In re E.S. CA2/5 ( 2023 )

Filed 6/13/23 In re E.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re E.S., a Person Coming B318656
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 21CCJP05141A)
Plaintiff and Respondent,
v.
E.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Charles Q. Clay, Judge. Conditionally affirmed
with directions.
Linda J. Conrad, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
After the juvenile court declared his son a dependent under
Welfare and Institutions Code section 300, subdivisions (a)(1) and
(b),1 and removed the child from parental custody, father
appealed. He contends the court abused its discretion when it
ordered him to submit to drug testing and undergo a psychiatric
assessment as part of a reunification case plan. He also contends
the court erroneously failed to ensure compliance with the
inquiry requirements of the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes
(Welf. & Inst. Code, § 224 et seq.). The Los Angeles County
Department of Children and Family Services (the Department)
contends the challenged portions of father’s case plan were within
the court’s discretion. It does not oppose a remand with
directions to comply with ICWA.
We conditionally affirm the disposition order solely for the
juvenile court to ensure compliance with ICWA and related
California statutes.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
BACKGROUND
Father and mother2 have one son, born December 2019.
The parents’ relationship has been volatile, with a history of
serious domestic violence. Father is not challenging the court’s
February 2022 order declaring his son a dependent under section
300, subdivisions (a)(1) and (b), based on identical allegations
that expressly described three violent incidents: in January or
February 2021, mother struck father in the head with her fist,
and father struck mother; in August 2021, mother and father
struggled over mother’s phone, causing mother to fall and sustain
bruising to her back and shoulder; and in October 2021, father
struck mother’s face with his fist causing a laceration and
bleeding on her lip. Likewise, father does not challenge the
disposition orders removing the child from parental custody, and
entering a restraining order protecting mother from father.
The Department received a referral in October 2021,
alleging that the child was a victim of emotional abuse and
general neglect. The referral included concerns about the
parents’ history of domestic violence, and stated mother and
father both use marijuana and mother may also be using other
substances.
On October 20, 2021, a social worker made an
unannounced visit to paternal grandmother’s home, where father
and son were residing. In father’s first interaction with the social
worker, he “presented himself in an aggressive disrespectful
manner,” cursing, raising his voice and pointing his finger at the
social worker while the child was present. Father’s aggressive
2 Mother is not a party to this appeal.
3
behavior continued, as he stated he would “sock” the social
worker to protect his son, and began recording the social worker
with his phone as he moved around the home looking for his
clothing so he could leave for work. After the social worker was
able to de-escalate the situation, father broke down and cried,
apologizing and telling the social worker she was nice.
Paternal grandmother reported that mother and father
have verbal altercations frequently, and she has observed the
child crying while mother and father are verbally fighting.
Mother and father do not stop arguing even when the child
screams. Referring to physical violence, paternal grandmother
said mother and father “fight like two men.” She saw mother hit
father in the head with her fist in early 2021 in an incident where
the child was present and to which the police responded. Father
has told paternal grandmother that he also hits mother, because
she hits him. Father has anger management problems and is
aggressive towards everyone, including herself. Father has not
tried hitting paternal grandmother, but he raises his voice at her
and uses foul language. Paternal grandmother reported she
takes the child to medical appointments, because the parents do
not have the patience to do so. At the last appointment, paternal
grandmother and father learned the child was overweight, and
father became aggressive towards staff, requiring intervention by
many staff.
Paternal aunt also reported father has anger management
problems, which started when he started dating mother.
Paternal aunt confirmed father is disrespectful towards people,
raising his voice and using foul language, including towards
paternal grandmother, who cares for the child because mother
and father are not mentally stable.
4
Father denied any substance abuse issues, but
acknowledged smoking marijuana. He smokes away from the
home while the child is under paternal grandmother’s
supervision. Paternal grandmother reported seeing mother and
father smoking some distance away from her home, and she
would be taking care of the child. Mother reported father smoked
marijuana in the past, but she did not know if father was still
using marijuana.
The social worker observed that the child had separation
anxiety and cried when father left for work. Paternal
grandmother reported that the child struggles with staying alone
and is afraid that paternal grandmother will leave.
Father and mother have alternated between separating
and reconciling numerous times. The Department had
investigated a prior referral involving domestic violence in
December 2020, involving mother punching father while holding
the child. Father declined an emergency protective order, and
the matter was closed as inconclusive. During the October 2021
investigation that led to the current case, paternal grandmother
told the social worker during her initial interview that she was
sick of the constant fighting between mother and father, that
they were both crazy, and they would take a break for a week and
then get back together. Despite father previously seeking a
restraining order against mother on at least two separate
occasions, mother and father would continue to spend time
together and fight.
Father’s attitude towards mother and his communications
with the Department were unpredictable, swinging from one
position to another without explanation. Although mother and
father had previously agreed to an order giving mother partial
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custody, father told the social worker he wanted full custody of
his son, and he was willing to drug test, participate in therapy,
and do everything else the Department wanted him to do to
obtain the Department’s help. After the Department’s initial
interviews, father sent the social worker a text message stating
that he and mother wanted to be a family and would try with the
Department’s help. He sent a second text the following day,
accusing the social worker of upending his family’s life like a
tornado just as things were calming down.
The Department detained the child in paternal
grandmother’s home on November 3, 2021. The detention report
noted that “father’s overall behaviors have caused great concern
to the Department,” and he “appears to be emotionally unstable
and unable to regulate his emotions” in the child’s presence.
At the detention hearing on November 10, 2021, father
asked for the child to be released to his care, acknowledging that
the family needs help and stating he was willing to participate in
programs. The court ordered the child to remain detained from
parental custody.
In December 2021, father objected to paternal
grandmother’s request to travel to Guatemala with the child.
Father raised concerns about criminal activity and limited access
to health resources, stating that if the child died of COVID-19 or
was harmed or kidnapped, he would sue the Department and
“‘kill’” paternal grandmother. Father asked to travel with
paternal grandmother, stating he is a “‘gang member’” and would
be able to protect his child. The court granted paternal
grandmother’s request over father’s objection.
The Department recommended reunification services for
both parents. For father, it recommended a domestic violence
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program for both victims and perpetrators; a psychiatric
evaluation; eight random drug tests, with directions to the
Department to walk the matter onto calendar if father’s
marijuana levels increase or he tests positive for any other
substance; age appropriate parent education; and individual
counseling to address case issues.
On January 19, 2022, the court continued the adjudication
hearing to give the Department time to assess the parents’
participation in programs and whether father could return to
paternal grandmother’s home. Mother sought a restraining order
against father, and father objected, proposing that the court enter
a stay-away order instead. The court granted a temporary
restraining order to be in place until a February 23, 2022
adjudication hearing, when the court would also take up mother’s
request for a permanent restraining order.
At the February 23, 2022 jurisdiction and disposition
hearing, father did not present any evidence. His counsel argued
against removal, asking for the child to be returned to father’s
custody at paternal grandmother’s home instead. Father also
objected to being required to submit to drug testing and a
psychiatric evaluation. The court sustained the petition
allegations under section 300, subdivision (a)(1) and (b), which,
specifically referenced three domestic violence incidents in
January or February, August, and October of 2021. For
reunification services, the court ordered both parents to take
domestic violence classes, individual counseling to address case
issues, and age appropriate parenting classes. In addition, the
court ordered eight on demand or random drug tests for both
parents, with directions to the Department to walk on a request
for additional orders if either parent’s tests showed an increase in
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marijuana levels or came back positive for other substances. The
court also ordered both parents to be assessed for mental health
counseling, which may include a psychiatric evaluation, and both
parents to take all prescribed psychotropic medications. The
court granted a three year restraining order protecting mother
against father.
Father timely appealed.
DISCUSSION
On appeal, father does not raise any issues with the court’s
jurisdictional order or findings, or with the entry of the
restraining order against him. He challenges only aspects of the
court’s disposition order and the court’s failure to ensure
compliance with ICWA.
Disposition orders
Father contends that without evidence of substance abuse
or psychiatric issues, the juvenile court abused its discretion by
ordering father to drug test and undergo a psychiatric evaluation.
We disagree, because the record contains sufficient evidence to
support the court’s exercise of its discretionary authority to
fashion a reunification plan designed to identify and eliminate
the conditions that led to the dependency.
Under section 362, subdivision (a), “the court may make
any and all reasonable orders for the care, supervision, custody,
conduct, maintenance, and support of the child.” When
determining the dispositional orders that would be in the
children’s best interest, the juvenile court is not limited to the
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sustained allegations in the petition, but may consider the
evidence as a whole. (In re Briana V. (2015) 236 Cal.App.4th 297,
311.) “In fact, there need not be a jurisdictional finding as to the
particular parent upon whom the court imposes a dispositional
order.” (Ibid.) “ ‘The juvenile court has broad discretion to
determine what would best serve and protect the child’s interests
and to fashion a dispositional order accordingly. On appeal, this
determination cannot be reversed absent a clear abuse of
discretion.’ ” (Ibid.)
When making its dispositional order, the court is not
limited to consideration of allegations in the petition, but should
consider all the information contained in the social study of the
child made by the assigned social worker. (§ 358, subd. (b)(1).)3
The court is expected to have before it “family history and
behavior” contained in the reports. (In re Rodger H. (1991) 228
Cal.App.3d 1174, 1183.) These facts may be considered in
making dispositional orders. (In re Briana V., supra, 236
Cal.App.4th at p. 311.)
The information from paternal grandmother and paternal
aunt, as well as the social worker’s own observations, consistently
established that father had trouble regulating his emotions and
was prone to verbal aggression. It was not unreasonable for the
court to order drug testing and a psychological evaluation in
order to identify and address the possible factors led to the
3 Section 358, subdivision (b)(1) provides in relevant part
that before making its disposition orders, the juvenile court shall
receive into evidence, “the social study of the child made by the
social worker.”
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underlying dependency proceeding, even those factors outside of
the sustained allegations concerning domestic violence.
Father admitted to smoking marijuana, and he agreed to
drug testing early in the dependency. While it is true that
father’s marijuana use was not the basis for the dependency, the
fact that father had not completed any drug testing before the
disposition hearing, despite agreeing to do so, strongly supports
the conclusion that the order for eight random drug tests fell
within the court’s discretion to fashion an order protective of the
child’s best interests.
Where the jurisdictional finding is not based on a parent’s
mental disability, the juvenile court may look to the
circumstances underlying the dependency case and the evidence
of the parent’s conduct in determining whether to order a mental
health evaluation. (In re Rebecca H. (1991) 227 Cal.App.3d 825,
840.) Father’s mood swings and his tendency towards verbal
aggression form a reasonable basis for the juvenile court to
conclude that the ordered mental health counseling and a
possible psychiatric assessment would assist the Department in
tailoring its services to father’s needs, helping him in his efforts
to reunify with his son. The order for mental health counseling
and evaluation is not an abuse of the court’s discretion.
ICWA
Father contends the court erred in finding ICWA
inapplicable when there was no evidence the Department had
asked extended family members about the possibility of Indian
ancestry. Acknowledging its affirmative and continuing duty
under ICWA and related state law, the Department does not
10
oppose a remand with directions to ask known relatives about
possible Indian ancestry.
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California
law define an “ ‘Indian child’ ” as a child who is either a member
of an Indian tribe or 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); § 224.1, subds. (a) & (b); see In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)
California statutory law incorporates the requirements of
ICWA and imposes some additional requirements as well. (In re
Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021)
70 Cal.App.5th 735, 741–742.) “The Department’s first-step
inquiry duty under ICWA and state law was broader, requiring it
also to interview, among others, extended family members and
others who had an interest in the child.” (In re H.V. (2022) 75
Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal regulations
explain that the term “extended family member is defined by the
law or custom of the Indian child’s Tribe or, in the absence of
such law or custom, is a person who has reached age 18 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 C.F.R. § 23.2 (2017).) When there is
“reason to believe that an Indian child is involved in a
11
proceeding,” further inquiry is required. (§ 224.2, subd. (e); In re
T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.)
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V., supra,
75 Cal.App.5th at p. 438.)
Mother and father both denied Indian ancestry when asked
and did not claim any Indian ancestry on the ICWA-20 forms
filed at the November 10, 2021 detention hearing. The Court
reviewed the ICWA-20 forms and found ICWA inapplicable,
although we note for the record that the forms were not signed by
either parent. Although the Department spoke to paternal
grandmother, paternal aunt, and maternal grandmother, there is
no evidence anyone asked these relatives whether the child had
Indian ancestry.
We continue to conclude that in the absence of any evidence
that the Department asked available extended family members
about the possibility of Indian ancestry, it is prejudicial error for
the trial court to find ICWA inapplicable. (See, e.g., In re H.V.,
supra, 75 Cal.App.5th at p. 438 [prejudicial error when
Department fails to discharge its first step duty of inquiry]; In re
Benjamin M., supra, 70 Cal.App.5th at p. 741 [court must ask
each participant in child custody proceeding].) “By requiring the
Department to inquire of a child’s extended family members as to
the child’s possible Indian ancestry, the Legislature determined
that inquiry of the parents alone is not sufficient.” (In re
Antonio R. (2022) 76 Cal.App.5th 421, 431.)
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DISPOSITION
The February 23, 2022 disposition order is conditionally
affirmed and remanded to the juvenile court for the limited
purpose of ensuring compliance with the inquiry provisions of
Welfare and Institutions Code section 224.2 and, if necessary, the
notice provisions of section 224.3. The juvenile court shall order
that the Department complete an inquiry into son’s Indian
ancestry by making reasonable efforts to interview available
extended family members, including paternal grandmother,
paternal aunt, and maternal grandmother. If the juvenile court
issues an order determining that ICWA does not apply, the
dispositional order shall remain in effect. If the court determines
ICWA applies, it shall vacate the dispositional order and proceed
in accordance with ICWA and related state law.
NOT TO BE PUBLISHED.
MOOR, J.
I concur:
KIM, J.
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In re E.P.S.
B318656
BAKER, Acting P. J., Concurring in Part and Dissenting in Part
I agree the juvenile court did not exceed the bounds of its
discretion in ordering E.P. to submit to eight drug tests and a
mental health counseling assessment that may include a
psychiatric evaluation. I disagree with the majority’s conclusion
that no substantial evidence supports the juvenile court’s Indian
Child Welfare Act-related findings. (See, e.g., In re A.C. (2022) 86
Cal.App.5th 130, 132 (dis. opn. of Baker, J.); In re H.V., supra, 75
Cal.App.5th 433, 439 (dis. opn. of Baker, J.).) I would accordingly
affirm the juvenile court’s orders in full.
BAKER, Acting P. J.