In re Ivy W. CA2/1 ( 2020 )

Filed 10/2/20 In re Ivy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re IVY W., a Person Coming B304872
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP06727)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
RICKY B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig S. Barnes, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, Sally Son, Deputy County Counsel, for Plaintiff
and Respondent.
_______________________________
1
In this dependency case (Welf. & Inst. Code, § 300 et seq.),
Ricky B. (Father) appeals from the disposition order, challenging
the sufficiency of the evidence supporting the jurisdictional
findings against him and the removal of his infant daughter from
his custody. He also contends 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 Father’s contentions and affirm the order.
BACKGROUND
I. The Family
2
At the time Father and Ryan W.’s (Mother) newborn, Ivy
W., was detained from them in October 2019, Father and Mother
had been in a relationship on and off for around eight or nine
years. During the tenure of their relationship, a juvenile court
terminated Mother’s parental rights to two children from a
previous relationship (Ivy’s half siblings) due to Mother’s history
of phencyclidine (PCP) use, which dated back to at least 2012. In
one of these two prior dependency cases, the juvenile court
sustained an allegation under section 300, subdivisions (a) and
(b) that in February 2014, Father repeatedly struck Mother in
the face, inflicting bruising and swelling to her eye, while she was
1
Further statutory references are to the Welfare and
Institutions Code.
2
Mother is not a party to this appeal.
2
holding one of her children from a previous relationship. Father
was not a party to these prior dependency cases, as the children
involved were not his children.
Prior to Ivy’s birth in October 2019, Father and Mother had
two other children together, in 2015 and 2017. Father did not
sign the children’s birth certificates or claim them as his own
when they were born. Accordingly, when these two children
became dependents of the juvenile court due to Mother’s
substance abuse, Father was not involved in their dependency
proceedings. Mother’s parental rights to the older of these two
children with Father were terminated in 2017. It is not clear
from the record if her parental rights to the younger of these two
children had been terminated at the time dependency
proceedings in this case involving Ivy commenced.
After Mother became pregnant with Ivy, Father
accompanied Mother to her prenatal doctor appointments. At
one of the appointments at which Father was present, in June
2019, Mother tested positive for PCP and methamphetamine.
Father was present at the hospital when Ivy was born, and he
signed the birth certificate.
II. Detention
In October 2019, DCFS received a referral from the
hospital stating that at the time of Ivy’s birth Mother tested
positive for PCP. Around 16 hours after Mother’s positive test,
the hospital tested Ivy, and the newborn tested negative for all
substances.
The day after Ivy’s birth, a DCFS social worker interviewed
Father at the hospital. Father stated he and Mother had been in
a relationship on and off for around eight or nine years but were
no longer in a relationship at the time of Ivy’s birth. He denied
3
he and Mother lived together and represented he and Mother did
not communicate other than the occasions when he took her to
her prenatal doctor appointments. He denied knowing about
Mother’s substance use prior to the June 2019 doctor
appointment at which she tested positive for PCP and
methamphetamine. He asserted Mother had been “clean” since
that positive test. When the social worker asked if he had talked
to Mother about her substance use, he responded, “ ‘We don’t
discuss those things.’ ” He denied he had seen Mother use drugs.
He stated he believed she “is a good mother and should be given a
chance.” But he also stated he was “aware that she would not be
able to see the child [Ivy],” and he “would have no problem
protecting the child from [M]other.”
Father disclosed to the social worker that he previously
used PCP and marijuana but stopped using around 2007 or
3
2008. He “denied any mental health diagnosis.” He
acknowledged domestic violence allegations had been made
against him in the past but claimed the allegations “were
dismissed in court.” He admitted he had a criminal history as a
juvenile and an adult. He told the social worker that as an adult,
he had been arrested for criminal threats and a probation
violation. When the social worker asked why he was on
probation, he said he could not remember. As set forth in DCFS’s
October 17, 2019 Detention Report, between 2005 and 2006,
when Father was an adult, he sustained felony convictions for
carrying a loaded firearm, possession of a firearm by a felon, and
transportation or sale of narcotics or controlled substances (in
3
Three days after this interview, on October 15, 2019,
Father submitted to a drug test and the results were negative.
4
addition to other misdemeanor convictions). In 2016, Father was
4
convicted of corporal injury upon Mother.
Father informed the social worker that Ivy was his third
child with Mother. He explained he “was not around [M]other”
when their first child was born, and he was in jail when their
second child was born, so he did not sign either of their birth
certificates. He stated he also had a 12-year-old child from
another relationship who lived with the child’s mother, and he
shared joint legal custody of the child.
When the social worker interviewed Mother the same day,
Mother denied having a history of substance abuse or any
relationships involving domestic violence. Mother told the social
worker that she lived with Ivy’s paternal great-grandmother
(Father’s grandmother). When the social worker interviewed
Father’s roommate the next day, the roommate stated that
Mother had lived in her home for “a while,” leading up to Ivy’s
birth. The roommate also stated that Father had been living
with her (the roommate) for the past year.
On October 13, 2019, DCFS obtained a removal order and
placed Ivy on a hospital hold. On October 16, 2019, DCFS filed a
dependency petition under section 300, subdivision (b), alleging
Mother’s history of substance abuse (including dependency
proceedings involving four other children), and Father’s failure to
protect Ivy from Mother’s substance abuse, placed Ivy at risk of
serious physical harm, damage, danger, and failure to protect.
4
According to Father’s criminal history transcript attached
to the Detention Report, and Father’s admissions to a DCFS
dependency investigator, Father was placed on probation
following the 2016 domestic violence conviction involving Mother.
He violated his probation in 2017 and was incarcerated.
5
Father and Mother appeared at the detention hearing on
October 17, 2019. The juvenile court found DCFS made a prima
facie showing that Ivy was a person described by section 300.
The court detained Ivy from Father and Mother and ordered
monitored visitation for the parents. The court restricted Father
5
and Mother from visiting Ivy together. On October 18, 2019,
DCFS placed Ivy in the same foster home as a half sibling and a
6
sibling, who were receiving permanent placement services.
On November 25, 2019, DCFS filed an amended petition,
which included the allegations from the original petition
regarding Mother’s history of substance abuse and Father’s
failure to protect Ivy from Mother’s substance abuse (count b-1),
and added allegations regarding: (1) Father and Mother’s history
of domestic violence, including the 2014 and 2016 incidents
referenced above (count b-2); (2) Father’s history of substance
abuse, including a positive toxicology screen for PCP in 2019, on
a date not specified (count b-3); (3) Father’s history of mental and
emotional problems, including schizophrenia, and his failure to
take his prescribed psychotropic medications (count b-4); and (4)
7
Mother’s history of mental and emotional problems.
5
Notwithstanding the visitation order, on October 25,
2019, Father and Mother appeared together at a DCFS office for
a monitored visit with Ivy.
6
Ivy remained in this home throughout the proceedings at
issue in this appeal.
7
The original and amended petition also included
allegations under section 300, subdivision (j), regarding neglect of
Ivy’s siblings and half siblings. The juvenile court later
6
III. Jurisdiction/Disposition
On November 13, 2019, Mother tested positive for PCP, and
on November 25, 2019, she failed to show for a scheduled test.
Father tested negative for all substances throughout these
dependency proceedings.
On November 19, 2019, Father brought Mother to the
DCFS office so the dependency investigator could interview them.
Mother told the investigator she was unaware of any drug use by
Father. Mother declined to discuss the history of domestic
violence incidents between her and Father, stating she was not “a
snitch.” She did state, “ ‘I’m a fighter but I don’t want to fight.
It’s just my mouth.’ ” Mother reported she currently lived at the
home of Ivy’s paternal great-grandmother.
During his interview, Father told the investigator he was
aware of Mother’s substance abuse history and resulting prior
dependency proceedings. As set forth in DCFS’s December 10,
2019 Jurisdiction/Disposition Report, Father explained that when
he lived with Mother (at a time not specified), “she would use
PCP in the bathroom but he did not let her smoke meth in his
home. . . . [H]e started locking [her] out of the home but she still
smoked PCP outside of the house and at the bus stop. . . .
[W]hen he realized [she] was pregnant he did not allow her to
smoke or use any drugs in the home.” Father asserted he did not
know Mother used drugs during her pregnancy with Ivy until her
positive test during a June 2019 prenatal appointment. He said
he was unaware of other drug use by Mother during her
pregnancy. According to Father, after Ivy was detained at the
hospital, he and Mother were in his car, when he fell asleep and
dismissed the subdivision (j) allegations at DCFS’s request at the
December 10, 2019 adjudication hearing.
7
awoke to Mother “trying to smoke PCP in his car.” Father stated
that he pulled Mother out of the car and drove away. He told the
investigator that if he had custody of Ivy, he would not leave the
newborn alone with Mother, and when Mother “stopped lying,
they could talk about her involvement in the child’s life.”
Regarding domestic violence between him and Mother,
Father admitted the 2016 incident for which he was convicted
and told the investigator that no child was present during that
incident. He stated there were no other incidents of domestic
violence between him and Mother. He denied the 2014 incident
that was the subject of the sustained allegation in a dependency
proceeding to which he was not a party, involving Mother’s child
from a different relationship. He told the investigator he lived
with Mother between 2013 and 2017, until he was incarcerated
for a probation violation during his probation on the domestic
violence conviction.
At the time of his October 19, 2019 interview with the
dependency investigator, Father was on probation in two
different cases. He was placed on probation in 2018 for carrying
a concealed weapon and in 2019 for terrorist threats and assault
with a deadly weapon. He was enrolled in a residential drug
treatment program as a condition of probation and provided
DCFS with a positive progress letter from the program. As
stated in the Jurisdiction/Disposition Report, Father “denied
having drug or alcohol abuse history aside from marijuana which
[he] reported last smoking in 2001.” When the investigator asked
if he had any positive drug tests since starting the drug
treatment program in January 2019, Father “reported that it was
possible that he had some positive tests but it was because he
was around people who were smoking and not because he was
8
actually using drugs himself.” Father told the investigator he
currently lived “between” the residential treatment program,
Ivy’s paternal great-grandmother’s home, and motels.
During the interview, Father told the investigator about his
history of mental health issues and prescriptions for psychotropic
medications, dating back to 2011 or 2012. Most recently, in
January 2019, he was diagnosed with schizophrenia and
prescribed psychotropic medication by a mental health center.
He received mental health services at the center until the end of
April 2019, when his eligibility for services ended. At the time of
his interview, he was no longer taking psychotropic medication
and did not want to resume taking such medication.
On November 20, 2019, the dependency investigator
interviewed Father’s probation officer, to whom he had been
assigned since April 2019 and with whom he met monthly. The
probation officer reported that she had received some positive
drug test results for Father for PCP, acetaminophen, and another
8
drug she could not recall. When the investigator asked about
any mental health concerns regarding Father, the probation
officer responded: “ ‘I would have to say my main concern is the
drugs. The drugs does [sic] have something to do with the mental
health but it’s mainly being on and off the drugs with him. I
can’t tell the difference with him.’ ” The probation officer was
aware Father took medication to treat pain, but she was unaware
of him taking psychotropic medication. Father informed the
8
The probation officer did not have the drug test results in
front of her during her interview with the dependency
investigator, and she did not provide copies of the results to
DCFS.
9
probation officer and the criminal court that he wanted to do an
outpatient drug program, instead of the one-year residential
treatment program he was ordered to complete, so that he could
take care of Ivy. The probation officer told the investigator “that
she was planning to recommend that [Father] complete his
current program and continue testing on a regular basis.” She
added, “ ‘I’m not recommending to terminate anything. He is not
stable. He needs to continue in this program.’ ”
On November 25, 2019, the dependency investigator
interviewed a laboratory technician regarding Father’s claim that
he may have had positive drug test results from being around
others who were smoking drugs. The technician explained that
for that to occur, Father would have to be with people who were
smoking drugs for an extended period, meaning an hour to
several hours, and Father “ ‘would probably feel high [him]self.’ ”
On December 2, 2019, Father went back to the mental
health center where he was diagnosed with schizophrenia in
January 2019. The center assessed and evaluated Father and
found “he did not meet medical necessity” at that time. The
center provided a letter to this effect, which Father forwarded to
DCFS. DCFS attached the letter, and other of Father’s mental
health records, to its December 10, 2019 Last Minute Information
for the Court.
At the adjudication hearing, held December 10, 2019, the
juvenile court admitted into evidence DCFS’s reports (described
above), the prior sustained dependency petitions involving Ivy’s
half siblings and siblings, and another positive progress report
from Father’s residential substance abuse program, dated
December 9, 2019, stating: “[Father] has been progressing very
well in treatment and is serious about his sobriety and living his
10
life without any use of drugs. [Father] attends substance abuse
groups 5 days a week. He also attends Anger Management,
Domestic Violence, and Parenting classes. FFC Substance Abuse
Treatment Program is [a] DCFS approved program. [Father] will
be completing his substance abuse program on January 22, 2020.
[Father] has been submitting negative urinalysis test[s] and has
been openly sharing in group discussions. [Father] has put his
negative behaviors behind him and he is committed to be a great
father to his daughter. [Father] is very determined to be in his
daughter’s life and be a father to her. [Father] is scheduled to see
the therapist once a week for an individual [sic] and work out any
unresolved issues he has.”
DCFS’s counsel and Ivy’s counsel urged the juvenile court
to sustain all allegations in the petition. Mother’s counsel asked
the court to dismiss the petition as to her on grounds that Mother
disputed the accuracy of her positive drug test results and denied
the alleged history of domestic violence with Father. Father’s
counsel asked the juvenile court to dismiss the petition as to him
on the grounds: (1) the allegations regarding Father’s substance
abuse, mental and emotional problems, and history of domestic
violence with Mother (the 2016 domestic violence conviction)
were not based on Father’s current circumstances; (2) Father was
determined to protect Ivy from Mother’s substance abuse; (3)
Father did not have an opportunity to challenge the sustained
allegations regarding the 2014 incident of domestic violence with
Mother in the prior dependency proceedings because he was not a
party; (4) Father’s probation officer did not provide copies of
alleged 2019 positive drug test results to the parties in this case;
(5) Father consistently tested negative for drugs during these
dependency proceedings; and (6) there was no nexus between
11
Father’s mental and emotional problems and a risk of harm to
Ivy.
After hearing the parties’ arguments, the juvenile court
sustained all allegations alleged in the petition: (1) Mother’s
history of substance abuse and Father’s failure to protect Ivy
from Mother’s substance abuse (b-1); (2) the history of domestic
violence between Father and Mother (b-2); (3) Father’s history of
substance abuse (b-3); (4) Father’s mental and emotional
problems (b-4); and (5) Mother’s mental and emotional problems
(b-5). The court commended Father for engaging in programs but
found he continued to struggle with the issues alleged in the
petition. The court continued the matter for disposition.
In a January 15, 2020 Last Minute Information for the
Court, DCFS stated that Father received another positive
progress report from his residential drug treatment program,
dated January 13, 2020. The progress report noted Father
“struggled early on in his recovery process but quickly understood
his need for change and the importance of being a responsible
parent and how his sobriety would be able to help him fully
provide for his children[’s] need[s].” DCFS also informed the
juvenile court that Father was in compliance with the terms of
his probation and, on December 20, 2019, 11 months after Father
enrolled in the residential drug treatment program, the criminal
court ordered that Father could complete his drug treatment
requirement on an outpatient basis. DCFS also stated that
Father was consistently visiting Ivy and there were no concerns
regarding his visits. DCFS further stated in a Multidisciplinary
Assessment Team Summary of Findings Report, attached to the
Last Minute Information for the Court, that during a December
12
13, 2019 interview for a Multidisciplinary Assessment Team
meeting, Father stated he had been sober for 10 months.
At a hearing on January 22, 2020, Father’s counsel
provided the juvenile court and the parties with various exhibits,
including: (1) the January 13, 2020 progress report from Father’s
residential drug treatment program, described above; (2) a
January 21, 2020 certificate of completion of the one-year drug
program; (3) a January 21 certificate of completion of parenting,
anger management, and domestic violence classes; and (4)
additional negative drug test results.
In a February 6, 2020, Last Minute Information for the
Court, DCFS stated that Father’s therapist reported he had
participated in six therapy sessions. At the February 6, 2020
disposition hearing, the juvenile court admitted into evidence a
letter from the therapist stating the same, a letter from Father’s
outpatient substance abuse aftercare program stating he was
attending two group sessions and an individual therapy session
per week, DCFS’s reports (described above), and the prior
sustained dependency petitions involving Ivy’s half siblings and
siblings.
DCFS’s counsel argued at the disposition hearing that
although DCFS was recommending unmonitored visitation for
Father given his progress in his programs, DCFS was not
prepared to recommend that Ivy be returned to Father given his
history of substance abuse, mental and emotional problems, and
domestic violence with Mother. DCFS recommended the juvenile
court grant Father reunification services and deny Mother
reunification services. Ivy’s counsel joined in DCFS’s
recommendations. Father’s counsel argued DCFS’s
recommendation for Ivy’s removal from his custody was not
13
supported by clear and convincing evidence. Mother’s counsel
requested reunification services for Mother.
The juvenile court declared Ivy a dependent of the court
and removed her from Father and Mother, stating clear and
convincing evidence supported the removal order. The court
granted reunification services for Father and denied them for
Mother. The court ordered Father to complete a case plan
consisting of a drug and alcohol program, random or on demand
drug and alcohol testing, a parenting program, and individual
counseling to address domestic violence, substance abuse, and
relapse, with Father to be given credit for programs he had
already completed. The court granted Father unmonitored
visitation in a neutral, public setting, with advance notice to
DCFS of the location, and without Mother being present. The
court granted monitored visitation for Mother.
DISCUSSION
Father challenges the sufficiency of the evidence
supporting the jurisdictional findings against him and the
removal of Ivy from his custody. He also contends DCFS failed to
comply with duties under ICWA.
I. Jurisdictional Findings Against Father
A. Justiciability of Father’s contention
As Father acknowledges, the juvenile court’s jurisdiction
over Ivy will continue, whether or not this court reverses the
jurisdictional findings against him, based on the jurisdictional
findings against Mother, which are unchallenged on appeal.
“When a dependency petition alleges multiple grounds for its
assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
14
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.”
(In re Alexis E. (2009) 171 Cal. App. 4th 438, 451.) “Because the
juvenile court assumes jurisdiction of the child, not the parents,
jurisdiction may exist based on the conduct of one parent only. In
those situations an appellate court need not consider
jurisdictional findings based on the other parent’s conduct.” (In
re J.C. (2014) 233 Cal. App. 4th 1, 3.)
In his opening appellate brief, Father asks this court to
exercise its discretion to review the merits of his challenge to the
jurisdictional findings against him, arguing these findings are
the basis for the removal order and case plan against him, and
they may prejudice him in future dependency proceedings. We
may “exercise our discretion to reach the merits of the other
parent’s jurisdictional challenge in three situations: (1) the
jurisdictional finding serves as the basis for dispositional orders
that are also challenged on appeal; (2) the findings could be
prejudicial to the appellant or could impact the current or any
future dependency proceedings; and (3) the finding could have
consequences for the appellant beyond jurisdiction.” (In re J.C.,
supra, 233 Cal.App.4th at p. 4.) Because the jurisdictional
findings against Father are the basis for the portion of the
disposition order removing Ivy from his custody, and Father
challenges the removal on appeal, we review whether the juvenile
court properly made jurisdictional findings against Father.
B. Standard of review
“In a challenge to the sufficiency of the evidence to support
a jurisdictional finding, the issue is whether there is evidence,
15
contradicted or uncontradicted, to support the finding. In making
that determination, the reviewing court reviews the record in the
light most favorable to the challenged order, resolving conflicts in
the evidence in favor of that order, and giving the evidence
reasonable inferences. Weighing evidence, assessing credibility,
and resolving conflicts in evidence and in the inferences to be
drawn from evidence are the domain of the trial court, not the
reviewing court.” (In re Alexis E. (2009) 171 Cal. App. 4th 438,
450-451.)
C. Legal standards for jurisdiction under section
300, subdivision (b) and analysis
Jurisdiction under section 300, subdivision (b), requires
proof “[t]he child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child . . . .” (§ 300, subd. (b).)
In deciding whether there is a substantial risk of serious physical
harm or illness, within the meaning of section 300, subdivision
(b), courts evaluate the risk that is present at the time of the
adjudication hearing. “While evidence of past conduct may be
probative of current conditions, the question under section 300 is
whether circumstances at the time of the hearing subject the
minor to the defined risk of harm.” (In re Rocco M. (1991) 1
Cal. App. 4th 814, 824, abrogated in part on another ground in In
re R.T. (2017) 3 Cal. 5th 622, 627-629.) “The juvenile court need
not wait until a child is seriously injured to assume jurisdiction if
there is evidence that the child is at risk of future harm . . . .” (In
re Yolanda L. (2017) 7 Cal. App. 5th 987, 993.) “To establish a
defined risk of harm at the time of the hearing, there ‘must be
16
some reason beyond mere speculation to believe the alleged
conduct will recur.’ ” (Ibid.)
We begin our review with jurisdictional finding b-3, which
states: “[Father] has a history of substance abuse, including
PCP, which renders the father incapable of providing regular
care of the child. In 2019, the father had a positive toxicology
screen for PCP. Such substance abuse by the father endangers
the child’s physical health and safety, and places the child at risk
of serious physical harm, damage and danger.” Father argues
this finding is not supported by substantial evidence because: (1)
“[t]here were no positive drug test results for [Father] during this
case”; (2) DCFS “never produced a positive test but merely
relayed information that [Father] tested positive in 2019 without
showing any proof”; (3) the evidence in the record demonstrated
Father did not have a current substance abuse issue; and (4)
“[h]earsay evidence was not sufficient evidence to support a true
finding [on] this allegation.” For the reasons discussed below, we
reject Father’s challenge to the sufficiency of the evidence
supporting this finding.
Substantial evidence in the record demonstrates Father
had a long-standing issue with drugs. He admitted to PCP use
that occurred more than a decade before Ivy was detained. He
had convictions in 2005 and 2006 for transportation or sale of
narcotics or controlled substances. Father’s residential
treatment program reported to DCFS that Father struggled with
his sobriety after he enrolled in the program in January 2019.
Father’s probation officer reported to DCFS that Father had
positive test results for PCP in 2019. In November 2019, Father’s
probation officer, who had met with him monthly since April
2019, reported to DCFS that she did not believe Father’s on-
17
again, off-again issue with drug use had stabilized. During a
December 2019 interview in connection with a Multidisciplinary
Team Meeting, Father stated he had only been sober for 10
months, despite his prior denials of any substance use (including
alcohol) in the last decade.
We reject Father’s argument, raised for the first time in his
reply brief, that hearsay evidence—specifically the probation
officer’s statement about positive drug test results in 2019—“was
not sufficient evidence to support a true finding [on] this
allegation.” Under section 355, subdivision (b), “A social study
prepared by the petitioning agency, and hearsay evidence
contained in it, is admissible and constitutes competent evidence
upon which a finding of jurisdiction pursuant to Section 300 may
be based, to the extent allowed by subdivisions (c) and (d).”
Subdivision (c) provides, in pertinent part: “If a party to the
jurisdictional hearing raises a timely objection to the admission
of specific hearsay evidence contained in a social study, the
specific hearsay evidence shall not be sufficient by itself to
support a jurisdictional finding or any ultimate fact upon which a
jurisdictional finding is based, unless the petitioner establishes
[certain enumerated] exceptions.” (§ 355, subd. (c)(1).)
Subdivision (d) of section 355 allows a party “to subpoena a
witness whose statement is contained in the social study or to
introduce admissible evidence relevant to the weight of the
hearsay evidence or the credibility of the hearsay declarant.”
Father did not raise a hearsay objection below and, in any event,
DCFS did not rely only on the probation officer’s statement about
the positive drug tests in proving allegation b-3. Accordingly,
Father’s argument is without merit.
18
We acknowledge that during the four months between
detention and adjudication, Father tested negative for drugs. For
two of those months he was enrolled in a residential treatment
program. He was newly enrolled in an outpatient program at the
time of the adjudication hearing—a big change and a test for his
sobriety.
Father continued to place himself in situations that were
risky for relapse, given his long-standing struggles with
maintaining sobriety. He associated with Mother—e.g., taking
her to a meeting at the DCFS office and a visit with Ivy—even
though Mother continued to use PCP during these dependency
proceedings. He spent time with people who smoked drugs in his
presence. He told the investigator that he may have had positive
drug test results after he enrolled in the residential treatment
program in January 2019 because he was around others who
were smoking drugs.
Ivy was an infant, not quite four months old at the time of
the adjudication hearing. Where a child is “of ‘tender years,’ ”
like Ivy, “ ‘the finding of substance abuse is prima facie evidence
of the inability of a parent or guardian to provide regular care
resulting in substantial risk of harm.’ ” (In re Christopher R.
(2014) 225 Cal. App. 4th 1210, 1219.) As summarized above,
substantial evidence demonstrates Father had a history of
substance abuse, and he was in the process of treating his
substance abuse problem at the time of the adjudication hearing.
The juvenile court did not err in making jurisdictional finding
b-3.
D. Other jurisdictional findings against Father
We need not review Father’s challenge to the sufficiency of
the evidence supporting the other three jurisdictional findings
19
made against him. Father challenges on appeal the order
removing Ivy from his custody, and there would be no basis for
the removal order if there were no basis for a jurisdictional
finding against him. We have concluded substantial evidence
supports jurisdictional finding b-3 and as discussed below,
substantial evidence regarding Father’s history of substance
abuse supports the removal order.
We would exercise our discretion to review Father’s
challenge to the sufficiency of the evidence supporting the other
three jurisdictional findings if those findings could be prejudicial
to Father in the future or serve as the basis of a dispositional
order Father challenges on appeal. (See In re J.C., supra, 233
Cal.App.4th at p. 4.) The finding regarding Father’s failure to
protect Ivy from Mother’s substance abuse and the finding
regarding Father’s history of mental and emotional problems will
be no more prejudicial to Father in the future than the finding
regarding Father’s history of substance abuse, which we have
already upheld in this appeal. Regardless of whether we reverse
the finding in this case concerning Father’s history of domestic
violence with Mother, the basis for that finding will live on in the
sustained finding in Mother’s prior dependency case regarding
the 2014 incident of domestic violence between Father and
Mother and Father’s 2016 conviction for corporal injury upon
Mother.
Aside from removal, Father does not challenge any other
portion of the disposition order. For example, he does not
challenge the order that he complete a particular program that is
based on one of the jurisdictional findings we have not reviewed.
But even if he did, prior to the adjudication hearing, Father had
already completed domestic violence and parenting programs (in
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addition to the substance abuse program), and he received credit
in his case plan for the programs he completed.
Father has raised no reason for this court to exercise its
discretion to review his challenge to the sufficiency of the
evidence supporting the other three jurisdictional findings
against him.
II. Removal of Ivy from Father’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
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.)
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“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 factfinder 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.)
The record before us contains substantial evidence from
which the juvenile court could have found it highly probable that
Ivy’s welfare required removal from Father because of Father’s
history of substance abuse. As discussed above, Father had a
long-standing history of substance abuse. At the time of the
adjudication hearing, he had been sober for about a year, by his
own account. He had spent most of that year in a residential
drug treatment program. He left the residential program and
began an outpatient drug treatment program only a month and a
half before the adjudication hearing. Given Ivy’s young age (four
months) and need for constant care, Father’s history of relapse,
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and his tendency to associate with people who used drugs,
substantial evidence in the record demonstrated a substantial
risk of danger to Ivy’ physical health if she were placed in
Father’s custody before he completed drug treatment; and there
were no reasonable alternatives other than removal to protect
her.
III. ICWA Inquiry
A. Proceedings below
As set forth in the Detention Report in this case, in April
2017, in a prior dependency proceeding involving Mother and
Ivy’s half sibling, the juvenile court found ICWA did not apply.
On an attachment (form ICWA-010(A)) to the original
dependency petition in this case, filed on October 16, 2019, DCFS
checked a box indicating the “child has no known Indian
ancestry,” stated “ICWA does not apply,” and further indicated
that Father and Mother had been interviewed at the hospital on
October 12, 2019 regarding whether Ivy may be an Indian child.
In the Detention Report, DCFS stated ICWA does not
apply. DCFS further stated that Father denied any Native
American ancestry when he was interviewed at the hospital on
October 12, 2019. DCFS indicated in the Detention Report that
Mother also was interviewed at the hospital regarding whether
Ivy may be an Indian child, but DCFS did not state in the report
how Mother responded to the inquiry.
At the October 17, 2019 detention hearing, Mother filled
out and signed form ICWA-020, “Parental Notification of Indian
Status.” She checked the box stating, “I may have Indian
ancestry,” listed the tribe as Cherokee, and wrote maternal great-
grandmother, Carolyn B., Taylor G., and Lisa G. Father also
filled out form ICWA-020, indicating he did not believe he had
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any Indian ancestry. In its minute order from the detention
hearing, the juvenile court stated: “The Court is informed there
may be some Cherokee Tribes Native American/Indian heritage
in the mother’s background. [DCFS] is ordered to investigate
said claim. The Court does not have a reason to know that ICWA
applies as to Father.”
On an attachment (form ICWA-010(A)) to the amended
dependency petition, filed November 25, 2019, DCFS checked the
box indicating it had reason to know Ivy may be an Indian child,
based on a November 19, 2019 interview with Mother. DCFS
reported that in the interview Mother stated she “has Cherokee
Indian ancestry through her maternal grandmother.”
On November 25, 2019, DCFS mailed ICWA notices (form
ICWA-030) to three Cherokee tribes, the Bureau of Indian
Affairs, and the U.S. Department of the Interior. On the form
notice, DCFS listed contact information for Lisa G., one of the
names Mother wrote on form ICWA-020. In a Last Minute
Information for the Court, dated December 20, 2019, DCFS
reported it had received return receipts from two of the Cherokee
tribes and attached them to the report.
At the adjudication hearing on December 10, 2019, the
juvenile court noted Mother stated she had Indian heritage. The
court listed Ivy’s maternal great-grandmother and Carolyn B.,
Taylor G., and Lisa G. as the persons Mother identified. The
court stated: “So [DCFS] has already followed up on notifying the
tribes. If there’s any additional information, [DCFS] to make due
diligence to uncover it and provide further information by
disposition.”
In a Last Minute Information for the Court, dated January
15, 2020, DCFS reported it had received return receipts from the
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third Cherokee tribe, the Bureau of Indian Affairs, and the U.S.
Department of the Interior and attached them to the report.
At the February 6, 2020 disposition hearing, the juvenile
court found ICWA “notices went out in a timely fashion; no
responses have been provided; 60 days ha[ve] elapsed.” On
February 7, 2020, the court issued a minute order, stating ICWA
notice was proper and ICWA does not apply in this case.
B. Analysis
Under ICWA and California law, it is clear DCFS did not
have a duty to provide notice of the proceedings to the Bureau of
Indian Affairs or the Cherokee tribes, based on the information
DCFS knew about Mother’s potential Cherokee ancestry. 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].) 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).) On form ICWA-020 Mother checked the box
stating, “I may have Indian ancestry,” listed the tribe as
Cherokee, and wrote maternal great-grandmother, Carolyn B.,
Taylor G., and Lisa G. “Indian ancestry, however, is not among
the statutory criteria for determining whether there is a reason
to know a child is an Indian child.” (In re Austin J. (2020) 47
Cal. App. 5th 870, 887; see § 224.2, subd. (d) [setting forth
criteria]; see also In re A.M. (2020) 47 Cal. App. 5th 303, 321.)
Accordingly, the information Mother provided does “not
constitute information that a child ‘is an Indian child’ or
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information indicating that the child is an Indian child, as is now
required under both California and federal law” to trigger the
notice requirement. (In re Austin J., at p. 887, citing § 224.2,
subd. (d)(1) & (3) and 25 C.F.R. § 23.107(c).)
The question at issue on appeal is whether DCFS satisfied
the duty of inquiry. 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 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
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information regarding the child’s membership, citizenship status,
or eligibility.” (§ 224.2, subd. (e).)
Father claims DCFS had reason to believe Ivy is an Indian
child, based on the information Mother provided on form ICWA-
020, and “further inquiry regarding possible Indian status of the
child was required which included interviewing the parents and
extended family members.” Father asserts, “Reversal is
warranted for further inquiry, and if legally appropriate, notice to
the tribes based on further inquiry.” We disagree.
The mere fact that Mother wrote a list of names on form
ICWA-020 does not mean DCFS had a duty to inquire further.
Mother did not check the box indicating that any of her relatives
were members of a tribe or the box indicating she may be a
member of, or eligible for membership in, a tribe. (See In re A.M.,
supra, 47 Cal.App.5th at pp. 309, 322 [agency had reason to
believe child was an Indian child where the mother checked the
box on form ICWA-020 “indicating that she was or may be a
member of, or eligible for membership in a federally recognized
Indian tribe” and the box “indicating that one or more of her
parents, grandparents, or other lineal ancestors is or was a
member of a federally recognized tribe” and identifying those
relatives].)
Here, Mother claimed nothing other than that she might
have Indian ancestry. A claim of Indian ancestry “is insufficient
by itself to provide a reason to believe that either the children or
their parents are members of, or eligible for membership in, an
Indian tribe” and to require DCFS to make further inquiry. (In
re Austin J., supra, 47 Cal.App.5th at p. 889.) “Information about
a tribal connection that ‘is too vague, attenuated and speculative’
27
will not support a ‘reason to believe the children might be Indian
children.’ ” (Id. at p. 888.)
We conclude DCFS did not have a reason to believe Ivy
was an Indian child, based on the information Mother provided,
and DCFS had no duty to inquire further.
DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
SINANIAN, J.*
Judge of the Superior Court, assigned by the Chief Justice
*
pursuant to article VI, section 6 of the California Constitution.
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