In re Sebastian S. CA2/7 ( 2023 )

Filed 8/7/23 In re Sebastian S. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re SEBASTIAN S. et al., Persons B322829
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. 19CCJP07386C-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
VERONICA O.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Gabriela H. Shapiro, Juvenile Court Referee.
Conditionally affirmed.
Katie Curtis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Veronica O., mother of six-year-old Sebastian S. and four-
year-old Gilbert Matthew S. III (Matthew),1 appeals from the
juvenile court’s jurisdiction findings and disposition orders after
the court sustained a petition by the Los Angeles County
Department of Children and Family Services under Welfare and
Institutions Code section 300, subdivision (b),2 and removed the
children. Veronica argues that substantial evidence did not
support the court’s finding her substance abuse put the children
at substantial risk of serious physical harm or the court’s removal
order and that the court erred in not making a finding under
section 361, subdivision (e), regarding reasonable efforts to
prevent or eliminate the need for removing the children. She also
argues the Department did not comply with the requirements of
the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA)
and related California law.
1 The younger child’s family members sometimes call him
Matthew. We will too, to distinguish him from the children’s
father, Gilbert S. Jr., whom we will refer to as Gilbert.
2 Undesignated statutory references are to the Welfare and
Institutions Code.
2
We conclude that substantial evidence supported the
jurisdiction findings and removal order and that any error by the
juvenile court in failing to make findings under section 361,
subdivision (e), was harmless. But the Department concedes, and
we agree, it did not comply with ICWA’s inquiry requirements.
Therefore, we conditionally affirm the juvenile court’s findings
and orders and direct the court to comply, and ensure the
Department complies, with ICWA and related California law.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Department Investigates a Referral Concerning
Veronica and Her Children
In May 2022 the Department received a report expressing
concerns for the safety of Sebastian and Matthew, who lived with
Veronica. The reporter stated that Veronica spent most of her
time at a ranch where her boyfriend, Jose “Pepe” Reyes, lived and
worked, that Veronica took Sebastian and Matthew there with
her, and that she and Pepe would lock themselves in Pepe’s
“shack” at the horse barn to “hav[e] sex and drugs” while the
children sat outside in the dirt or wandered around the farm.
The reporter said the ranch “was not a safe place” because,
among other things, it was in “an area of drug sales and
distribution” and the area was “full of gang members.” The
reporter also stated Veronica sometimes left the children at the
ranch with Pepe, who would lock himself in his shack and leave
the children untended.
A Department social worker and two West Covina Police
Department officers visited the home of the children’s paternal
grandmother, Lucy S. Veronica had lived there with Sebastian
3
and Matthew since the close of a previous dependency case
involving them.3 Lucy stated that, at the moment, the children
were at school and Veronica was “down the street” with her new
boyfriend, Pepe, at what the family referred to as “the ranch.”
Lucy said the children’s father, Gilbert S. Jr. (Gilbert), lived in
Oregon, where “he was on probation,” but he was currently “in
town” with “permission to stay a week or two.”
Lucy reported that Veronica would come home late from,
and “leave late in the night with the children” for, visits to the
ranch. She stated that the children said Pepe was “mean,” that
Sebastian reported Pepe had hit him, and that Sebastian did not
like going to the ranch and would often ask to “stay home” with
Lucy. Lucy stated that Veronica was “not caring for the
children,” that Veronica “neglects the children’s hygiene,” and
that Lucy often heard the children crying “they were hungry” and
Veronica telling them to “‘Shut up.’” Lucy also said a family
friend had told her that Veronica and Pepe used drugs together
at the ranch, but Lucy could not say for certain that was true and
declined to disclose the family friend’s contact information
because “she did not want to get the person involved.” Asked if
she was concerned Veronica abused substances, Lucy answered,
“I think she does, but I can’t prove it.”
3 In that case the juvenile court sustained a petition under
section 300, subdivision (b), based on allegations, among others,
Sebastian and Matthew were at substantial risk of serious
physical harm as a result of Veronica’s “history of use of illicit
substances” and “recurrent close affiliation with people who
abuse methamphetamines.” We reversed the court’s jurisdiction
findings as unsupported by substantial evidence (In re S.S. et al.
(Jun. 23, 2021, B309447) [nonpub. opn.]), and the juvenile court
later dismissed the petition.
4
The officers left the social worker with Lucy and visited the
ranch, where they found Veronica and Pepe. The officers “found
no concerns,” but recommended to Veronica and Pepe that “the
children should not be staying over due to [Pepe] living in a horse
stable.” The officers also reported Veronica “appeared hostile”
and “refused to address the allegations.” The officers told
Veronica a Department social worker was at Lucy’s home.
Meanwhile, the children had arrived at Lucy’s house with a
paternal aunt, Yvette, who told the social worker she often heard
Veronica yelling at the children and calling them “shit heads,”
but had never seen her physically abuse them. Yvette said that
Pepe lived at the ranch, which Yvette had heard was “not safe,”
and that he had been Veronica’s boyfriend for about two months.
She also said she had “heard [Veronica] has substance abuse
issues,” but had “never seen [her] under the influence.”
Veronica now arrived at Lucy’s home and spoke to the
social worker outside. Veronica protested the officers’ visit to the
ranch and denied reports that it was “a drug house” and that she
and Pepe abused the children. She said the children liked to go
to the ranch to ride horses. Veronica also denied “current
substance abuse.” When the social worker asked her to take a
drug test, Veronica declined, became upset, and soon asked to
end the interview. The social worker reported that, during the
interview, Veronica “appeared paranoid and would become
concerned every time a car passed by or a person walking on the
street passed the home” and “appeared to ramble at times . . .
and at times would become hostile and then come down.” At the
end of the interview, the social worker made a safety plan with
Veronica, which required her to ensure the children were “in safe
environments.” Veronica agreed to the plan and signed it.
5
The Department also interviewed Gilbert. He stated that
he currently lives in Oregon, where he is on probation after
having been incarcerated, and that he has permission to visit
California for a few days each month to visit the children. He
stated that Veronica’s new boyfriend, Pepe, lived in a shack on
the ranch, that Veronica “takes the children to stay there,” that
Sebastian told Gilbert that Pepe had hit him, and that Gilbert
had concerns about Pepe because he heard Pepe “is gang
affiliated and [a] drug user.” Gilbert confirmed that he (Gilbert)
and Veronica “use[d] to do drugs together,” but because he lives
in Oregon, he “cannot say if [she] is currently using.” He added:
“But she is still hanging out [with] the people we use[d] to back
when I was with her, and this area is known for meth use, [and]
my belief is that she is still using and probably never
stopped . . . .” Gilbert also stated that, after the Department
social worker’s recent visit to Lucy’s home, Veronica yelled that
she was leaving Lucy’s home and that the children would never
see Gilbert or Lucy again.
Several days later, a Department social worker spoke with
Veronica. She said that Matthew was with her and that
Sebastian was with Gilbert. Veronica told the social worker she
was currently “staying at a friend’s home.” When the social
worker asked for that address, Veronica declined to give it.
B. The Department Detains the Children
Two weeks after the Department initially investigated the
referral, Sergeant Spagon and Corporal Marquez of the West
Covina Police Department investigated an incident involving a
car registered to Veronica. They went to Lucy’s home, looking for
Veronica. Lucy told them that Veronica no longer lived with her
6
and that she believed Veronica “was staying” at the ranch. She
explained that she (Lucy) was raising Sebastian and that
Veronica “has” Matthew. In addition, according to Sergeant
Spagon’s report, Lucy “expressed the fact Veronica abused alcohol
and drugs.”
The officers found Veronica at the ranch, where they
arrested her after determining she had outstanding warrants.4
Veronica refused to tell the officers where Matthew was, even
after Sergeant Spagon explained “the importance of knowing
where her[ ] child was” and expressed his concerns for Matthew’s
safety. Inspecting the premises, Sergeant Spagon found
Matthew, who emerged from a horse stable. He also glimpsed
Pepe fleeing the property on foot. Sergeant Spagon noticed
clothing and other items “strewn around the horse stable as if the
horse stable was being lived in.” Sergeant Spagon detained
Matthew and contacted the Department. In reporting the
circumstances to the Department, Sergeant Spagon stated that,
during his interaction with Veronica, she was “hostile” and
“uncooperative” and appeared to him to be “‘coming down from a
high, meth.’”
A Department social worker met with Veronica at the
police station after her arrest. Veronica told the social worker
that she had been staying at the ranch and that Matthew slept
there in the car. When the social worker asked whether she had
been “staying with ‘Pepe,’” Veronica would not answer. When the
4 The warrants were for leaving the scene of a vehicle
accident (Veh. Code, § 20002) and resisting, delaying, or
obstructing a public officer, peace officer, or emergency medical
technician in the discharge of his or her duties (Pen. Code, § 148,
subd. (a)(1)).
7
social worker asked her to provide Pepe’s “information,” Veronica
refused. The social worker reported that, during this interview,
Veronica was “withdrawn[,] unable to answer questions when
asked[,] and putting her hands to her face and rolling her hands
on her legs.” That night the Department detained Sebastian and
Matthew and placed them with Lucy.
C. The Juvenile Court Sustains a Petition Under
Section 300 and Removes the Children, and
Veronica Appeals
In June 2022 the Department filed a petition under
section 300, subdivisions (b) and (j), alleging, among other things,
Veronica’s history of substance abuse put Sebastian and Matthew
at substantial risk of serious physical harm. More specifically,
the Department alleged that Veronica had “a history of substance
abuse including methamphetamine, which renders [her]
incapable of providing the children with regular care and
supervision”; that the children were so young they required
constant care and supervision; that Veronica’s drug use
interfered with her ability to provide that care and supervision;
and that Gilbert knew of Veronica’s substance abuse and failed to
protect the children by allowing Veronica to live with and have
unlimited access to them.
At the detention hearing the juvenile court found the
Department had made a prima facie showing Sebastian and
Matthew were persons described by section 300 and ordered their
continued detention from Veronica. The court released them to
their father under the supervision of the Department with a plan
that placed them with Lucy.
8
In July 2022 the Department filed a jurisdiction and
disposition report. In addition to detailing the investigation of
the initial referral, the report documented that, “[p]er hospital
staff, [Veronica] tested positive for methamphetamine during a
pre-natal care visit at an El Monte Clinic on” September 7, 2018,
i.e., while she was pregnant with Matthew.5 The report also
included statements from more recent interviews with witnesses:
Sergeant Spagon stated that, based on his observations of the
property, “the ‘ranch’ was no place for children to be” and that, on
the night he arrested Veronica, “it seemed like [she] was coming
down from using substances”; Gilbert stated that the ranch “area
is a known drug place” and that Sebastian had demonstrated for
him how Pepe “smacked” him on the head; Lucy stated that
Sebastian told her he “did not like living at ‘the ranch’ because it
is ‘stinky and dirty’” and that Matthew told her he slept “on the
hay” when he was with Veronica. The report described the
Department’s unsuccessful attempts to contact Pepe to assess the
allegations concerning him, Veronica’s lack of cooperation in that
effort, and Veronica’s failure to appear for any of the three drug
tests the Department had requested and scheduled for her in the
previous two weeks.
On August 5, 2022 the Department filed a last minute
information report. The Department reported Veronica was not
responding to its attempts to contact her by telephone and text
5 The report also indicated that from May 2013 through
December 2015 Veronica was arrested six times for drug-related
offenses. In one of these instances the charge was dismissed “in
furtherance of justice,” in another Veronica was “[d]etained only”
due to “lack of sufficient evidence,” and for the other instances no
disposition was available.
9
message and, as of that date, had “not been responsive to [the
Department] in regards to visitation.”
On August 10, 2022 the juvenile court held a combined
jurisdiction and disposition hearing. The court sustained the
allegations under section 300, subdivision (b), concerning the risk
of harm to the children as a result of Veronica’s substance abuse,
as well as Gilbert’s inability to protect the children from it, and
dismissed the other allegations. At disposition the court declared
Sebastian and Matthew dependent children of the court, removed
them from Veronica and Gilbert, and placed them with Lucy.
Veronica timely appealed.
DISCUSSION
A. The Juvenile Court Did Not Err in Sustaining the
Petition
1. Applicable Law and Standard of Review
“The purpose of section 300 ‘is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’”
(In re Cole L. (2021) 70 Cal.App.5th 591, 601; see § 300.2,
subd. (a).) “Although section 300 requires proof the child is
subject to the defined risk of harm at the time of the jurisdiction
hearing [citations], the court need not wait until a child is
seriously abused or injured to assume jurisdiction and take steps
necessary to protect the child. [Citations.] The court may
10
consider past events in deciding whether a child presently needs
the court’s protection.” (Cole L., at pp. 601-602.)
Section 300, subdivision (b)(1), “allows a child to be
adjudged a dependent of the juvenile court when ‘[t]he child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child, or the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child from the conduct of a custodian with whom the child has
been left.’ A jurisdiction finding under section 300,
subdivision (b)(1), requires the Department to prove three
elements: (1) the parent’s or guardian’s neglectful conduct or
failure or inability to protect the child; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness.” (In re Cole L., supra,
70 Cal.App.5th at p. 601.)
“‘“In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings . . . , we determine if
substantial evidence, contradicted or uncontradicted, supports
them. ‘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
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.’”
[Citations.] However, “[s]ubstantial evidence is not synonymous
with any evidence. [Citation.] To be substantial, the evidence
11
must be of ponderable legal significance and must be reasonable
in nature, credible, and of solid value.”’” (In re Cole L., supra,
70 Cal.App.5th at p. 602.)
2. Substantial Evidence Supported the Juvenile
Court’s Jurisdiction Findings
Veronica argues substantial evidence did not support the
juvenile court’s jurisdiction findings because “there was no
evidence that [she] used drugs, was under the influence, or had a
‘history of drugs’” that rendered her incapable of providing
Sebastian and Matthew with regular care and supervision. She
argues the court mistakenly based its jurisdiction findings “on
nebulous, speculative concerns.” Her argument lacks merit.
Veronica makes much of the statements by Lucy, Yvette,
and Gilbert to the effect that, although they believed she abused
drugs, they had not seen her do so and could not prove it. She
also argues that her “being difficult” when questioned by a police
officer, “withdrawn” when interviewed by a social worker, and
unwilling to participate in voluntary drug-testing did not show
she engaged in substance abuse. Perhaps. But that was not the
extent of the evidence supporting the juvenile court’s jurisdiction
findings.
To begin with, there was substantial evidence Veronica had
a “history of substance abuse.” In addition to Gilbert’s statement
he and Veronica “used to do drugs together,” the Department’s
jurisdiction and disposition report reflected that Veronica tested
positive for methamphetamine in September 2018, during a
prenatal visit while pregnant with Matthew. Veronica argues the
latter evidence is not reasonable, credible, or of solid value
because the information came from “an anonymous referral.” She
12
points out the Department investigated the referral and
ultimately determined intervention was not warranted when, five
months after Veronica’s reported positive test, she and infant
Matthew tested negative for methamphetamine. But the referral
was not anonymous. It came from hospital staff and concerned
test results at a specific clinic on a specific date. The evidence
was sufficiently sourced and definite to be of ponderable legal
significance, and the juvenile court could reasonably assign it
weight, regardless of what test results the Department may have
obtained five months later.
There was also substantial evidence Veronica was currently
abusing methamphetamine. On the night he arrested Veronica,
Sergeant Spagon told a Department social worker that Veronica
appeared to be coming down from a methamphetamine-induced
high, an observation he confirmed in a subsequent interview.
Consistent with this observation, the Department social worker,
after interviewing Veronica during the initial investigation of the
May 2022 referral, reported Veronica rambled, displayed fitful
hostility, appeared paranoid, and became concerned every time a
car or person passed Lucy’s home. (See In re Alexzander C.
(2017) 18 Cal.App.5th 438, 449 [methamphetamine is “‘an
inherently dangerous drug known to cause visual and auditory
hallucinations, sleep deprivation, intense anger, volatile mood
swings, agitation, paranoia, impulsivity, and depression’”],
disapproved on another ground in Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010, fn. 7; see also People v. Mataele (2022)
13 Cal.5th 372, 393 [describing expert testimony “regarding the
effects of methamphetamine, including paranoia, irritability,
impulsivity, psychosis, and delusions resulting from sustained
use”].)
13
Veronica argues that, contrary to a comment at the
jurisdiction hearing by the juvenile court, there was no evidence
Sergeant Spagon was qualified by his training to give a reliable
opinion she was coming down from a methamphetamine high.6 It
is not clear whether Veronica means by this argument to
challenge the admissibility of Sergeant Spagon’s statement, its
evidentiary weight, or both. But to the extent she challenges its
admissibility, she forfeited the argument by failing to object or
move to exclude or strike the evidence in the juvenile court. (See
People v. Ramos (1997) 15 Cal.4th 1133, 1171 [“‘A party desiring
to preserve for appeal a challenge to the admission of evidence
must comply with the provisions of Evidence Code section 353,
which precludes reversal for erroneous admission of evidence
unless: “There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so
stated to make clear the specific ground of the objection or
motion.”’”]; In re Michael L. (1985) 39 Cal.3d 81, 88 [“Objections
not presented to the trial court cannot be raised for the first time
on appeal.”]; In re C.B. (2010) 190 Cal.App.4th 102, 132 [parents
forfeited hearsay challenge where they failed to object in
compliance with Evidence Code section 353, and “‘“‘[i]t is settled
law that incompetent testimony, such as hearsay or conclusion, if
received without objection takes on the attributes of competent
proof when considered upon the question of sufficiency of the
evidence to support a finding’”’”]; see also In re S.F. (2023)
91 Cal.App.5th 696, 724 [“as a general rule, failure to object in
the juvenile court forfeits a parent’s right to pursue an issue on
6 The juvenile court stated the evidence of Veronica’s
“apparent substance abuse . . . included the police officer, who is
trained to recognize when someone is under the influence.”
14
appeal”]; In re A.S. (2018) 28 Cal.App.5th 131, 151 [“As a general
rule, failure to object at the hearing forfeits a claim of error on
appeal.”].)7 And, of course, we may not reweigh the evidence.
(In re Caden C. (2021) 11 Cal.5th 614, 640; In re I.J. (2013)
56 Cal.4th 766, 773.)
Substantial evidence thus supported the juvenile court’s
finding Veronica was abusing substances. And because
Sebastian and Matthew were children under the age of six, that
finding created a rebuttable presumption of a substantial risk of
harm to them. (See In re Christopher R. (2014) 225 Cal.App.4th
1210, 1219 [for children “six years old or younger at the time of
the jurisdiction hearing,” a “finding of substance abuse is prima
facie evidence of the inability of a parent or guardian to provide
7 Veronica suggests she did not forfeit a challenge to the
statement’s admissibility because, at the jurisdiction hearing, her
counsel argued “‘the [social worker’s] report does not contain any
details concerning the officer’s training or experience.’” But this
was a passing comment by her counsel that went to the weight
(or lack thereof) of what her counsel called “the strongest
evidence that [Veronica] has used illicit substances.” Counsel’s
argument was not an objection or a request to exclude the
evidence, as required to preserve the issue for review. (See
People v. Jackson (2016) 1 Cal.5th 269, 328 [“A proper objection
must ‘“‘fairly inform the trial court, as well as the party offering
the evidence, of the specific reason or reasons the objecting party
believes the evidence should be excluded, so the party offering the
evidence can respond appropriately and the court can make a
fully informed ruling.’”’”]; In re Joy M. (2002) 99 Cal.App.4th 11,
21 [counsel’s argument did not satisfy Evidence Code section 353
because it “lacked clarity and specificity” and “gave no clue”
counsel wanted the evidence excluded].)
15
regular care resulting in a substantial risk of harm”]; In re
Drake M. (2012) 211 Cal.App.4th 754, 767 [same]; see also In re
Kadence P. (2015) 241 Cal.App.4th 1376, 1385 [mother’s
“continuous illicit drug use” put her infant daughter “at
substantial risk of harm”].) Veronica does not acknowledge this
presumption, let alone attempt to rebut it. In any event, the
record supports applying the presumption here: The court could
reasonably infer Veronica’s substance abuse contributed to the
poor judgment she exercised in continuing to expose her children
to Pepe, who Sebastian reported had hit him, and the ranch,
which Sergeant Spagon euphemized as no place for children.
B. The Juvenile Court Did Not Err in Removing the
Children from Veronica
1. Applicable Law and Standard of Review
Before the juvenile court may remove a child from a parent
with whom the child was residing at the time the dependency
proceedings were initiated, the court must find by clear and
convincing evidence that the child would be at substantial risk of
physical or emotional harm if returned home and that there are
no reasonable means by which the child can be protected without
removal. (§ 361, subd. (c).)
“‘On appeal from a dispositional order removing a child
from a parent we apply the substantial evidence standard of
review, keeping in mind that the trial court was required to make
its order based on the higher standard of clear and convincing
evidence.’” (In re I.R. (2021) 61 Cal.App.5th 510, 520; see
Conservatorship of O.B., supra, 9 Cal.5th at p. 1005 [“when
presented with a challenge to the sufficiency of the evidence
16
associated with a finding requiring clear and convincing evidence,
the court must determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of
fact could have made the finding of high probability demanded by
this standard of proof”].) In conducting our review, we “must
view the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B., at pp. 1011-1012; see I.R., at
p. 521 [“‘“‘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.’”’”].)
2. Substantial Evidence Supported the Juvenile
Court’s Removal Order
Veronica contends substantial evidence did not support the
juvenile court’s findings that Sebastian and Matthew would be at
substantial risk of harm if returned home and that there were no
reasonable means to protect children without removal. But
substantial evidence supported those findings by clear and
convincing evidence.
There was substantial evidence that returning the children
to Veronica would put them at substantial risk of harm. As
discussed, the juvenile court could reasonably conclude Veronica
had substance abuse issues she was neither acknowledging nor
addressing. (See In re D.B. (2020) 48 Cal.App.5th 613, 622
[“Realizing conduct needs improvement is a first step to
improvement. ‘One cannot correct a problem one fails to
acknowledge.’”]; In re John M. (2012) 212 Cal.App.4th 1117, 1127
17
[mother’s failure to acknowledge her actions endangered her
child supported the juvenile court’s finding he could not safely
remain in her custody].) This conduct was especially dangerous
to Sebastian and Matthew given their young age. (See In re
Christopher R., supra, 225 Cal.App.4th at p. 1219.) Moreover,
Veronica gave no indication she intended to stop exposing the
children to the risk of harm presented by Pepe and the ranch.
(See In re V.L. (2020) 54 Cal.App.5th 147, 156 [“The inference
from [the father’s] denial is that he is less likely to change his
behavior in the future.”]; In re A.F. (2016) 3 Cal.App.5th 283, 293
[“In light of mother’s failure to recognize the risks to which she
was exposing the minor, there was no reason to believe the
conditions would not persist should the minor remain in her
home.”].)
Substantial evidence also supported the finding there were
no reasonable means to protect the children without removing
them from Veronica. Protecting the children without removing
them from Veronica would require her to cooperate in some
measure with the Department and others helping to ensure the
children’s safety. And Veronica was anything but cooperative
with the Department. She refused at one point to provide the
Department the address where she was staying with Matthew,
refused to say whether she had been staying with Pepe at the
ranch, refused to disclose information about Pepe so that the
Department could interview and assess him, and later refused to
respond to the Department’s multiple attempts to contact her by
telephone and text message. (See In re E.E. (2020)
49 Cal.App.5th 195, 212 [conduct “such as failing to cooperate
with the social services agency, being less than forthcoming
during interviews, or missing drug tests” can “support removal
18
from parental custody at disposition”].) She also refused to
disclose Matthew’s location to Sergeant Spagon on the night he
arrested her.
Veronica suggests reasonable alternative means of
protecting the children included placing them with her in Lucy’s
home and ordering “unannounced visits by the Department and
in-home counseling services.” But Veronica had emphatically
announced her opposition to continuing to live in Lucy’s home, as
well as her intention to keep the children away from Lucy (and
Gilbert). And it was reasonable for the juvenile court to infer,
particularly in light of Veronica’s unacknowledged, unaddressed
substance abuse and the children’s young age, that unannounced
Department visits and in-home counseling were insufficient
alternative means to protect against the risk of harm.
Veronica also argues the record does not include sufficient
discussion by the Department of its reasonable efforts to prevent
or eliminate removal. (See In re Ashly F. (2014) 225 Cal.App.4th
803, 809 [“To aid the court in determining whether ‘reasonable
means’ exist for protecting the children, short of removing them
from their home, the California Rules of Court require [the
Department] to submit a social study which ‘must include’ among
other things: ‘A discussion of the reasonable efforts made to
prevent or eliminate removal.’”]; Cal. Rules of Court, rule
5.690(a)(1)(B)(i).) The Department, however, sufficiently
discussed those efforts. The Department reported that, after
investigating the May 2022 referral, it made a safety plan
Veronica agreed to and, in short order, departed from by failing
to ensure the children were in safe environments. The
Department attempted to contact Pepe to better assess the risk
he posed to the children’s safety, which Veronica succeeded in
19
preventing. The Department asked Veronica to submit to drug
testing, which she declined to do. And the Department “made
regular efforts to engage and contact” Veronica, which she
regularly failed to respond to.
Finally, Veronica contends the juvenile court erred in
failing to make a finding, as required by section 361,
subdivision (e), “as to whether reasonable efforts were made to
prevent or to eliminate the need for removal of” the children. She
acknowledges that the court’s minute orders contain findings the
Department made such reasonable efforts, but argues that the
hearing transcript does not reflect the court made the findings
and that the transcript controls. But any error by the court in
failing to make the finding required by section 361,
subdivision (e), was harmless. Cases “‘involving a court’s
obligation to make findings regarding a minor’s change of custody
or commitment have held the failure to do so will be deemed
harmless where “it is not reasonably probable such finding, if
made, would have been in favor of continued parental custody.”’”
(In re L.O. (2021) 67 Cal.App.5th 227, 247; see In re D.P. (2020)
44 Cal.App.5th 1058, 1068 [“Like other rulings of the trial court,
when a juvenile court fails to make the factual findings required
under section 361, subdivision (e), its removal order is subject to
the constitutional mandate that no judgment shall be set aside
‘unless, after an examination of the entire cause, including the
evidence, the [appellate] court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.’”].)
For the reasons discussed, and given the record in this case, it is
not reasonably probable that, had the court made the requisite
finding, it would have found the Department could safely return
Sebastian and Matthew to Veronica.
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C. The Department and the Juvenile Court Failed To
Comply with ICWA’s Inquiry Requirements
Congress enacted ICWA in 1978 “out of concern that ‘an
alarmingly high percentage of Indian families are broken up by
the removal, often unwarranted, of their children from them by
nontribal public and private agencies.’ [Citation.] Congress
found that many of these children were being ‘placed in non-
Indian foster and adoptive homes and institutions,’ and that the
States had contributed to the problem by ‘fail[ing] to recognize
the essential tribal relations of Indian people and the cultural
and social standards prevailing in Indian communities and
families.’ [Citation.] This harmed not only Indian parents and
children, but also Indian tribes. As Congress put it, ‘there is no
resource that is more vital to the continued existence and
integrity of Indian tribes than their children.’” (Haaland v.
Brackeen (2023) ___ U.S. ___, ___, 143 S.Ct. 1609, 1623.) ICWA
“thus aims to keep Indian children connected to Indian families.”
(Id. at p. ___; 143 S.Ct. at p. 1625.)
“ICWA and governing federal regulations (25 C.F.R.
§ 23.101 et seq.) set minimal procedural protections for state
courts to follow before removing Indian children and placing
them in foster care or adoptive homes” (In re Rylei S. (2022)
81 Cal.App.5th 309, 316), including asking “‘each participant “at
the commencement” of a child custody proceeding “whether the
participant knows or has reason to know that the child is an
Indian child”’” (In re Robert F. (2023) 90 Cal.App.5th 492, 500;
see 25 C.F.R. § 23.107(a); In re J.C. (2022) 77 Cal.App.5th 70, 77).
California law “‘more broadly imposes on social services agencies
and juvenile courts (but not parents) an “affirmative and
continuing duty to inquire” whether a child in the dependency
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proceeding “is or may be an Indian child.”’” (J.C., at p. 77; see
§ 224.2, subd. (a); In re A.R. (2022) 77 Cal.App.5th 197, 237.)
“[S]ection 224.2, subdivision (b), requires the child
protective agency to ask ‘the child, parents, legal guardian,
Indian custodian, extended family members, others who have an
interest in the child, and the party reporting child abuse or
neglect, whether the child is, or may be, an Indian child and
where the child, the parents, or Indian custodian is domiciled.’”
(In re J.C., supra, 77 Cal.App.5th at p. 77; see In re H.V. (2022)
75 Cal.App.5th 433, 437; Cal. Rules of Court, rule 5.481(a)(1).)
Although this duty is “commonly referred to as the ‘initial duty of
inquiry,’ it ‘begins with the initial contact’ (§ 224.2, subd. (a)) and
continues throughout the dependency proceedings.” (J.C., at
p. 77; see Haaland v. Brackeen, supra, ___ U.S. at p. ___;
143 S.Ct. at p. 1623 [when a state court adjudicates a foster care
or adoption proceeding, “ICWA governs from start to finish”]; In
re Rylei S., supra, 81 Cal.App.5th at p. 319.) “‘[T]he juvenile
court [also] “has a responsibility to ascertain that [the child
protective agency] has conducted an adequate investigation’”
[citation], and must determine whether ICWA applies to the
child’s proceedings [citation].” (In re G.H. (2022) 84 Cal.App.5th
15, 31; see § 224.2, subd. (i)(2); J.C., at p. 78; Cal. Rules of Court,
rule 5.481(b)(3).) The court may not “find that ICWA does not
apply when the absence of evidence that a child is an Indian child
results from a [child protective agency] inquiry that is not proper,
adequate, or demonstrative of due diligence.” (In re Josiah T.
(2021) 71 Cal.App.5th 388, 408; see In re L.S. (2014)
230 Cal.App.4th 1183, 1198.)
Veronica contends, the Department concedes, and we agree the
Department did not comply with its duty of inquiry because it did
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not ask Yvette (the paternal aunt) whether Sebastian and
Matthew may be Indian children. The juvenile court also erred
in failing to ensure the Department conducted an adequate
inquiry and in not making an appropriate finding, based on that
inquiry, regarding whether ICWA applied.8 (See In re Rylei S.,
supra, 81 Cal.App.5th at p. 320.) Therefore, we direct the
juvenile court to ensure the Department conducts a proper
inquiry. (See id., at p. 326; In re J.K. (2022) 83 Cal.App.5th 498,
507.)
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
order are conditionally affirmed. The juvenile court is directed to
ensure the Department fully complies with the inquiry and, if
necessary, notice provisions of ICWA and related California law,
including inquiring about possible Indian ancestry from extended
family members such as the paternal aunt Yvette.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
8 Indeed, as Veronica observes, at disposition the juvenile
court made no ICWA findings at all.
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