In re Kayhlin W. CA2/2 ( 2020 )

Filed 11/4/20 In re Kayhlin W. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re KAYHLIN W., a Person Coming B302895
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 18LJJP00658A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent.
v.
ANDREW W.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Steven E. Ipson, Juvenile Court Referee. Affirmed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Tracey Dodds, Deputy County Counsel for
Plaintiff and Respondent.
Andrew W. (father) appeals from orders made at a Welfare
and Institutions Code section 387 hearing.1 The Department of
Children and Family Services (DCFS) filed the section 387
petition concerning father’s fifth child, Kayhlin (born July 2018),
who was initially permitted to remain with her parents after
birth despite the parents having open cases regarding Kayhlin’s
four older siblings.2 The juvenile court sustained the section 387
petition as to Kayhlin on October 11, 2019, finding the
allegations against father to be true and removing the child from
the parents’ custody. After receiving further evidence, the
juvenile court announced its disposition orders on November 25,
2019. Because father was found not to have made reasonable
efforts to treat the problems that led to the prior removal of his
children from his care and the prior termination of his parental
rights, the juvenile court denied father reunification services.
Father argues that the juvenile court’s jurisdictional
findings and orders must be reversed because the juvenile court
failed to ensure compliance with the Indian Child Welfare Act
(ICWA). Further, he argues that substantial evidence does not
support the juvenile court’s decision to deny him reunification
services as to Kayhlin. Since we find that father has failed to
show error, we affirm the juvenile court’s findings and orders.
____________________________________________________________
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise noted.
2 Kayhlin’s four older siblings, Andrew (born 2008); Khailan
(born 2009) Camiyah (born 2012) and Kamerhon (born 2016) are
not subjects of this appeal. However, they will be mentioned as
necessary.
2
FACTUAL AND PROCEDURAL BACKGROUND
Prior proceedings regarding the family
Father and Candi C. (mother)3 have five children together,
and a prior history with DCFS. In May 2015, after receiving
information that the parents used drugs and there was no food in
the home, DCFS filed a petition on behalf of the children,
Andrew, Khailan and Camiyah, who were then detained from the
parents. When Kamerhon was born in the spring of 2016, he
tested positive for amphetamines. DCFS filed a petition on
Kamerhon’s behalf in April 2016, and he too was detained from
the parents. Amended petitions were eventually sustained as to
all four children, and the parents were allowed monitored visits.
Throughout the case the parents were in minimal
compliance with court ordered services. Reunification services
were terminated as to all four children in September 2017.
Camiyah and Kamerhon were placed together in a foster home
and the parents’ parental rights to these two children were
ultimately terminated.4
Initial referral and investigation for Kayhlin
During the proceedings regarding the four older siblings,
Kayhlin was born in July 2018. A DCFS social worker came to
the hospital upon receiving a report that mother had a history of
illegal drug use and had not reunified with four older children.
Mother then also claimed that she was homeless. DCFS was
informed that mother’s toxicology report was negative and there
____________________________________________________________
3 Mother is not a party to this appeal.
4 This court affirmed the juvenile court’s termination of
parental rights as to Camiyah and Kamerhon. (In re Camiyah W.
(Jan. 29, 2020, B297759) [nonpub. opn.].)
3
was no toxicology report for Kayhlin. It was later discovered that
the hospital actually had no toxicology report for mother.
The parents were asked to drug test. In July 2018, mother
failed to test, but provided paperwork showing that her failure to
test was due to the expiration of her identification. Father’s test
results were blank, and it was later discovered that he had
provided a fake urine sample. The parents were informed that
they needed to continue to drug test to avoid having Kayhlin
detained. On September 4, 2018, the social worker spoke with a
lab technician to determine why some of the parents’ drug tested
show that they tested but no actual results were recorded. The
lab technician explained that the parents must have provided
samples that were not urine. When the social worker informed
father of the issue, he blamed the drug testing site. On October
2, 2018, the lab provided a negative drug test for father and a “no
show” for mother.
Section 300 petition
On October 4, 2018, the juvenile court granted a removal
order for Kayhlin. On October 10, 2018, DCFS filed a petition
pursuant to section 300 seeking protection of Kayhlin. The
petition alleged under section 300, subdivision (b), that both
parents had a history of substance abuse which rendered them
incapable of caring for Kayhlin. Under section 300, subdivision
(j), the petition further alleged that the child’s four older siblings
received permanent placement services due to the parents’
substance abuse.
Both parents appeared for the arraignment and detention
hearing and were appointed counsel. The court declined to
detain Kayhlin and ordered the parents to take an on-demand
drug test. The court gave DCFS permission to remove Kayhlin
4
from the parents if they tested positive for drugs or alcohol. The
detention hearing was continued to October 12, 2018. However,
on October 12, 2018, the parents’ drug tests were still pending.
The juvenile court continued its release of Kayhlin to the parents
over DCFS’s objection.
On October 15, 2018, DCFS notified the court that mother’s
drug test was negative. On October 19, 2018, DCFS notified the
court that the drug testing agency believed that father used some
sort of device when testing because the sample was insufficient
and not within body temperature. Due to the insufficient sample,
there was no result. However, on October 15, 2018, both parents
tested negative. Kayhlin remained released to the parents over
DCFS’s objection, with DCFS ordered to provide family
maintenance services. Drug testing of the parents was a
condition of release.
Jurisdiction/disposition
DCFS filed its jurisdiction/disposition report on November
27, 2018. Mother admitted to using methamphetamine and
marijuana for approximately four years, however, she claimed
that she was presently sober. Father stated that he and mother
began using drugs at the same time, and both stopped using
drugs at the same time. Father also admitted that he introduced
mother to drug use and provided her with methamphetamine.
Father did not have a start date for his sobriety but stated it was
around September or October 2017.
Regarding his prior court ordered drug treatment, father
claimed that he had almost completed it when he was discharged
for being two minutes late for a treatment session. Father said
he had not been able to get back into the program, although he
intended to try to do so. When asked about his lengthy history of
5
missed drug tests since 2015, father stated that he and mother
were using, and that they were not making the drug testing a
priority. Father’s last positive test for methamphetamine was on
April 13, 2016.
DCFS continued to recommend that Kayhlin be removed
from the parents’ custody and the parents be ordered to complete
a substance abuse program with random testing.
In December 2018, both parents pled no contest to an
amended petition. Counts b(1) and b(2) were found true and
sustained pursuant to the no contest plea, and the remaining
counts were dismissed. At the disposition hearing on January 28,
2019, the juvenile court declared Kayhlin a dependent of the
court but released her to her parents. The parents were ordered
to complete a program of drug rehabilitation with random testing
and participate in psychological assessment and individual
counseling.
First section 387 petition
On February 21, 2019, DCFS filed a petition pursuant to
section 387 alleging that the prior disposition orders had not been
effective in protecting Kayhlin.5 Mother had a diluted drug test
on December 31, 2018, and failed to appear for a drug test on
January 28, 2019. On January 29, 2019, the DCFS social worker
asked mother about the parents’ progress in a drug program, to
which mother stated that they had been approved to walk in for
an appointment the following day. On February 4, 2019, mother
tested negative for drugs. However, when the social worker
____________________________________________________________
5 Section 387, subdivision (a), permits the juvenile court to
modify a previous order by removing the child from the physical
custody of a parent after noticed hearing upon a supplemental
petition.
6
checked in again on February 13, 2019, the parents still had not
enrolled in a drug treatment program. Mother explained that
father worked and needed his rest.
Though father tested negative for all substances on
January 30, 2019, his urine was diluted.6 Father’s urine was
again diluted on February 1, 2019, and on February 15, 2019,
father failed to test.
DCFS requested a removal order, which was granted.
However, when the social worker went to the parents’ motel
room, only father was present, and he claimed not to know where
mother and Kayhlin were. The parents checked out of the motel
the following day, and left no forwarding address. They also did
not answer their cell phones.
Father and mother appeared for the arraignment and
detention hearing on February 21, 2019. Kayhlin was detained
in shelter care, and both parents tested negative for drugs. At
the continued hearing on March 4, 2019, the juvenile court
released Kayhlin to the parents.
Jurisdiction/disposition report and dismissal
In the jurisdiction/disposition report filed on April 11, 2019,
father stated that he and mother had made finding a place to live
a higher priority than drug treatment. He and mother had an
assessment with Tarzana Treatment Center but they were told
they did not qualify for the program. They were then referred to
a program called A New Vision for You, and were waiting to
begin the program. Father explained that his diluted test results
were due to his drinking a lot of water, at the direction of his
doctor due to swelling related to high blood pressure. Father was
____________________________________________________________
6 The comment “diluted” on a drug test indicates that the
level of creatine is lower than accepted.
7
trying to get to 12-step meetings three times per week but the
distance from his job prevented him from going as often as he
wanted. Father met with a therapist weekly at his place of
employment, for 30 minutes per session. Father admitted to
taking Prozac but was trying to get a doctor appointment to
change his medication for mental health.
On April 17, 2019, the juvenile court dismissed the section
387 petition with prejudice.
Second section 387 petition
On April 25, 2019, DCFS made an ex-parte request to
detain Kayhlin from father. On April 23, 2019, the social worker
learned from the lab where father had been testing that father
had been using a device to tamper with his drug tests.7 In an
incident report dated April 9, 2019, a supervisor wrote: “[Father]
has been observed on several occasions using a device or
extension tube for leaving a specimen at new directions site #31.
It was noted on chain of custody form every time that I witnessed
the tube being used.”
The social worker spoke to the manager for support
services at the lab, who reported that standard procedures would
be for the collector to stop the drug test, tell the client to step
outside the testing room, inform them that an incident report
would be generated and DCFS would be notified. However, the
collector reported that the bathroom is too small, and when
____________________________________________________________
7 The report read as follows:
“02/15/2019 – Remark: Device Used
“02/21/2019 – Remark: Not Enough to Cause Temp
“03/04/2019 – Remark: Device Used
“03/06/2019 – Remark: Device Used
“03/19/2019 – Remark: Device Used
“04/05/2019 – Remark: Device Used.”
8
clients are confronted they become hostile. The collector did not
want to upset the client.
On April 29, 2019, the juvenile court detained Kayhlin from
father, and ordered father to drug test at a different drug testing
location.
On May 1, 2019, DCFS filed a section 387 petition alleging
that the prior orders had not been effective in protecting Kayhlin.
The juvenile court detained Kayhlin from father on May 2, 2019,
and ordered DCFS to do a hair follicle drug test on father.
On June 19, 2019, DCFS filed a last-minute information for
the court indicating that father’s car had been seen at mother’s
address and male clothing was found in the home. A similar
incident occurred in July 2019. A social worker observed father’s
car hidden on the other side of the block; father drive away from
the home, shirtless, only a few minutes after a social worker
knocked on the door. Later father returned and demanded that
the social worker leave his house, and threatened the social
worker. DCFS requested that Kayhlin be detained from mother.
When DCFS went to the home to detain the child, father
was there in a locked bedroom, and denied that mother or
Kayhlin were in the home. The social worker and law
enforcement then found mother and Kayhlin hiding in a
bathroom.
On August 5, 2019, the juvenile court made detention
findings as to mother and ordered family reunification services
for the parents. The following day, DCFS filed a first amended
section 387 petition.
9
Adjudication and disposition of second section 387
petition
In its six-month review report, DCFS reported that mother
completed a 12-week outpatient program at the New Visions
facility with Dr. Arisah Muhammad. Father completed the same
program, and Dr. Muhammad reported that father was very
focused during the 12-week course on addiction education.
At the October 4, 2019 hearing, DCFS reported that both
parents had consistently tested negative for drugs since the
beginning of September 2019. DCFS presented the documentary
evidence from the case, then rested. Father called the former
social worker on the case to testify, and testified himself. Father
described his participation in Dr. Muhammad’s program, and
stated that he was attending 12-step meetings. Father denied
ever using a device to tamper with drug tests, and stated that Dr.
Muhammad believed him. Father’s counsel indicated that
despite a subpoena being issued for the individual who collected
the samples and reported the use of the device, the individual did
not appear. The court declined to issue a warrant for his
appearance. Father rested.
During closing argument father and mother requested that
all of the allegations in the section 387 petition be dismissed.
Counsel for Kayhlin and DCFS requested that the section 387
petition be sustained. On October 11, 2019, the juvenile court
issued its decision that the allegations of the section 387 petition
were true. The court set the matter for a disposition hearing.
Father was scheduled to take the hair follicle drug test on
October 17, 2019, and was given a check for transportation
expenses. Father missed the test, claiming he could not get off of
work. The test was rescheduled for October 25, 2019, when
10
father could not test because of the Tick fire and freeway
closures. The test was again rescheduled for October 30, 2019,
and again father did not appear. The test was rescheduled for
November 1, 2019.8
Father tested negative in four urine tests in October 2019,
with one no-show.
The disposition hearing was held on November 12, 2019.
The parents were not present. DCFS presented all of the
documents it had previously introduced into evidence. Father
then called Dr. Muhammad to testify.
Dr. Muhammad testified that she was both a cognitive
behavior specialist and an addiction specialist. The parents had
participated in her program for 12 weeks. Father never appeared
to be using drugs during their sessions. Dr. Muhammad had
heard that there were some problems with the testing at the site
where father was reported to have used a device. The urine
samples were not always handled correctly, and she was under
the impression that the samples in question were not sealed in
father’s presence.
The matter was continued for the parents’ testimony, at
which time, father did not testify, but mother testified concerning
her sobriety. Mother denied the social worker’s claim that father
had been in the home when the social worker saw his car hidden.
Instead, mother said that he was only there to pick up work
clothes.
In its decision of November 25, 2019, as to father, the court
noted that while in a drug rehabilitation program, father used a
device to thwart drug testing. In addition, father never took the
____________________________________________________________
8 The November 12, 2019 supplemental report does not
indicate an outcome for the November 1, 2019 scheduled test.
11
hair follicle test, although it was scheduled many times. Father
made no reasonable efforts to treat the problems that led to the
prior removal and prior terminations of parental rights. Thus,
the juvenile court denied father reunification services.
The court declined to return Kayhlin to mother, but mother
was granted reunification services.
On December 6, 2019, father filed his notice of appeal.
Regarding ICWA compliance
On October 10, 2018, mother informed DCFS that she
might have Indian heritage through the paternal side of her
family. At the arraignment and detention hearing, both mother
and father completed Parental Notification of Indian Status
forms. Mother claimed she might have Chicote heritage on her
father’s side of the family.9 Father claimed no Indian heritage,
but contended that mother might have Cherokee heritage. The
juvenile court ordered DCFS to investigate the claims of Indian
heritage.
In the December 5, 2018 jurisdiction/disposition report,
DCFS reported that mother stated she might have Cherokee
heritage. DCFS reminded the juvenile court that on June 3,
2016, the court found that there was no reason to believe that
Kayhlin’s full siblings had any Indian heritage.
On November 14, 2018, DCFS sent ICWA notices to the
Cherokee tribes as well as the Secretary of the Interior and the
Sacramento Area Director of the Bureau of Indian Affairs. The
notices contained information about mother’s parents, Rosann
and Daniel, including their places and dates of birth. The notices
____________________________________________________________
9 There is no Chicote tribe listed in the federal register.
(Indian Child Welfare Act; Receipt of Designated Tribal Agents
for Service of Notice, 85 C.F.R. § 24005 et seq. (2020).)
12
also contained possible information about Kayhlin’s maternal
great-grandparents, as well as Daniel’s adoptive father, who died
in 1989, and Daniel’s biological father.
In April 2019, DCFS reported that the following notices
were delivered: BIA--Sacramento; Secretary of the Interior;
Cherokee Nation of Oklahoma; Eastern Band of Cherokee
Indians; and United Keetoowah Band of Cherokee Indians.
There had been no further response from any tribe. DCFS
provided an update in August 2019, indicating that there had
been no responses from any tribes. DCFS requested that the
juvenile court find that there was no reason to know that Kayhlin
was an Indian child.
On November 18, 2019, at a disposition hearing on DCFS’s
section 387 petition, the juvenile court found that ICWA did not
apply. The parties discussed on the record that ICWA notices
had been sent, the time for receiving the notices had passed, and
that DCFS was requesting that the court find that ICWA was not
applicable. The court stated, “Indian Welfare Act is not
applicable.”
DISCUSSION
I. ICWA
Father contends that the ICWA notices did not contain
adequate information for the tribes to conduct a meaningful
investigation of Kayhlin’s eligibility as a member of the tribes.
For the reasons set forth below, we find that there was no
violation of ICWA.
A. Applicable law and standard of review
“‘Congress enacted ICWA in 1978 to protect Indian children
and their tribes from the erosion of tribal ties and cultural
heritage and to preserve future Indian generations. [Citations.]
13
“‘Because the tribe has an interest in the child which is distinct
from but on a parity with the interest of the parents’” [citation], a
tribe has the right to intervene in a state court dependency
proceeding at any time [citation]. This significant right, however,
is meaningless unless the tribe is notified of the proceedings.
[Citation.] “Notice ensures the tribe will be afforded the
opportunity to assert its right under the [ICWA] irrespective of
the position of the parents, Indian custodian, or state agencies.”’
[Citation.]” (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.)
Thus, when DCFS seeks foster care placement or termination of
parental rights, notice must be provided to the tribes if “the court
knows or has reason to know that an Indian child is involved.”
(25 U.S.C. § 1912(a).) An Indian child is defined as any
unmarried person under the age of 18 who is either (a) a member
of an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.
(25 U.S.C. § 1903(4).)
ICWA has been incorporated into the dependency statutes.
The Welfare and Institutions Code’s definition of “reason to
know” conforms to the definition provided by federal regulations.
(§ 224.2, subd. (d).) A juvenile court has “reason to know” that a
child might be an Indian child if:
“(1) A person having an interest in the child . . .
informs the court that the child is an Indian child.
“(2) The residence or domicile of the child, the
child’s parents, or an Indian custodian is on a
reservation or in an Alaska Native village.
“(3) Any participant in the proceeding, officer of
the court, Indian tribe, Indian organization, or
agency informs the court that it has discovered
14
information indicating that the child is an Indian
child.
“(4) The child who is the subject of the
proceeding gives the court reason to know that the
child is an Indian child.
“(5) The court is informed that the child is or
has been a ward of a tribal court.
“(6) The court is informed that either parent or
the child possesses an identification card indicating
membership or citizenship in an Indian tribe.”
(§ 224.2, subd. (d).)
The duty to provide notice is more narrow than the duty of
inquiry. (In re Austin J. (2020) 47 Cal.App.5th 870, 884.) It
applies only when the court knows or has reason to know that an
Indian child is involved in the proceedings. (§ 224.3, subd. (a).)
A juvenile court’s findings of proper notice under ICWA are
reviewed for substantial evidence. (In re D.N. (2013) 218
Cal.App.4th 1246, 1251.) A finding that ICWA notice was proper
is reversible if the record lacks substantial evidence that the
tribes received proper notice. (In re Mary G. (2007) 151
Cal.App.4th 184, 211.) The reviewing court does not reweigh the
evidence, but determines whether, after resolving all evidentiary
conflicts favorably to the juvenile court’s order, and making all
reasonable inferences from the evidence, there is substantial
evidence to uphold the order. (Tracy J. v. Superior Court (2012)
202 Cal.App.4th 1415, 1428.) The ultimate test is whether a
reasonable trier of fact could have made the ruling in light of the
15
whole record. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387-
1388.)
B. Substantial evidence supports the juvenile court’s
decision Father admits that ICWA notices were sent to the
appropriate tribes in this case. However, he takes the position
that DCFS did not undertake adequate inquiry or notice to these
tribes. Father argues that the notices did not provide the tribes
with meaningful notice and an opportunity to participate in the
proceedings. When the court made a finding that ICWA did not
apply, there was no discussion about the ICWA notices and no
inquiry as to whether DCFS had made any further investigation
of this issue. The court did not indicate whether it had reviewed
the ICWA notices. Thus, father argues, the court failed to meet
its obligations of ensuring ICWA compliance. Father cites In re
J.M. (2012) 206 Cal.App.4th 375, 380-381 for the proposition
that, in the absence of adequate inquiry and notice, tribes do not
have a meaningful opportunity to participate in the proceedings.
The record shows that DCFS investigated mother’s possible
Indian heritage. DCFS obtained relevant information about
mother’s parents, Rosann and Daniel, such as their places and
dates of birth. Further information was obtained about Daniel’s
mother, his adoptive father and his biological father. There is no
indication in the record that any information obtained provided
DCFS with a “reason to know” that Kayhlin was an Indian child
as that term is defined in section 224.2. Despite not having a
“reason to know” that Kayhlin was an Indian child, DCFS sent
notices to all of the Cherokee tribes containing Kayhlin’s known
heritage. Because DCFS sent the notice to the relevant tribes,
any failures in DCFS’s investigation were harmless. (People v.
Watson (1956) 46 Cal.2d 818, 837 [error is harmless unless it is
16
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of error].)
Father cites the “affirmative and continuing” duty of
inquiry to determine whether a child might be an Indian child in
dependency proceedings. (§ 224.2, subd. (a); In re A.B. (2008) 164
Cal.App.4th 832, 838.) The case does not suggest reversible error
occurred here. The A.B. court determined that the failure to
carry out this duty was harmless error where a parent had
disclaimed Indian heritage in a prior proceeding involving a
different child. (Id. at p. 843.) Further, “ICWA does not obligate
the court or [DCFS] ‘to cast about’ for investigative leads.
[Citation.]” (In re A.M. (2020) 47 Cal.App.5th 303, 323.) Where a
parent does not provide a “viable lead” requiring an effort to
locate and interview extended family members, the parent has
failed to demonstrate reversible error. (Ibid.)
Father also appears to argue that the timing of DCFS’s
inquiry rendered it inadequate. Father suggests that DCFS
relied on its previous inquiry rather than undertaking a current
inquiry. Father cites In re Breanna S. (2017) 8 Cal.App.5th 636,
652 for the proposition that it is not the obligation of family
members to volunteer information, but DCFS’s duty to seek out
Indian ancestry information. However, Breanna S. does not
suggest error here. At least some of the information that the
agency left out of the ICWA notices in that case “was known to
[DCFS] and included in its jurisdiction/disposition report to the
court, but omitted from the ICWA notices.” (Id. at p. 651.) Here,
in contrast, there is no suggestion that DCFS left out any known
information.
Father also cites In re K.R. (2018) 20 Cal.App.5th 701, 709
as support for his position that the trial court was not permitted
17
to assume that the social worker had adequately investigated,
but instead was required to inquire about those efforts to ensure
compliance with ICWA and its mandates. In K.R., the mother
contended that the social services agency did not properly
investigate the children’s possible Cherokee heritage and omitted
mandatory information from the ICWA notices sent to the tribes.
(Id. at p. 705.) The mother pointed out specific paternal relatives
who had not been interviewed regarding the children’s possible
Cherokee heritage. Here, in contrast, possible Cherokee heritage
was only alleged on mother’s side, and the record shows that
DCFS obtained as much information as was available from
mother’s extended family.
In re S.M. (2004) 118 Cal.App.4th 1108 is also
distinguishable. In S.M., the agency failed to include information
in the ICWA notices about two of the child’s family members who
were alleged to have Indian heritage. (Id. at p. 1116.) Here, in
contrast, the possible Indian heritage was through mother’s
relatives. Known information regarding mother’s parents, and
mother’s grandparents, was included in the forms sent to the
Cherokee tribes. Although there was no “reason to know” that
Kayhlin was an Indian child, the court in this matter used
caution and sent notices with all of the available information to
the Cherokee tribes. After such notice is given, “if neither BIA
nor any tribe provides a determinative response within 60 days,
then the court may find that ICWA does not apply to the
proceedings.” (In re Isaiah W. (2016) 1 Cal.5th 1, 15.) The
juvenile court did not err in doing so here.
18
II. Denial of reunification services
Father argues that no substantial evidence supports the
juvenile court’s order denying him reunification services. For the
reasons set forth below, we find no error.
A. Applicable law and standard of review
The juvenile court denied father reunification services
pursuant to section 361.5, subdivision (b). Under that section,
reunification services need not be provided to a parent where the
court finds, by clear and convincing evidence, “[t]hat the court
ordered termination of reunification services for any siblings or
half siblings of the child because the parent or guardian failed to
reunify with the sibling or half sibling . . . and that, according to
the findings of the court, this parent or guardian has not
subsequently made a reasonable effort to treat the problems that
led to removal of the sibling or half sibling of that child from that
parent or guardian.” (§ 361.5, subd. (b)(10).) In addition,
reunification services need not be provided if “the parental rights
of a parent over any sibling or half sibling of the child had been
permanently severed . . . and that, according to the findings of
the court, this parent has not subsequently made a reasonable
effort to treat the problems that led to removal of the sibling or
half sibling of that child from the parent.” (§ 361.5, subd. (b)(11).)
An order denying reunification services under section
361.5, subdivision (b) is reviewed for substantial evidence.
(Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121.)
We do not make credibility determinations or reweigh the
evidence. (Ibid.) “Rather, we ‘review the entire record in the
light most favorable to the trial court’s findings to determine if
there is substantial evidence in the record to support those
findings.’ [Citation.] In doing so, we are mindful of the higher
19
standard of proof required in the court below when reunification
bypass is ordered.” (Id. at p. 1122.)
B. Substantial evidence supported the juvenile
court’s denial of reunification services
Father argues that he made a reasonable effort to treat the
substance abuse that led to the removal and termination of
parental rights as to Kayhlin’s siblings. Thus, father argues, he
should have been granted reunification services as to Kayhlin.
The juvenile court’s determination that father did not make
a reasonable effort to treat his substance abuse issues is
supported by the evidence. Starting with the first referral
concerning the parents’ older children in 2015, father missed
drug tests and failed to comply with the court’s orders. Father
lost custody of his children in 2016 due to his failure to treat his
substance abuse issues. Father admitted that he and mother
were “using for the most part,” and were not making drug testing
a priority.
Since Kayhlin’s birth in 2018, father continued to miss
drug tests and attempt to thwart the testing process. Father
provided diluted or false samples on several occasions in 2018
and 2019, and in April 2019 it was discovered that father had
been using a device to tamper with his drug tests. When father
was ordered to take a hair follicle drug test, father made excuses
to reschedule the test four times. The record does not show that
he ever took the test.
The juvenile court noted father’s lengthy history of
thwarting drug tests when it determined that father had not
made reasonable efforts to overcome the problems that led to
Kayhlin’s siblings’ removals. Father had been cheating on drug
tests, and missing drug tests, throughout the entire proceeding.
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When the court ordered father to take a test that would have
been more difficult to obstruct, provided him transportation
funds and allowed him to reschedule numerous times, father
never appeared for the test.
Father argues that he made reasonable efforts to treat his
substance abuse problem by completing a substance abuse
treatment program after DCFS filed its section 387 petition and
Kayhlin was detained from father. Father also argues that he
tested negative in the seven months preceding the disposition
hearings, with the exception of one missed test. Father fails to
address the credibility issues he faced because of his attempts to
thwart the testing process on so many occasions. Father also
ignores his own failure to comply with the court’s order to take a
hair follicle drug test.
Father acknowledges that the “reasonable effort” language
found in section 361.5, subdivisions (b)(10) and (b)(11) does not
mean any effort. (R.T. v. Superior Court (2012) 202 Cal.App.4th
908, 914 (R.T.)) “The reasonable effort requirement focuses on
the extent of a parent’s efforts, not whether he or she has
attained ‘a certain level of progress.’ [Citation].” (Ibid.) “‘To be
reasonable, the parent’s efforts must be more than “lackadaisical
or half-hearted.”’ [Citations.]” However, a reasonable effort is
not synonymous with a cure. (Ibid.) In R.T., the mother’s
substance abuse had been ongoing throughout the child’s life.
Although there was some evidence that she had a period of
months during which her substance abuse was under control,
there was no evidence in the record that mother had recently
engaged in her court-ordered services “in any meaningful way.”
(Id. at p. 915.) Similarly, here, father’s efforts to thwart and
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avoid drug testing show that his participation was not
meaningful.
Father cites Cheryl P. v. Superior Court (2006) 139
Cal.App.4th 87 as an example of a case where the record lacked
clear and convincing evidence that the parents had not made a
reasonable effort to treat their problems. In Cheryl P., the
juvenile court denied services based on the parents’ failure to
reunify with an older sibling, and its position that more services
would not make any difference. “The court essentially adopted a
‘fruitless’ standard.” (Id. at p. 97.) Because the juvenile court
failed to make a finding that the parents did not make a
reasonable effort to treat the problems that led to the removal of
the sibling, the denial of reunification services was reversible
error.
No such error occurred here. The juvenile court was
focused on the correct standard -- whether father had made
reasonable efforts to treat the problem that led to the removal of
Kayhlin’s older siblings. The evidence in the record supported
the juvenile court’s determination that he had not. Father’s
consistent efforts to avoid drug testing, and his pattern of
deception, support the juvenile court’s assessment that father
had not followed through with the court’s orders “in any
meaningful way.” (R.T., supra, 202 Cal.App.4th at p. 915.)
C. Granting father reunification services would not
be in Kayhlin’s best interests
Section 361.5, subdivision (c)(2) provides that a court shall
not order reunification services to a parent described in
subdivision (b)(10) or (11), among other subdivisions, “unless the
court finds, by clear and convincing evidence, that reunification is
in the best interest of the child.” Father suggests that it would be
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in Kayhlin’s best interests to offer him reunification services.
Substantial evidence in the record supports the juvenile court’s
implied decision that it is not.10
Father’s continued efforts to avoid facing the problem that
led to the removal and termination of parental rights as to
Kayhlin’s older siblings suggests that it is not in the best interest
of Kayhlin to reunify with father. Further, father has a history of
undermining the court’s orders to stay away from Kayhlin.
Ultimately, Kayhlin was detained from mother due to father’s
disobedience of court orders and insistence on visiting the family
home. Father behaved in an aggressive manner towards the
social worker who attempted to enforce the court’s orders. Under
the circumstances, the juvenile court did not err in concluding
that additional reunification services to father were not in the
child’s best interest.
____________________________________________________________
10 Father argues that the juvenile court did not address the
issue of Kayhlin’s best interests at the disposition hearing, but
instead focused on father’s past conduct. Under the doctrine of
implied findings, we are required to “infer the trial court made all
factual findings necessary to support the judgment. [Citation.]”
(Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th
42, 58.) The doctrine is a “logical corollary to three fundamental
principles of appellate review: (1) a judgment is presumed
correct; (2) all intendments and presumptions are indulged in
favor of correctness; and (3) the appellant bears the burden of
providing an adequate record affirmatively proving error.
[Citations.] (Ibid.) Because father failed to ask the court to
address this omission at the disposition hearing, we infer that the
trial court made implied factual findings in support of its
decision, and review those factual findings for substantial
evidence. (Id. at p. 60.)
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
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