In re Ai.C. CA2/3 ( 2023 )

Filed 4/13/23 In re Ai.C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
In re Ai.C., et al., Persons Coming B317600
Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No 21LJJP00446)
Plaintiff and Respondent,
v.
DONALD C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Susan Ser, Judge. Conditionally affirmed and remanded
with directions.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Deputy County
Counsel, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Donald C. (father) appeals from jurisdictional and
dispositional orders regarding his daughters (Ai.C. and As.C.)
under Welfare and Institutions Code section 300.1 Father
contends there was insufficient evidence to support the juvenile
court’s finding that his substance abuse issues placed Ai.C. and
As.C. at a substantial risk of harm. Father further argues that
the juvenile court erred in ordering a full drug and alcohol
treatment program with aftercare, testing, and a 12-step
program as part of father’s dispositional case plan. Finally, father
asserts the juvenile court and the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with the inquiry provisions of the Indian Child Welfare
Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law.2
1 All subsequent statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2 While we use the term “Indian” throughout this opinion to
remain consistent with the statutory language of ICWA, “we
recognize that other terms, such as ‘Native American’ or
‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021)
70 Cal.App.5th 735, 739, fn. 1.)
2
On this record, we agree only with father’s contentions with
respect to ICWA inquiry error. Accordingly, we conditionally
affirm the court’s jurisdictional and dispositional orders and
remand for further proceedings.
BACKGROUND
The family consists of father, mother, their daughters As.C.
(born November 2018)3 and Ai.C. (born September 2017) (the
children), and the children’s maternal half-sibling A.H. (born
May 2005).4
Since 2003, DCFS had received approximately 20 referrals
related to mother, including several substantiated allegations for
drug abuse, domestic violence, emotional abuse, and general
neglect. In December 2017, DCFS received a referral alleging
mother left Ai.C., A.H., and Zachary5 in father’s care despite
there being a restraining order against father that protected
mother, A.H., and Zachary from him. This referral was
substantiated, but closed because the family already had an open
court case. Father had no other referral history.6
3 As.C. was initially referred to as E.C. in the record.
4 A.H. and mother are not parties to this appeal.
5 Zachary is Ai.C.’s half-sibling and A.H.’s brother. He was
14 years old at the time of the December 2017 referral, but was
18 at the time of the referral leading to the instant petition, as to
which he is not a party.
6 Mother had no known criminal history. Father’s criminal
history included the following convictions: petty theft and
use/under the influence of a controlled substance in 2000,
inflicting corporal injury to a spouse in 2008, transporting a
3
I. Dependency referral and petition
The current matter came to DCFS’s attention on August 7,
2021 based on a referral alleging mother relapsed into substance
abuse. The caller reported that mother sent A.H. a photo of
mother with a black eye. When A.H. asked mother what
happened, mother stated: “ ‘[t]hey tried to get in my head and I
batted at them. They got mad and got my eye. That’s the last
time they will do that. They are dead now.’ ” According to the
caller, mother sounded like she was hallucinating. Mother had
gotten skinny and become paranoid. The caller also believed
father was using drugs (but provided no details), and physically
abusing mother in the children’s presence.
On August 9, 2021, a social worker visited the family home
with law enforcement. The children were in the front yard, one of
them naked and the other in underwear only. The children, who
were too young to provide a statement, appeared dirty but free of
concerning marks or bruises. While the social worker was
present, As.C. cut her foot on a sharp metal corner on the stairs
and mother reported she was going to clean the injury.
controlled substance in 2011, possession of a controlled substance
and burglary tools in 2012, getting credit using another person’s
identification in 2016, and possession of methamphetamine in
2020. Father’s most recent arrest had been in June 2020 for
possession of a controlled substance and drug paraphernalia,
after father was pulled over and admitted that he had a small
baggie of methamphetamine inside his wallet and a pipe
underneath the driver’s seat. The officer recovered those items
and observed the pipe appeared to have been used to ingest
methamphetamine.
4
Mother stated she was leaving father for reasons unrelated
to domestic violence. According to mother, the parents only
argued verbally and mother last used methamphetamine in June
2021. Father confirmed he was separating from mother due to
his infidelity. Father stated that mother exclusively cared for the
children. He claimed only to argue verbally with mother and that
he last used methamphetamine a few months earlier. According
to father, his drug use did not cause any issues. When asked
about an injury to his nose, father insisted a lighter had exploded
on his face, and that the injury did not relate to drug use.
On August 11, 2021, a social worker spoke with A.H. (16
years old at the time), who explained that she left to stay at her
grandmother’s house and did not want to return to the family
home because it was not a good place to be. As recounted in the
social worker’s report, mother had accused A.H. “of being in a
relationship” with father, which A.H. denied. Mother and father
frequently argued, and would push each other. A.H. showed the
social worker a picture of mother with a black eye. Mother said
she was stung by a bee, but A.H. did not believe her. Mother
informed A.H. she had relapsed and planned to go to rehab, but
had not done so.
Because of that, A.H. was concerned for the children. They
were not supervised, and had once climbed onto the roof of the
family’s trailer, and, in other instances, onto a net and a storage
shed, all while mother and father were inside the family’s home.
Father got into a physical altercation with Zachary because he
called father a druggie. A.H. was certain mother used drugs
because her behavior changed. Mother was well for a long time,
but father influenced her to engage in certain behaviors, starting
with smoking cigarettes, then smoking marijuana, and then
5
using drugs. After mother and father discovered that A.H. had
used a computer to seek help with relocating to a shelter, father
told A.H. that if she spoke with a social worker and the children
got taken away, father would “ ‘mess her up.’ ”
On August 13, 2021, mother told the social worker she had
used marijuana a year or so ago and had previously used
methamphetamine, but could not recall the last time she used it.
She again denied domestic violence, but acknowledged she and
father did not always get along.
On August 17, 2021, father refused to speak with the social
worker without an attorney present. He said he no longer lived
at the referral address and that the girls were out of state.
Father refused to provide his new address or the location and
contact information for the children. Father cursed at the social
worker and argued with the social worker regarding the necessity
of the investigation.
On August 25, 2021, A.H. again reported that the family
home was unsafe and hostile, and had only become that way after
father moved into the home. Although she saw no drug
paraphernalia in the family home, she believed mother used
drugs—including “ ‘that one you put in your arm’ ”—because
mother was paranoid and mother became paranoid when she
used drugs, and that father used drugs because he slept a lot.
A.H. reiterated that mother and father would push each other
during their arguments, that father threatened A.H. with
violence if the children were taken away, and that father had
slapped Zachary when he called father a druggie. A.H. remained
concerned about the children’s lack of supervision.
6
II. Petition and detention hearing
On September 2, 2021, DCFS filed a section 300 petition on
the children’s behalf.7 DCFS alleged the following: mother and
father had a history of engaging in violent confrontations in front
of the children, and the children’s half-siblings were prior
dependents of the juvenile court due to domestic violence between
mother and the half-siblings’ respective fathers (the a-1 count);
mother endangered the children by allowing father to reside in
the home (the b-1 and j-1 counts); mother had a history of
substance abuse and was a current abuser of methamphetamine,
and the children’s half-siblings had been prior dependents of the
juvenile court due to substance abuse by mother (the b-2 and j-2
counts); father had a history of substance abuse and was a
current abuser of methamphetamine (the b-3 count); and mother
had mental and emotional problems, including suicidal ideation,
that endangered the children (the b-4 count).
DCFS subsequently filed a first amended petition
correcting only the spelling of As.C.’s name. In conjunction with
the amended petition, DCFS also requested that the juvenile
court issue protective custody warrants as to the children, and
arrest warrants as to mother and father, because the children’s
whereabouts were unknown to DCFS and the parents refused to
provide information except to say the children were out of state.
At the detention hearing, which took place on September 7,
2021, the juvenile court made a prima facie finding of substantial
risk of harm on the first amended petition and ordered the
7 DCFS also filed the section 300 petition on behalf of A.H.
Because she is not a party to this appeal, we omit any further
discussion of what transpired in her dependency proceeding.
7
children detained at large. The court also issued the requested
protective custody and arrest warrants, and ordered DCFS to
walk the matter on the court’s calendar when it ascertained the
whereabouts of the children.
DCFS located the minors and placed them in protective
custody on September 30, 2021. At an arraignment on October 4,
2021, mother appeared in court and denied the petition’s
allegations. The juvenile court found father was the children’s
alleged father, detained the children from parents, and
temporarily placed them in foster care pending the next hearing.
The juvenile court recalled the warrants previously issued,
ordered DCFS to conduct a due diligence search for father, and
set an October 26, 2021 arraignment date for him.
III. Jurisdiction and disposition
A. The jurisdiction and disposition report and
supplemental report
The combined jurisdictional and dispositional hearing was
scheduled for October 26, 2021. Prior to it, DCFS submitted two
reports with updated interviews and information.
As outlined in the first report, a due diligence search for
father proved unsuccessful and DCFS could not locate father.
Father had not contacted DCFS or the caregiver to begin visits
with the children. There were no known family law custody
orders for the children. Additionally, DCFS made multiple
attempts to interview mother, but mother did not respond to the
text messages or voicemails left by the dependency investigator.
The dependency investigator interviewed A.H., non-relative
extended family member Lisa B., and Ai.C. As.C. was too young
to provide a statement. A.H. reported that, although father and
mother had some good days, they fought a lot, yelling and calling
8
each other derogatory names. Sometimes father left the home
due to the altercations. Once, mother tried to stop him, and A.H.
saw father push mother out of the way. She had not seen other
violent altercations or injuries on mother since mother’s last
boyfriend. Father cheated on mother “ ‘all the time.’ ” Father
also belittled A.H. about her school work and said she would
never amount to anything. A.H. also witnessed father slap her
sibling Zachary in the face. A.H. was “ ‘pretty sure’ ” that father
used drugs because he would come home “ ‘with really red eyes’ ”
and “ ‘knock[ed] out.’ ” He would only drink alcohol with mother,
which was “not often.”
Lisa B. reported that father “ ‘beats the hell out of’ ”
mother; mother had sent Lisa B. a photo of mother’s “ ‘swollen
and black and blue’ ” eye and included the following message:
“ ‘He thought he got the best of me, but I killed him.’ ” Later,
mother said she got stung by a bee. Mother had also told
someone else that father punched her but Lisa could not recall
the identity of that person. However, father didn’t “ ‘normally’ ”
punch mother. Lisa confirmed that, a few months ago, father
struck Zachary in the face and said something like “ ‘well you’re
18 now and you can’t do a damn thing to me.’ ” The children were
always really hungry and looked disheveled, unkempt, and dirty
when they visited Lisa B. Father had a reputation as a “ ‘dope
fiend’ ” and white supremacist. He used methamphetamine,
marijuana, and alcohol. At Thanksgiving dinner in 2020, father
appeared to be under the influence.
Ai.C. reported being happy with mother and father but
sometimes felt afraid. She could not articulate why she was
afraid and denied she was afraid of her parents. Ai.C. denied
witnessing adults hitting, pushing, or hurting each other. She
9
stated that father “ ‘gets mad’ ” when she misbehaves, but was
unable to provide further details. Mother yelled a lot, which A.H.
found to be “ ‘scary.’ ” Mother would throw father’s tools when
angry with him. She spanked A.H. if she misbehaved and when
she cried. Both father and mother drank beer and smoked
cigarettes. Father also smoked “ ‘something else’ ” that looked
“ ‘like water’ ” while inside the house.
DCFS reported the children had no known medical
conditions and appeared to be meeting some developmental
milestones. Neither child recognized numbers or knew their
birthdates or the spellings of their names, but they had good
motor skills. Ai.C. whined a lot, was at times defiant towards her
caregiver, and wet her bed at night despite being potty trained.
As detailed in a supplemental report submitted in advance
of the October 26, 2021 hearing, mother was interviewed,
reporting that she and father never hit each other and she never
sustained injuries. Mother stated, however, that on prior
occasions father had pushed her out of the way when she tried to
block him from leaving the home. A.H. had witnessed father
push mother “ ‘but [A.H.] was always on her phone’ ” and the
children were “ ‘probably’ ” present for that incident as well, but
they were “ ‘doing their own thing.’ ” Father’s “ ‘wandering eye’ ”
was the cause of the parents’ relationship issues. With respect to
the swollen eye that had been raised as a concern in the August
referral, mother explained that the swelling was caused by a bad
reaction to a hornet or wasp bite, and not as a result of bruising.
Mother would not confirm or deny whether father slapped
Zachary, but confirmed father got upset when he called father a
“ ‘drug addict’ ” and that there were “no bruises on Zachary” who
was “ ‘18 years old.’ ” When asked whether she had concerns
10
about the children’s safety in father’s care, mother stated: “ ‘If
he’s testing dirty, yes.’ ” Mother wanted to work together with
father to regain custody of the children, but voiced doubts about
whether father was willing to do what was necessary. She denied
there were restraining orders between her and father.
B. The jurisdiction/disposition hearing
At father’s October 26, 2021 arraignment, father did not
appear but was arraigned on the petition through counsel. The
juvenile court found father was the children’s presumed father,
continued the adjudication of the petition to November 12, 2021
so that father could be interviewed, and ordered that father
receive a referral for weekly drug testing.
At the November 12, 2021 hearing, father appeared with
counsel but had not yet been interviewed, prompting a further
continuance of the hearing to December 2, 2021. As of December
2021, DCFS made several unsuccessful attempts to interview
father regarding the allegations in the amended petition, and had
no updates regarding his participation in any services.
Nevertheless, father was in contact with DCFS and informed the
agency that he had been travelling to different counties for work.
Because of his work situation, DCFS had not yet been able to
refer father to drug testing or arrange visitation.
At the December 2, 2021 jurisdictional and dispositional
hearing, father appeared with counsel. The court accepted
mother’s no-contest plea and sustained counts as to mother’s
domestic violence, substance abuse, and mental and emotional
problems, and the counts related to the abuse or neglect of the
children’s maternal half-siblings.
Father asked that all counts of the operative petition
against him be dismissed. The children’s counsel requested that
11
the court sustain several of the domestic violence and substance
abuse counts related to father. Counsel pointed to evidence of
domestic violence in the home and father’s attempts to minimize
it. This evidence included A.H.’s report of mutual pushing and
shoving and mother’s acknowledgement that the younger
children were present. Father also slapped Zachary in A.H.’s
presence, and threatened to retaliate against A.H. with violence
if the children were removed from the home. Father admitted
smoking methamphetamine as recently as a few months before
his August interview. Father was also recently arrested for
possession of methamphetamine and a methamphetamine pipe.
Ai.C. also stated she saw father smoking cigarettes and
something that looked like water. Counsel for DCFS raised
similar contentions, adding that father had not been visiting with
the children or testing.
The juvenile court amended the petition by interlineation
to remove father from the a-1 domestic violence count, dismissed
the j-2 count relating to mother’s substance abuse, and sustained
the following allegations as true. As to counts b-1 and j-1:
“[Mother and father] have a history of engaging in violent
altercations in the presence of the children. On prior occasions,
the mother and . . . father pushed each other. The mother failed
to protect the children by allowing . . . father to reside in the
children’s home and to have unlimited access to the
children. . . . The children’s siblings . . . are prior dependents of
the Juvenile Court due to the mother engaging in violent
altercations. . . . Such violent conduct on the part of the mother
and . . . father and the mother’s failure to protect the children,
endangers the children’s physical health and safety, and places
the children at risk of serious physical harm, damage, danger and
12
failure to protect.” And, as to count b-3: “[Father] has a history of
substance abuse and is a current abuser of methamphetamine,
which renders . . . father incapable of providing regular care of
the children. The children, [Ai.C.] and [As.C.] are of such young
ages as to require constant care and supervision. . . . Such
substance abuse by . . . father, endangers the children’s physical
health and safety, and places the children at risk of serious
physical harm, damage and danger.”
In sustaining the allegations, the court reasoned that the
children were very young (three and four years old) and that
father’s recent unaddressed history of substance abuse, including
in Ai.C.’s presence, posed a current risk to the children.
The juvenile court heard arguments from the parties as to
disposition. Father requested that the children be released to his
custody, citing the lack of evidence that they were harmed, and
further objected to the proposed requirement that he participate
in a 52-week domestic violence program. The court declared the
children dependents, removed them from parental custody, and
placed them in foster care. It ordered reunification services for
the parents, including monitored visits, and a case plan for father
including: a full drug and alcohol program with aftercare, weekly
drug and alcohol testing, a 12-step program with court card and
sponsor, a 26-week domestic violence program (reduced from a
52-week program), parenting, individual counseling to address
case issues including substance abuse and domestic violence, and
conjoint counseling with mother if the parents remained a couple.
Father timely appealed.
IV. Facts relevant to ICWA
As attachments to both the original dependency petition
and the amended petition, DCFS submitted ICWA-010 forms for
13
the children indicating that it had not interviewed parents
regarding their possible affiliation or membership in a federally
recognized Indian tribe prior to the filing of each petition. On
September 7, 2021, the juvenile court deferred ICWA
determinations for the parents’ appearances.
On October 4, 2021, at mother’s first appearance, she
submitted an ICWA-020 form, checking the box stating “[n]one of
the above apply” concerning whether the children, mother, or any
of mother’s relatives are members of, or may be eligible for
membership in, a federally recognized tribe, and signing the
form. At a hearing that day, mother appeared with counsel and
the juvenile court accepted mother’s ICWA-020 form, and found
no reason to know that ICWA applied as to mother. The minute
order following the proceeding did not specify that mother must
notify counsel, DCFS, or the juvenile court regarding any new
information related to ICWA. Later that month, mother told the
dependency investigator that father would suggest paternal uncle
and his spouse as relative caregivers for the children.
In the first jurisdiction/disposition report, DCFS reported
mother said she was born in Oklahoma and was the third of four
children. She elaborated that she had two siblings in Texas with
whom she did “not have much of a relationship,” that maternal
grandfather also lived in Texas (with whom she lived in 20138),
and that the maternal grandmother “struggled with drugs and
alcohol all her life.” Starting at age 4, she was raised in
Lancaster, California. Her parents divorced that same year and
8 Around this time, one of mother’s daughters—then 20
months old—died of heatstroke when maternal grandfather left
her in a car for eight hours in Texas.
14
she resided predominantly with maternal grandmother, with the
parents sharing custody. She started using drugs at 14 years old,
including marijuana and methamphetamine, and hard liquor at
age 15. She was then on probation and became emancipated.
Mother had never married but reported serious relationships
with three men, all involving domestic violence and drug use.
The supplemental jurisdiction/disposition report reflected
that, when DCFS interviewed mother in October 2021, she
denied Native American ancestry. Mother stated that she met
father in 2014 through a mutual friend. The supplemental report
contained no information regarding father’s possible affiliation
with or membership in a federally recognized Indian tribe.
On October 26, 2021, at father’s scheduled arraignment, an
attorney “standing in” for father’s “future attorney of record”
appeared on behalf of father and denied the allegations. Father
was not present. Stand-in counsel indicated that he had just
spoken to father on the telephone that morning. The stand-in
attorney submitted an ICWA-020 form to the juvenile court,
checking the box stating “[n]one of the above apply” concerning
whether the children, father, or any of father’s relatives are
members of, or may be eligible for membership in, a federally
recognized tribe. The form was not signed by father. Rather, on
the signature line was the following typed statement: “Signed via
telephone by [counsel’s name] on the above date.” Stand-in
counsel did not represent to the juvenile court that he spoke with
father regarding possible tribal affiliation; nor did the juvenile
court inquire. The juvenile court accepted the ICWA-020 form
and found it had no reason to know that Ai.C. and As.C. were
Indian children. The minute order following the proceeding did
15
not order father to keep his attorney, DCFS, or the juvenile court
apprised of any new ICWA information.
At the subsequent November 12, 2021 and December 2,
2021 hearings attended by father, there was no mention of ICWA
by the parties or the juvenile court.
DISCUSSION
I. Father’s jurisdictional challenge is justiciable
Father contends that substantial evidence does not support
the jurisdictional orders involving his substance abuse (§ 300,
subd. (b)), as well as the resulting dispositional orders. DCFS
counters that father’s appeal should be dismissed as moot.
“[I]t is a court’s duty to decide ‘ “ ‘actual controversies by a
judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter
in issue in the case before it.’ ” ’ ” (In re N.S. (2016) 245
Cal.App.4th 53, 58.) A case becomes moot, and subject to
dismissal, when it is “ ‘ “impossible for [a] court, if it should
decide the case in favor of plaintiff, to grant him any effect[ive]
relief.” ’ [Citation.] For relief to be ‘effective,’ . . . the plaintiff
must complain of an ongoing harm [that is] . . . redressable or
capable of being rectified by the outcome the plaintiff seeks.” (In
re D.P. (2023) 14 Cal.5th 266, 276.) This rule applies in
dependency proceedings on a case-by-case basis, based upon
whether the parent has demonstrated a specific and non-
speculative legal or practical consequence to be avoided upon
reversal of the jurisdictional orders. (Ibid.)
As a general matter, an appeal is often rendered moot
“where jurisdictional findings have been made as to both parents
but only one parent brings a challenge” or “where there are
16
multiple findings against one parent” and the parent declines to
challenge the validity of one of the findings that is alone
sufficient to sustain jurisdiction. (In re D.P., supra, 14 Cal.5th at
pp. 283–284.) Here, father does not dispute in his reply brief
DCFS’s contention that his appeal would ordinarily be mooted by
mother’s declining to appeal the jurisdictional orders related to
her, and father’s declining to challenge the domestic violence-
related counts sustained as to him. That is because regardless of
the outcome of this appeal, dependency jurisdiction over the
children would remain intact.
However, father contends that the appeal is not moot
because he is also challenging the dispositional order requiring
him to engage in substance abuse treatment related programs.
In other words, father argues even though dependency
jurisdiction over the children will not be affected by the outcome
of this appeal, the appeal is not moot because this court may still
offer effective relief to father if we conclude the substance abuse
count is not supported by substantial evidence. DCFS counters
that because the dispositional order could stand as reasonable
even absent the sustained count relating to father’s substance
abuse, there is no effective relief this court could grant as to the
jurisdictional order.
Father is correct. “[A] case is not moot where a
jurisdictional finding . . . ‘has resulted in [dispositional] orders
which continue to adversely affect’ a parent.” (In re D.P., supra,
14 Cal.5th at pp. 277–278.) Given that the underlying
proceedings are ongoing, the dispositional orders that father
complete a full drug and alcohol program with aftercare, weekly
testing, and a 12-step program imposed by the juvenile court
could readily—and adversely—affect father’s rights. For
17
example, any noncompliance by father in these programs may
well serve as justification for refusing to liberalize visitation,
terminating reunification services, and denying future requests
by father to return the children to his custody. Accordingly, if we
were to find the dispositional orders related to substance abuse
unnecessary as a result of an unsupported jurisdictional order,
father would likely be granted effective relief, thus
demonstrating his appeal is not moot. (Id. at p. 276.) While it is
true that a reasonable dispositional order could stand absent a
sustained jurisdictional count in some circumstances (for example
when the juvenile court orders participation in parenting classes
for a previously non-custodial non-offending parent), in this
particular case, the challenged dispositional orders are directly
related to the sustained substance abuse count. Thus, even
though jurisdiction over the children remains intact regardless of
this appeal, reversal of the substance abuse-related count would
likely afford father effective relief. We therefore proceed to
review the merits.
II. Substantial evidence supports the jurisdictional and
dispositional orders based on father’s substance
abuse
We review challenges to the sufficiency of the evidence
underlying jurisdictional and dispositional orders for substantial
evidence. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
“ ‘Substantial evidence is evidence that is “reasonable, credible,
and of solid value”; such that a reasonable trier of fact could
make such findings.’ ” (In re L.W. (2019) 32 Cal.App.5th 840,
848.) “ ‘ “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most
18
favorable to the court’s determinations; and we note that issues
of fact and credibility are the province of the trial court.”
[Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.” ’ ” (I.J.,
at p. 773.) “ ‘ “ ‘The ultimate test is whether it is reasonable for a
trier of fact to make the ruling in question in light of the whole
record.’ ” ’ ” (In re John M. (2012) 212 Cal.App.4th 1117, 1124.)
Section 300, subdivision (b)(1) provides, in relevant part,
that a child comes within the jurisdiction of the juvenile court if
the “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 failure or inability of the child’s parent or guardian to
adequately supervise or protect the child, . . . [or by] [t]he
inability of the parent or guardian to provide regular care for the
child due to the parent’s or guardian’s . . . substance abuse.” A
finding of jurisdiction under section 300, subdivision (b)(1)
requires the child welfare agency to prove three elements by a
preponderance of the evidence: “ ‘(1) neglectful conduct by the
parent in one of the specified forms; (2) causation; and (3)
“serious physical harm or illness” to the minor, or a “substantial
risk” of such harm or illness.’ ” (In re Joaquin C. (2017) 15
Cal.App.5th 537, 561.) The juvenile court “may consider past
events in deciding whether a child currently needs the court’s
protection. [Citation.] A parent’s ‘ “[p]ast conduct may be
probative of current conditions” if there is reason to believe that
the conduct will continue.’ ” (In re Kadence P. (2015) 241
Cal.App.4th 1376, 1383–1384.)
Here, as we explain below, the statements of father and
other witnesses as well as father’s criminal substance abuse
19
history provide substantial evidence that father’s substance
abuse placed his young daughters Ai.C. and As.C. at substantial
risk of serious harm, and that those risks had not abated by the
time of the jurisdictional and dispositional orders.
Father had substance abuse-related convictions in 2000,
2011, 2012, and 2020. His 2020 conviction stemmed from
allegations that, in June of that year, father was found with a
baggie of methamphetamine and a methamphetamine pipe.
When interviewed for this case in 2021, father admitted that he
had used methamphetamine a few months prior to the filing of
the petition (or approximately five months prior to the December
2021 jurisdictional/dispositional hearing).9 He also explained
that the burn injury to his nose occurred after a lighter exploded
in his face.
Several witnesses corroborated the severity of father’s
substance abuse. A.H.—who father had threatened to harm if
she spoke with the social worker and the children were taken
away—believed father used drugs because he slept a lot and
would come home “ ‘with really red eyes’ ” and “knock[ed] out.”
Further, A.H. attributed mother’s relapse into drug abuse to
father’s influence. A.H. also witnessed father slap her brother
Zachary after Zachary called father a “druggie.” Lisa B. said that
father was known to be a “ ‘dope fiend’ ” who used
methamphetamine, marijuana, and alcohol, and that he had
attended the previous year’s Thanksgiving dinner under the
9 Though father suggests that this period was insufficiently
recent to support a finding of current risk, he cites no authority
for that proposition, and we are aware of no case applying such a
rule to a parent with as prolonged and severe of a substance
abuse history as father.
20
influence. Ai.C. recounted that father drank beer, smoked
cigarettes, and smoked “ ‘something else’ ” that looked “ ‘like
water’ ” while inside the house. Finally, when mother was asked
whether she was concerned about the children’s safety in father’s
care, mother stated: “ ‘If he’s testing dirty, yes.’ ”
Longstanding and chronic substance abuse of this nature is
a serious problem that generally cannot be ameliorated in a few
months. Even were that not the case, once this matter
commenced, father not only did not enroll in a treatment
program, but he largely declined contact with DCFS (including
providing contact information for himself and the children. When
father was able to be interviewed, he was hostile toward the
social worker and minimized his substance abuse despite also
stating that he struggled with drug abuse “all his life.” (In re
A.F. (2016) 3 Cal.App.5th 283, 293 [mother’s failure to appreciate
seriousness of substance abuse relevant to determination of
whether she could modify behavior absent supervision].) Father
also did not participate in drug testing. (Cf. In re Destiny S.
(2012) 210 Cal.App.4th 999, 1004 [mother’s substance abuse
posed insufficient current risk where mother had tested clean for
three months].) Indeed, as of the December 2021 hearing, DCFS
reported having no information regarding father’s participation
in services or his sobriety.
That As.C. and Ai.C. were three and four years old
respectively at the time of the jurisdictional and dispositional
hearing cannot be overlooked, either, given their heightened risk
of harm due to their “ ‘tender years.’ ” (In re Christopher R.
(2014), 225 Cal.App.4th 1210, 1216 [child of tender years faces an
inherent risk of harm to his health and safety when not
21
adequately supervised].)10 The children regularly played outside
naked and unsupervised while father was in the home. While
unsupervised, they engaged in potentially injurious behavior
such as climbing on a net, on top of a storage shed, and on the
roof of the family’s home. The children were always hungry and
looked disheveled, unkempt, and dirty. Further, the family home
contained sufficient hazards to have caused one of the children to
injure herself in the presence of the social worker. (See In re
Natalie A. (2015) 243 Cal.App.4th 178, 185 [parent’s failure to
fulfill obligations at home is “one of the most salient
manifestations of parental substance abuse”].) Under all of these
circumstances, there was substantial evidence that father’s
substance abuse posed a sufficient current risk to the children.
Father’s remaining arguments to the contrary are
unavailing. Father suggests that Lisa B.’s statements were not
sufficient to support jurisdiction, given that Lisa B. could only
speculate regarding father’s current use of drugs. As a court of
review, however, we cannot reweigh the evidence or disturb the
lower court’s credibility determinations. (I.J., supra, 56 Cal.4th
at p. 773.) Even so, there was other corroboration of father’s
substance abuse beyond Lisa B.’s statements, and no evidence
suggesting the abuse had abated by the time of the hearing.
10 Troublingly, however, Ai.C. was sufficiently mature to
recognize that father was smoking a water-like substance that
was not a cigarette. Father’s continued assertion that Ai.C. did
not make sufficiently clear that father was not smoking a vape
pen is a veiled challenge to the juvenile court’s credibility
determinations, which we decline to entertain other than to say
that Ai.C.’s age more than suffices to explain any lack of clarity
in her statements. (I.J., supra, 56 Cal.4th at p. 773.)
22
In sum, there was ample record support to conclude that
father’s substance abuse was, and continued to be, sufficiently
severe to place Ai.C. and As.C. at substantial risk of serious
physical harm. Further, father had taken inadequate protective
measures to sufficiently mitigate that risk. We therefore reject
father’s argument that the juvenile court’s jurisdictional orders
are not supported by substantial evidence.
Finally, as to disposition, father argues that the juvenile
court’s imposition of substance abuse-related services was an
abuse of discretion because the juvenile court’s jurisdictional
orders related to his substance abuse are not supported by
substantial evidence. As set forth above, there is more than
substantial evidence to support the jurisdictional orders.
Because father’s only apparent quarrel with the dispositional
orders is based on the alleged insufficiency of the evidence to
support the jurisdictional orders, his challenge to the
dispositional orders also fails. (I.J., supra, 56 Cal.4th at p. 773.)
III. ICWA
A. Governing law
Congress enacted ICWA to curtail “the separation of large
numbers of Indian children from their families and tribes through
adoption or foster care placement” (Miss. Band of Choctaw
Indians v. Holyfield (1989) 490 U.S. 30, 32), and “to promote the
stability and security of Indian tribes and families by establishing
. . . standards that a state court . . . must follow before removing
an Indian child from his or her family.” (In re Austin J. (2020) 47
Cal.App.5th 870, 881). (In re Dezi C. (2022) 79 Cal.App.5th 769,
780, review granted Sept. 21, 2022, S275578 (Dezi C.); see In re
Isaiah W. (2016) 1 Cal.5th 1, 7–8.)
23
Under California law, the juvenile court and the county
welfare department have “an affirmative and continuing duty to
inquire” whether a child subject to a dependency petition “is or
may be an Indian child.” (§ 224.2, subd. (a).) “The duty to
inquire begins with the initial contact, including, but not limited
to, asking the party reporting child abuse or neglect whether the
party has any information that the child may be an Indian child.”
(Ibid.) If a child is placed in the temporary custody of a county
welfare department, the department “has a duty to inquire
whether that child is an Indian child.” (§ 224.2, subd. (b).)
“Inquiry includes, but is not limited to, asking the child, parents,
legal guardian, Indian custodian, extended family members[11],
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.” (Ibid.)
Additionally, 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” and “shall instruct the parties to inform
the court if they subsequently receive information that provides
reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
11 Section 224.1, subdivision (c), adopts the federal definition
of extended family member: “ ‘[E]xtended family member’ shall be
as defined by the law or custom of the Indian child’s tribe or, in
the absence of such law or custom, shall be a person who has
reached the age of eighteen and who is the Indian child’s
grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin, or
stepparent.” (25 U.S.C. § 1903(2).)
24
After the initial inquiry, if the juvenile court or the county
welfare department “has reason to believe that an Indian child is
involved in a proceeding,” then the court or department “shall
make further inquiry regarding the possible Indian status of the
child, and shall make that inquiry as soon as practicable.”
(§ 224.2, subd. (e).) If the court or the county welfare department
“knows or has reason to know” that an Indian child is involved in
a dependency proceeding, the county welfare department shall
provide notice to relevant tribes and agencies for hearings that
may culminate in an order for foster care placement, termination
of parental rights, or adoptive placement. (§ 224.3, subd. (a).)
“If the [juvenile] court makes a finding that proper and
adequate further inquiry and due diligence as required in this
section have been conducted and there is no reason to know
whether the child is an Indian child, the court may make a
finding that [ICWA] does not apply to the proceedings, subject to
reversal based on sufficiency of the evidence.” (§ 224.2, subd.
(i)(2).)
B. Standard of review and test for prejudicial error
Courts generally review “ ‘ “the juvenile court’s ICWA
findings under the substantial evidence test, which requires us to
determine if reasonable, credible evidence of solid value supports
the court’s order. [Citations.] We must uphold the court’s orders
and findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in
favor of affirmance.” ’ ” (In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
In an appeal from an order terminating parental rights, a
majority panel of this division articulated a hybrid substantial
evidence/abuse of discretion standard of review with respect to
25
claims of ICWA inquiry error. (See In re Ezequiel G. (2022) 81
Cal.App.5th 984 (Ezequiel G.).) Under this standard, the
appellate court reviews the juvenile court’s determination as to
whether there is reason to know a child is an Indian child for
substantial evidence, and the ruling that DCFS exercised due
diligence and conducted a proper and adequate ICWA inquiry for
an abuse of discretion. (Id. at pp. 1003–1004; see also In re K.H.
(2022) 84 Cal.App.5th 566, 589 [“consistent with the reasoning in
In re Caden C. (2021) 11 Cal.5th 614, 639–640, the determination
that the agency’s inquiry was proper, adequate, and duly diligent
should be reviewed under a hybrid substantial evidence and
abuse of discretion standard”].)
On the issue of prejudice, the appellate courts have crafted
different standards for assessing when a defective ICWA inquiry
is harmless. These standards include: mandated reversal
whenever an agency’s inquiry is deficient (see, e.g., In re Antonio
R. (2022) 76 Cal.App.5th 421, 432–437); presumptive affirmance
unless the appealing party can demonstrate with a proffer on
appeal that further inquiry would lead to a different ICWA
finding (see In re A.C. (2021) 65 Cal.App.5th 1060, 1065); reversal
“where the record indicates that there was readily obtainable
information that was likely to bear meaningfully upon whether
the child is an Indian child” (In re Benjamin M., supra, 70
Cal.App.5th at p. 744); and a harmless error analysis that
considers whether “the record contains information suggesting a
reason to believe that the child may be an ‘Indian child’ within
the meaning of ICWA, such that the absence of further inquiry
was prejudicial to the juvenile court’s ICWA finding.” (Dezi C.,
supra, 79 Cal.App.5th at p. 779). (See also Ezequiel G., supra, 81
26
Cal.App.5th at p. 1014 [majority panel adopting harmless error
standard articulated in Dezi C.].)
C. The initial inquiry was inadequate and prejudicial
Father contends there was insufficient evidence to support
the juvenile court’s ICWA finding because DCFS failed to conduct
a proper and adequate inquiry regarding the children’s possible
tribal affiliation.12 DCFS agrees that father’s contentions are
“well-taken” and that there is “little harm” in remanding for the
purpose of conducting further inquiry. We concur.
In Ezequiel G., the majority panel reasoned that in
reviewing the juvenile court’s ICWA finding that DCFS complied
with its statutory duties, the “key inquiry should be whether the
ICWA inquiry conducted has reliably answered the question at
the heart of the ICWA inquiry: Whether a child involved in a
proceeding ‘is or may be an Indian child’ . . . . In other words, the
focus of the court’s analysis should not be on the number of
individuals interviewed, but on whether the agency’s ICWA
inquiry has yielded reliable information about a child’s possible
tribal affiliation.” (Ezequiel G., supra, 81 Cal.App.5th at p. 1009.)
While “inquiry of the parents will, in many cases, yield reliable
information about a child’s possible tribal affiliation,” there may
be occasions where “inquiry of extended family members will be
necessary, either because parents do not appear in the
dependency proceedings, refuse to answer ICWA inquiries, or
12 We use the term “tribal affiliation” because “the test for
whether ICWA applies does not turn on whether a child has
‘Indian ancestry,’ although that is often used as a shorthand
reference for the subject of factual inquiries that may bear on the
ultimate question whether a child is or may be an ‘Indian child.’ ”
(In re Adrian L. (2022) 86 Cal.App.5th 342, 351, fn. 11.)
27
give answers that are deemed unreliable by the juvenile court.”
(Id. at p. 1012.)
As we now explain, based on the record before us, the
ICWA inquiry conducted as to father did not reliably answer the
question of whether either child involved in this proceeding is or
may be an Indian child.
First, the record discloses that DCFS never interviewed
father regarding his or either child’s possible tribal affiliation. To
compound matters, DCFS also did not interview father regarding
his upbringing or knowledge of his family ancestry, including
whether he was raised by one, both, or neither of his biological
parents, whether he spent his childhood primarily in or out of his
family’s care, and whether he had close or estranged familial ties.
The absence of any information regarding father’s possible tribal
affiliation and familial ancestry bore directly on whether inquiry
of extended family members was necessary to answer reliably the
question of whether the children in this case are or may be
Indian children.
Second, at the hearing in which the juvenile court
concluded there was no reason to know Ai.C. and As.C. were
Indian children, it did so based on an ICWA-020 form that was
unreliable. Notably, the form was not signed by father. Rather,
the form was signed by a stand-in attorney for father’s assigned
counsel. That same stand-in attorney represented to the court
that he had only spoken to father over the telephone that
morning. Stand-in counsel did not indicate whether he had
discussed with father possible tribal affiliation, and the juvenile
court inquired no further of the attorney when it received the
ICWA-020 form and made the finding that there was no reason to
know ICWA applied to these proceedings. Father was not
28
present when the juvenile court made this finding, and the record
does not reflect that any of his family members were, either.
Additionally, the minute order from that hearing does not
indicate that father was ordered to notify counsel, DCFS, or the
juvenile court about any updates regarding ICWA, including
changes to the submitted ICWA-020 form. While any one of
these individual factors may not necessarily on their own render
a denial of tribal affiliation in an ICWA-020 form suspect, these
factors, when present cumulatively as they are in this case, cast
serious doubt on the reliability of the denial attributed to father.
This lack of reliability only highlighted the need for DCFS to
attempt to obtain additional information, namely by actually
asking father about any possible tribal affiliation (whether on his
part or either child’s part), and by asking at least some available
extended family members whether Ai.C. or As.C. is or may be an
Indian child.
Third, the juvenile court did not raise the topic of possible
tribal affiliation with father at the two hearings when father was
present before the court, with his assigned counsel of record, and
available to answer questions or lodge an objection to the court’s
prior ICWA finding made in his absence.
Given these specific circumstances and the bare record
before the juvenile court with respect to father’s possible tribal
affiliation, under either a substantial evidence or abuse of
discretion standard of review, we conclude the juvenile court
erred by implicitly finding DCFS exercised the due diligence
required by section 224.2 in its initial ICWA inquiry, sufficient
for the court to determine ICWA did not apply. (See In re K.H.,
supra, 84 Cal.App.5th at p. 589 [“On a well-developed record, the
court has relatively broad discretion to determine whether the
29
agency’s inquiry was proper, adequate, and duly diligent on the
specific facts of the case. However, the less developed the record,
the more limited that discretion necessarily becomes. When, as
in this case, the court’s implied finding that the agency’s inquiry
was proper, adequate, and duly diligent rests on a cursory record
and a patently insufficient inquiry that is conceded, the only
viable conclusion is that the finding is unsupported by
substantial evidence and the court’s conclusion to the contrary
constitutes a clear abuse of discretion.”].)
We further conclude that the inquiry error in this case was
prejudicial under any standard of prejudice set forth in the
preceding section, save for the presumptive affirmance standard,
which we decline to follow.13
Under the mandated reversal standard, inquiry error “is in
most circumstances, as here, prejudicial and reversible.” (In re
Antonio R., supra, 76 Cal.App.5th at p. 435.) As for the “readily
obtainable standard,” reversal is required “where the record
indicates that there was readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian
13 We decline to adopt this approach for the same reasons
articulated by the appellate court in Dezi C., namely “by focusing
on what a parent proffers on appeal,” the presumptive affirmance
approach “ignores that the juvenile court record may provide a
reason to believe that the juvenile court’s ICWA finding is
incorrect and that further inquiry is warranted. Where, for
instance, a parent is never asked about his or her American
Indian heritage or the parent’s answer is of less value because
the parent is adopted, the presumptive affirmance rule would
mandate affirmance in the absence of [a] proffer, even though, in
our view, there is on those facts reason to believe the child may
be an Indian child.” (Dezi C., supra, 79 Cal.App.5th at p. 785.)
30
child.” (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Here, there was indeed readily obtainable information from
father himself about his possible tribal affiliation, which directly
bore on whether his biological children are or may be Indian
children. While we recognize that father did not make himself
available for DCFS interviews regarding the dependency
allegations, it appears he was in contact with the agency
concerning visits with the children. During these
communications, DCFS could have, but did not, inquire with
father regarding possible tribal affiliation. Additionally, the
record reflects that DCFS was in contact with mother, who had
been in a relationship with father since 2014, and thus was
another source of readily obtainable information regarding his
ancestry.14 Finally, under the harmless error standard
articulated in Dezi C., supra, 79 Cal.App.5th 769, a reviewing
court has reason to believe further inquiry might lead to a
different result “if the record indicates that the agency never
inquired into one of the two parents’ heritage at all” (id. at p. 779,
original italics), which is the situation presented here.
Because we conclude the ICWA inquiry error was
prejudicial, we remand the matter for further proceedings.15 On
14 Further, it appears from the record that DCFS may have
had the contact information for the paternal uncle and his wife,
who had been identified as possible relative caregivers by mother.
15 Because we are remanding the matter for further
proceedings as to ICWA inquiry and notice (if applicable), we
express no opinion as to the adequacy of DCFS’s inquiry with
respect to mother. As this case progresses, however, we note that
the juvenile court and DCFS “have an affirmative and continuing
31
remand, the juvenile court shall order DCFS to comply with the
inquiry provisions of section 224.2 as to father, and available
maternal and paternal relatives. Once the juvenile court has
ensured that DCFS has complied with the requisite inquiry and,
if applicable, any notice provisions of ICWA and related
California law, the juvenile court shall determine whether ICWA
applies to these proceedings. If the court determines that ICWA
does apply, then it shall conduct all further proceedings in
compliance with ICWA and related California law.
duty to inquire whether” either child “is or may be an Indian
child” (§ 224.2, subd. (a)), that DCFS has a duty “on an ongoing
basis” to report “a detailed description of all inquiries, and
further inquiries it has undertaken, and all information received
pertaining to the child’s Indian status” (Cal. Rules of Court, rule
5.481(a)(5)), and that a juvenile court must reverse any finding
that ICWA does not apply “if it subsequently receives information
providing reason to believe that the child is an Indian child.” (§
224.2, subd. (i)(2)).
32
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders
are conditionally affirmed. The matter is remanded to the
juvenile court with directions as set forth in the opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
NGUYEN (KIM), J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33