In re Elijah E. CA2/8 ( 2024 )

Filed 1/26/24 In re Elijah E. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Elijah E. et al., Persons B318536
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 21CCJP01933A–B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Gabriela H. Shapiro, Juvenile Court
Referee. Conditionally affirmed and remanded with directions.
Emery E. Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louie, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
E.E. (Mother), the mother of minors Elijah E. and C.E.,
appeals from the juvenile court’s jurisdictional findings and
dispositional order, declaring the children dependents under
Welfare and Institutions Code1 section 300, subdivisions (b) and
(j), and removing them from Mother’s custody. On appeal,
Mother argues that (1) the evidence was insufficient to support
each of the jurisdictional findings and the removal order; (2) the
juvenile court abused its discretion in ordering Mother to
participate in mental health counseling and in restricting her to
monitored visits; and (3) the Los Angeles County Department of
Children and Family Services (DCFS) failed to comply with the
inquiry requirements of the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.) and related California law.
We conclude the juvenile court’s jurisdictional findings and
removal order were supported by substantial evidence based on
Mother’s medical neglect of Elijah, and inability to provide both
children with proper care and supervision. We further conclude
the juvenile court acted within its discretion in ordering mental
health services and monitored visitation for Mother. However,
because DCFS failed to comply with its duty of inquiry as to the
children’s maternal extended family, we conditionally affirm the
dispositional order and remand for ICWA compliance.
1 Unless otherwise stated, all further undesignated statutory
references are to the Welfare and Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior child welfare history
Mother has two children who are the subject of the current
proceedings: Elijah, born in February 2009, and C.E., born in
October 2010. Michael G. is the alleged father of Elijah, and the
father of C.E. is unknown.
Mother and Michael also have four older children who were
prior dependents of the juvenile court due to Mother’s substance
abuse, the parents’ domestic violence, and the parents’ medical
neglect of one of the children. All four children were later
adopted. Between 2010 and 2018, DCFS received numerous child
welfare referrals for Elijah and C.E. based on allegations of
physical, emotional, or sexual abuse and general neglect. DCFS
closed one referral as unfounded and the others as inconclusive.
II. Dependency petition
On April 26, 2021, DCFS filed a dependency petition on
behalf of Elijah and C.E. under section 300, subdivisions (a), (b),
(c), and (j). DCFS later amended the petition to include
additional counts. As relevant to this appeal, the amended
petition alleged the children were at substantial risk of harm
based on: (1) Mother’s failure to provide for Elijah’s mental
health needs; (2) Mother’s inability to provide both Elijah and
C.E. with ongoing care and supervision due to the children’s
behaviors; (3) Mother’s failure to protect Elijah from physical
abuse by her male companion, Richard B.; (4) Richard’s current
abuse of marijuana and alcohol; and (5) Mother’s current use of
marijuana and history of substance abuse.
This matter first came to DCFS’s attention on March 21,
2021, after law enforcement officers found then 10-year-old C.E.
on the street, barefoot and smoking a cigarette. He appeared
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hungry and dehydrated. While the child refused to provide any
identifying information, the officers learned that Mother had
reported him as missing.
Later that day, a DCFS social worker met with Mother.
According to Mother, she and the children lived with her
boyfriend, Richard B. Mother was disabled and received
supplemental security income (SSI) benefits. While she did not
know the nature of her disability, she denied any mental health
or developmental delay history. Elijah also received SSI benefits
based on a diagnosis of ADHD and autism. Elijah’s psychiatrist
at Augustus Hawkins Mental Health Center prescribed him
medication, but Mother had not yet picked up the latest refill.
C.E. also had been diagnosed with ADHD, but was not prescribed
medication. Earlier that morning, Mother sent the children
outside to play. When Elijah returned home without C.E.,
Mother called the police.
Two days later, on March 23, 2021, C.E. again ran away.
Law enforcement officers found the child a short time later at a
Metro station. DCFS recommended services for the family.
Although the social worker repeatedly attempted to meet with
Mother to discuss services, Mother did not make herself available
for an in-person visit.
On April 15, 2021, Mother called the social worker. She
reported that she had enrolled in a parenting class, and
expressed concern that the children’s behavior was getting out of
control. Mother stated that Elijah was taken off his medication
six months earlier, and she wanted him to start taking it again.
She also reported that, during a recent doctor’s visit, the children
ran off and stole someone’s wallet. When the social worker
inquired about mental health services for the children, Mother
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replied that all of her energy was going toward finding a home,
and that she was not stable enough to ensure the children
attended therapy. She later accepted a referral for therapy for
the children, but was uncertain about her ability to maintain it.
The social worker also spoke with the children’s maternal
grandmother and Elijah’s godmother. They both stated that
Mother was doing her best, but it was difficult for her to manage
the children’s behavior. The grandmother also reported that
Mother took Elijah off his medication because she thought it was
causing the child to have uncontrollable head movements.
The grandmother observed that Elijah’s behavior worsened
without his medication.
On April 22, 2021, DCFS made an unannounced visit to the
maternal grandmother’s home to check on another child that was
residing there. At that time, the maternal family reported that
C.E. jumped out of a window and was missing. When law
enforcement officers arrived, they found C.E. hiding in the bushes
in the backyard. Both C.E. and Elijah were taken to the police
station after they told the officers that Mother physically abused
them.
At the police station, the social worker interviewed the
children about the abuse allegations. While C.E. denied that
anyone abused him, Elijah reported that Mother’s boyfriend,
Richard, hit him in the stomach and punched him in the mouth.
Following these interviews, the social worker spoke with several
maternal family members, including the grandmother, aunt, and
uncle, but was unable to find a suitable relative placement for the
children.
When the social worker contacted Mother, she refused to
pick up the children. Mother said she was tired of chasing them
5
and being called a “bitch.” She also stated that she loved the
children, but was no longer able to care for them. The social
worker inquired if the children could stay with a maternal
relative for the weekend while DCFS searched for a placement.
Mother replied, “just take them” and “put them in foster care.”
She then ended the call. The social worker again called Mother
and asked if she understood the children would be detained.
In response, Mother said she had been through this before.
She reiterated she could not care for the children, and was not
making a plan for them. She noted that the children needed help
beyond what she could provide.
As the social worker drove the children to the DCFS office,
both Elijah and C.E. removed their seat belts, tried to pull her
hair, and called her vulgar names. Once inside the building, the
children threw themselves on the floor. Elijah then began
exhibiting sexualized behavior, including making lewd
statements and threatening to expose his penis and masturbate.
He also bit, kicked, and punched DCFS staff. As the staff were
dealing with Elijah, C.E. ran into the parking lot and
disappeared. DCFS later found C.E. back in the building on a
different floor.
Due to Elijah’s conduct, five DCFS staff members kept
watch over the children. At times, Elijah continued to display
aggressive behavior, and attempted to physically assault the
staff. In calmer moments, Elijah tried to hug and kiss the staff,
and referred to the female social workers as his “girlfriends” or
“wives.” While Elijah recanted his prior statements about
Richard’s physical abuse, C.E. reported that Richard would throw
beer cans at him.
6
DCFS placed C.E. in shelter care. A psychiatric mobile
response team (PMRT) determined Elijah was a danger to
himself or others and qualified for a psychiatric hold. At the
hospital, Elijah continued his combative behavior with the
medical staff. A hospital psychiatrist advised DCFS that Elijah
would benefit from inpatient treatment.
On April 23, 2021, Mother called the social worker.
She again stated that she loved her children, but lacked the
ability to care for them based on their behaviors. The social
worker informed Mother that Elijah was on a psychiatric hold,
and that C.E. would be placed in foster care.
On April 29, 2021, the juvenile court held the detention
hearing. Mother appeared and submitted a Parental Notification
of Indian Status (ICWA-020) form in which she indicated that she
did not have any Indian ancestry. Mother also denied any Indian
ancestry in her initial interview with DCFS. At the hearing, the
court found ICWA did not apply. The court detained the children
from Mother, ordered no contact between Richard and the
children, and granted monitored visits to Mother a minimum of
three times per week. The court ordered referrals for Mother for
services, including psychological counseling, parenting education,
and housing and transportation assistance. The court also
ordered mental health services for both children.
III. Jurisdictional and dispositional report
For its June 14, 2021 jurisdictional and dispositional
report, DCFS conducted additional interviews with the family.
Between April and May 2021, Elijah remained on a month-long
psychiatric hold. In May 2021, C.E. also was hospitalized as a
danger to himself and others. Both children were diagnosed with
ADHD and a mood disorder, and were prescribed psychotropic
7
medication. As of June 2021, the children were residing in
separate foster homes while receiving Intensive Field Capable
Clinical Services (IFCCS).
As to the allegations that Mother neglected the children by
failing to provide for Elijah’s mental health needs and to provide
both children with proper care and supervision, Elijah stated that
Mother took him off his medication because she said he did not
need it. He also stated that “we stopped going to the doctor.”
C.E. confirmed that Mother stopped giving Elijah his medication,
which led to worse behavior. While C.E. denied that Mother said
she was unable to care for the children, Elijah reported that
Mother made this statement. According to Elijah, “she said she
couldn’t raise us no more so she gave us up. . . she was happy
when she said it . . . she was crying when the social worker
came.”
In her interview, Mother denied that she neglected Elijah’s
medical needs. As described by Mother, she had been trying to
get Elijah to take medication, but “everyone turned [her] away.”
She reported that Elijah was diagnosed with ADHD and autism
at age six, and that he consistently took psychotropic medication
until his doctor at Augustus Hawkins stopped the medication
when the child was nine years old. Mother stated that, since
2018, she had been seeking services for Elijah from different
facilities, but was told the child did not need medication or
therapy. When asked for more detail about her efforts to obtain
services for Elijah, Mother replied, “I can’t give you dates or
timeframes, everywhere I went they turned me down.”
Mother also denied that she was unwilling or unable to
care for Elijah and C.E. She claimed that DCFS “twisted [her]
words,” and that she solely asked that the children be placed in
8
foster care until she was stable. She later denied that she ever
asked DCFS to place the children in foster care, and asserted
that she only sought services to help with their behavior. At one
point, Mother became upset and stated, “[S]ince they put these
lies on me, ima tell you how it is, exactly how it is. They . . . act
out. They call me names and tell me [f]uck you [b]itch, kiss my
ass. Elijah be punching me. He bumps his head and scratches
himself. He took out a knife one time . . . I had to hold him until
he calmed down. On a bad day, Jesus, they all over the place . . .
it takes a while to calm them down.” When asked whether she
sought any mental health services for C.E., Mother replied that
the child received services through his school.
As to the allegations of physical abuse, Elijah stated that
Richard hit him in the mouth and stomach with a closed fist, and
that Mother was present for the incidents, but did not intervene.
C.E. initially confirmed that Richard hit Elijah, but recanted his
statement when asked if Mother knew of the abuse. Mother
denied that Richard ever hit the children. As to the allegations of
substance abuse, Elijah reported that Richard drank beer on a
daily basis. C.E. stated that Richard smoked marijuana and
drank beer, and Mother smoked marijuana but did not do so
around the children. Mother denied any current drug use. While
Mother indicated that she and Richard were married, she refused
to provide further information about him, and insisted that he
not be part of DCFS’s investigation.
Because Mother reported that Elijah previously received
mental health services at Augustus Hawkins and Kedren
Community Health Center, DCFS sought Elijah’s medical records
from both facilities. Augustus Hawkins did not have any record
of services for Elijah from 2018 onward, even though Mother
9
reported that a doctor at that facility had discontinued the child’s
psychotropic medication. Kedren’s records showed that, on two
occasions in 2018, Mother took Elijah to that facility to “re-
establish” mental health services. Mother last took Elijah to
Kedren in November 2018, and although she agreed to therapy
for the child at that time, she never scheduled a follow-up
appointment.
As of June 2021, Mother had not had any in-person visits
with Elijah or C.E. because both children had been on psychiatric
holds. Although Mother had one phone visit with C.E., she was
unable to redirect the child’s aggressive behavior during the call.
After Elijah’s caretaker reported that a man named Richard
called asking for the child, DCFS reminded Mother that the court
ordered no contact between the children and Richard. While
Mother denied any involvement in Richard’s efforts to contact
Elijah, she also stated that she did not agree with the no-contact
order.
According to DCFS’s report, Mother participated in an
Upfront Assessment in March 2021. The assessment report
recommended that, among other services, Mother undergo a
psychiatric evaluation, receive a referral to a Regional Center,
and enroll in parenting classes for children with special needs.
When DCFS discussed these recommendations with Mother, she
declined to participate in a psychiatric evaluation or in any
Regional Center services because she believed she did not have a
mental health problem. She also refused to disclose the reason
she received SSI benefits, or to provide any information about her
mental health history. In its report, DCFS noted Mother
appeared to have a mental health or developmental issue, which
10
hindered her ability to understand the circumstances that placed
her children at risk.
IV. Last minute information reports for the court
Between September 2021 and February 2022, DCFS filed a
series of last minute information reports on the family’s status
and progress with services. In its reports, DCFS recounted
numerous incidents in which Elijah and C.E. continued to engage
in violent, destructive, and sexually inappropriate behaviors.
The children’s conduct included hitting, punching, biting, making
lewd comments to women and girls, and threatening to harm or
kill DCFS staff, medical personnel, their foster families, and
themselves. On one occasion, Elijah grabbed a social worker by
the neck, punched her in the head, face, and stomach, and then
chased her with a metal pole. On another occasion, he grabbed
the breasts and genitals of shelter care staff, and threatened to
rape a female staff member. The severity of the children’s mental
health and behavioral issues led to multiple changes in
placement, law enforcement calls, and psychiatric holds. In
September and October 2021, Elijah repeatedly was hospitalized
as a danger to himself and others. As of October 2021, DCFS
removed both children from their foster homes and placed them
at the Five Acres short-term residential therapeutic program.
In November 2021, the Department of Mental Health
submitted an assessment report for Elijah. The report noted that
Elijah likely had “early exposure to multiple traumatic events of
an invasive, interpersonal nature,” which led to his “significant
emotional and behavioral problems.” It also indicated that the
child appeared to have “an undiagnosed intellectual disability,”
which “hindered [his] ability to benefit from mental health
treatment.” Although the school district had recommended a
11
Regional Center evaluation for Elijah since he was in
kindergarten, no such evaluation occurred. The report
recommended that Elijah undergo a Regional Center evaluation
and a Fetal Alcohol Syndrome assessment once he was stabilized.
It further recommended that Elijah be placed in a highly
structured residential program with experience in treating
children with intellectual disabilities and aggressive behaviors.
As of February 2022, Mother had not enrolled in services
even though DCFS provided her with multiple referrals. She
failed to show up for scheduled appointments with the social
worker. She also failed to participate in any meetings regarding
the children, including individual education plan (IEP) and child
and family team (CFT) meetings. Although Richard told DCFS
that he was open to services, Mother was adamant that she did
not want Richard involved in the case because he was not the
children’s father. During one in-person meeting with DCFS,
Mother appeared to be under the influence of drugs, but she
refused to submit to an on-demand drug test at that time.
Following the children’s placement at Five Acres, the staff
there tried to assist Mother with a visitation schedule. Mother
would not, however, commit to a date or time for visiting the
children. When DCFS spoke to Mother about her failure to visit
the children for several months, she cited transportation issues.
She also stated that she called the children once a week and was
in the process of setting up virtual visits. After the social worker
reminded Mother of the importance of in-person visitation, she
agreed to start visiting the children on Saturday afternoons.
After a due diligence search, DCFS was able to locate
Elijah’s alleged father, Michael. However, Michael informed
12
DCFS that he was not the child’s biological father, and he
declined to be interviewed.
V. Jurisdictional and dispositional hearing
On February 4, 2022, the juvenile court held a combined
jurisdictional and dispositional hearing. After hearing argument
from counsel, the court sustained the counts in the amended
petition pertaining to Mother’s medical neglect of Elijah,
Mother’s inability to provide ongoing care and supervision to both
children, Richard’s physical abuse of Elijah, and Richard’s and
Mother’s substance abuse. The court dismissed all other counts.
The court declared Elijah and C.E. dependents of the court
under section 300, subdivisions (b) and (j), removed them from
Mother’s custody, and ordered reunification services for Mother.
Mother’s case plan included on-demand drug testing, individual
counseling to address case issues and parenting children with
special needs, and conjoint counseling with the children when
deemed appropriate by the children’s therapists. It also included
mental health services, which required Mother to submit to a
psychiatric evaluation and to take any prescribed psychotropic
medication. The court noted “there’s an element of mental health
underlying Mother’s conditions or perhaps a lack of education
and understanding.” The court ordered monitored visitation for
Mother a minimum of three times per week, and granted DCFS
the discretion to liberalize Mother’s visits.
Mother filed a timely appeal.
DISCUSSION
I. Jurisdictional findings and removal order
On appeal, Mother challenges the sufficiency of the
evidence supporting the juvenile court’s jurisdictional findings
and removal order. She argues the evidence was insufficient to
13
support each jurisdictional finding because DCFS failed to prove
that any conduct by Mother or Richard placed the children at
substantial risk of harm at the time of the jurisdictional hearing.
Mother also asserts there was insufficient evidence to support the
removal order because DCFS failed to establish that removal
from Mother was the only reasonable means of protecting the
children from the risk of harm. We conclude substantial evidence
supported the juvenile court’s exercise of jurisdiction over the
children and its order removing them from Mother’s custody.
A. Standard of Review
“At the first stage of dependency proceedings, the juvenile
court determines whether the child is subject to juvenile court
jurisdiction; DCFS has the burden to prove jurisdiction by a
preponderance of the evidence. [Citation.] At the second stage,
the juvenile court must decide where the child will live while
under juvenile court supervision; to support removal from
parental custody, DCFS has the burden to prove by clear and
convincing evidence that there is a risk of substantial harm to the
child if returned home and the lack of reasonable means short of
removal to protect the child’s safety.” (In re Yolanda L. (2017)
7 Cal.App.5th 987, 992.)
We review challenges to the sufficiency of the evidence
underlying jurisdictional findings and dispositional orders for
substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.)
“ ‘ “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.” ’ ”
(Ibid.) “When reviewing a finding that a fact has been proved by
14
clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable that the fact was true.” (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1011.)
B. Substantial evidence supported the juvenile
court’s exercise of jurisdiction under
section 300, subdivisions (b) and (j)
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” (id., subd. (b)(1)(A)), or
“[t]he willful or negligent failure of the parent or guardian to
provide the child with adequate food, clothing, shelter, or medical
treatment” (id., subd. (b)(1)(C)). To support a finding of
jurisdiction under section 300, subdivision (b)(1), the child
welfare agency must prove three elements: “ ‘(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 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 J.A. (2020) 47 Cal.App.5th
1036, 1048.)
Section 300, subdivision (j), authorizes jurisdiction if the
“child’s sibling has been abused or neglected, as defined in
15
subdivision (a), (b), (d), (e), or (i), and there is a substantial risk
that the child will be abused or neglected.” A jurisdictional
finding under section 300, subdivision (j), has two elements:
“first, that the [child’s] sibling has been abused or neglected, and
second, that there is a substantial risk that the [child] will be
abused or neglected.” (In re Ashley B. (2011) 202 Cal.App.4th
968, 981.) In determining whether the child is at substantial
risk, the court must “consider the circumstances surrounding the
abuse or neglect of the sibling, the age and gender of each child,
the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the
court considers probative.” (§ 300, subd. (j).)
In this case, there was substantial evidence to support the
juvenile court’s exercise of jurisdiction over the children under
section 300, subdivisions (b) and (j), based on Mother’s medical
neglect of Elijah and inability to provide both children with
ongoing care and supervision. There was ample evidence in the
record that Mother failed to ensure Elijah received adequate
treatment for his serious mental health condition. Mother told
DCFS that Elijah was diagnosed with ADHD and autism at age
six, and that he took psychotropic medication until age nine.
Mother claimed Elijah’s treating physician at Augustus Hawkins
discontinued the child’s medication. However, Elijah, C.E., and
the maternal grandmother all confirmed that Mother decided to
stop the medication. While the maternal grandmother stated
that Mother did so because she believed the medication caused
Elijah to have uncontrollable movements, Elijah asserted that
Mother told him he did not need it. Yet Elijah’s family, including
Mother, informed DCFS that, after the child stopped taking
medication, his behavior worsened.
16
The evidence further showed that Mother failed to seek
mental health treatment for Elijah despite the child’s escalating
behavior. When DCSF first inquired about mental health
services for Elijah and C.E., Mother stated that she was focused
on finding a home, and that she was not stable enough to ensure
the children attended therapy. Mother later claimed she had
been seeking services for Elijah from different mental health
facilities, including Augustus Hawkins and Kedren, since 2018,
but was told the child did not need medication or therapy.
According to Mother, “everywhere I went they turned me down.”
However, Augustus Hawkins did not have any record of services
for Elijah from 2018 or later. While Kedren did have records,
they showed that Mother last sought services for Elijah in
November 2018, but failed to follow through with the proposed
therapy plan. In his interview with DCFS, Elijah confirmed that,
at some point, Mother stopped taking him to the doctor.
By the time DCFS became involved with the family in
2021, both Elijah and C.E. were exhibiting severe behavioral
issues. C.E. repeatedly ran away, and on one occasion, the police
found the child barefoot on the street smoking a cigarette. In an
interview with DCFS, Mother acknowledged that both children
would act out, cursing at her and calling her vulgar names.
Elijah also punched Mother, and he once pulled out a knife.
Mother’s inability to manage the children’s behavior culminated
in her refusal to pick them up from a police station on April 22,
2021. At that time, Mother advised DCFS that she loved the
children, but she was no longer able to care for them. Rather
than make a plan for the children’s placement, she told DCFS to
“just take them” and “put them in foster care.”
17
On appeal, Mother asserts that when she told DCFS she
could no longer care for the children, she was speaking out of
frustration and “did not really mean what she said.” She further
argues that, at the time of the jurisdictional hearing, she was
willing to engage in services for the children, including seeking
psychiatric care for Elijah. The record reflects, however, that, as
of the February 4, 2022 jurisdictional hearing, Mother made no
progress in addressing the issues that led to the children’s
detention and placement in foster care. She refused to enroll in
services despite receiving multiple referrals from DCFS. She
failed to attend scheduled appointments with DCFS and to
participate in IEP and CFT meetings held for the children. She
did not show that she had gained any insight into the children’s
significant behavioral issues or how to appropriately manage
them. On this record, the evidence was sufficient to support the
jurisdictional findings based on Mother’s failure to ensure that
Elijah received adequate medical care, and to provide both Elijah
and C.E. with proper care and supervision.
Where, as here, “ ‘a dependency petition alleges multiple
grounds for its assertion that a minor comes within the
dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence. In such a case, the
reviewing court need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the
evidence.’ ” (In re I.J., supra, 56 Cal.4th at p. 773.) Because
there was substantial evidence supporting the juvenile court’s
exercise of jurisdiction based on Mother’s medical neglect of
Elijah and inability to care for both children, we need not
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consider whether jurisdiction also was proper based on the
physical abuse and substance abuse allegations.
C. Substantial evidence supported the juvenile
court’s removal order
“ ‘At the dispositional hearing, a dependent child may not
be taken from the physical custody of the parent under section
361 unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child.’ ”
(In re D.P. (2020) 44 Cal.App.5th 1058, 1065; see § 361,
subd. (c)(1).) The court must determine “whether reasonable
efforts were made to prevent or to eliminate the need for removal
of the minor from his or her home” and “shall state the facts on
which the decision to remove the minor is based.” (§ 361,
subd. (e).)
In determining whether to remove a child from parental
custody, “the juvenile court may consider the parent’s past
conduct and current circumstances, and the parent’s response to
the conditions that gave rise to juvenile court intervention.”
(In re D.B. (2018) 26 Cal.App.5th 320, 332.) The court “must also
consider whether there are any reasonable protective measures
and services that can be implemented to prevent the child’s
removal from the parent’s physical custody.” (Ibid.) “A removal
order is proper if it is based on proof of (1) parental inability to
provide proper care for the minor and (2) potential detriment to
the minor if he or she remains with the parent. [Citation.]
The parent need not be dangerous and the minor need not have
been harmed before removal is appropriate. The focus of the
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statute is on averting harm to the child.” (In re T.W. (2013)
214 Cal.App.4th 1154, 1163; accord, In re D.B., at p. 328.)
In this case, the same evidence that supported the juvenile
court’s jurisdictional findings based on Mother’s medical neglect
of Elijah and inability to care for the children also supported its
removal order. (§ 361, subd. (c)(1); see In re D.B., supra,26 Cal.App.5th at p. 332.) Over the course of the dependency
proceedings, Elijah and C.E. each exhibited serious mental and
emotional health issues. Due to the severity of these issues,
Mother was unable to provide the children with adequate care
and supervision, and asked DCFS to place them in foster care.
Following their detention, the children received intensive mental
health services, but continued to display a pattern of physically
aggressive and assaultive behaviors. At various times, each child
was hospitalized as a danger to himself or others. After changing
the children’s foster care placements multiple times due to their
behaviors, DCFS placed them in a short-term residential
therapeutic program. A mental health assessment for Elijah
recommended placement in a highly structured residential
program with experience in treating children with intellectual
disabilities and aggressive behaviors. Given this evidence, the
juvenile court reasonably could find that the children would be at
substantial risk of harm if returned to Mother, and that removal
was the only reasonable means of protecting them from such risk.
Mother contends that, instead of removing the children, the
juvenile court should have offered her services, such as family
therapy, and housing and transportation assistance to help her
maintain the children in her care. The record shows, however,
that, at the April 29, 2021 detention hearing, the court ordered
mental health services for the children and referrals for services
20
for Mother, including counseling, parenting education, and
housing and transportation assistance. Although DCFS
repeatedly provided Mother with referrals, she declined to enroll
in the recommended services. Moreover, while Mother’s
husband, Richard, indicated that he was open to services, Mother
insisted that Richard not have any involvement in the case.
DCFS also observed that Mother was not forthcoming about her
mental health history, and she appeared to lack the ability to
understand how her actions could have contributed to the
children’s behavioral issues. On this record, the evidence was
sufficient to support the juvenile court’s order removing the
children from Mother’s custody.
II. Dispositional order for mental health services and
monitored visitation for Mother
Mother also challenges the juvenile court’s dispositional
order, requiring her to participate in mental health counseling
and restricting her visitation with the children to monitored
visits. We conclude the juvenile court did not abuse its discretion
in fashioning its dispositional order.
A. The juvenile court did not abuse its discretion
in ordering Mother to participate in mental
health services
At the dispositional stage, the juvenile court may make “all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child.” (§ 362, subd. (a).)
The court also may “direct any reasonable orders to the parents
or guardians of the child who is the subject of any proceedings . . .
as the court deems necessary and proper to carry out this
section,” including orders “to participate in a counseling or
education program.” (Id., subd. (d).) “At disposition, the juvenile
21
court is not limited to the content of the sustained petition when
it considers what dispositional orders would be in the best
interests of the children. [Citations.] Instead, the court may
consider the evidence as a whole.” (In re Briana V. (2015)
236 Cal.App.4th 297, 311.) “ ‘[T]he juvenile court has broad
discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accordance
with this discretion. [Citations.] The court’s determination in
this regard will not be reversed absent a clear abuse of
discretion.’ ” (In re Corrine W. (2009) 45 Cal.4th 522, 532.)
Mother argues she did not need mental health services
because she denied any history of mental health problems or
developmental delays. While Mother refused to disclose any
information about her mental health history, the juvenile court
reasonably could determine that requiring Mother to participate
in mental health counseling, including a psychiatric evaluation,
would best serve the children’s interests. Mother’s Upfront
Assessment recommended that she receive a psychiatric
evaluation and referral for Regional Center services. Mother
made clear, however, that she would not agree to these services
absent a court order. Because DCFS suspected that Mother
might have a mental health or developmental issue that was
impeding her ability to properly care for the children, the agency
also recommended mental health counseling as part of her
reunification plan. In ordering Mother to participate in a
psychiatric evaluation and to take any prescribed psychotropic
medication, the court agreed that “there’s an element of mental
health underlying Mother’s conditions or perhaps a lack of
education and understanding.” Given these concerns, the
22
juvenile court did not abuse its discretion in ordering mental
health services for Mother.
B. The juvenile court did not abuse its discretion
in ordering that Mother’s visits with the
children be monitored
A dispositional order granting reunification services to a
parent must provide for visitation “as frequent as possible,
consistent with the well-being of the child.” (§ 362.1,
subd. (a)(1)(A).) However, “[n]o visitation order shall jeopardize
the safety of the child.” (Id., subd. (a)(1)(B).) “The power to
regulate visits between dependent children and their parents
rests with the juvenile court and its visitation orders will not be
disturbed on appeal absent an abuse of discretion.” (In re D.P.,
supra, 44 Cal.App.5th at p. 1070.) An abuse of discretion exists
only where the juvenile court “ ‘ ‘has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd
determination.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Mother asserts the juvenile court abused its discretion in
ordering that her visits be monitored because she was closely
bonded with the children and was open to receiving services for
them. Because Mother never objected to the order for monitored
visits in the juvenile court, she forfeited the issue on appeal. (See
In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on
other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953,
962.) Even if not forfeited, Mother’s claim lacks merit. Following
the children’s placement in the Five Acres residential program,
Mother did not visit them for several months. While the staff at
Five Acres tried to assist Mother with visitation, she would not
commit to a schedule, and she only agreed to visit the children
once per week after DCFS stressed the importance of in-person
23
visits. Mother continued to object to the court’s order that
Richard not have contact with the children. She also declined to
participate in mental health services until ordered to do so by the
court. Given the severity of the children’s behavioral issues and
Mother’s lack of insight into those issues, the juvenile court acted
well within its discretion in ordering monitored visitation for
Mother.
III. ICWA
Mother contends the juvenile court erred in finding that
ICWA did not apply because DCFS failed to comply with the
inquiry requirements of ICWA and related California law. She
claims DCFS’s ICWA inquiry was inadequate because the agency
did not ask maternal extended family members or Elijah’s alleged
father, Michael, whether the children had any Indian ancestry.
We conclude the matter must be remanded for DCFS to conduct
an ICWA inquiry of the maternal side of the children’s family,
but not of Elijah’s alleged father who denied paternity.
A. Governing law
ICWA mandates that “[i]n any involuntary proceeding in
a [s]tate court, where the court knows or has reason to know that
an Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian child’s
tribe” of the pending proceedings and the right to intervene.
(25 U.S.C. § 1912(a).) Similarly, California law requires notice to
the child’s parent, Indian custodian, if any, and the child’s tribe if
there is “reason to know . . . that an Indian child is involved” in
the proceeding. (§ 224.3, subd. (a).) Both juvenile courts and
child protective agencies “have an affirmative and continuing
duty to inquire whether a child for whom a petition under Section
24
300 . . . may be or has been filed, is or may be an Indian child.”
(§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 14.)
At the first appearance of each party, the juvenile court
must inquire whether that party “knows or has reason to know
that the child is an Indian child,” and must “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).) Additionally, when a child protective agency takes a
child into temporary custody, it must inquire of a nonexclusive
group that includes the child, the parents, and extended family
members “whether the child is, or may be, an Indian child.” (Id.,
subd. (b)). Extended family members include adults who are the
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); § 224.1, subd. (c).)
“If the [juvenile] court makes a finding that proper and
adequate further inquiry and due diligence . . . 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).) We 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.” ’ ” (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401.)
B. Remand is required for ICWA compliance as to
the children’s maternal family
With respect to the children’s maternal family, Mother
asserts DCFS failed to comply with its duty of inquiry because it
did not ask known and available extended family members about
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the children’s possible Indian ancestry. We agree DCFS’s inquiry
was inadequate as to the maternal side of the children’s family.
The record reflects that, over the course of the dependency
proceedings, DCFS had contact with the maternal grandmother,
a maternal aunt, and a maternal uncle. There is no indication in
the record that DCFS asked any of these maternal relatives
whether Elijah and C.E. might be Indian children. In the
absence of any evidence that DCFS complied with its duty to
inquire of these known and available extended family members,
as required by section 224.2, subdivision (b), the juvenile court’s
implied finding that DCFS fulfilled its duty of inquiry as to the
maternal side of the children’s family was not supported by
substantial evidence. (See, e.g., In re Jayden G. (2023) 88
Cal.App.5th 301, 311 [ICWA error where DCFS failed to inquire
of available extended family members for whom it had contact
information]; In re J.W. (2022) 81 Cal.App.5th 384, 389 [ICWA
error where DCFS did not ask mother’s extended family members
about their Indian ancestry, despite having contact with
maternal grandmother, uncle, and aunt]; In re M.M. (2022)
81 Cal.App.5th 61, 70, review granted Oct. 12, 2022, S276099
[ICWA error where no inquiry was made of extended family
members with whom DCFS was in contact].)
We reach a different conclusion, however, with respect to
the Elijah’s alleged father. Mother argues DCFS’s inquiry also
was inadequate because the agency never asked Michael if
Elijah’s paternal family had any Indian ancestry. As DCFS
asserts, however, ICWA does not apply to an alleged father.
ICWA defines a “parent” as “any biological parent or parents of
an Indian child or any Indian person who has lawfully adopted
an Indian child, including adoptions under tribal law or custom.
26
It does not include the unwed father where paternity has not
been acknowledged or established.” (25 U.S.C. § 1903(9).) Under
California law, “[a]n alleged father may or may not have any
biological connection to the child.” (In re E.G. (2009) 170
Cal.App.4th 1530, 1533.) But “absent a biological connection, the
child cannot claim Indian heritage through the alleged father.”
(Ibid.; see In re Daniel M. (2003) 110 Cal.App.4th 703, 707–708
[alleged father lacks standing to challenge ICWA violation].)
Here, Michael never appeared in the dependency proceedings,
nor did he take any action to prove a biological connection to
Elijah. Instead, Michael denied that he was Elijah’s biological
father, and he declined to be interviewed by DCFS. Thus, there
was no inquiry error with respect to Elijah’s alleged father.
As to DCFS’s failure to inquire of the children’s maternal
extended family members, appellate courts have adopted several
divergent standards for determining whether an ICWA inquiry
error is prejudicial. (See In re K.H. (2022) 84 Cal.App.5th 566,
611–618 [summarizing approaches for assessing prejudice at the
inquiry stage].) In this case, however, we need not decide which
standard of prejudice applies. As DCFS acknowledges in its
respondent’s brief, because the juvenile court continues to have
jurisdiction over the children, both the court and DCFS “have an
affirmative and continuing duty to inquire whether” Elijah or
C.E. “is or may be an Indian child.” (§ 224.2, subd. (a).) Even
where the court has made a prior finding that ICWA does not
apply, it must reverse that finding “if it subsequently receives
information providing reason to believe that the child is an
Indian child.” (Id., subd. (i)(2).)
While DCFS asks that we affirm the ICWA finding, it
asserts that, “[a]lternatively, reversal of only the ICWA finding
27
and remand for inquiry is also an appropriate relief.” Given the
procedural posture of this case and the juvenile court’s continuing
jurisdiction over the children, we conclude the proper remedy is
to conditionally affirm the dispositional order and remand the
matter for ICWA compliance as to the children’s maternal
extended family.
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DISPOSITION
The juvenile court’s dispositional order is conditionally
affirmed, and the matter is remanded for compliance with ICWA
and related California law. On remand, the court must promptly
direct DCFS to comply with its duty of inquiry in accordance with
section 224.2 by interviewing known and available maternal
extended family members about the children’s possible Indian
status. If that information establishes a reason to know that an
Indian child is involved, notice must be provided in accordance
with ICWA and section 224.3. The court must determine, on the
record, whether the ICWA inquiry and notice requirements have
been satisfied and whether Elijah or C.E. is an Indian child. If
the court determines Elijah or C.E. is an Indian child, it must
vacate its dispositional order and conduct a new dispositional
hearing, as well as all further proceedings in accordance with
ICWA and related California law. If not, the court’s original
dispositional order shall remain in effect.
VIRAMONTES, J.
WE CONCUR:
GRIMES, Acting P. J.
WILEY, J.
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