In re K.C. CA1/2 ( 2023 )

Filed 3/13/23 In re K.C. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
In re K.C., a Person Coming Under
the Juvenile Court Law.
MARIN COUNTY HEALTH AND
HUMAN SERVICES,
A165165
Plaintiff and Respondent,
v. (Marin County
Super. Ct. No. JV27035)
E.C.,
Defendant and Appellant.
This is the second time this dependency case is before us. The original
dispositional order removed an infant, K.C., from her parents’ custody due to
drug abuse by K.A. (mother) and the failure of E.C. (father) to protect the
child. We held the juvenile court had erred in removing the infant from
father’s custody and reversed the dispositional order with directions to
conduct a new hearing based on current circumstances. (In re K.C. (Nov. 18,
2021, A162399) [nonpub. opn.] (K.C. I).)
On remand, a supplemental petition was filed alleging that father also
had an unresolved substance abuse problem. The court sustained the
supplemental petition, and it then entered a new dispositional order
1
continuing the child in out-of-home placement, ordering another round of
reunification services and declining father’s request to have his daughter
returned to his custody.
Father again appeals. He raises challenges to the supplemental
jurisdictional findings and the dispositional order, all premised on
contentions that there is insufficient evidence he posed a risk to the child. He
also raises issues concerning the relative placement preference and ICWA.
We reject his arguments and affirm in all respects.
BACKGROUND
A. Commencement of the Case and the Initial Disposition
Order
We briefly summarize the facts leading up to the initial dispositional
order which, except where indicated, are set forth more fully in our prior
opinion. (K.C. I.)
K.C. was detained as an infant, at age three and a half months, when
she was found alone with mother in a hotel room littered with drugs and drug
paraphernalia, while mother appeared to be under the influence of either
heroin or marijuana. Father was called to the scene, reported having gotten
into a “disagreement” with mother in the hotel room the previous night, but
denied knowing mother had been using drugs, and denied being romantically
involved with her any longer. He said that after the fight with mother, he
stayed overnight in the hotel room with the baby along with a “friend” with
whom he cohabitated while mother slept outside in his truck. Mother was
arrested and Marin County Health and Human Services (the Department)
commenced these proceedings.
At the time of detention, father told the Department he himself had
been clean since 2007, had “zero tolerance” for mother’s drug use, and had
2
broken up with mother during her pregnancy with their daughter because of
it.
In multiple reports prepared for the jurisdictional and dispositional
hearing, the sole concern the Department expressed about father was his
apparent difficulty prioritizing himself and the baby’s needs over what
appeared to be a co-dependent relationship with mother, including doubts as
to whether he was truly unaware of mother’s drug use. He otherwise
appeared to be a kind, hard-working person who simply needed support
services to help him separate from mother, prioritize the baby’s safety and
welfare over mother’s needs and provide a stable home environment for the
child.
It would later come to light, however, that father had supplied the
Department with a false birthdate, which concealed a lengthy criminal
record. Due to the incorrect birthdate, his criminal records check had come
back clean. In reality, he had a history of arrests and convictions dating back
20 years, which the Department did not discover until long after the first
dispositional hearing. Unbeknownst to the Department at the time of that
first hearing, his record included three prior convictions on drug possession
charges, including one (in 2013, a felony) that occurred five years after he
claimed to have gotten clean and sober. The Department also was unaware
of the fact that father was facing pending drug charges while the dependency
case was underway (for possession and transport of a controlled substance),
after an arrest that took place a week before K.C.’s birth and less than four
months before the incident in the hotel room that led to her detention.
Mother, then eight months pregnant, had been with father at the time; police
found methamphetamine in their possession (which mother claimed belonged
to her) and large amounts of cash in their car; and both had been arrested.
3
As noted, the Department knew none of this information at the time of
the original jurisdiction/disposition hearing, which was held on February 25,
2021.
At that hearing, father continued to deny that he knew of mother’s
drug use, and mother absolved him of any involvement. She admitted the
drug use allegations against her, testified father had nothing to do with her
drug use and did not know about it, and testified she had been lying to him to
cover it up because he has “tried to do everything right” and “would have
been so against it.”
At the conclusion of the first jurisdiction/disposition hearing, the court
sustained the allegations of the petition and K.C. was declared a dependent
under Welfare and Institutions Code section 300, subdivision (b).1 The court
ordered her removed from both parents’ physical custody and ordered
reunification services. Both parents then appealed the disposition order.
B. The Reunification Phase and Our Reversal
While the first appeal was pending, both parents received six months of
reunification services. Father attended only 25 percent of the visits he was
offered. After the first month of the reunification period, he stopped visiting
in person with his daughter, and after two months stopped visiting
altogether, with his last visit taking place (virtually) on April 29, 2021.
Father also refused to drug test, which he had been ordered to undertake
regularly as part of his case plan. He minimized mother’s drug use, he failed
to engage in co-dependency and parenting classes, and his contact with the
Department was sporadic.
All further statutory references are to the Welfare and Institutions
1
Code unless otherwise indicated.
4
Three months into the reunification period, moreover, and also
unbeknownst to the Department at the time, father was arrested again on
yet new drug charges (on May 25, 2021). Police stopped him for driving
erratically, and he was found in possession of large amounts of
methamphetamine in a backpack and drug paraphernalia, including in plain
view on the car floor a burnt straw of the kind commonly associated with
methamphetamine use. He was charged with felony possession of a
controlled substance for sale, transport of a controlled substance and driving
without a license. Police suspected he was dealing drugs but, according to
the police report, father said he knew the backpack contained
methamphetamine but denied intending to sell it and said he is only a user.
He also told police (according to the police report) that he had been using a
lot of methamphetamine lately because he is going through a CPS case. Due
to the false birthdate father had given the Department, criminal records
checks the Department performed during the reunification period did not
reveal the new arrest either, and father did not inform the Department about
it.
On September 20, 2021, both parents’ reunification services were
terminated at the six-month review hearing. A section 366.26 hearing was
scheduled for January 11, 2022. Father was ordered to contact the
Department to arrange for visits with his daughter pending the section
366.26 hearing, but he never did so.
About a month later, on November 18, 2021, we issued our opinion in
the prior appeal. (K.C. I.) Based on the record then before us, we held the
Department had not met its burden to prove by clear and convincing evidence
that removal from father’s custody was warranted, because there was no
substantial evidence K.C. would not be safe from the dangers posed by
5
mother’s drug use if father alone maintained physical custody of her. In
reaching that result, we explained that “the only evidence in the record that
father posed any risk to his child was from the possibility of continued
contact with mother; there is no evidence K.C. would be in any danger in his
custody if the two parents lived apart, with no contact . . . .” The record
merely indicated that at most he was co-dependent, naïve and put his head in
the sand about mother’s drug use, we reasoned, which was not clear and
convincing evidence K.C. would be in danger in his custody alone, subject to
appropriate court supervision.
We reversed the initial disposition order and remanded the case for
further proceedings “in light of current circumstances.” (K.C. I.)
C. The Subsequent Petition and Proceedings on Remand
Pending the issuance of our remittitur, the Department made multiple
attempts to communicate with father to set up supervised visits after
receiving our decision. This ultimately led to the scheduling of a visit on
December 27, 2021, which was virtual due to the foster family’s holiday
availability. On the day of the visit, however, Father canceled it in
frustration and insisted it be rescheduled, due to technical difficulties he
encountered that he blamed on the Department for supplying him with the
link only at the last minute, which was inaccurate. On January 3, 2022,
father finally visited with K.C. for the first time in eight months, but the (in-
person) visit was ended early because the one-and-half-year-old child was
crying and inconsolable in his presence.
Also, before our remittitur issued, the Department discovered that the
birthdate father had supplied was false and ran a new criminal records check
using correct information. It then discovered his lengthy criminal record,
6
including the pending felony drug charges resulting from his May 25, 2021
arrest during the reunification period.2
On January 10, 2022, the day before the section 366.26 hearing had
been originally scheduled to take place and while awaiting issuance of the
remittitur, the Department filed a subsequent petition under section 342
alleging that father’s unaddressed substance abuse (specifically, his extensive
use of methamphetamine) placed K.C. at risk.3 It based the petition on
allegations of his felony arrest the prior May, as well as his failure to visit his
daughter for the past eight months with no reasonable explanation.
In its new disposition/jurisdiction report, the Department reported on
father’s conversations with the social worker about the sustained allegations
as well as the new ones. He admitted the arrest in May 2021, but denied any
drug use, denied knowing there were any drugs in the backpack found in his
car and said the backpack belonged to mother who was in a drug treatment
program at the time and that he was planning to take it to her. The
2 The record does not reflect how or precisely when the Department
discovered this fact. The respondent’s brief states that it was after we issued
our opinion. Reports filed below indicate the Department had become aware
of father’s criminal background by early January 2022, which is when the
Department spoke to father about it.
3 A subsequent petition may be filed when there are “new facts or
circumstances” sufficient to bring a dependent child under the court’s
dependency jurisdiction “other than those under which the original petition
was sustained.” (§ 342, subd. (a).) “Unless otherwise provided by law, all
procedures and hearings required for an original petition are applicable to a
subsequent petition” filed under section 342. (§ 342, subd. (b).) “Those
procedures include holding detention, jurisdictional, and dispositional
hearings in accordance with section 300.” (In re B.P. (2020) 49 Cal.App.5th
886, 890.)
7
Department did not report any explanation by father for the drug
paraphernalia found on the floor of his car at the time of his arrest (i.e., the
burnt straw). Asked about the specific statements attributed to him in the
police report, he denied having admitted methamphetamine use and said he
had “no idea” how the police would have known about this case. He also
denied having concealed the arrest from the Department and said he had told
the social worker at the time that he was dealing with “legal issues.” He also
continued to assert that, on the day he left K.C. alone with mother at the
motel, he did not suspect mother had been using drugs.
He said drug use was “not an issue” for him, denied using any drugs
during the case, said he never drug tested during the reunification period
only because of his work schedule, and was baffled it was even required. He
acknowledged the Department had previously given him referrals to
conveniently located drug testing lab sites and emphasized he was now
willing to drug test.
As for missed visits, father told the social worker it had been hard to
visit with K.C. during the reunification period because of his work schedule
and distance (she was placed in Marin County, he lived in Vallejo), and that
he didn’t know he could visit with K.C. after his reunification services were
terminated.
He complained that the entire case was a “headache” and involved
many misunderstandings about what was expected of him.
By the time of the contested disposition/jurisdiction hearing held on
March 9, 2022, father had visited with K.C. only one more time (virtually, on
January 19, 2022), despite extensive documented efforts by the Department
to facilitate regular, bi-weekly visits. During one two-week period, he
cancelled two visits in a row because he said he was very sick, missed the
8
next three visits without contacting the Department, and when finally
reached by the social worker also attributed the three missed visits to ill
health. After that, he was largely non-responsive to the Department’s
outreach to him, and visits were frequently cancelled due to his failure to
timely confirm them. Another time, he cancelled an upcoming visit due to
“car issues.”
Father had been asked to drug test, was given the necessary paperwork
to do so and twice promised to do so the very day the Department addressed
the subject with him, yet he never did.
The Department had visited his home and found he was living in a
studio apartment with another person he described as a romantic partner, in
a space that did not appear suitable to accommodate a toddler.
The Department recommended against returning K.C. to father’s
custody, principally citing concerns about his suspected drug use, refusal to
drug test, sporadic contact with the Department over the course of the case
and all the missed visitations.
At the contested hearing held on March 3, 2022, father asserted his
Fifth Amendment privilege against self-incrimination, and the jurisdictional
allegations of the subsequent petition were submitted on the basis of the
Department’s reports and sustained. The court found that father lacked
credibility and “in fact [has] a very serious and longstanding substance abuse
problem,” evidenced in part by his pending arrest for drug possession and
failure to visit with K.C. for so long. It noted that the newly discovered
information about father’s criminal background “clearly presents a very
different picture of Father than . . . before” and also was evidence that father
“is not going to be open and transparent” in handling the dependency case.
9
The court then turned to the disposition phase, at which the sole
witness was the Department’s social worker. She testified about father’s
failure to drug test and missed visits—including one visit scheduled for the
very morning of the hearing, which was cancelled because father again failed
timely to confirm it.
She also testified about concerns about the person with whom father
appeared to be living, a person named J.M. who father introduced to the
social worker as his romantic partner. J.M. told the social worker she was
the person who had been present at the motel with father during the initial
incident that led to K.C.’s detention, which raised questions as to whether
J.M. had been abusing substances too, and upon further investigation the
Department ascertained that J.M. has an extensive child welfare history
herself. She has three adult children of her own who were in the dependency
system due to neglect and substance abuse, and an 11-year-old child who was
removed from her custody in March 2020 (i.e., about eight months before K.C.
was detained) with whom she failed to reunify.
After hearing arguments, the juvenile court assessed the prospect of
returning K.C. to father’s custody based upon the current circumstances, as
we ordered it to do, and declined to do so. It made extensive findings about
father’s lack of credibility on numerous subjects, his “dismal” visitation
record, his violent criminal history, and co-habitation with someone with her
own child welfare history and substance abuse history. “All of those factors
indicate that it is not a safe situation for this Court to return [K.C.] to her
father, and there is no identification of any person who could assist to make it
safe [n]or a reasonable means to return her to her father’s care.” It ordered
reunification services for both parents, and father then timely appealed the
disposition order.
10
The juvenile court subsequently granted a section 388 petition by the
Department to terminate both parents’ reunification services early and
scheduled a hearing under section 366.26, which we have temporarily stayed.
DISCUSSION
I.
Jurisdiction
Father argues, first, that the subsequent petition failed to allege a
legally adequate basis for dependency jurisdiction, for several reasons all
premised on his contention that his conduct did not place K.C. at any current
risk. He argues for the same reasons, in the alternative, that the
jurisdictional findings were not supported by substantial evidence. We
address the latter issue first, because “ ‘ “[i]f the jurisdictional findings are
supported by substantial evidence, the adequacy of the petition is
irrelevant.” ’ ” (In re John M. (2012) 212 Cal.App.4th 1117, 1123.)
The court adjudged K.C. a dependent under section 300, subdivision (b)
which, as relevant here, authorizes the exercise of dependency jurisdiction if
a 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 inability of the
parent . . . to provide regular care for the child due to the parent’s . . .
substance abuse.” (§ 300, subd. (b)(1)(D).)
The court may exercise jurisdiction under this provision only if a child
is at current risk at the time of the jurisdiction hearing. (In re Carlos T.
(2009) 174 Cal.App.4th 795, 803.) Nevertheless, section 300 “does not require
that a child actually be abused or neglected before the juvenile court can
assume jurisdiction.” (In re I.J. (2013) 56 Cal.4th 766, 773.) Jurisdiction
“require[s] only a ‘substantial risk’ that the child will be abused or neglected.”
(Ibid.) “ ‘The court need not wait until a child is seriously abused or injured
11
to assume jurisdiction and take the steps necessary to protect the child.’ ”
(Ibid.)
We review the court’s jurisdictional findings for substantial evidence.
(In re I.J., supra, 56 Cal.4th at p. 773.) Pursuant to that standard, we review
the record in the light most favorable to the court’s ruling, draw all
reasonable inferences from the evidence to support the court’s ruling, do not
reweigh the evidence or exercise independent judgment, and ascertain only
whether the record contains substantial evidence from which a reasonable
trier of fact could find that the order is appropriate. (Ibid.) The appellant
has the burden of demonstrating that there is no evidence of a sufficiently
substantial nature to support the jurisdictional findings. (In re Travis C.
(2017) 13 Cal.App.5th 1219, 1225.)
Father’s arguments concerning jurisdiction are somewhat unfocused
but, at bottom, all rest on a flawed assumption: that jurisdiction was
premised solely on the fact of his May 2021 arrest for possession of drug
paraphernalia and driving with a suspended license, about six months after
K.C. had been placed in foster care and nearly a year before the second
jurisdiction hearing took place. Relying principally on In re J.N. (2010)
181 Cal.App.4th 1010, which reversed a jurisdictional finding based on a
single episode of drunk driving by parents who had no substance abuse
issues, he argues there was no current risk of serious harm to K.C. from his
behavior because there was evidence only of that single incident, the child
was not in the car at the time of his arrest, was not physically harmed, and
there was no evidence he had a substance abuse problem. Moreover, he
asserts the charges against him were later dismissed.4
Father filed a motion asking us to take judicial notice of a
4
September 16, 2022 order dismissing the felony drug charge against him that
12
The juvenile court’s finding that father has a “a very serious and
longstanding substance abuse problem” that placed K.C. at serious risk of
harm is supported by substantial evidence. Contrary to father’s arguments,
that jurisdictional finding was not based solely on the fact that father was
arrested in May 2021 for possession of methamphetamine.
To begin with, it was not the fact of his arrest but the circumstances of
it that suggested drug use. Three months into the first reunification phase, a
time when father should have been focusing on learning the importance of
protecting K.C. from the dangers of (mother’s) drug use, he was stopped by
police for driving erratically, found in possession of a large quantity of
methamphetamine and a burnt straw used for ingesting it and, according to
the police report, admitted to police that he was using methamphetamine
frequently because of this very case.
Although that incident took place about ten months before the
jurisdictional hearing on the subsequent petition (held in March 2022), there
is substantial evidence father had an ongoing drug use problem. By the time
of that second hearing, not once in the past year had he drug tested, despite
having been ordered to do so for six months as part of his original case plan
resulted from his May 25, 2021 arrest. We previously took the motion under
submission, the Department opposes it, and we now deny it. Ordinarily,
appellate courts are not permitted to “consider postjudgment evidence going
to the merits of an appeal and introduced for the purposes of attacking the
trial court’s judgment” (In re Josiah Z. (2005) 36 Cal.4th 664, 676; see also
In re E.C. (2022) 85 Cal.App.5th 123, 148-150), and father offers no reason for
us to depart from this rule. Furthermore, the status of father’s criminal case
is irrelevant, because the minute order does not exonerate father of engaging
in the underlying conduct for which he was arrested. It reflects only that the
charge was dismissed at the request of the prosecutor who told the court
“they might [be] refiling a new case.”
13
and then having been asked repeatedly to do so again before the second
jurisdictional hearing. “[C]ommon sense suggests a parent who consistently
fails to appear for drug tests does so because of a consciousness of guilt.”
(In re Noah G. (2016) 247 Cal.App.4th 1292, 1304.) Furthermore, his
visitation record had been dismal (as the juvenile court put it), which the
juvenile court could reasonably infer was due to ongoing drug use, right up
until the day of the second jurisdiction hearing when, yet again, he missed a
scheduled visit with K.C. Unlike J.N., which involved quite different facts, a
reasonable factfinder could conclude that, at the time of the second
jurisdiction hearing, father had a current substance abuse problem and had
relapsed back into methamphetamine use at least as far back as the
beginning of this case.
The juvenile court also did not err in finding father posed a serious risk
to his child. It is irrelevant, as father contends, that he was arrested for
possession of drugs and not use. Father cites no authority the court was
required to base its determination of risk to K.C. on a charging decision by a
prosecuting attorney. What matters are the facts, not the absence of a
criminal conviction based upon them. A parent struggling with untreated
drug addiction poses a safety risk to a child of tender years for practically a
limitless number of reasons, and we do not understand father to contend
otherwise. Here, father had already once endangered K.C. by minimizing the
safety risk posed by mother’s drug use (and even claiming, apparently falsely,
that he was ignorant of it),5 and by leaving the child alone with mother in a
motel room when he knew or should have known she was actively using
5 The court expressly ruled that it did not believe father’s denials of
knowledge of mother’s drug use, particularly in light of the arrest shortly
before K.C.’s birth in which both parents were found in possession of drugs.
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drugs. And during the first reunification phase he continued to minimize her
drug use. In these circumstances, the juvenile court could reasonably infer
that he likewise would downplay the risk posed by his own
methamphetamine use were K.C. returned to his custody. Indeed, unlike in
J.N. cited by father, father minimized the seriousness of his conduct (denying
he even has a drug problem) and resisted the Department’s intervention,
which too is evidence of current risk. (See In re M.R. (2018) 8 Cal.App.5th
101, 109-110 [distinguishing J.N.]; see also In re A.F. (2016) 3 Cal.App.5th
283, 291 [noting mother’s denial of her substance abuse problem as evidence
supporting jurisdictional findings].)
An inability to predict precisely how a parent might harm a child does
not defeat jurisdiction. (In re Travis C., supra, 13 Cal.App.5th at pp. 1226-
1227.) It is sufficient if a parent’s condition “create[s] a substantial risk of
some physical harm or illness.” (Id. at p. 1227.) That is true here. Father’s
arguments to the contrary ignore all of the substantial evidence that he had
an ongoing problem with drug use at the time of the second jurisdictional
hearing, which had previously evaded detection due his concealment of his
criminal record and refusal to drug test for the Department.
Finally, to the extent father means his substance abuse poses no
substantial risk to K.C. because she was already in foster care by the time it
came to light, that is not the law. “[I]t is always the case with regard to a
subsequent petition that the child at issue has already been declared a
dependent child.” (In re Carlos T., supra, 174 Cal.App.4th at p. 806.) “[T]he
fact that a child is currently protected from further abuse simply because the
child already is under the jurisdiction of the juvenile court cannot preclude
the court from finding, based upon new evidence . . . that the child remains at
risk of abuse. The question to be asked in such a case is whether, in the
15
absence of the state’s intervention, there is a substantial risk that the child
will be abused” or neglected. (Ibid.) Otherwise, a subsequent petition would
be pointless.
Here, although father had no immediate access to K.C. because she was
in foster care, as we have just discussed, there was an ample evidentiary
basis to infer that his drug use would endanger her if she were returned to
his custody “without the state intervening to prevent him from obtaining
access to [her].” (In re Carlos T., supra, 174 Cal.App.4th at p. 866.) Father
cites no authority holding that a juvenile court lacks the power to sustain a
subsequent petition based upon ongoing parental substance abuse that only
comes to light after the child has been adjudged a dependent.
For these reasons, the subsequent jurisdictional findings were
supported by substantial evidence. It is thus unnecessary to consider father’s
challenge to the legal sufficiency of the section 342 petition.6
II.
Removal from Parental Custody
Next, father challenges the second disposition order as unsupported by
substantial evidence.
As we stated in our prior opinion, section 361 limits the juvenile court’s
authority to remove a child from a custodial parent’s physical custody.
(§ 361, subd. (c).) It states in relevant part: “A dependent child shall not be
taken from the physical custody of his or her parents . . . with whom the child
6 Father’s failure to contest the adequacy of the subsequent petition in
the juvenile court also forfeited his argument. (See In re John M., supra,
212 Cal.App.4th at p. 1123 [“In general, a parent may not challenge the
sufficiency of allegations in a dependency petition on appeal if he or she did
not raise the issue in the dependency court”].)
16
resides at the time the petition was initiated, unless the juvenile court finds
clear and convincing evidence [that] . . . [¶] (1) There is or would be a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parent’s . . . physical
custody.” (§ 361, subd. (c)(1).)
In asserting this standard was not met, father incorporates all his
arguments concerning the jurisdictional findings, which we have rejected for
the reasons just discussed. All the evidence supporting the exercise of
jurisdiction also supported continuing K.C. in out-of-home care. Indeed,
father’s denial that he has a drug abuse problem in light of his history of drug
arrests and charges, and coupled with his failure to drug test, provide a
sufficient basis to uphold the finding. (See, e.g., In re A.F., supra,
3 Cal.App.5th at p. 293.)
There is also substantial evidence that there were no means short of
removal that would ameliorate the danger to K.C. The record reflects that
father made little effort to address any of the safety concerns posed by
mother’s drug use, which reflects poorly on his general attitude toward
parental drug use. (Cf. In re Cole C. (2009) 174 Cal.App.4th 900, 918
[removal order held supported by evidence of father’s failure to engage in
voluntary services].) Furthermore, the juvenile court could reasonably
conclude that father could not be trusted to abide by court orders for family
maintenance, including orders for regular drug testing as he now argues
could have been utilized as a less drastic alternative. The court could
reasonably infer that he regards the Department’s intervention as an
injustice and a farce. There is substantial evidence he supplied the
17
Department with a false birthdate to purposely obfuscate his criminal
history. His criminal record, which included two probation violations,
reflected he had twice violated court orders in the past. And, as discussed, he
never once drug tested for the Department in all of a year, including during
the period he was under court order to do so.
In sum, the removal order is supported by the required clear and
convincing evidence there would be a substantial danger to K.C. if returned
to father’s custody.
III.
Relative Placement Preference
Next, father argues the juvenile court failed to properly apply the
relative placement preference (§§ 309, 361.3). As father tacitly concedes in
his reply brief, this issue was not raised below. We agree with the
Department it has been forfeited. Reviewing courts ordinarily do not
consider issues for the first time on appeal (In re S.B. (2004) 32 Cal.4th 1287,
1293), including the issue of relative placement (see In re A.K. (2017)
12 Cal.App.5th 492, 501 [relative placement issues held forfeited]). Given a
child’s interest in achieving permanence and stability, an appellate court’s
discretion to excuse a forfeiture should be exercised only rarely and “with
special care” in dependency cases (S.B., at p. 1293), and father offers no
persuasive reason for us to do so here.
IV.
ICWA
Finally, father argues the juvenile court and the Department violated
their duties of inquiry under ICWA. The Department concedes the error and
assures us that it will conduct a proper inquiry while this appeal is pending
and while proceedings are ongoing in the juvenile court.
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In this circumstance, reversal is not warranted because the conceded
error is not prejudicial. As recently explained by our colleagues in
Division One: “[D]isturbing an early order in a dependency proceeding is not
required where, as here, the court, counsel, and the Agency are aware of
incomplete ICWA inquiry. The Agency must comply with its broad duty to
complete all appropriate inquiries and apprise the court, and the court has a
continuing duty to ensure that the Agency provides the missing information.
So long as proceedings are ongoing and all parties recognize the continuing
duty of ICWA inquiry, both the Agency and the juvenile court have an
adequate opportunity to fulfill those statutory duties.” (In re S.H. (2022)
82 Cal.App.5th 166, 179-180 [affirming dispositional order despite conceded
ICWA error]; see also D.S. v. Superior Court of San Bernardino
County (Feb. 15, 2023 [mod. Feb. 22, 2023], No. E079017) 2023 WL 2003338,
at p. *2 [“ordinarily, the failure to comply with statutory duties under ICWA
is not grounds for reversal of juvenile dependency orders issued prior to
termination of parental rights”]; accord, In re T.R. (2023) 87 Cal.App.5th
1140, 1154; cf. In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638-639
[reaching same result through mootness analysis].)
Father does not question that legal authority, attempt to distinguish it
or argue the error here was nonetheless prejudicial. Accordingly, we will not
reverse the dispositional error on this basis. If father has continuing
concerns that the Department has not satisfied its inquiry obligations under
ICWA as the case proceeds, then the proper vehicle to raise them will be in
an appeal from an order terminating parental rights. (See, e.g., In re E.C.,
supra, 85 Cal.App.5th at p. 135 [conditionally reversing order terminating
parental rights for prejudicial ICWA error].)
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DISPOSITION
The disposition order is affirmed. Our temporary stay of the hearing
under section 366.26 is lifted.
20
STEWART, P.J.
We concur.
RICHMAN, J.
MARKMAN, J. *
In re K.C. (A165165)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
21