In re Matthew S. CA2/3 ( 2021 )

Filed 10/27/21 In re Matthew S. CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re MATTHEW S. et al., B309692
Persons Coming Under the
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 20LJJP00137A,
20LJJP00137B
Plaintiff and Respondent, 20LJJP00137C)
v.
K.P.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed in part, reversed in part, and remanded with directions.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
——————————
K.P. (mother) appeals from the juvenile court’s
jurisdictional findings as to her three children, four-year-old
M.S., three-year-old J.M., and one-year-old K.M., and from the
dispositional orders removing the children from mother’s custody.
Mother also challenges the juvenile court’s dispositional orders
regarding her visitation with the children and assessment of
relatives for placement of the two younger children.
We are asked to determine whether substantial evidence
supports the juvenile court’s jurisdictional findings and whether
clear and convincing evidence supports the court’s dispositional
orders. We are also asked to determine whether the Los Angeles
County Department of Children and Family Services (the
Department) and the juvenile court complied with the
requirements of the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.) (ICWA).
We conclude that, while the evidence is sufficient to
support the jurisdictional findings, the juvenile court’s
dispositional orders must be reversed because the juvenile court
did not, as required by Welfare and Institutions Code,1 section
361, subdivisions (c) and (e), determine whether there was clear
and convincing evidence that there were no reasonable means to
prevent or to eliminate the need for removal of the children from
mother’s home, and did not state the facts on which the decision
to remove was based, and these errors were prejudicial. For
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
these reasons, and to ensure compliance with ICWA, we reverse
the disposition orders and conditionally affirm the ICWA finding,
and remand for a new dispositional hearing and further
proceedings under ICWA.
BACKGROUND
I. Family history.
Mother first came to the attention of the Department in
September 2017, due to a report that she was neglecting M.S.
The report was closed as inconclusive because M.S. was observed
to be healthy and bonded to mother, and mother agreed to a drug
test, which was positive only for marijuana.
The Department received another report in November
2017, due to a domestic violence incident in which D.M., the
father of the two younger children, hit mother while she was
holding M.S. in her arms and while she was pregnant with J.M.
D.M. was arrested and convicted of a misdemeanor, placed on
probation, and ordered to complete a 52-week domestic violence
program. A criminal protective order was issued, prohibiting
D.M. from having contact with mother.
This incident led the Department to offer voluntary
services to mother and D.M., including family preservation
services, parenting classes, and counseling. Mother and D.M. did
not participate in these services, mother moved to San
Bernardino County, and so the Department closed the voluntary
services case in February 2018 due to loss of contact with the
family.
Mother and D.M. remained in a relationship “on and off”
after this incident and had another child together, K.M., who was
born in late 2019. In June 2019, maternal aunt V. called the
police two times because D.M. was outside refusing to leave or
3
banging on the door. In October 2019, maternal aunt V. called
the police a third time because D.M. knocked on a window and
broke it. D.M. left before the police came; the police issued a
warrant for violation of the criminal protective order.
In early February 2020, mother became upset because
someone informed her that D.M. was “cheating on her,” so she
called the police and informed them of D.M.’s whereabouts, at his
parents’ home. The police arrested D.M. on the outstanding
warrant for the window-breaking incident.
When D.M. was released from jail, he and mother went to
the criminal court together and obtained a modification of the
criminal protective order to allow for peaceful contact for
purposes of visitation exchanges. After leaving the criminal
court, mother and D.M. got into an argument in mother’s car.
Mother became despondent and threatened to commit suicide by
taking pills. According to mother, D.M. said he did not care and
encouraged her to take the pills. He then left mother’s car
without making any attempt to get help, and stole money and
other items from the car. Mother was later found unresponsive
in her car, having taken an overdose of prescription medications
and methamphetamine. Mother was in a coma for two days, and
then was transferred to a psychiatric hospital. She was released
on February 19. In the hospital, mother refused to attend
therapy or a drug program, said she did not have any mental
health or substance abuse problems, and said she did not
remember what happened on February 13.
During the days preceding and following February 13,
2020, the children J.M. and K.M. were cared for by various
relatives. M.S. stayed with his father, pursuant to a family law
order giving mother and M.S.’s father joint custody. A few days
4
before February 13, D.M. had taken J.M. and K.M. from mother’s
home to his parents’ home. There were indications that this was
not a safe situation for the children; mother and maternal
aunt V., when later interviewed by the Department, said
paternal grandmother and her boyfriend drank heavily; paternal
grandmother previously had her children removed; and the
boyfriend was on parole.
After D.M. was arrested, paternal grandmother called
maternal aunt R. and asked her to pick up the children.
Maternal aunt R. kept the children until February 15, but was
unable to continue caring for them. She was also living with
maternal grandfather, who has a criminal record for sex offenses.
Maternal aunt R. brought the children to maternal aunt V.
Maternal aunt V., although willing to care for J.M. and K.M., had
three small children and was pregnant with a fourth. She told a
Department social worker she could not afford to take in mother’s
children as well. Also, maternal aunt V. told the social worker
that K.M. had been sick but she was unable to take her to the
doctor due to lack of authorization by mother. When the social
worker asked mother to make a “safety plan” of allowing the
children to stay with maternal aunt V., and signing an affidavit
authorizing maternal aunt V. to obtain medical care for the
children, mother refused, saying she would be released the next
day and the children would be fine with her.
The Department obtained a removal warrant and detained
the children in a foster home.
II. Dependency proceedings
The Department filed a dependency petition. The petition
alleged four counts concerning mother under section 300,
subdivisions (a) and (b). Counts a-1 and b-4 alleged that the
5
children were at risk of harm due to domestic violence between
mother and D.M., violations of the criminal protective order, and
mother’s failure to protect the children; count b-1 alleged that the
children were at risk of harm due to mother’s mental and
emotional problems and suicide attempt; and count b-2 alleged
that the children were at risk of harm due to mother’s abuse of
methamphetamines, prescription medications and marijuana.2
The petition was later amended to add a b-5 count regarding
M.S.’s father’s use of alcohol and marijuana.3
When interviewed by social workers on February 27 and
March 12, 2020, mother denied any incidents of physical violence
with D.M. since November 2017, but stated that she had been in
a “mentally and emotionally abusive” relationship with him for
many years and that he had driven away her friends and family
members, so she was “left with nothing and nobody but him.”
Mother admitted a history of drug use years ago, but
denied any current drug use. Mother had no explanation as to
why she tested positive for methamphetamine after the February
2 The petition also included a b-3 count regarding D.M.’s
drug use. The juvenile court found the evidence insufficient to
sustain this count and dismissed it, but it was mistakenly
included in the sustained petition. The Department’s July 19,
2021 request for judicial notice as to the juvenile court’s June 25,
2021 minute order correcting the October 16, 2020 minute order,
nunc pro tunc, is granted. The Department’s July 19, 2021
motion to dismiss is granted in part, as to mother’s challenge to
the b-3 count, since this claim is moot.
3 Mother also challenges the sufficiency of the evidence as
to the b-5 count. Mother is not named in that count, and her
counsel made no objection to the juvenile court sustaining it at
trial, so we decline to consider this claim.
6
2020 overdose incident, or why methamphetamine was found in
her possession. When asked about prescription medications,
mother said she was employed by an elderly man, Mr. D., who
allowed her to live in his home rent-free in exchange for
providing care to him, and to keep his medications safe, she
stored them in her purse. Mother also said this man would “try
to buy Norco” from mother and her friends, and they all shared
prescription medications. When interviewed by a social worker,
Mr. D. said he was trying to get mother out of his home because
she was stealing his medications, and had also stolen money from
him and taken his car without permission.
When interviewed by a social worker, maternal aunt V.
said mother was using drugs during her pregnancy with K.M.,
and that she had received text messages from mother admitting
drug use. Maternal aunt V. gave copies of these text messages to
the social worker, and they were included as attachments to the
detention report. D.M. also said he suspected mother was using
drugs because she told him she had used methamphetamines
with M.S.’s father in the past, and she had recently lost weight.
Mother denied having any mental health issues. She said
she had been hospitalized once before at age 13, and had been
forced to participate in therapy as a teenager, but did not think
she currently needed therapy or medication. Nonetheless,
mother contacted a provider of mental health services in
February 2020, was diagnosed with anxiety and depression, and
got a prescription for an antidepressant medication and a referral
for therapy.
At the detention hearing, mother did not appear. The
juvenile court ordered all three children detained from mother
and D.M., released M.S. to his father, and ordered that mother
7
was not to have visits until she made herself available to the
Department.
Between the detention hearing and her arraignment in
July 2020, mother was not in consistent contact with the
Department. Mother had one in-person visit with the children on
March 4, 2020. In mid-March 2020 the Department suspended
in-person visitation in response to the COVID-19 pandemic.
Mother was offered video visits, but was only present for two
such visits, one in May and one in June. On May 5, 2020, mother
responded to an email from the social worker and provided a new
telephone number and address. On June 29, 2020 mother told
the social worker she was speaking with attorneys and planned
to appear for arraignment. Mother was referred for drug testing,
but did not submit to any tests.
Mother made her first appearance in the juvenile court on
July 8, 2020 and counsel was appointed for her. Mother’s counsel
stated that mother was attending Alcoholics Anonymous and
Narcotics Anonymous meetings, parenting classes, and was
“getting into counseling.”
The Department submitted a supplemental report to the
court in September 2020, stating that mother had missed “more
than 75%” of her scheduled video chat visits, had not provided
any documentation showing she was enrolled in any classes or
programs, and had not submitted to any drug tests.
At the jurisdictional hearing in October 2020, the juvenile
court admitted the Department’s evidence and heard argument.
The court sustained counts a-1,4 b-1, and b-2, stating,
“Although the domestic violence occurred in 2017, the
court, after reviewing all of the reports and hearing counsel, does
4 The juvenile court dismissed count b-4 as redundant.
8
feel that the children still are at risk with regard to this
allegation because I don’t see that the parents have really
addressed this issue in a way that wouldn’t pose the children to
be at risk in the future.
“With regard to (b)(1), mother’s mental health issue, I also
agree with [minors’ counsel and county counsel] that the mother’s
mental health issues are so significant. She overdosed in
February of this year. She was involuntarily hospitalized; that
she needs to demonstrate to court that she is—her mental health
is stabilized. And certainly that would impact the child’s well-
being if untreated. [¶] . . . [¶]
“With regard to the (b)(2) count, the court is going to
sustain it. I think that mother’s drug use—as we know that she
had a recent test in February for methamphetamine, I do think
she is in denial about that drug use and she needs to properly
address it through services so that the child can be safely
returned home to her. And that is a particularly dangerous drug
if it goes untreated.”
Prior to the disposition hearing, the Department submitted
a last minute information for the court, stating that the
Department had, after over 6 months of restricting mother to
virtual visits, set up in-person visits for mother once a week, but
mother had failed to show up for one visit in October, had
confirmed too late and therefore missed another visit in
November, and two other visits had been cancelled by the
Department, one due to political unrest and another due to K.M.
being ill. The Department noted, however, that mother was now
attending approximately 85 percent of her thrice-weekly video
visits; she was scheduled to have a mental health assessment;
9
and she had submitted to one drug test in October 2020, which
was negative for all substances.
At the dispositional hearing on December 3, 2020, the court
admitted the Department’s reports into evidence, and county
counsel rested. Mother’s counsel argued that the children should
be released to mother under court supervision, because the
Department had not shown by clear and convincing evidence that
removal was necessary. Mother’s counsel pointed out that
mother’s overdose/suicide attempt was an isolated incident
almost a year ago; since then mother had received a prescription
for antidepressant medication and was engaged in counseling,
referring to an exhibit showing that mother had a therapy
session in October 2020; mother had a recent negative drug test;
and the Department had visited mother’s new residence and not
found any safety hazards other than cigarette smoke odor. The
minors’ counsel joined with the Department in requesting
removal from mother, stating that “[w]hat’s disturbing
is . . . mother not consistently testing and really no evidence of
any ongoing mental health services.” The court then made
dispositional findings and orders as follows:
“ . . . I’m inclined to follow the Department’s
recommendation in this case.
“These children are extremely young: three, two and one.
They need their parents to be sober. [¶] . . . [¶]
“With regard to . . . mother for all three
children . . . pursuant to dependency court order 415, the court is
removing the children from the mother . . . pursuant to
dependency court disposition findings and orders, the terms of
which are contained in this minute order.”
10
III. ICWA
When interviewed by social workers in February and
March 2020, mother stated she did not have any Native
American heritage. However, at her first appearance in juvenile
court in July 2020, mother filled out a form indicating that
maternal grandfather may have Indian ancestry. In response to
questions from the court, mother said she did not have a
telephone number for maternal grandfather, but he lived in the
area and she could probably reach him through Facebook.
Mother said she was “not 100 percent sure,” but thought he had
told her “we’re some type of something like Indian” when she was
a teenager. Mother said maternal grandfather was the most
knowledgeable family member about Indian ancestry.
The court ordered the Department to investigate this claim,
“including but not limited to speaking further with mother and
any relatives that she can identify who may have knowledge
regarding potential Indian ancestry” and “to provide . . . notice to
any Indian Tribes or government agencies that are revealed
through the Department’s investigation as requiring notice.”
In August 2020, the Department contacted mother, who did
not provide any additional information, and tried to call maternal
grandfather, but did not have a working telephone number for
him. The Department then sent notices to the Bureau of Indian
Affairs listing mother’s name; maternal grandfather’s name and
date of birth; and some maternal great-grandparents’ names, but
no information about possible tribal affiliation. The Bureau of
Indian Affairs responded in September 2020 that the notices
contained insufficient information to determine tribal affiliation.
At the jurisdictional hearing on October 16, 2020, the court
again asked mother about Indian ancestry. She did not provide
11
any additional information. The court concluded “[t]hat’s kind of
a dead end. There’s just some rumor that her father may have
had Indian ancestry, but that’s not enough for the Department to
go on.” At the dispositional hearing on December 3, 2020, county
counsel requested a finding that there is no reason to know that
ICWA applies, and the court made this finding.
During the pendency of this appeal, the Department
interviewed maternal aunts R. and V. about possible Indian
heritage, and obtained contact information from them for
maternal grandfather.5 Maternal aunts did not have any
additional information. Maternal grandfather stated that his
mother “said something like there is a portion, but I don’t know if
that passes down to my children.” When asked what tribe,
maternal grandfather replied, “I don’t know it might have had a
foot at the end of it.”
DISCUSSION
I. The jurisdictional findings are supported by substantial
evidence.
In reviewing the sufficiency of the evidence to support the
juvenile court’s jurisdictional findings, we determine whether the
record as a whole contains substantial evidence supporting these
findings, and draw all reasonable inferences in support of the
court’s findings. (In re Savannah M. (2005) 131 Cal.App.4th
1387, 1393–1394; In re James R. (2009) 176 Cal.App.4th 129,
135.)
5 The Department’s July 19, 2021 request for judicial
notice, as to the Department’s post-appeal ICWA inquiries, is
granted. The Department’s July 19, 2021 motion to dismiss is
denied in part, as to mother’s challenge to the juvenile court’s
ICWA findings.
12
We conclude that substantial evidence supports the counts
regarding domestic violence (a-1) and mother’s substance abuse
(b-2), so we need not consider whether the count regarding
mother’s mental health issues (b-1), by itself, would support
jurisdiction. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Mother points out that the most recent incident of physical
violence between mother and D.M. occurred almost four years
before the jurisdictional hearing in this case. She relies on In re
Ma.V. (2021) 64 Cal.App.5th 11, In re Jesus M. (2015) 235
Cal.App.4th 104, and In re Daisy H. (2011) 192 Cal.App.4th 713,
in which the appellate courts concluded that incidents of
domestic violence occurring many months or years prior to the
filing of a dependency petition were insufficient to support
dependency jurisdiction.
These cases are distinguishable. Unlike the parents in In
re Ma.V., In re Jesus M., and In re Daisy H., who had all
separated prior to the filing of the dependency case, mother and
D.M. did not either separate permanently after the 2017 incident,
or take any steps to address the issue of domestic violence, but
remained in a volatile “on and off” relationship at least until
February 2020. Also, two of the children were directly ‘in the
crossfire’ and at risk of serious physical harm during the
November 2017 incident—mother was holding M.S. and was
pregnant with J.M.—and there was a more recent incident in
October 2019 that placed the children at risk of physical harm
when D.M. broke a window in the home.
In In re John M. (2013) 217 Cal.App.4th 410, this court
concluded that a single incident of domestic violence almost a
year prior to the jurisdictional hearing, during which the child
was not present, was a sufficient basis for jurisdiction. The court
13
stated that, “ ‘[i]n evaluating risk based on a single episode of
endangering conduct, a juvenile court should consider the nature
of the conduct and all surrounding circumstances. It should also
consider the present circumstances, which might
include . . . evidence of the parent’s current understanding of and
attitude toward the past conduct that endangered a child, or
participation in educational programs, or other steps taken[ ] by
the parent to address the problematic conduct in the
interim . . . . The nature and circumstances of a single incident of
harmful or potentially harmful conduct may be sufficient, in a
particular case, to establish current risk.’ ” (Id. at pp. 418–419,
disapproved on another ground in In re R.T. (2017) 3 Cal.5th 622,
628.)
Domestic violence is a pattern of conduct that includes, but
is not limited to, physical assault. (See In re John M., supra, 217
Cal.App.4th at p. 419 [finding “parents’ history of domestic
violence evidences an ongoing pattern,” including not only the
parents hitting each other, but also frequent verbal altercations,
and father engaging in reckless driving with mother in the car, so
there was a risk that father would in the future “engage in angry
and violent behavior toward” the child].)
Although the jurisdictional finding at issue in In re
John M., supra, 217 Cal.App.4th 410 was pled as a section 300,
subdivision (b) count, the court’s reasoning applies equally to the
subdivision (a) count at issue in this case. (See In re Nathan E.
(2021) 61 Cal.App.5th 114, 119 [many cases based on exposure to
domestic violence are filed under subdivision (b), but subdivision
(a) may also apply where a child is at risk of suffering serious
physical harm due to a parent’s “nonaccidental conduct” of
engaging in domestic violence].)
14
In this case, at least once in the past D.M. had physically
assaulted mother without regard to the fact that she was holding
a baby in her arms and was pregnant. Mother admitted that her
ongoing relationship with D.M. was “mentally and emotionally
abusive,” and that he had isolated her from friends and family so
that she had “nothing and nobody but him” to rely on, rendering
her less able to protect herself and her children from future
physical harm. Moreover, the juvenile court could reasonably
infer from the evidence that D.M. had either encouraged mother
to commit suicide in February 2020, or at least took no action in
the face of a life-threatening drug overdose, and that mother’s
vulnerability and D.M.’s callous disregard for her life and safety
increased the likelihood that the children would be harmed in the
future by D.M.’s violent conduct.
Since we conclude the evidence was sufficient to support
the a-1 count regarding domestic violence between mother and
D.M., it is not necessary to consider the sufficiency of the
evidence as to the b-1 count regarding mother’s mental health
problems.
We will, however, briefly discuss the evidence supporting
the b-2 count concerning drug abuse, as it is also pertinent to the
juvenile court’s dispositional orders. Mother’s counsel
characterizes mother’s February 2020 overdose as an “isolated
incident,” but there was substantial evidence that she had an
ongoing drug problem. Mother did not have any plausible
explanation for having methamphetamine in her possession, and
testing positive for methamphetamine, in February 2020.
Mother had also taken prescription drugs that did not belong to
her, and admitted that she and “her friends” would share
prescription drugs including Norco, an opioid medication. Two
15
close family members who had ongoing contact with mother,
maternal aunt V. and D.M., gave specific, concrete reasons for
their belief that mother was using drugs. Mother was
responsible for the care of an elderly man, who stated that she
had stolen prescription medications and money from him, a clear
indication of “ ‘failure to fulfill major role obligations at work’ ”
which may support an inference of substance abuse. (In re
Drake M. (2012) 211 Cal.App.4th 754, 766; In re Christopher R.
(2014) 225 Cal.App.4th 1210, 1219.)6
There is a clear nexus between mother’s substance abuse
and risk of harm to her children, in light of their young age and
mother’s failure to make safe and stable childcare arrangements
for them either before or after the February 13, 2020 incident.
6 The Department relies on In re Christopher R., supra, 225
Cal.App.4th at p. 1217, to argue that mother’s failure to submit
to drug testing between detention and the jurisdictional hearing
is evidence of her ongoing drug use. A parent’s failure to comply
with a court-ordered drug test “ ‘is rightfully looked upon as a
positive test.’ ” (In re Lana S. (2012) 207 Cal.App.4th 94, 104,
fn. 5; In re N.M. (2003) 108 Cal.App.4th 845, 857 [if a parent fails
to test as required by a court-ordered case plan, “ ‘the test will be
considered positive for controlled substances’ ”].) But we do not
believe this inference is appropriate when a parent has not been
court-ordered to test, and merely declines to submit to voluntary
drug testing. The Department cannot rely solely on a parent’s
failure to submit to voluntary testing, to prove a drug abuse
allegation. The trial court may, however, take the fact that a
parent denies drug use but avoids testing into account, along
with all the other evidence, in determining whether the
Department has met its burden of proof. In this case, even
without drawing any inferences from mother’s missed tests, the
b-2 count concerning mother’s drug abuse is supported by
substantial evidence.
16
(See In re Christopher R., supra, 225 Cal.App.4th at pp. 1217,
1219 [parent’s “cavalier attitude toward childcare,” and “tender
years” of children, supported finding of substance abuse and
inability to provide regular care resulting in risk of harm].)
Therefore, the b-2 count is also supported by substantial
evidence.
II. The dispositional orders must be reversed
Our conclusion that substantial evidence supports the
juvenile court’s jurisdictional findings does not end the inquiry.
The governing statutes require a different focus, and a
heightened burden of proof, at the dispositional stage of a
dependency case. (See, e.g., § 361, subd. (c)(1).)
Section 361, subdivision (c)(1) provides that a “dependent
child shall not be taken from the physical custody of his or her
parents . . . unless the juvenile court finds clear and convincing
evidence” of one of several enumerated grounds for removal,
including “[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
parents.” Subdivision (e) further provides that the juvenile court
“shall make a determination as to whether reasonable efforts
were made to prevent or eliminate the need for removal” and
“ ‘shall state the facts on which the decision to remove the minor
is based.’ ” (See In re D.P. (2020) 44 Cal.App.5th 1058, 1065.)
This additional inquiry and heightened burden of proof are
“ ‘premised on the notion that’ ” even after parents have been
found to have abused or neglected their children, “ ‘keeping
children with their parents while proceedings are pending,
17
whenever safely possible, serves not only to protect parents’
rights but also children’s and society’s best interests.’ ” (In re
D.P., supra, 44 Cal.App.5th at pp. 1066–1067; In re I.R. (2021) 61
Cal.App.5th 510, 520 [“ ‘[b]ecause we so abhor the involuntary
separation of parent and child, the state may disturb an existing
parent-child relationship only for strong reasons and subject to
careful procedures’ ”].)
Although this court must still draw all reasonable
inferences in support of the juvenile court’s orders, we also keep
in mind that dispositional orders must be based on the higher
standard of clear and convincing evidence. (In re Nathan E.,
supra, 61 Cal.App.5th at pp. 122–123; In re I.R., supra, 61
Cal.App.5th at p. 520.) It is not necessarily true, as the
Department asserts, that “the same evidence that supports the
jurisdictional findings also supports the removal order.” Instead,
when we are “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.” (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 995–996, 1011.)
The Department was required to discuss, in its reports to
the court, reasonable efforts to prevent or eliminate the need for
removal. (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) This
requirement, and the corresponding section 361, subdivision (e)
requirement that the juvenile court explicitly state the facts
supporting removal, play important roles in the statutory
scheme. (In re D.P., supra, 44 Cal.App.5th at p. 1067; In re Ashly
(2014) 225 Cal.App.4th 803, 810.) Without these requirements,
18
“ ‘reasonable efforts’ ” can become a hollow formula. (Ashly F., at
p. 810.)
The Department’s jurisdiction/disposition report, submitted
in April 2020, contains no substantive consideration of any
reasonable means by which the children could be protected
without removing them from mother. Under the heading
“Child(ren)’s Safety In Home,” the report contains only a
conclusory recitation that “the risk level for future abuse and
neglect is very high based off current substance abuse, domestic
violence, prior child welfare history, prior criminal history, the
young ages of the children and [mother]’s unmet mental health
needs.” Under the heading “Reasonable Efforts,” the report
contains only a list of routine actions the Department social
workers had taken, including “regular in person and telephonic
contact” with the children, mother, and the fathers; “case
management services (including service referrals and linkages”;
“crisis intervention, as needed”; interviews; notices of hearings;
contact with services providers; referrals for drug testing; and
referral of mother to drug court. The Department’s various
supplemental reports and last minute information forms contain
no further discussion of reasonable means to avoid the need for
removal from mother.
The juvenile court did not, as required by section 361,
subdivision (e), explicitly state the facts supporting its removal
order. The court’s brief comment on the ages of the children and
their need for sober parents, and reliance on the generic language
of “Dependency Court Order 415,” are not an adequate substitute
for a case-specific discussion of the facts as of the time of
disposition, the current risks to the children, and the means
available, if any, to address these risks without removing the
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children from mother. (In re D.P., supra, 44 Cal.App.5th at
p. 1067.)
The section 361, subdivision (e) requirement is not a mere
technicality. The process of articulating what evidence meets the
clear and convincing standard, and why there are no reasonable
means to protect the children without removing them from a
parent, can materially affect the juvenile court’s decisionmaking
process. (See In re J.S. (2011) 196 Cal.App.4th 1069, 1078
[requirement to make express finding on contested issue or
statement of reasons for judicial decision “can directly influence
the trial court’s actual reasoning process by compelling it to
consciously consider and resolve specified issues”].)
Given the specific facts of this case, we cannot find that this
omission was harmless error. There is at least a reasonable
probability that the court would have reached a different result if
the Department had complied with California Rules of Court,
rule 5.690(a)(1)(B)(i), and if the juvenile court had consciously
considered and explicitly stated whether the need for removal
was proven by clear and convincing evidence.
At the time of the dispositional hearing, almost 10 months
had passed since the detention hearing (due to court closures and
delays caused by the COVID pandemic). Mother had appeared at
each court hearing after her arraignment in July 2020. Mother
had started therapy, submitted to a drug test which was negative
for all substances, had a new residence which the Department
had visited and assessed for safety hazards, and was consistently
attending “video chat” visits with her children. There was no
evidence of any further domestic violence incidents—or even any
ongoing contact—between mother and D.M. (See In re D.P.,
supra, 44 Cal.App.5th at p. 1068 [finding “reasonable chance”
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that juvenile court would have reached different conclusion if it
had complied with § 361, subd. (e), in light of changed
circumstances between the time the dependency petition was
filed and the time of the dispositional hearing]; In re Ashly F.,
supra, 225 Cal.App.4th at p. 811 [same]; In re Ma.V., supra, 64
Cal.App.5th at p. 25 [dispositional orders removing children from
parent must be based on proof of current risk and lack of
reasonable means to prevent removal; noting that over 10 months
had passed between detention and dispositional hearing, no
further domestic violence incidents had occurred, and “mother
managed to improve her situation during a year that was
stressful and difficult under the best of circumstances”]; In re
I.R., supra, 61 Cal.App.5th at pp. 521–522 [reversing
dispositional order removing child where there was no evidence of
continuing domestic violence or contact between mother and
father since the time of detention].)
To address the juvenile court’s concern that these young
children needed sober parents, the court could order mother to
participate in a drug program and submit to testing. To address
the domestic violence issue, the court could order mother to
participate in a domestic violence counseling program, and to
enforce the criminal protective order and ensure that the children
had no contact with D.M. other than during his court-ordered
visitation. To address concerns about mother’s mental health,
the court could order her to continue participating in therapy,
and to consistently take any prescribed medications. (See In re
Basilio T. (1992) 4 Cal.App.4th 155, 171–172 [reversing order
removing child where trial court “failed to consider less drastic
measures than removal” such as return to parents “under strict
supervision”].) The record is devoid of any indication that any of
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these alternatives to removal were considered, either by the
Department or the court.
It may be that the evidence before the juvenile court on
remand—including evidence of events occurring after December
2020—will be sufficient to show that these children cannot be
protected from harm by any reasonable means other than
continued removal from mother’s custody.7 But parents in
dependency cases are entitled to the safeguards provided by
section 361, subdivisions (c) and (e) against hasty or needless
removal of their children, even if later events bolster the
Department’s case for removal. For this reason, we remand for a
new dispositional hearing.8
III. The ICWA finding is conditionally affirmed
Remand is also necessary to ensure compliance with ICWA.
The Department, after this appeal was filed, took some actions to
address mother’s claims that it had not complied with the inquiry
and notice provisions of ICWA, including the obvious step of
asking maternal aunts V. and R. for information about Indian
heritage and for maternal grandfather’s telephone number. Once
the Department contacted maternal grandfather, he confirmed
7 Mother’s August 11, 2021 request for judicial notice, as to
further findings and orders made by the juvenile court while this
appeal was pending, is denied, as it was not necessary to consider
to these later findings and orders.
8Mother also challenges the juvenile court’s dispositional
orders regarding her visits with the children, and placement of
the two younger children. Given our conclusion that the
dispositional order removing the children from mother’s
placement must be reversed and the matter remanded for a new
dispositional hearing, we need not reach these issues.
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that his mother claimed Indian heritage through affiliation with
a tribe with “a foot at the end of it”—likely referring to the
Blackfoot tribe. Having obtained this information, the
Department should send updated notices to the Blackfoot tribe as
well as the Bureau of Indian Affairs including additional
information such as mother’s date and place of birth (which were
omitted in the original notices), maternal grandfather’s current
and former addresses and place of birth, and maternal great-
grandmother’s date and place of birth, date of death, and any
other information that maternal grandfather may be able to
provide. (§§ 224.2, subd. (e) & 224.3.)
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DISPOSITION
The jurisdictional findings are affirmed. The dispositional
orders are reversed, and the matter is remanded to the juvenile
court with directions to (1) hold another disposition hearing, and
(2) order the Department of Children and Family Services to
comply with ICWA and with Welfare and Institutions Code
sections 224.2 and 224.3 for inquiry and subsequent notice if
Indian heritage is indicated.
NOT TO BE PUBLISHED.
MATTHEWS, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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