In re Leigha W. CA2/1 ( 2021 )

Filed 10/8/21 In re Leigha W. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re LEIGHA W., a Person B310184
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 17CCJP02701)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
C.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Emma Castro, Judge Pro Tempore. Affirmed.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Aileen Wong, Deputy County Counsel,
for Plaintiff and Respondent.
_______________________________
1
In this dependency case (Welf. & Inst. Code, § 300 et seq.),
C.W. (Mother) appeals from the juvenile court’s disposition order,
challenging the sufficiency of the evidence supporting the
removal of her infant daughter Leigha W. from her custody. She
also contends the juvenile court and the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with duties under the Indian Child Welfare Act (ICWA).
(25 U.S.C. § 1901 et seq.) For the reasons explained below, we
reject Mother’s contentions and affirm the order.
BACKGROUND
I. Prior Dependency Proceedings Involving Mother
and Leigha’s Sibling and Half Sibling
As a minor, Mother was a dependent of the juvenile court.
She was adopted by her paternal grandparents as a toddler, after
the court terminated Mother’s parents’ rights. At the time the
current dependency proceedings commenced in January 2020,
Mother lived with her adoptive mother/biological paternal
grandmother, Vivian W.
In prior dependency proceedings, Mother lost custody of her
two older children. In May 2018, the juvenile court sustained a
section 300 petition under subdivision (b), making the following
jurisdictional findings: (1) Mother’s then-infant daughter A.W.
tested positive at birth for marijuana and opiates, and Mother’s
1
Further statutory references are to the Welfare and
Institutions Code.
2
use of illicit drugs endangered the child’s physical health and
safety and placed the child at risk of serious physical harm and
damage; (2) Mother abused marijuana and opiates, and A.W.’s
2
father, L.W. (Father), failed to protect A.W. and half sibling
C.W. (Mother’s two year old son from a prior relationship) from
Mother’s substance abuse, endangering the children’s physical
health and safety and creating a detrimental home environment
that placed the children at risk of serious physical harm, damage,
and failure to protect; (3) Father abused marijuana, which
rendered him incapable of providing regular care for the children,
and Mother failed to protect the children from Father’s substance
abuse, endangering the children’s physical health and safety and
creating a detrimental home environment that placed the
children at risk of serious physical harm, damage, and failure to
protect.
Later in May 2018, the juvenile court sustained a section
342 subsequent petition, making the jurisdictional finding under
section 300, subdivision (b) that Mother was a then-current
abuser of methamphetamine and marijuana, who on May 15,
2018, while A.W. and C.W. were in her care and under her
supervision, was under the influence of and tested positive for
methamphetamine, amphetamine, and marijuana, rendering her
incapable of providing regular care for the children and
endangering the children’s physical health and safety and placing
them at risk of serious physical harm and damage.
2
The child involved in the current dependency proceedings,
Leigha W., is Mother and Father’s child. Father is not a party to
this appeal. Accordingly, we only summarize the relevant
evidence and proceedings as they relate to Mother.
3
In January 2019, the juvenile court terminated Father’s
reunification services regarding A.W. In August 2019, the court
terminated Mother’s reunification services regarding A.W. and
C.W. The court placed C.W. in the home of his biological father
and placed A.W. with her maternal aunt (Mother’s sister), Ebony.
On or about December 1, 2019, the court denied Mother’s section
388 petition regarding custody of her children. C.W.’s permanent
placement was with his father, and A.W.’s permanent placement
was under legal guardianship with Ebony.
II. Current Dependency Proceedings
A. Referral, section 300 petition, and non-
detention of Leigha from Mother
The referral that led to the current dependency proceedings
was made at the end of December 2019, less than a month after
the juvenile court denied Mother’s section 388 petition in the
dependency proceedings involving her two older children. The
caller (presumably a hospital employee) informed DCFS that
Mother had just given birth to a baby girl (Leigha), and Mother
disclosed she smoked marijuana during her pregnancy. Mother
reported she had been clean since July 2019, the month she
began her prenatal care, but Mother’s prenatal records showed
she tested positive for marijuana in August 2019, during her
3
pregnancy. Mother also missed three prenatal appointments.
Upon her admission to the hospital Mother tested negative for
drugs, so neither Mother nor Leigha was drug tested at the time
of birth. The caller reported Leigha appeared healthy, was
3
Mother also tested positive for marijuana in September
2019, during her pregnancy, but the caller did not report that in
the referral.
4
breastfeeding, and had not shown symptoms of drug withdrawal.
Mother was appropriate with Leigha, and the caller had no
concerns. According to the caller, Father was “not involved” with
Mother and Leigha.
On December 29, 2019, a DCFS social worker went to the
hospital prior to Mother’s and Leigha’s discharge. A nurse told
the social worker Leigha was doing well and bonding with
Mother. Mother told the social worker she had not used
marijuana since July 2019 (during her pregnancy), and the
reason she tested positive in August 2019 was because there was
still marijuana in her system from her use in July. Mother
reported she tested negative for drugs in October 2019 (but did
not mention her additional positive test for marijuana in
September 2019, during her pregnancy). Mother stated she was
enrolled in an outpatient drug treatment program through which
she tested.
As stated in DCFS’s February 3, 2020 Detention Report,
when the social worker asked Mother about missing some
prenatal appointments, Mother responded she had “a lot going
on,” but was not “trying to neglect the baby.” Mother reported
she received mental health services for depression at an agency
where she had also received prenatal care, parenting support,
and housing assistance. She explained she became homeless
after losing custody of her two older children, but she was now
living with Vivian (Leigha’s maternal great-grandmother).
As set forth in the Detention Report: “Mother stated that
she will remain in contact with DCFS at all times and that she
just would like to have a chance to prove that she can provide[]
for her child” (Leigha). Mother signed a safety plan, agreeing (1)
to continue to attend the drug treatment program; (2) to remain
5
clean and sober; and (3) to attend all of Leigha’s medical
4
appointments.
On January 8, 2020, the social worker visited Mother and
Leigha at Vivian’s home, in the presence of various maternal
relatives who were supportive of Mother and stated Mother and
Leigha were doing well. Mother said she attended a medical
appointment for Leigha the day before. She reiterated she would
continue to attend the drug treatment program and remain in
contact with DCFS “at all times.” She also stated she was
“willing to [drug] test anytime.” She said she had not heard from
Father and planned to raise Leigha on her own.
On January 17, 2020, a social worker in the current case
spoke with the social worker in the older sibling and half sibling’s
dependency case, CSW Bodden. Bodden explained Mother acted
appropriately when she had contact with her older children, but
Mother “did not do anything the court requested for her to
reunify with the children.” Bodden described Mother as
uncooperative. Bodden reported dependency jurisdiction over
A.W. was terminated in December 2019, with a legal
guardianship with maternal aunt Ebony, but the case was going
to be reopened to allow Ebony to access financial assistance and
support services; and dependency jurisdiction over C.W. was
scheduled to terminate in February 2020, with a permanent
placement with the biological father. Bodden informed the social
4
One of the reasons DCFS was particularly concerned
about Mother attending all of Leigha’s medical appointments was
because Leigha’s older sister A.W. was hospitalized and
diagnosed with failure to thrive at one month old, and Mother
and Father were under the influence of marijuana when they
brought A.W. to the hospital.
6
worker in the current case that Mother’s drug treatment program
only required her to test once a month.
A different social worker in the current case went to
Vivian’s home on January 17, 2020 to visit Mother and Leigha.
Mother was not home, so the social worker left a business card
with a maternal relative. The same day, Mother called the social
worker. Using profanity, Mother asserted there was no cause for
a DCFS investigation regarding Leigha and she did not want the
social worker coming to her home. When the social worker
requested documentation of her enrollment in a drug treatment
program, Mother told the social worker to talk to CSW Bodden
and access the information from the dependency case involving
her two older children.
DCFS searched public records and discovered Father was
listed as living at Vivian’s home with Mother and Leigha
(although Mother previously told DCFS she had not heard from
Father and planned to raise Leigha on her own). DCFS learned
from law enforcement that there were “chronic” family disputes
at the home. Most recently, on December 16 and 17, 2019, law
enforcement responded to the home regarding a dispute between
Mother and one of her brothers.
DCFS sought a court order to remove Leigha from Mother’s
and Father’s custody. On January 28, 2020, the judicial officer
who presided over the dependency case of A.W. and C.W., signed
an order authorizing DCFS to remove Leigha from Father, but
not from Mother. On January 29, 2020, DCFS social workers and
a police officer went to the family home to serve the removal
order on Father and to provide Mother with notice of the
detention hearing in this case. The social workers reported in the
7
Detention Report that they noticed a strong odor of marijuana
coming from the home as they approached.
Father was cooperative; Mother was not. Father agreed to
leave the family home. Mother came outside and cursed at the
social worker with whom she had had prior contact in this case
and ordered her to leave the property. Mother refused requests
from the social worker and the police officer to check on Leigha.
Father retrieved Leigha from inside the home and told Mother to
calm down and allow the social workers and police officer to do
their jobs. Mother took Leigha from Father and moved toward
the door to the house. Father stood by the door and asked
Mother to let them see the child. Mother hesitantly allowed the
social worker to take a photo of Leigha and then walked toward
the door. Using profanity, Mother ordered the social worker to
leave the porch.
In the Detention Report, DCFS recommended the juvenile
court detain Leigha from Mother due to Mother’s unresolved
substance abuse issues. DCFS noted Mother did not begin
participating in the drug treatment program until after her
reunification services were terminated in the dependency case
involving A.W. and C.W., which commenced due to Mother’s
substance abuse. DCFS attached to the Detention Report
progress reports from the drug treatment program, dated
November 5 and December 6, 2019, stating, in pertinent part: (1)
Mother enrolled in the program on July 23, 2019; (2) she was
required to take one random drug and alcohol test per month; (3)
she tested positive for marijuana on August 1 and September 30,
2019; (4) she tested negative for all substances on October 14,
2019 and November 25, 2019; (5) she successfully completed all
program requirements on November 26, 2019, including 10
8
individual counseling sessions, 13 relapse prevention group
sessions, and eight parenting group sessions; (6) she was moving
into the recovery support services phase of the program in which
she would attend six hours of parenting group sessions and one
hour of individual counseling per month; and (7) she was
expected to graduate from this phase of the program at the end of
January 2020. There was no further progress report attached to
the February 3, 2020 Detention Report.
On January 31, 2020, DCFS filed the current dependency
proceeding under section 300, subdivisions (b) and (j), alleging:
“[Mother] has a history of substance abuse including
marijuana, opiates, and methamphetamine and is a current
abuser of marijuana, which renders the mother incapable of
providing regular care and supervision of the child [Leigha]. The
mother abused marijuana during the mother’s pregnancy with
the child. On 08/01/2019 and 09/30/2019, the mother had positive
toxicology screens for marijuana. The child is of such young age
requiring constant care and supervision and the mother’s
substance abuse interferes with providing regular care and
supervision of the child. The child’s siblings C[.]W[.] . . . and
A[.]W[.] . . . are current dependents of the Juvenile Court and the
sibling A[.W.] is receiving Permanent Placement services due to
the mother’s substance abuse and [Father’s] failure to protect the
child’s sibling A[.W.] [Father] knew of the mother’s substance
abuse and failed to take action to protect the child. The mother’s
substance abuse and the father’s failure to take action to protect
the child endangers the child’s physical health and safety, and
places the child at risk of serious physical harm, damage, danger,
and failure to protect.” (Counts b-1 & j-1.)
9
“[Father] has a history of substance abuse including
marijuana, which renders the father incapable of providing
regular [care] and supervision of the child [Leigha]. The child is
of such young age requiring constant care and supervision and
the father’s substance abuse interferes with providing regular
care and supervision of the child. The child’s sibling A[.W.] . . . is
a current dependent of the Juvenile Court and is receiving
Permanent Placement services due to the father’s substance
abuse and [Mother’s] failure to protect. [Mother] knew of the
father’s substance abuse and failed to protect the child by
allowing the father unlimited access to the child. The father’s
substance abuse and the mother’s failure to protect the child
endangers the child’s physical health and safety, and places the
child at risk of serious physical harm, damage, danger, and
failure to protect.” (Counts b-2 & j-2.)
Mother and Father appeared at the detention hearing on
February 3, 2020. The juvenile court found DCFS made a prima
facie showing that Leigha was a person described by section 300.
The court ordered Leigha detained from Father. Over DCFS’s
objection, the court ordered Leigha to remain released to Mother.
Mother’s counsel supported Leigha’s release to Mother if the
court imposed a safety plan. The court imposed the following
conditions on the release: (1) Mother must submit to weekly drug
testing; (2) Mother must make Leigha available for unannounced
home visits by DCFS; (3) Father may not live in the family home;
and (4) DCFS must provide Mother with family preservation
referrals and Mother must comply with family preservation
services.
10
On February 13, 2020, DCFS referred Mother for weekly
drug testing and informed her that a missed test would be
considered a positive test.
A dependency investigator met with Mother on February
25, 2020. Mother presented well and welcomed the investigator
into the family home. The investigator provided Mother with a
list of referrals for family preservation services, and Mother
signed a letter confirming receipt of the referrals. Mother denied
current drug use but stated she did not believe her or Father’s
drug use interfered with their ability to parent. She stated she
was still enrolled in the drug treatment program, was
participating in parenting classes, and attended therapy once a
month for her depression. The investigator observed Leigha, who
appeared to be doing well. Leigha missed a medical appointment
on February 20, 2020 because Mother brought Leigha to the
appointment more than an hour late and then refused to wait for
Leigha to be seen. But Mother took Leigha to an appointment on
March 5, 2020, and Leigha was deemed healthy. On March 6,
2020, a new social worker met with Mother to again complete a
safety plan to address DCFS’s concerns and to ensure Mother
was abiding by the juvenile court’s conditions for Leigha’s release
to Mother.
Mother failed to show for drug tests on February 20 and 26
and March 6 and 26, 2020. Mother blamed the missed tests on
her bad memory. Mother tested negative for drugs on March 5,
13, 18, and 27 and April 1, 2020.
At the end of March 2020, although DCFS deemed Mother’s
compliance with family preservation services to be “inconsistent,”
DCFS recommended Leigha remain in Mother’s home and
participate in family maintenance services, including weekly
11
drug testing, substance abuse counseling, parenting classes, a
mental health assessment, and individual therapy. DCFS also
deemed Mother’s compliance with Leigha’s routine health care to
be inconsistent and in need of improvement.
On April 8, 2020, Mother’s family preservation services
caseworker informed the social worker that she had only had one
session with Mother due to the COVID-19 pandemic. During the
virtual session, Mother “was actively engaged, receptive to
information, and open to services.”
B. Leigha’s detention from Mother and DCFS’s ex
parte application under section 385
On May 31, 2020, DCFS sought a court order to remove
Leigha from Mother’s custody. In the application, DCFS
explained on May 15, 2020, it received a referral alleging Mother,
Leigha, and Leigha’s sibling A.W. and half sibling C.W. were
“involved in a gang related shooting at the [family] home.” The
reporting party stated the police searched the family home and
were “looking to arrest [M]other,” who had left the home with two
of her brothers who were associated with a gang.
The day DCFS received the referral, May 15, 2020, the
social worker called Mother to assess her and Leigha’s safety.
Mother did not answer, so the social worker left a voice mail
message for Mother.
Also on May 15, 2020, the social worker called Mother’s
sister Ebony, who stated she was at the family home with the
children (Leigha, A.W. and C.W.) in early May 2020, when she
12
5
heard gunshots outside the home. According to Ebony, after the
gunshots, Mother and some of their brothers ran into the home.
Soon thereafter, Mother and one their brothers left the home.
The children were taken to McDonald’s to meet another aunt,
6
Am.W. (another of Mother’s sisters).
The social worker contacted Am.W., who stated Leigha
(now four and a half months old) was with family friend, Z.S. On
May 15, 2020, the same day as the referral, the social worker
visited Leigha at Z.S.’s home, with Ebony and Am.W. present.
The social worker noted no safety concerns at that time and left
Leigha with Z.S. Z.S. agreed to inform the social worker if
Mother arrived to pick up Leigha.
The social worker got in touch with Mother by phone on
May 15, 2020 and asked her for an in-person meeting with her
and Leigha to discuss the shooting and to assess Leigha’s safety
and well-being. Mother refused to meet in person or provide the
address where she was staying. Mother confirmed there was a
shooting near the family home but denied she or her family was
involved. When the social worker asked who was present at the
time of the shooting, Mother refused to answer. Mother told the
social worker Leigha was staying with Ebony. The social worker
expressed concern that Mother did not know the whereabouts of
her infant daughter, who had been passed around to family
5
Apparently, Mother had arranged for Ebony to care for
Leigha while Mother and Vivian (Leigha’s maternal great-
grandmother) recovered from COVID-19.
6
It is not clear from the way DCFS’s reports are written
whether it was Mother or Ebony who brought the children to
Am.W.
13
members and a family friend. Mother responded that they could
do whatever they wanted with her child because she trusted
them with Leigha.
In a subsequent text message, Mother informed the social
worker that the police searched the family home after the
shooting because her brothers had “mandatory” search conditions
(apparently because they were on parole), and not because
anyone in the family was involved in the shooting. In a follow-up
telephone call regarding the shooting on May 18, 2020, Mother
cursed at the social worker and stated she wanted a different
social worker to handle the investigation.
On May 26, 2020, the social worker learned Mother had
been arrested for carrying a loaded firearm in public. On May 29,
2020, Mother was released from jail on her own recognizance.
The next hearing in her criminal case was scheduled for June 18,
2020.
On May 31, 2020, the juvenile court issued an order
authorizing DCFS to remove Leigha from Mother’s custody. On
June 1, 2020, DCFS placed Leigha in foster care due to family
friend Z.S.’s “DCFS history for physical abuse,” requiring DCFS
to conduct further investigation before formally placing Leigha
with Z.S.
On June 4, 2020, DCFS filed an ex parte application under
section 385 for an order terminating the home of parent order
and requesting the juvenile court issue a new order for suitable
placement of Leigha, based on the information set forth above
regarding the shooting and Mother’s arrest. At a June 8, 2020
detention hearing on the ex parte application, at which Mother
appeared, DCFS and Leigha’s counsel asked the juvenile court to
detain Leigha from Mother based on Mother’s failure to abide by
14
the court’s conditions for releasing Leigha to Mother, namely
Mother’s refusal to make Leigha available to DCFS and
participate in family preservation services. The court detained
Leigha from Mother, ordered monitored visitation for Mother,
and ordered DCFS to assess family friend Z.S. for possible
placement.
C. Jurisdiction/disposition
1. DCFS’s reports
In an Interim Review Report for the October 20, 2020
adjudication/disposition hearing, DCFS stated that it had placed
Leigha with Ebony (Mother’s sister), and Leigha was doing well
in her care. Ebony reported that visits between Mother and
Leigha were going well.
The dependency investigator attempted to contact Mother
to interview her for the report, but neither of the telephone
numbers Mother had provided DCFS was in service. Based on
Mother’s most recent contact with the social worker, Mother was
refusing to re-enroll in drug treatment because she believed she
had already completed what she was asked to do and Leigha was
detained from her “ ‘for no reason.’ ” Mother also was refusing to
drug test or participate in a Child and Family Team (CFT)
meeting. Mother failed to show for drug tests on 10 occasions
between June 10 and September 22, 2020.
DCFS recommended the juvenile court sustain the
allegations in the dependency petition, remove Leigha from
Mother and Father, and order reunification services for Mother
(but not Father, whose whereabouts were unknown to DCFS).
2. Hearings
At the adjudication hearing, which began October 20, 2020
and at which Mother appeared, the juvenile court admitted into
15
evidence DCFS’s reports (which include the information
summarized above). The court did not admit into evidence an
exhibit from Mother—which she represented were criminal court
minute orders from her case, stating the criminal court placed
her on informal diversion and dismissed her case in the interests
of justice—because the minute orders did not have her name (or
any defendant’s name) on them. DCFS represented to the court
it had verified that Mother’s criminal case had been dismissed,
and the juvenile court accepted DCFS’s statement.
DCFS urged the juvenile court to sustain the allegations in
the section 300 petition and remove Leigha from Mother and
Father, arguing Mother’s and Father’s substance abuse placed
Leigha at risk of harm. DCFS’s counsel noted Mother had a
“significant history of substance abuse,” as revealed in the
dependency case involving her two older children, and now
Mother was refusing to test or participate in services or attend a
CFT meeting. Counsel further stated DCFS was concerned about
law enforcement’s response to family disturbance calls at the
home, the May 2020 shooting near the home, and Mother’s arrest
for carrying a loaded firearm in public (notwithstanding the
dismissal of the criminal case). Counsel also stated that when
DCFS filed the ex parte application to remove Leigha from
Mother’s custody, DCFS was not only concerned about the
shooting, “it was that Mother was passing the child around to
various family members, wouldn’t tell the worker where she was
staying, [and] refused to meet with the social worker.”
Leigha’s counsel joined in DCFS’s recommendations,
arguing, with Mother’s history of drug use, counsel could not
advocate for placing Leigha with Mother in the absence of any
16
7
recent drug test results. Leigha’s counsel suggested the court
consider ordering unmonitored visitation for Mother if she tested
clean on a certain number of consecutive tests.
Mother’s counsel urged the juvenile court to dismiss the
petition and return Leigha to Mother’s custody, arguing DCFS
had “not alleged any facts that support a finding that the mother
has current substance abuse issues.” Mother’s counsel added:
“On paper, the only real reason the child was removed [from
Mother] was due to the mother’s arrest, which did get resolved,
and the mother did get her charge dismissed.” Counsel suggested
if the court did not immediately release Leigha to Mother, the
court should grant DCFS discretion to release to Mother after
three consecutive clean drug tests.
The juvenile court took judicial notice of its February 3,
2020 minute order from the detention hearing, stating for the
record that the court conditioned Leigha’s release to Mother at
that hearing on the condition that Mother drug test weekly. The
court noted it released Leigha to Mother at that time over
DCFS’s objection. Mother failed to abide by that condition of
Leigha’s release to her. The court continued the
adjudication/disposition hearing to November 17, 2020 to allow
Mother to submit to a few weekly drug tests. The court
admonished Mother that the court would consider a missed drug
test to be a positive test.
Mother did not submit to any drug tests between October
20 and November 17, 2020.
7
According to DCFS’s records, Mother last tested on April
1, 2020, more than six months before the hearing. That test was
negative for drugs.
17
At the November 17, 2020 continued
adjudication/disposition hearing, at which Mother appeared, the
juvenile court took judicial notice of the sustained dependency
petitions, case plans, and minute orders in the dependency case
involving Mother’s two older children (A.W. and C.W.), as well as
the section 364 report concerning C.W. The court noted both
A.W. and C.W. were in permanent plans, not in Mother’s custody.
The juvenile court dismissed the counts alleged in the
section 300 petition under subdivision (b), and sustained the
identical allegations pleaded in the petition under subdivision (j),
as quoted above. In explaining why it found by a preponderance
of the evidence there was a substantial risk of harm to Leigha
based on the allegations, the court reviewed on the record the
history of the siblings’ case and this case. The court noted
Mother had not completed the programs she was asked to do; nor
did Mother submit to weekly drug tests after the court continued
the adjudication/disposition hearing to give her an opportunity to
do so; and Mother failed to communicate with DCFS. For these
reasons, the court decided to remove Leigha from Mother’s
custody.
The juvenile court declared Leigha a dependent of the court
and removed her from Mother and Father, stating clear and
convincing evidence supported the removal order in that “there is
substantial danger if the child [is] returned home to the child’s
physical heath, safety, protection and physical wellbeing, and
there are no reasonable means by which to protect without
removing custody from the mother and father.” The court
granted reunification services for Mother and denied them for
Father (who was not present and was not participating in the
case). The court ordered Mother to complete a case plan,
18
including parenting, individual counseling, and a drug treatment
program with random and on demand every other week testing.
The court also ordered monitored visitation for Mother, granting
DCFS discretion to liberalize Mother’s visits to unmonitored and
overnight visits, “consistent with Mother’s progress in her case
plan.”
DISCUSSION
Mother challenges the sufficiency of the evidence
supporting the juvenile court’s removal of Leigha from her
custody. She also contends the juvenile court and DCFS failed to
comply with duties under ICWA. The facts related to the ICWA
inquiry are set forth below.
I. Removal of Leigha from Mother’s Custody
A juvenile court may take a dependent child from the
physical custody of her parent where “[t]here is or would be a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the
minor’s physical health can be protected without removing the
minor from the minor’s parent’s or guardian’s . . . physical
custody.” (§ 361, subd. (c)(1).)
“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 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. [Citation.] [¶] Before the
court issues a removal order, it must find the child’s welfare
19
requires removal because of a substantial danger, or risk of
danger, to the child’s physical health if he or she is returned
home, and there are no reasonable alternatives to protect the
child. [Citations.] There must be clear and convincing evidence
that removal is the only way to protect the child.” (In re N.M.
(2011) 197 Cal.App.4th 159, 169-170.)
“Whether the conditions in the home present a risk of harm
to the child is a factual issue” to which “we apply the substantial
evidence test.” (In re N.M., supra, 197 Cal.App.4th at p. 170.)
“[A]ppellate review of the sufficiency of the evidence in support of
a finding requiring clear and convincing proof must account for
the level of confidence this standard demands. In a matter such
as the one before us, 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. 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.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-
996.)
We note Mother does not challenge the juvenile court’s
jurisdictional finding that her history of substance abuse and
current abuse of marijuana placed Leigha at risk of serious
physical harm, damage, danger, and failure to protect. Nor does
Mother challenge any aspect of the case plan the court imposed.
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The record before us contains substantial evidence from
which the juvenile court could have found it highly probable that
Leigha’s welfare required removal from Mother because of
Mother’s history of substance abuse. The court expressed serious
concern about Mother’s refusal to participate in services,
including drug testing, in light of her history of substance abuse,
which had resulted in her recent loss of custody of two other
8
children. Leigha was an infant, who required constant care and
supervision, when DCFS removed her from Mother’s custody.
Mother agues the juvenile court and DCFS failed to explore
reasonable means to protect Leigha other than removal. In her
reply brief on appeal, Mother asserts: “Drug testing and
treatment[] could have been ordered by the juvenile court as a
reasonable means to prevent removal. [Citation.] [DCFS] failed
to demonstrate that if [M]other was ordered to drug test and
participate in substance abuse treatment as a condition of having
custody of her daughter, [M]other would not comply or that the
child would still be at risk.” The court continued the
adjudication/disposition hearing to allow Mother an opportunity
to submit to a few drug tests, but Mother refused to test. Mother
had not tested for seven and a half months before the continued
hearing. As Leigha’s counsel stated at the first session of the
8
Mother asserts we must reverse the disposition order
because the juvenile court did not state its reasons for removing
Leigha from Mother’s custody, as required under section 361,
subdivision (e). We disagree. The court clearly indicated it was
removing Leigha from Mother’s custody because Mother’s refusal
to participate in services, including drug testing, was seriously
concerning to the court in light of Mother’s history of substance
abuse.
21
adjudication/disposition hearing, Leigha’s safety with Mother
could not be assessed in the absence of drug test results, given
Mother’s history of substance abuse.
Mother also refused to communicate with DCFS so that
DCFS could assess Leigha’s safety in Mother’s custody. Before
DCFS lost touch with Mother, Mother refused to schedule an in-
person meeting with DCFS after the shooting and refused to
provide DCFS with her address. She also refused to make Leigha
available to DCFS and refused to participate in a CFT meeting.
Then DCFS lost touch with Mother altogether when Mother’s
phone numbers stopped working, and Mother failed to provide
DCFS with a new phone number.
The juvenile court and DCFS could not explore reasonable
means to protect Leigha without removing her from Mother’s
custody if Mother refused to participate in services, refused to
drug test, and refused to have any communication with DCFS.
Substantial evidence supports the juvenile court’s decision to
remove Leigha from Mother’s custody.
II. ICWA Inquiry
A. Proceedings below
As set forth in the Detention Report in this case, in the
prior dependency proceeding involving Mother and Leigha’s
sibling and half sibling, the juvenile court found ICWA did not
apply.
When the social worker visited Mother in the hospital at
the end of December 2019, after Leigha’s birth, Mother reported
her family had Cherokee, Blackfoot and Chippewa Native
American ancestry.
On an attachment (form ICWA-010(A)) to the dependency
petition in this case, filed on January 31, 2020, DCFS checked a
22
box indicating the “child may have Indian ancestry,” based on
Mother’s recent report. DCFS also noted a minute order from the
dependency case involving Leigha’s sibling and half sibling stated
ICWA did not apply.
On February 3, 2020, the day of the detention hearing,
Mother filled out and signed form ICWA-020, “Parental
Notification of Indian Status.” She checked the box stating, “One
or more of my parents, grandparents, or other lineal ancestors is
or was a member of a federally recognized tribe,” listed the tribe
as Cherokee, and wrote maternal great-aunt, Diane W. Father
also filled out form ICWA-020, indicating he did not believe he
had any Indian ancestry.
At the February 3, 2020 detention hearing, the juvenile
court stated Mother “believes there is Cherokee on her side of the
family through the maternal great aunt,” so the court ordered
DCFS to send ICWA notices to the Cherokee Nation, Bureau of
Indian Affairs (BIA), and the Secretary of the Interior. The
court’s minute order from the detention hearing states DCFS was
ordered to investigate Mother’s claim of Indian ancestry. The
court found it had no reason to know ICWA applies to Father.
On February 26, 2020, DCFS mailed ICWA notices (form
ICWA-030) to all appropriate Cherokee, Blackfoot, and Chippewa
tribes, and the BIA. On the form notice, DCFS listed Mother’s
and Father’s names, addresses, and dates of birth; the names of
Mother’s parents and paternal grandparents; the address for
Mother’s paternal grandmother, Vivian (with whom Mother
lived); and the possible tribal affiliation for all persons listed. In
a Last Minute Information for the Court, dated March 27, 2020,
DCFS reported it had received return receipts from the tribes and
the BIA and attached them to the report. In addition, eight
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tribes sent letters to DCFS indicating Leigha is not an Indian
child.
On October 19, 2020, DCFS received a letter from the
Cherokee Nation, indicating Vivian is an enrolled member of the
tribe, and listing Vivian’s enrollment number. The letter also
states, in pertinent part: “At this time, the child is NOT an
‘Indian child’ in relation to the Cherokee Nation as defined in
[ICWA]. Therefore, the Cherokee Nation does not have legal
standing to intervene or participate in this matter until the
child/children or eligible parent/s receive membership. Any
incorrect or omitted information could invalidate this
determination.” The Cherokee Nation enclosed with the letter “a
courtesy membership application” for Leigha, with information
pre-filled, including names and dates of birth for Leigha, Mother,
Mother’s father, and Vivian. The application also lists Vivian’s
roll number. In the space for the roll numbers of Mother and her
father, the application states, “application pending.” As set forth
in the Last Minute Information for the Court, the social worker
attempted to contact Mother by telephone regarding the letter
and application from the Cherokee Nation, but the telephone
numbers Mother had provided to DCFS were not in service.
At the adjudication/disposition hearing on October 20,
2020, Mother’s counsel informed the juvenile court that Mother
“did not know of any pending Cherokee Tribe application,”
Mother “will not be bringing up any ICWA issues,” and Mother
wanted to proceed with the adjudication/disposition on October
20. The court stated the ICWA inquiry was “still ongoing” and
asked DCFS to provide an update for the continued November 17,
24
2020 adjudication/disposition hearing, so the court could make an
9
ICWA finding.
At the November 17, 2020 continued
adjudication/disposition hearing, the juvenile court made a
finding that ICWA does not apply based on the letter from the
Cherokee Nation. The court encouraged Mother to proceed with
an application for membership.
B. Analysis
Under ICWA, an “Indian child” is an unmarried person
under 18 years of age who is (1) a member of a federally
recognized Indian tribe or (2) 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. § 1903(4) & (8); see
§ 224.1, subd. (a) [adopting federal definitions].)
DCFS and the juvenile court “have an affirmative and
continuing duty to inquire whether a child” involved in
dependency proceedings “is or may be an Indian child.” (§ 224.2,
subd. (a).) When DCFS detains a child and places that child in
foster care, its duty to inquire “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).)
“At the first appearance in court of each party, the court shall ask
9
As set forth above, the juvenile court continued the
adjudication/disposition hearing from October 20 to November
17, 2020 to provide Mother an opportunity to submit to a few
drug tests.
25
each participant present in the hearing whether the participant
knows or has reason to know that the child is an Indian child”
(§ 224.2, subd. (c)) and order the parents to complete form ICWA-
020 (Parental Notification of Indian Status). (Cal. Rules of Court,
rule 5.481(a)(2)(C).) If the juvenile court or social worker “has
reason to believe that an Indian child is involved in a
proceeding,” the court or social worker “shall make further
inquiry regarding the possible Indian status of the child,”
including, but not limited to: (1) interviewing the parents and
extended family members; (2) contacting the Bureau of Indian
Affairs and the State Department of Social Services for
assistance in identifying and contacting tribes; and (3) contacting
tribes and others “that may reasonably be expected to have
information regarding the child’s membership, citizenship status,
or eligibility.” (§ 224.2, subd. (e).)
ICWA notice is required if DCFS or the juvenile court
knows or has reason to know a child is an Indian child. (25
U.S.C. § 1912(a); § 224, subd. (a); Cal. Rules of Court, rule
5.481(b)(1).)
We review the juvenile court’s ICWA findings under the
substantial evidence standard. (In re Austin J. (2020) 47
Cal.App.5th 870, 885.) “A notice violation under ICWA is subject
to harmless error analysis. [Citation.] ‘An appellant seeking
reversal for lack of proper ICWA notice must show a reasonable
probability that he or she would have obtained a more favorable
result in the absence of the error.’ ” (In re Autumn K. (2013) 221
Cal.App.4th 674, 715.)
Mother contends DCFS failed to make “further inquiry”
regarding Leigha’s possible Indian status, specifically
interviewing family members and having informal contact with
26
the Cherokee Nation, prior to sending ICWA notice to the
Cherokee Nation. She further contends the juvenile court’s
finding that ICWA did not apply was premature until DCFS
made such further inquiry. She also asserts the error was not
harmless because further inquiry by DCFS would have resulted
in complete information about Vivian being listed on the ICWA
notice to the Cherokee Nation, and could have revealed the
identities of other family members who were enrolled in the tribe.
To the extent DCFS and the juvenile court failed to fulfill
the duty of inquiry, any error was clearly harmless. The
Cherokee Nation was able to locate Vivian’s tribal enrollment
information even though the notice DCFS sent omitted Vivian’s
date of birth and failed to indicate whether she was alive or
deceased.
The juvenile court did not err in finding ICWA did not
apply. The Cherokee Nation explained the fact Vivian was an
enrolled member did not mean Leigha was an Indian child.
Mother was apprised of the steps she needed to take to pursue
possible tribal membership for herself and Leigha, and Mother
expressed no inclination to pursue the matter further. The
court’s ICWA finding was not premature, as the Cherokee Nation
determined Leigha was not an Indian child and Mother declined
to take any further action that might alter that determination.
27
DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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