In re T.Y. CA1/1 ( 2023 )

Filed 2/27/23 In re T.Y. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re T.Y., Jr., et al. Persons Coming
Under the Juvenile Court Law.
CONTRA COSTA COUNTY A164644
CHILDREN AND FAMILY
SERVICES BUREAU, (Contra Costa County
Super. Ct. Nos. J21-00283 &
Plaintiff and Respondent, J21-00284)
v.
L.D.,
Defendant and Appellant.
In these dependency proceedings, L.D. (mother) appeals from
jurisdictional findings and dispositional orders concluding that her children
T.Y., Jr. (T.Y.) and Y.Y. were described by Welfare and Institutions Code1
section 300, subdivision (b), adjudging them juvenile court dependents, and
placing them in foster care. Mother asserts on appeal that there was
insufficient evidence to support the jurisdictional findings related to her
conduct. She also claims the juvenile court’s dispositional removal order was
not adequately supported by the evidence. And she argues that there was
All section references are to the Welfare and Institutions Code unless
1
otherwise specified.
1
insufficient inquiry in this case as to the children’s possible Indian status
under the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq. (ICWA).
We affirm.
I. BACKGROUND
In June 2021, the Contra Costa County Children and Family Services
Bureau (Bureau) filed dependency petitions with respect to T.Y. (born July
2013) and Y.Y. (born April 2016), alleging that the minors came within the
provisions of section 300, subdivision (b) due to ongoing domestic violence
between mother and T.Y., Sr. (father). The petitions additionally alleged
jurisdiction under subdivision (g) based on mother’s inability to provide
support for the minors due to her hospitalization for a serious medical
condition and consumption of high doses of pain medication.
In March 2021, the Bureau had received a referral alleging general
neglect of seven-year-old T.Y. and four-year-old Y.Y., along with their older
half-sibling, L.B. According to the reporting party, mother’s mental state
appeared to be impaired due to substance use or a mental health condition.
The Bureau located and interviewed mother at John Muir Medical Center on
June 8, 2021. She disclosed that, at the beginning of June, father put her in
a choke hold and began choking her and hitting her in the face. The social
worker observed a broken blood vessel in mother’s left eye and was informed
by staff that mother had bruising on her leg and a large bruise on her upper
left arm. Mother stated T.Y. and Y.Y. did not witness the incident but she
“strongly believe[d]” they heard it. Father was arrested and mother took T.Y.
and Y.Y. to a domestic violence shelter. Mother further explained that her
older sons—L.B. and his adult brother, C.B.—had previously “seen and heard
[her] being choked out and abused by [father].” She sent them to live with
their father, S.B., three months before this latest domestic violence incident.
2
According to mother, she had been together with father on and off for
eight years and had moved back to California with him in October 2020, after
which he had been “treating her mean” and they had “a lot of domestic
disputes.” Mother felt that father wanted to kill her. Despite his continuing
to beat her, mother repeatedly went back to father because she was homeless
at one point in her life, and she had no one else to help her. When
interviewed, Y.Y. was aware that father “pushed mommy” and “hurt her” but
stated she was not afraid of either parent. T.Y. reported that he had never
seen his parents fight but he hears father hit his mother. He was afraid to go
home with father.
Mother, T.Y., and Y.Y. were living in the shelter when mother, who has
leukemia, discovered she left her pain medications in the family home. She
was afraid to retrieve them, and, eventually, her pain became so severe that
she had to be transported by ambulance to the hospital. Mother reported she
takes Dilaudid, OxyContin, and Xanax for pain, and sometimes takes more
than the prescribed dosage to help her sleep. Because she was in constant
pain, it was difficult for her to keep the family home clean. Mother disclosed
that T.Y. had a gun in the home, but she did not want “to press the issues
and get him into any trouble.” She did not plan to go back to the residence
upon her discharge from the hospital because she needed “to protect [herself]
and [her] children.”
T.Y. and Y.Y. were taken into protective custody because mother was
unable to care for them, father had a protective order against him, and no
other relatives could be identified who were willing to take the children. The
two minors were placed together in the same foster home. A records review
showed mother had a history of arrests between 1999 and 2018, including
3
four misdemeanor convictions in 1999–2000—one for obstructing a police
officer and three for various assault crimes.
The social worker contacted C.J.—mother’s cousin-in-law and a
potential placement for the younger children. C.J. reported that mother
struggled with methamphetamine use. She confirmed mother’s leukemia and
stated father had a babysitter for the children while he worked. In her
opinion, T.Y. and mother were “ ‘just not good together.’ ” C.J. was concerned
that if the younger children were released to T.Y., mother would attempt
suicide. She had done so several times over the years. T.Y. had admitted to
C.J. that he had been “beating [mother] up.” Mother had told C.J. on various
occasions that T.Y. had tapped her phone, taken money out of her account,
and stolen things from her. Given the “toxicity” of mother and T.Y.’s
relationship, C.J. had instructed 18-year-old C.B. to call their father to come
get him and L.B. The two had been with S.B. for about three months.
T.Y. told the social worker that there was no restraining order against
him because mother had three days to extend the temporary order, and she
failed to do so. With respect to family history, he stated that when mother
moved to California with her children in 2018, he stayed behind in Texas. He
described mother as paranoid and stated she had struggled with drugs and
alcohol over the last several years. T.Y. also acknowledged that mother had
been suicidal on several occasions. Given the “tremendous difficulty” mother
was facing, T.Y. had traveled to California at least three times to check on
the family. Mother and T.Y. rekindled their romantic relationship at one
point, and mother and the children returned to Texas. While there, mother
assaulted T.Y. with a knife, resulting in a cut on his hand and an open child
welfare case in Texas. T.Y. admitted to engaging in four or five domestic
violence incidents with mother where he had called the police. With respect
4
to the June 2021 domestic violence incident, T.Y. claimed he only pushed
mother off of him to protect himself, did not recall hitting mother, and was
unaware of the reason for his arrest. He stated mother had assaulted a
woman that same night and might have received bruising around her eye
from that altercation.
T.Y. was self-employed in construction/tile work. About three months
before child welfare’s involvement, father quit his other job in order to find an
appropriate babysitter because mother “was leaving for weeks at a time.”
During this timeframe, mother was threatening suicide and her substance
abuse was out of control, so T.Y. sent C.B. and L.B. to live with their father.
According to T.Y., mother had been offered space in a stem cell program to
treat her leukemia but was hesitant because the process might compromise
her immune system and she was abusing drugs and alcohol.
T.Y. confirmed he had a legal firearm he kept in a lock box which
required fingerprints to open. He claimed not to keep it in the house, noting
that mother had searched for the gun previously. T.Y. stated he was “no
longer sure of [mother’s] mental capacity. He reported he primarily cared for
the children, explaining that “ ‘although [mother] is a beautiful person, she is
not a good parent.’ ” T.Y. had a history of arrests from 2007 through 2021,
but no convictions.
S.B. confirmed that L.B. was in his care. He stated there was a formal
custody arrangement through family court which allowed him to have L.B.
for the summer and mother to have custody during the school year. However,
father had removed L.B. from mother approximately one month early
because “her household was unmanageable.”
Due to mother and father’s history of domestic violence, mother’s
possible substance abuse and potential unaddressed mental health issues, as
5
well as questions regarding medical management of mother’s serious health
condition, the Bureau recommended that T.Y. and Y.Y. be detained from both
parents and placed in out-of-home care. T.Y. and Y.Y. were formally detained
at the detention hearing on June 14, 2021. Both parents were offered
supervised visitation with the children a minimum of twice per week, as well
as supervised phone contact. The court ordered that the parents not visit
together. Following a number of continuances, mother’s counsel was relieved
and new counsel was appointed after an October 2021 Marsden2 hearing. At
that time, mother was incarcerated but she was released by late November.
In advance of the contested jurisdictional and dispositional hearing, the
Bureau filed a report and a supplemental memorandum. The report stated
that mother and the children lived with the maternal grandmother for about
a year. However, the level of domestic violence between mother and father
was too much for the maternal grandmother, and she asked them to leave.
Despite all of the information received, as of the time the social worker
prepared the report, mother was denying domestic violence in her
relationship with T.Y., claiming she had no mental health issues, and
denying use of any non-prescribed drugs. She variously reported that her
leukemia was both “under control” and “end stage.” She declined to
participate in a psychosocial interview or disclose her current whereabouts.
T.Y. was reported to have certain behavioral issues in his foster
placement but no behavioral issues at school. The social worker opined that,
“[a]lthough outwardly calm and polite, he presents as a child filled with
hidden anger,” which can manifest itself, for example, in “physical rigidity,
fidgeting, emotional withdrawal and perfunctory verbal responses.” T.Y. had
disturbed sleep at night, and the caregivers were working with him to
2 People v. Marsden (1970) 2 Cal.3d 118.
6
establish a bedtime routine, as he initially observed no set bedtime and
would stay up all night. T.Y. also exhibited inappropriate sexualized
behaviors towards his sister to the extent that the two siblings had to be
separated. In his new placement, T.Y. continued to engage in sexualized
behaviors, although they were no longer directed at a specific individual.
Y.Y. was described as a happy, social girl. She had not seen a doctor
since 2018. She required extensive dental work, treatment for a speech
delay, and assessment regarding whether she was on the autism spectrum.
In the foster home, Y.Y. experienced night terrors once or twice a week,
where she woke up screaming.
As of the time of the report, mother had participated in seven in-person
visits and had failed or was a no show for 12 visits. Father had four in-
person and four cancelled visits. When visits did not occur, T.Y. became
angry and Y.Y. would cry. When contact did occur, both parents failed to
abide by visitation rules, making promises of gifts or that the children would
be home soon. Father was observed to make critical, demeaning remarks to
T.Y., while favoring Y.Y. Mother also made dismissive and demeaning
comments to T.Y. On one visit, she told the children that she and father were
back together. After visits, Y.Y. would soil herself, spending long periods of
time in the bathroom.3 A fixed schedule of evening phone calls between 7:00
and 8:00 p.m. was established to stem repeated phone calls and texts after
the children were in bed. Mother had not called for over a month at the time
the report was submitted.
3 By the time of the October 25 supplemental memorandum, Y.Y. had
developed chronic encopresis and enuresis throughout each day, requiring an
intensive level of supervision and care, including continual cleaning of the
child and her clothing.
7
In concluding that the children would be at high risk in the home of
either parent, the Bureau stressed the following: both parents had declined to
disclose their living circumstances; the parents had engaged in several
domestic violence incidents, including yelling, throwing objects, grabbing,
physical striking, and choking; mother had a serious medical illness that
required pain management; mother had potential mental health and
substance abuse issues that needed to be addressed; and neither parent had
acknowledged any level of risk to their children. The Bureau opined that
both children had significant physical, mental health, and educational needs
that could only be addressed in a stable, nurturing home. It recommended
reunification services for both parents.
The contested jurisdictional and dispositional hearing was finally held
on January 6, 2022. At the request of the Bureau, the court amended the
subdivision (b) allegations with respect to each child to provide: (1) “Mother
is unable to protect the child from ongoing domestic violence with [father], in
that the parents have engaged in at least five incidents of domestic violence,
at least one of which occurred in the child’s presence;” and (2) “Father is
unable to protect the child from ongoing domestic violence with [mother], in
that the parents have engaged in at least five incidents of domestic violence,
at least one of which occurred in the child’s presence.”4 Counsel for the
Bureau then submitted the jurisdictional matter on the evidence contained in
the June 2021 detention/jurisdiction report. Father’s attorney indicated that
his client had prepared a waiver of rights form with respect to the amended
language and was not contesting jurisdiction.
Mother’s attorney called the social worker, who testified that, after
father was arrested for the June 2021 domestic violence incident, mother was
4 The remainder of the allegations in the petitions were dismissed.
8
referred to a shelter by the police and went there with the children. The
social worker also confirmed that T.Y. had stated he was never present
during a physical altercation between the parents. After argument with
respect to jurisdiction, the juvenile court sustained the amended petitions
with respect to both T.Y. and Y.Y.
Turning next to dispositional issues, the Bureau submitted the matter
based on the evidence in the detention/ jurisdiction report, the
jurisdiction/disposition report, and the supplemental memorandum. Mother
called the social worker, who testified she was not aware of any instances of
mother abusing her prescribed medication since June 2021. The social
worker also testified that mother had been arrested in September 2021 but
she was not aware of any resolution in the case. On cross-examination, the
social worker recounted that, according to the related police report, mother’s
recent arrest involved an allegation that she had attacked a man sitting on a
couch without warning with a baseball bat. Mother was reportedly hearing
voices at the time.
Mother’s attorney argued that the evidence regarding her alleged
behavior was based largely on speculation and the reports of father and S.B.,
both of whom had ulterior motives. She also stressed that the allegations
were based on stale information, as it had been seven months since detention.
Father’s counsel objected to the family reunification recommendation,
seeking return of the children. The juvenile court, however, indicated it was
“absolutely going to refer them for family reunification.” Even putting aside
the evidence of mother’s recent assault arrest, it found the evidence sufficient
to support the recommendations for mental health and substance abuse
assessments for mother and noted, with respect to domestic violence,
“undisputed evidence of the ongoing violence between these two parents.”
9
The court found particularly credible the statements from the maternal
grandmother. It therefore declared T.Y. and Y.Y. to be juvenile court
dependents, removed them from the physical custody of both mother and
father, and ordered reunification services.
This timely appeal followed.
II. DISCUSSION
A. Jurisdictional Findings
i. Legal Framework
Dependency jurisdiction may be asserted under subdivision (b) of
section 300 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 . . . [¶] . . .
[t]he failure or inability of his or her parent . . . to adequately supervise or
protect the child,” or the “willful or negligent failure” of the parent to protect
the child from the conduct of a custodian with whom the child has been left.
(§ 300, subd. (b)(1)(A) & (B).) “The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the steps
necessary to protect the child.” (In re R.V. (2012) 208 Cal.App.4th 837, 843;
see In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.) [“[t]he focus of section
300 is on averting harm to the child”].)
It is well settled that physical violence between a child’s parents may
support the exercise of jurisdiction under subdivision (b)(1) of section 300
where there is evidence that the domestic violence has placed the child at risk
of physical harm and the violence is ongoing or likely to recur. (In re M.W.
(2015) 238 Cal.App.4th 1444, 1453–1454; In re R.C. (2012) 210 Cal.App.4th
930, 941–942; In re Daisy H. (2011) 192 Cal.App.4th 713, disapproved on
another ground in In re D.P. (2023) 14 Cal.5th 266, 278 (D.P.).) “It is clear
. . . that domestic violence in the same household where children are living is
10
neglect; it is a failure to protect [the children] from the substantial risk of
encountering the violence and suffering serious physical harm or illness from
it. Such neglect causes the risk.” (In re Heather A. (1996) 52 Cal.App.4th
183, 194.)], disapproved on another ground in In re R.T. (2017) 3 Cal.5th 622,
628–629 (R.T.).) The relevant inquiry under section 300, subdivision (b)(1), is
whether circumstances at the time of the jurisdictional hearing “ ‘subject the
minor to the defined risk of harm.’ ” (T.V., supra, 217 Cal.App.4th at p. 133.)
“The court may consider past events in deciding whether a child
currently needs the court’s protection.” (In re Kadence P. (2015) 241
Cal.App.4th 1376, 1383; see T.V., at p. 133.) Indeed, in a domestic violence
situation, past violence is highly probative of the risk that violence may
recur. (See In re E.B. (2010) 184 Cal.App.4th 568, 576 [“ ‘Past violent
behavior in a relationship is “the best predictor of future violence.” Studies
demonstrate that once violence occurs in a relationship, the use of force will
reoccur in 63% of these relationships.’ ”], disapproved on another ground in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 (O.B.); In re John M.
(2013) 217 Cal.App.4th 410, 419 [concluding even a single incident of
domestic violence may be sufficient to support a jurisdictional finding under
section 300, subdivision (b)], disapproved on another ground in R.T., supra, 3
Cal.5th at pp. 628–629.) To establish a defined risk of harm at the time of
the hearing, there “must be some reason beyond mere speculation to believe
the alleged conduct will recur.” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146
(D.L.).)
A jurisdictional finding that the minor is a person described in section
300 must be made by at least a preponderance of the evidence. (§ 355, subd.
(a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) “We review the
jurisdictional findings for substantial evidence. [Citation.] We consider the
11
entire record, drawing all reasonable inferences in support of the juvenile
court’s findings and affirming the order even if other evidence supports a
different finding. [Citation.] We do not consider the credibility of witnesses
or reweigh the evidence.” (In re Isabella F. (2014) 226 Cal.App.4th 128, 137–
138.) “The parent has the burden on appeal of showing there is insufficient
evidence to support the juvenile court’s order.” (Id. at p. 138.)
ii. There is a Justiciable Controversy
Preliminarily, we must determine whether mother’s jurisdictional
challenge is justiciable. As the Supreme Court recently acknowledged, “the
principle that ‘[d]ependency jurisdiction attaches to a child, not to his or her
parent’ [citation] means that ‘[a]s long as there is one unassailable
jurisdictional finding, it is immaterial that another might be inappropriate’
[citation]. Thus, where jurisdictional findings have been made as to both
parents but only one parent brings a challenge, the appeal may be rendered
moot.” (D.P., supra, 14 Cal.5th at p. 283.)
Here, because the court’s unchallenged findings involving father create
an independent basis for jurisdiction, under certain circumstances we would
not be required to address the adequacy of mother’s jurisdictional findings on
appeal. However, the D.P. Court also clarified that “where a jurisdictional
finding ‘serves as the basis for dispositional orders that are also challenged
on appeal’ [citation], the appeal is not moot. (D.P., supra, 15 Cal.5th at
p. 283.) Since, in this case, mother is also challenging the juvenile court’s
dispositional order, we proceed to the merits of her jurisdictional challenge.
iii. Substantial Evidence Supports the Jurisdictional Findings
Mother asserts that the section 300, subdivision (b) finding for each
child which involved her conduct—“Mother is unable to protect the child from
ongoing domestic violence with [father], in that the parents have engaged in
12
at least five incidents of domestic violence, at least one of which occurred in
the child’s presence”—was not sufficiently supported by the evidence.
Specifically, she argues that there was no evidence of a current risk of
physical harm to the children at the time of the jurisdictional hearing
because: the June 2021 domestic violence incident took place seven months
prior to jurisdiction and occurred outside of the presence of the children;
there is no indication when the other incidents of domestic violence alleged in
the petitions occurred or whether the children were exposed to them; and
there was no evidence that any domestic violence occurred since June 2021 or
that it would recur in the future. Mother additionally points to evidence that
she was aware of the problem and had already taken steps to address it by
sending her older sons to live with their father and removing herself and the
younger children to a domestic violence shelter. We are not persuaded.
The relevant inquiry under section 300, subdivision (b)(1), as stated
above, is whether circumstances at the time of the jurisdictional hearing
“ ‘subject the minor to the defined risk of harm.’ ” (T.V., supra, 217
Cal.App.4th at p. 133.) Here, we have no difficulty concluding that T.Y. and
Y.Y. were subject to such a risk. There was a significant history of past
domestic violence in this case confirmed by statements from mother, father,
and C.J.5 The evidence discloses that, on at least five occasions, the abuse
was significant enough that father called the police; one incident involved
mother wielding a knife; and the police were called after father hit mother in
the face and tried to choke her. Further, there was a gun in father’s
possession, which mother had attempted to locate in the past, and mother
5Because the attorney for the Bureau submitted the jurisdictional
matter based solely on the evidence contained in the June 2021
detention/jurisdiction report, we do not, at this juncture, discuss evidence
contained in later materials.
13
stated she always went back to father because she had been homeless before
and she had no one else to help her.
There was also significant evidence of mother’s own assaultive
behaviors—in her criminal history, her assault on father with a knife in
Texas, and her alleged physical altercation with a woman on the same day as
the June 2021 domestic violence incident. Thus, the ongoing domestic
violence risk to these children did not necessarily depend on mother reuniting
with father, especially since they would be coparenting two young children.
The substantial evidence in the record regarding mother’s unaddressed
substance abuse and mental health issues further exacerbated this risk.6
Finally, although mother may have taken some initial actions to protect her
children in the heat of past domestic violence situations, she failed to
maintain the temporary restraining order against father and provided no
evidence of continued engagement in any services addressed at ameliorating
the Bureau’s concerns. Substantial evidence thus supported the
jurisdictional findings made with respect to mother.
6Although it is true that T.Y. told a social worker he had never seen his
parents fight and it is unclear whether Y.Y.’s statement that father pushed
and hurt mother was based on her own observations, we conclude—given the
pervasive nature of the domestic violence in this family and mother’s
admission that her older children had witnessed it—that it is a reasonable
inference from the evidence that T.Y. and Y.Y. had witnessed at least one act
of domestic abuse in the past as alleged in the petitions. There is certainly
abundant evidence that the children would have been at substantial risk of
future physical harm absent the Bureau’s intervention.
14
B. Dispositional Removal Order
i. Legal Framework
After finding that a child is a person described in section 300, the
juvenile court, “shall hear evidence on the question of the proper disposition
to be made of the child.” (§ 358, subd. (a).) In doing so, the court considers
the social worker’s report and any relevant or material evidence offered. (Id.,
subd. (b)(1).) The court generally chooses between allowing the child to
remain in the home of a parent with protective services in place and
removing the child from the home while the parent engages in services to
facilitate reunification. (In re E.E. (2020) 49 Cal.App.5th 195, 205.)
In order to remove a child from parental custody at a dispositional
hearing, the juvenile court must make one of a number of statutorily
enumerated findings by clear and convincing evidence. (§ 361, subd. (c).)
Here, the juvenile court found with respect to each of the children 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 that there were “no reasonable means” by which the
minor could be protected short of removal. (Id., subd. (c)(1).) A removal order
on these grounds “ ‘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 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.”
[Citation.] The court may consider a parent’s past conduct as well as present
circumstances.’ ” (In re A.S. (2011) 202 Cal.App.4th 237, 247, disapproved on
another ground in O.B., supra, 9 Cal.5th at p. 1010, fn. 7.)
15
“[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 drawn reasonable
inferences from the evidence.” (O.B., supra, 9 Cal.5th at pp. 995–996; see
also In re V.L. (2020) 54 Cal.App.5th 147, 154–155.)
ii. Substantial Evidence Supports the Removal Order
Mother next argues there was not clear and convincing evidence of a
substantial danger to the children necessitating their removal from her
physical custody at the dispositional hearing. Specifically, she claims that
there would be no danger to the children being in her care if T.Y. was not
present. She also contends that any danger to the children based on her
possible mental health or substance abuse issues was speculative. And she
notes that she demonstrated that she was able to secure housing for the
children when she took them to the domestic violence shelter. Again, we
disagree.
It is true, as mother argues, that jurisdictional findings (made by a
preponderance of the evidence) are not in and of themselves sufficient to
justify a dispositional removal order. Here, however, there is a plethora of
evidence supporting the juvenile court’s finding that there was “a substantial
danger to the physical health, safety, protection, or physical or emotional
well-being” of these children if they were returned home. (§ 361, subd. (c)(1).)
16
As discussed at length above, substantial evidence supported the ongoing
physical risk from domestic violence for these children, even if T.Y. and
mother were not living together. Indeed, mother’s own erratic and violent
behaviors presented a substantial physical risk in their own right. And
mother’s assertions to the contrary notwithstanding, substantial evidence
also supported the conclusion that unresolved substance abuse and mental
health issues placed these children at risk. Moreover, mother ignores the
significant risk to the children’s emotional well-being evident on this record.
(See In re H.E. (2008) 169 Cal.App.4th 710, 721 [removal order may be based
on risk of emotional harm].) The social worker reports in this case chronicle
substantial mental health and educational needs, in addition to physical
deficits, facing these minors. And the Bureau opined that the children
required a stable, nurturing environment to address all of these issues. Since
the record contains ample evidence of a continuing risk of both physical and
emotional harm to these young minors, substantial evidence exists to support
the juvenile court’s removal order.
C. ICWA Issues
Mother finally contends that there was insufficient inquiry in these
proceedings regarding the possibility that T.Y. and Y.Y. may be Indian
children for purposes of ICWA. She asserts that the juvenile court’s ICWA
finding must therefore be reversed as not supported by substantial evidence.
The Bureau concedes error on this point. We accept its concession but
conclude that reversal is not required on these facts.
At the beginning of this case in June 2021, both parents denied any
Indian ancestry in response to questioning by the social worker. Mother and
father subsequently refused to meet with the social worker of fill out the
standard ICWA forms. At the detention hearing on June 14, 2021, the
17
juvenile court completed verbal ICWA inquiries with each parent. Given the
parents’ negative responses to all questions posed, the court concluded that
there was no reason to believe or reason to know that T.Y. and Y.Y. were
Indian children. On December 13, 2021, shortly before the jurisdictional and
dispositional hearing, mother filed a parental notification of Indian status
stating that she was or might be a member of, or eligible for membership in,
a federally recognized Indian tribe. The form contained no other information.
Although the Bureau interviewed several relatives, including, as discussed
above, the maternal grandmother, there is no evidence in the record that any
extended family members were queried regarding the children’s possible
Indian ancestry.
Under ICWA, when a child is placed into temporary custody of a social
services agency, the agency “has a duty to inquire whether that child is an
Indian child. Such inquiry includes, but is not limited to, 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), italics
added; see also Cal. Rules of Court, rule 5.481(a).) Here, the Bureau failed to
satisfy its initial inquiry duty because it provided no evidence it had
questioned the maternal grandmother, or other known extended family,
regarding the children’s possible Indian ancestry.
While we generally review a juvenile court’s ICWA findings for
substantial evidence, appellate review in this context tends to focus on
whether any admitted error was harmless. (In re S.H. (2022) 82 Cal.App.5th
166, 175 (S.H.).) However, noting that the duty to inquire under ICWA “is a
continuing one” and that “the juvenile court, even after it concludes that
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ICWA does not apply, retains the power (and duty) to reverse that
determination ‘if it subsequently receives information providing reason to
believe that the child is an Indian child,’ ” we recently jettisoned this
harmless-error construct under circumstances similar to those presented
here. (Id. at p. 176.) Rather than “focusing on whether the same ICWA
finding would have been made absent error,” we determined we should “focus
instead on whether the social service agency acknowledges error.” (Ibid.)
Under such circumstances, we would “have reason to believe that its duty of
inquiry will be satisfied.” (Ibid.) In other words, the fact that the child
welfare agency had acknowledged error indicated that it understood its duty
and realized that it “must satisfy this duty, if it ha[d] not done so already,
and report its findings to the juvenile court.” (Ibid.)
We thus hold, as we held in S.H., “that disturbing an early order in a
dependency proceeding is not required where, as here, the court, counsel, and
the [Bureau] are aware of incomplete ICWA inquiry. The [Bureau] must
comply with its broad duty to comp[l]ete all appropriate inquiries and apprise
the court, and the court has a continuing duty to ensure that the [Bureau]
provides the missing information. So long as proceedings are ongoing and all
parties recognize the continuing duty of ICWA inquiry, both the [Bureau] and
the juvenile court have an adequate opportunity to fulfill those statutory
duties.” (S.H., supra, 82 Cal.App.5th at p. 179.)
III. DISPOSITION
The jurisdictional findings and dispositional orders are affirmed.
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SWOPE, J.
WE CONCUR:
HUMES, P. J.
MARGULIES, J.
AA154644N

Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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