunt,” so that the sentence reads:
Rita did not have contact information for paternal
aunt Maria, who also received similar results from
ancestry.com.
7. On page 42, in the first full paragraph, in the
explanatory phrase to the citation In re T.G. (2020)
58 Cal.App.5th 275, 294, delete the open parenthesis before the
quote and replace with an open bracket.
8. On page 42, in the first full paragraph, in the
sentence beginning with “Without the identity,” delete the phrase
“Bureau of Indian Affairs,” the parentheses around “BIA,” and
the hyphen between the words “federally” and “recognized,” so
that the sentence reads:
Without the identity of a tribe, let alone a federally
recognized one, or at least a specific geographic area of
possible ancestry origin, the BIA could not have assisted
the Department in identifying the tribal agent for any
relevant federally recognized tribes.
9. On page 44 replace asterisk footnote following
“Dillon, J.” with a single dagger/obelisk footnote.
3
The opinion in this case filed March 2, 2021 was not
certified for publication. Because the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), respondent’s request for publication under
California Rules of Court, rule 8.1120(a), is granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be partially published in the Official
Reports.
This order does not change the appellate judgment.
SEGAL, Acting P. J. FEUER, J. DILLON, J.†
† Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
4