In re M.C. CA2/3

Filed 6/23/22 In re M.C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re M.C. et al., Persons Coming B314143
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 18CCJP04390G,
18CCJP04390H,
Plaintiff and Respondent, 18CCJP04390I,
18CCJP04390J,
v. 18CCJP04390K)
M.C. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed
with directions.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant M.C.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant N.B.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant G.L.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
N.B. (mother), M.C., and G.L. appeal from the juvenile
court’s jurisdictional findings, removal orders, case plans, and
findings under the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.) (ICWA). We conclude that the juvenile court’s
jurisdictional findings and dispositional orders were supported by
substantial evidence and the case plans were within the juvenile
court’s discretion. However, we find the juvenile court
improperly added allegations of emotional abuse to those counts
alleging physical abuse by M.C. under Welfare and Institutions
Code1 section 300, subdivisions (a) and (b). Lastly, we conclude
the juvenile court’s finding that ICWA did not apply was
supported by substantial evidence. We therefore direct the
juvenile court to strike the allegations of emotional abuse in the
counts against M.C. In all other respects, we affirm.
BACKGROUND
The family consists of mother, a daughter (born 2006), a
son (born 2007), twins (born 2014), and an infant (born 2019).
1 Allfurther statutory references are to the Welfare and
Institutions Code.
2
M.C. is the presumed father of daughter and son. G.L. is the
presumed father of the twins. Infant’s father is unknown.
I. Referrals and initial investigation
The family was subject to three prior dependency cases,
involving domestic violence and substance abuse. The most
recent case closed in July 2020 and mother received sole custody
of the children.
In August 2020, DCFS received a referral that mother
threatened to beat, shoot, and kill daughter. A social worker
contacted daughter at her paternal grandmother’s home.
Paternal grandmother said that a few weeks prior, mother hit
daughter that left a scar on her neck.
Daughter showed DCFS the mark on her neck that was
still healing. Daughter had asked mother why she was telling
extended family members that daughter was “sucking dick.”
Mother got upset and attacked daughter by choking her neck and
hitting her with closed fists. The other children and G.L. were
present during the attack, but did not intervene immediately
until G.L. told mother to stop. Mother sent daughter a text
message that read: “I will fuck u up don’t ever fucking lie on me
or accuse me of shit. Answer that mf phone. Y’all got me fucked
up on my mam. Did I listen to u when I came and got u . . . ? Or
when that first foster home didn’t like u? How about when dog
molested you and I called the workers cussed them out and made
my own police report when nobody else did bitch I have you best
interest at heart motherfucker over ass kids and this the mf
thanks I get. I got both u motherfucker. Bitch I ain’t never
spread no rumors about u fucking or sucking shit bitch how the
fuck you date get mad at me like that bitch I’m sick of u
disrespecting meeeee.” (Italics omitted.) Mother called daughter
3
and said she was going to get gas and find daughter, beat her up,
and kill her. Daughter felt suicidal because of mother’s
treatment and had tried to cut her arm with a knife a year ago.
Daughter also reported that mother got drunk and smoked
marijuana. She said that mother would get drunk and fight with
G.L. regularly. The day before, mother and G.L. got drunk and
fought in mother’s bedroom. Mother pushed G.L. out of the house
and G.L. broke mother’s bedroom window. Daughter watched the
younger children when mother left them unsupervised for two to
three days at a time to drink with family.
Daughter reported that mother physically abused her and
the other children by hitting them with closed fists and extension
cords on their backs and buttocks. She also said that G.L.
punished the twins by hitting them with extension cords.
DCFS detained daughter in a temporary shelter and
contacted mother, who said daughter was lying and refused to
meet with the social worker.2 Mother then went to paternal
grandmother’s home at 5:00 o’clock in the morning and was
aggressive and belligerent.
II. Section 300 petition and emergency detention
DCFS filed a section 300 petition, alleging that mother and
G.L. physically abused the children, they abused drugs and
alcohol, they failed to protect the children from each other’s
behavior, mother left the children unsupervised for extended
periods of time, and mother emotionally abused daughter. At an
emergency detention hearing, the juvenile court detained
2Mother called the social worker two more times but hung
up and then called DCFS 20 times in one hour.
4
daughter from mother, detained the twins from G.L. and released
son, the twins, and infant to mother.
III. Detention report and hearing
For its detention report, DCFS interviewed M.C., mother,
son, the twins, and a social worker who had handled the most
recent dependency case.
M.C. was living in Las Vegas, Nevada for the past four
years. The last time he saw daughter and son was nine months
ago for a brief visit, and then again three years before that. M.C.
was subject to a restraining order protecting mother from him.
Although M.C. had been sober for approximately two years and
was currently attending 12-step meetings for alcohol, he received
a DUI in Nevada. He was also receiving mental health treatment
for post-traumatic stress disorder after he was shot in 2010.
Mother denied domestic violence in her home or that G.L.
was living with her. Like M.C., G.L. was subject to a restraining
order protecting mother from him. Mother generally denied
daughter’s allegations but admitted their relationship was
strained. She thought paternal grandmother told daughter what
to say to DCFS. When confronted with the text message to
daughter, mother said she could not recall if she sent it but did
not deny that it was from her. She denied any substance use
except for occasional alcohol consumption with family. Mother
was willing to drug test but said she did not have valid
identification for the testing site. The social worker offered to
take mother’s photo and send it to the testing site as a substitute
for identification, but mother declined, saying she would wait for
her identification to arrive in the mail.
Son denied witnessing any domestic violence in the home
and had not seen G.L. for a long time. He also denied that
5
mother used drugs or alcohol or that she physically disciplined
the children.
Mother did not allow DCFS to interview the twins
privately, asserting that they were too young and easily
manipulated to be interviewed alone. When DCFS asked one of
the twins how mother would discipline her, mother interrupted
the child’s answer and told her to say “by having [your] dollhouse
taken apart.” One of the twins said that son watched her at
home, but mother corrected her, stating that mother also
watched her. The twins had not seen G.L.
A social worker who handled the family’s prior dependency
case was concerned about the family because mother failed to
complete her court-ordered services. She also received an
anonymous text message that mother was abusing alcohol.
The juvenile court detained daughter from mother and
ordered temporary placement with M.C. It detained the twins
from G.L. and released them and infant to mother. It ordered son
released to mother and M.C.
Approximately two months after the detention hearing,
DCFS filed an ex parte application to detain the children from
mother because she had been uncooperative, canceled
appointments with DCFS, would not allow her home to be
assessed, and did not allow the children to be interviewed
privately. The juvenile court detained the children from mother
and granted her monitored visitation. Daughter was placed with
maternal aunt, son was placed with maternal great-aunt, the
twins and infant were placed with the twins’ paternal
grandmother.
6
IV. Jurisdiction and disposition report
For its jurisdiction and disposition report, DCFS
interviewed the children, G.L., M.C, maternal great-aunt,
paternal grandmother to the twins, and maternal aunt.3
Daughter repeated that mother physically abused her and
the other children, that she left the younger children in
daughter’s care, and that mother abused alcohol and marijuana.
Mother called daughter a “hoe,” “bitch,” “dumb,” “stupid,”
“immature,” and told her that she should have aborted her. She
said that mother told son and the twins to lie about G.L., that
G.L. still lived with mother, and that she saw him with mother
during a recent visitation.
Son and the twins denied that they were physically abused
or that mother emotionally abused daughter. They also denied
that mother used drugs or alcohol or that they were left
unsupervised. Son said that G.L. had not been around and that
he never saw G.L. or his stuff at home. When the social worker
asked one of the twins about G.L., she said, “[h]e’s good” and then
said she had “never seen him.” The other twin said that she had
seen G.L. “[l]ast time” at “the park.”
M.C. had a history of criminal behavior, including multiple
arrests for spousal battery. A few days before DCFS’s interview,
M.C. was arrested for disturbing the peace stating, “I admit it, I
was angry, and I was loud.” He said that he started using drugs
when he was 14 or 15 years old, but got sober about 2 years ago.4
3 DCFS was unable to interview mother for its report.
4 M.C. was 32 years old at the time of the interview.
7
Maternal great-aunt was unaware of any abuse the
children had suffered and had not seen any suspicious marks or
bruises. She had not visited mother’s home, but the children
visited her often. The children did not tell her that mother
abused drugs or alcohol. Nor did they mention G.L. or that they
were left home alone.
Paternal grandmother to the twins said she took care of
them and son during the last dependency case and that her
relationship with mother had since deteriorated. She said G.L.
would visit mother when he was in the area, but was unsure if he
lived with her.
Maternal aunt had daughter and son over her home about
once per month. She was unaware of any physical abuse to the
children. Nor was she aware that mother had an alcohol or drug
problem, stating that mother drank beer but not excessively. The
children had not spoken to her about G.L. or whether they were
left home alone.
V. Referral regarding M.C. and amended petition
DCFS received a referral from mother after daughter
recorded a video of M.C. yelling at son. In the video, M.C. was
angry about son’s online absences from school and constant video
game playing. He referred to son as “nigga” in a derogatory
manner and told him that if he did not listen, he would “throw
him” when he got back to Los Angeles.
Son sent a text message to a social worker, which read:
“Miss don’t tell my dad but this is [son] call me when you get a
chance.” About 20 minutes later, the social worker received a
text message from M.C. stating: “We . . . never fixx our problems
working together its either a fight or sumn else this is all non
since for wat we doin straight im . . . [trying to] win in all ways
8
for us u working against me and all is I ask for was the dentist
im feel am noticing the truth its fuck me for real u fake me for
your satisfaction why wats yo real demeanor using my unborn
child against me u think I wanna put the police in our bigness
but shit get dangerous for a person who really stabbed me ur
taking for granted and I really love u I cry all day in an[d]
out . . . [trying to] see why u don’t see this and it hard when u see
the true colors of haters around you. At least once you know
their true colors it hurts baddd.”
M.C. sent another text message to the social worker, which
said that a family member used M.C.’s phone. He then admitted
that the message was meant for his wife and that they were
having domestic problems because of the dependency case. He
said he was being kicked out of his home and that he planned to
move to Los Angeles to be with paternal grandmother and son
until he and son could get their own place. M.C. had not
completed counseling, anger management or parenting classes.
When asked about the video of him yelling at son, M.C. said it
had “ ‘been addressed and was over.’ ” The social worker
discussed the possibility of a safety plan for son, but M.C. got
upset and screamed at the social worker, stating that she “was
only bringing negativity to him” and that mother was
manipulating son. He then told the social worker to go to
paternal grandmother’s home and take son and his things and
bring them to mother’s extended family.
DCFS followed up with son who explained that M.C. “got
mad for no reason because I was on the phone with my mom.”
M.C. told son that he was not going to allow anymore visits with
mother and he was “going to tell the social workers to take away
9
all my visits.” Son was afraid of M.C. “because of the way he’s
always been . . . aggressive and gets mad over nothing.”
DCFS amended the section 300 petition, alleging that M.C.
physically and emotionally abused son.
VI. Detention report and hearing regarding M.C.
DCFS filed an ex parte application to detain daughter and
son from M.C. For its detention report, DCFS interviewed son,
daughter, mother, and M.C.
Son had been living with paternal grandmother for the past
two months. He believed that no one in paternal grandmother’s
home could protect him from M.C. M.C. called son a “n[i]gga,”
“b[i]tch,” and “f[a]ggot.” He told son that he would not allow him
to see mother. If M.C. came to live with son and paternal
grandmother, son would live in fear of him. Further, paternal
grandmother and paternal aunt would instigate arguments
between M.C. and son and then watch it play out.
Daughter said that M.C. does not speak to her in the same
manner as he did to son. She noted that M.C. and paternal
grandmother picked on son. She did not feel comfortable in
paternal grandmother’s home because paternal aunt, who abused
drugs, also lived there.
M.C. believed that mother and maternal relatives
manipulated son and that “this situation was dropped in his lap,
and that he tried his best to manage it[,] but he had no help.”
Mother was glad that son was safe and living with
relatives, but she wanted him returned to her care.
The juvenile court subsequently detained daughter and son
from M.C.
10
VII. Jurisdiction and disposition report
DCFS filed a second jurisdiction and disposition report and
interviewed daughter, son, and M.C.
Daughter witnessed M.C. punch and slap son and call him
names in 2016. She also saw M.C. throw son to the floor.
Approximately five years ago, she saw M.C. punch son in the
ribs.
Son said that M.C. punched him in the ribs twice, once
seven years ago and again about three years ago. One time, M.C.
picked son up from his bed and threw him on the floor. Son
repeated that he was scared of M.C. and did not want to live with
him once M.C. returned to Los Angeles.
M.C. wanted daughter and son to live with him. He denied
physically abusing son or calling him names. He believed that
mother was manipulating son and that “[t]his allegation is
guided by a demonic spirit, his mom.” M.C. further explained
that he yelled at son in the video because son was smoking
marijuana and missed almost two months of school.
VIII. Jurisdiction and disposition hearing
The juvenile court held a jurisdiction and disposition
hearing.
The juvenile court dismissed the emotional abuse count
against M.C. and then added the emotional abuse language to
counts a-4 and b-7. It dismissed counts a-2, a-3, b-2, b-3, j-2, and
j-3 against mother and G.L. because there was no physical
evidence of the type of abuse alleged in those counts.5 However,
5 Countsa-2, a-3, b-2, b-3, j-2, and j-3 alleged that mother
and G.L. physically abused son and the twins by hitting them on
the back and buttocks with their fists and extension cords.
11
it found daughter’s statements credible that mother physically
and emotionally abused her, mother left the children
unsupervised and left daughter in charge of the younger children,
mother and G.L. abused drugs and alcohol, and mother allowed
G.L. to have access to the children. The juvenile court also found
that G.L.’s and mother’s alcohol abuse contributed to their
domestic violence.
The juvenile court then sustained counts a-1, b-1, and j-1.
Counts a-1, b-1, and j-1 alleged: “On prior occasions, [mother]
physically abused [daughter] by striking the child’s body with the
mother’s fists. In August of 2020, the mother choked the child
and repeatedly struck the child with the mother’s fists, inflicting
a scratch to the child’s neck. On prior occasions, the mother
struck the child’s back and buttocks with the mother’s fists, and
extension cords. On a prior occasion, the mother threatened to
physically harm the child and threatened to kill the child by
obtaining gasoline and to shoot the child with a gun. The child is
afraid of the mother due to the ongoing physical abuse of the
child by the mother. Such physical abuse was excessive and
caused [daughter] unreasonable pain and suffering. Such
physical abuse of [daughter] by the mother endangers the child’s
physical health, safety, and well-being and places the child and
the child’s siblings . . . at risk of serious physical harm, damage,
danger[,] and physical abuse.”
The juvenile court sustained count b-4. Count b-4 alleged:
“On prior occasions, [mother] left the children home without
supervision for an extended period of time. The children are of
such an age as to require adult supervision. The father[s’]
whereabouts were unknown. On prior occasions, the mother
[left] [daughter] at home to watch the children for two or three
12
days. The mother’s failure to provide adult supervision for the
children endangers the children’s physical[ ] health and safety
and creates a detrimental home environment, placing the
children at risk of physical harm, damage[,] and danger.”
The juvenile court sustained count b-5. Count b-5 alleged:
“[Mother] has a history of substance abuse and is a current
abuser of alcohol and marijuana, which renders the father
incapable of providing regular care of the children. On prior
occasions, the mother possessed, used[,] and was under the
influence of illicit drugs while the children were in the mother’s
care and supervision. The [twins and infant] are of such young
age requiring constant care and supervision and the father’s
substance abuse interferes with providing regular care and
supervision of the children. [G.L.] failed to protect the children
when [he] knew of the mother’s substance abuse. [G.L.] allowed
the mother to reside in the children’s home and to have unlimited
access to the [twins]. The mother’s substance abuse and [G.L.’s]
failure to protect the [twins] endangers the children’s physical
health and safety, placing the [c]hildren at risk of serious
physical harm, damage, danger[,] and failure to protect.”
The juvenile court sustained count c-1. Count c-1 alleged:
“[Mother] emotionally abused [daughter] by frequently yelling at
the child, calling the child derogatory, demeaning[,] and
disparaging names, [and] speaking to the child in a harsh and
abusive manner. On a prior occasion, the mother threatened to
physically harm the child and threatened to kill the child by
obtaining gasoline and to shoot the child with a gun. The
mother’s emotional abuse of the child has resulted in the child
exhibiting emotional distress, suicidal ideation[,] and self-
mutilation. Such ongoing emotional abuse of the child on the
13
part of the mother places the child at substantial risk of suffering
serious damage as evidence by severe anxiety, depression,
withdrawal, and aggressive behavior toward herself or others.”
The juvenile court sustained count b-6. Count b-6 alleged:
“[G.L.] has a history of substance abuse and is a current abuser of
alcohol, which renders [G.L] incapable of providing regular care
of the [twins]. On . . . prior occasions, [G.L.] was under the
influence of alcohol while the children were in [G.L.]’s care and
supervision. The [twins] are of such young age requiring
constant care and supervision and [G.L.]’s substance abuse
interferes with providing regular care and supervision of the
children. The mother knew of [G.L.’s] alcohol abuse and failed to
protect the children. The mother allowed [G.L.] to reside in the
children’s home and to have unlimited access to the children.
[G.L.]’s substance abuse and the mother’s failure to protect the
children endangers the children’s physical health and safety,
placing the children at risk of serious physical harm, damage,
danger[,] and failure to protect.”
With respect to M.C., the juvenile court sustained counts a-
4 and b-7. Counts a-4 and b-7 alleged: “On numerous prior
occasions, [M.C.] physically abused [son] which included
punching him in the ribs. On another occasion [M.C.] picked up
the child from his bed and threw him on the floor. [M.C.] was
heard saying that he would throw the child on the floor and
referred to the child as nigga.” The children have suffered
emotional abuse due to name-calling by M.C. “Such physical
abuse was excessive and caused the child unreasonable pain and
suffering. Such physical abuse of the child by [M.C.] endangers
the child’s physical and emotional health and safety and places
14
the child and [daughter] at risk of physical and emotional harm,
damage, danger[,] and physical abuse.”
The juvenile court removed the children from parents’
custody and granted monitored visitation. It ordered mother to
submit to drug testing, complete parenting classes, participate in
individual counseling, undergo a psychiatric evaluation, take all
prescribed medications, and participate in therapy with
daughter. M.C. was ordered to participate in a 12-step program,
anger management and parenting classes, and individual
counseling.
The parents appealed.
DISCUSSION
Mother challenges counts b-4, b-5, and b-6 and the
dispositional orders removing the children and requiring her to
participate in drug testing, undergo a psychiatric evaluation, and
take any prescribed medications.6 M.C. challenges counts a-4
and b-7 for lack of substantial evidence and asks us to strike the
allegations of emotional abuse. He also challenges the
dispositional orders removing the children from his custody and
for monitored visitation, as well as the case plan requiring him to
participate in a 12-step program. Lastly, father asserts that
DCFS failed to make an adequate inquiry under ICWA.
I. Justiciability
The parents acknowledge that jurisdiction over the children
will remain regardless of the outcome of this appeal because they
6 Pursuant to California Rules of Court, rule 8.200(a)(5),
G.L. joined in mother’s arguments regarding removal of the
children from parental custody and denying placement of the
twins with mother.
15
do not challenge every jurisdictional finding. As such, DCFS
argues that the parents’ challenges are not justiciable.
In a dependency case, a single jurisdictional finding
supported by substantial evidence is sufficient to support
jurisdiction and render moot a challenge to the remaining
findings. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Thus,
we may “ ‘decline to address the evidentiary support for any
remaining jurisdictional findings once a single finding has been
found to be supported by the evidence’ or is unchallenged.” (In re
L.O. (2021) 67 Cal.App.5th 227, 237.) However, we may exercise
our discretion and consider the merits of an appeal when the
challenged jurisdictional finding: (1) serves as the basis for
dispositional orders that are also challenged on appeal; (2) could
be prejudicial to the parent or impact current or future
dependency proceedings; or (3) could have other consequences for
the parent, beyond jurisdiction. (In re Drake M. (2012) 211
Cal.App.4th 754, 762–763.)
We agree with parents that a review on the merits is
warranted here. With respect to mother, the jurisdictional
findings in counts b-4, b-5, and b-6 serve as the basis for the
dispositional orders removing son, the twins, and infant from her
custody and requiring mother to drug test. DCFS asserts that
the unchallenged counts related to mother’s physical abuse of
daughter are sufficient to support the removal orders and drug
testing. However, the juvenile court found that mother abused
daughter, but not the younger children. Nor was there a finding
that mother’s abuse of daughter created a risk of harm to the
younger children such that removal of all the children was
necessary to protect them. Further, the evidence did not show a
connection between mother’s substance abuse and the abuse of
16
daughter. Thus, counts b-4, b-5, and b-6 served as the basis for
the removal of son, the twins, and infant, as well as the drug
testing. Mother’s challenge is therefore justiciable.
M.C. argues that his challenge to the jurisdictional findings
is justiciable because they serve as the basis for the dispositional
orders removing daughter and son from his custody, and could
impact future dependency proceedings. We disagree with M.C.
that the jurisdictional findings served as the basis for removal as
he already lost custody of the children during a prior dependency
case. Nonetheless, we will consider the merits of M.C.’s challenge
because jurisdictional findings of intentional physical abuse could
impact future dependency proceedings. (See In re D.M. (2015)
242 Cal.App.4th 634, 639; In re Jonathan B. (2015)
235 Cal.App.4th 115, 119.)
II. The juvenile court’s jurisdictional findings are
supported by substantial evidence
Section 300, subdivision (a), provides for jurisdiction where
the “child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm inflicted nonaccidentally
upon the child by the child’s parent or guardian.” The juvenile
court “may find there is a substantial risk of serious future injury
based on the manner in which a less serious injury was inflicted,
a history of repeated inflictions of injuries on the child or the
child’s siblings, or a combination of these and other actions by the
parent or guardian that indicate the child is at risk of serious
physical harm.” (Ibid.)
Section 300, subdivision (b)(1), provides for jurisdiction
where the “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 the child’s parent or guardian to
17
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 the custodian
with whom the child has been left.”
Although section 300 requires that the child is subject to
the defined risk of harm at the time of the jurisdiction hearing,
the juvenile court need not wait until a child is seriously abused
or injured to assume jurisdiction and take steps necessary to
protect the child. (In re Kadence P. (2015) 241 Cal.App.4th 1376,
1383.) The juvenile court may consider past events in deciding
whether a child presently needs the juvenile court’s protection.
(In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215–1216.)
However, there “ ‘must be some reason beyond mere speculation
to believe the alleged conduct will recur.’ ” (In re D.L. (2018)
22 Cal.App.5th 1142, 1146.)
We review jurisdictional findings for substantial evidence.
(In re I.J. (2013) 56 Cal.4th 766, 773.) We do not reweigh
evidence or judge witness credibility. (Ibid.) “To be substantial,
the evidence must be of ponderable legal significance and must be
reasonable in nature, credible, and of solid value.” (In re M.S.
(2019) 41 Cal.App.5th 568, 580.)
A. Mother
Mother’s challenge to counts b-4, b-5, and b-6 amounts to a
challenge to daughter’s credibility. She disputes daughter’s
statements regarding mother’s drug use, lack of supervision, and
G.L.’s conduct. But attacking a witness’s credibility on appeal is
insufficient to meet mother’s burden. We do not assess
credibility, and the statement of a single witness is sufficient to
establish a jurisdictional finding if credited by the juvenile court.
Mother also points to evidence that contradicts daughter’s
18
statements and notes that some were uncorroborated. But, like
pointing to a witness’s lack of credibility, pointing to evidence
that does not support the juvenile court’s orders is insufficient to
meet mother’s burden here. The substantial evidence standard
requires us to make all reasonable inferences to support the
juvenile court’s order and disregard any contrary evidence as if it
had been rejected. (In re S.B. (2008) 164 Cal.App.4th 289, 298.)
Counts b-4, b-5, and b-6 were supported by substantial evidence.7
B. M.C.
M.C. argues, and DCFS agrees, that the juvenile court
improperly added language regarding emotional abuse of son to
counts a-4 and b-7 even though emotional harm is not
jurisdictional under section 300, subdivisions (a) and (b). We
agree. Section 300, subdivisions (a) and (b) provide for
jurisdiction when the child has suffered, or there is a substantial
risk of the child will suffer “physical harm” while subdivision (c),
provides for jurisdiction based on emotional harm. Accordingly,
we will order the juvenile court to strike those allegations from
counts a-4 and b-7.
The remaining allegations in counts a-4 and b-7 are
supported by substantial evidence. M.C. argues that the physical
harm to son was remote, and M.C. was living in Las Vegas at the
time of the jurisdiction hearing. However, there was no
indication that M.C. changed or would change his behavior when
he returned to Los Angeles to take care of the children. Indeed,
7 Mother also argues that DCFS did not connect her
substance abuse with harm or risk of harm to the children.
However, mother’s and G.L.’s alcohol abuse was linked to their
domestic violence in the presence of the children.
19
he said, when he got back to Los Angeles, he would throw son,
demonstrating he was still capable of the same type of abuse that
occurred years earlier. The recent threats to son
notwithstanding, the record showed that M.C. had a long history
of unaddressed violent and aggressive behavior. This included
violent arguments with mother, which resulted in a restraining
order; multiple arrests for spousal abuse; and a recent arrest for
disturbing the peace. Son remained afraid of M.C. because he
continued to be aggressive and get “mad over nothing.” While
M.C. disclosed that he was currently in mental health treatment
for his post-traumatic stress disorder, he had not completed
counseling or anger management or parenting classes, and
resisted DCFS’s attempts to facilitate services and counseling.
Further, he screamed at the social worker when asked about a
safety plan, repeatedly blamed mother for son’s allegations, and
told DCFS to take son away rather than recognizing how his
behavior was contributing to son’s fear.
Thus, even though the physical abuse was remote, the
record showed that M.C. continued to behave aggressively, have
domestic problems, and threaten son with physical abuse.
Because his violent behavior persisted, the juvenile court could
conclude the physical abuse would recur.
III. Removal orders
Parents also challenge the removal orders, arguing that, if
we reverse the jurisdictional findings, we must reverse the
removal orders. They also contend that there were reasonable
means short of removal to protect the children from harm. We
disagree.
Section 361, subdivisions (c) and (d) authorize the juvenile
court to remove a child, whose been adjudged to come within the
20
meaning of section 300, from a custodial or noncustodial parent’s
home if necessary to protect the child. A juvenile court may not
remove a child from a custodial parent’s home unless it finds by
clear and convincing evidence a substantial danger to the child’s
physical health, safety, protection, or physical or emotional well-
being if the child were returned home, and there are no
reasonable means by which the child’s physical health can be
protected short of removal. (§ 361, subd. (c)(1).) A child cannot
be removed from a noncustodial parent unless the juvenile court
finds clear and convincing evidence that there would be a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the child for the parent to live
with the child or otherwise exercise the parent’s right to physical
custody, and there are no reasonable means by which the child’s
physical and emotional health can be protected without removing
the child from the parent’s physical custody. (§ 361, subd. (d).)
In determining whether removal is warranted, the juvenile
court must “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.” (In re D.B.
(2018) 26 Cal.App.5th 320, 332.) It may consider a parent’s past
conduct and current circumstances, and the parent’s response
that gave rise to the current dependency case. (Ibid.) “The
parent need not be dangerous[,] and the minor need not have
been actually harmed before removal is appropriate.” (Id. at
p. 328.) The goal is to avert harm to the child. (Ibid.)
We review a removal order for substantial evidence keeping
in mind the heightened standard of clear and convincing
evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
21
A. Mother and G.L.
Mother and G.L. argue that if we dismiss counts b-4, b-5,
and b-6, then son, the twins, and infant should be returned to
mother’s custody. However, because those counts are supported
by substantial evidence, they still support the removal order.
Mother and G.L. also contend there were reasonable
alternatives to removal because mother was a cooperative parent.
The record belies their contention. A social worker who handled
the prior dependency case was still concerned about family
because mother had not completed her court-ordered services.
During the present case, although mother began participating in
her domestic violence and anger management programs, the
record shows that mother repeatedly accused daughter of lying,
refused to arrange meetings with DCFS, delayed drug testing,
refused to allow the children to be interviewed privately, coached
the twins during their interviews, refused to allow DCFS access
to her home, instructed the younger children to lie about G.L.,
and repeatedly denied contact with him despite evidence to the
contrary. Thus, while mother’s progress in her court-ordered
programs was commendable, mother’s past behavior indicated
that reasonable means and services were not available to prevent
removal.8
8 G.L. does not raise any individual arguments regarding
removal of the twins or the juvenile court’s refusal to place them
in mother’s custody. The juvenile court’s reasoning for removing
the children due to mother and G.L’s alcohol abuse and their
failure to properly supervise the children applies equally to the
twins as it does to daughter, son, and infant.
22
B. M.C.
M.C. argues there was no substantial danger to the
children to justify removal and that there were other means to
protect the children from harm. Again, we disagree.
M.C. had a long history of violent outbursts that went
unaddressed and persisted after the children were temporarily
released to him and were in the care of paternal grandmother.
As discussed earlier, although M.C.’s physical abuse of son was
remote in time, the evidence shows that M.C. intended to
continue that behavior as soon as he returned to Los Angeles.
There was also evidence that paternal grandmother, who M.C.
intended to live with, could not protect the children from M.C.
because she instigated fights between M.C. and son. Thus, there
was a substantial danger to the physical health of the children if
M.C. returned to Los Angeles to exercise physical custody over
them.
M.C. also asserts that the juvenile court should have
offered him preservation services, family therapy, or wraparound
services to assist him in caring for the children. However, the
record shows that M.C. reacted negatively when confronted with
the issues in the present case. Instead of discussing a safety plan
for the children or engaging with services, M.C. yelled at the
social worker and asked DCFS to take son away. Further, M.C.
23
continued to blame mother for son’s allegations and did not take
responsibility for his actions.
Accordingly, the removal orders were necessary and there
were no other reasonable means to protect the children.
IV. Case plans
Mother and M.C. argue that the case plans were an abuse
of the juvenile court’s discretion.
The juvenile court may make “all reasonable orders for the
care, supervision, custody, conduct, maintenance, and support of
the child.” (§ 362, subd. (a).) The juvenile court has wide latitude
in fashioning appropriate dispositional orders for the care and
support of the children, and is “not limited to the content of the
sustained petition” in determining what would be in their best
interests. (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) We
review a dispositional case plan for abuse of discretion. (Ibid.)
A. Mother
Mother contends the evidence did not justify the juvenile
court’s order that she undergo a psychiatric evaluation and take
all prescribed medication. However, mother’s behavior
warranted a psychiatric evaluation. She threatened to beat,
shoot, and kill daughter; accused her of “sucking dick”; and told
her that she should have been aborted. She told daughter, “I will
fuck u up,” and “bitch I have you best interest at heart
motherfucker.” Further, mother showed up at paternal
grandmother’s home at 5:00 a.m. and was belligerent and
aggressive. She called the social worker more than 20 times in
one hour and would call and hang up. She was also generally
uncooperative and canceled numerous appointments with social
services. From this conduct, the juvenile court could have
concluded that a psychiatric evaluation was necessary to identify
24
any mental health issues that would have prevented mother’s
reunification with the children.
B. M.C.
The juvenile court was within its discretion to order M.C. to
participate in a substance abuse program. He admitted to a
history of substance use and received a DUI while living in
Nevada. Although M.C. said that he had been sober for two
years, he was still participating in a 12-step program for alcohol.
Given M.C.’s history of drug use and current participation in a
12-step program, requiring him to continue that 12-step program
was not an abuse of discretion and ensured that any drug or
alcohol abuse did not interfere with reunification.
Likewise, the monitored visitation order was not an abuse
of discretion. M.C. had history of violent outbursts that included
a recent arrest for disturbing the peace. He was recorded calling
son names and threatening to throw him. He also told son that
he would not allow him to see mother. Son repeatedly stated he
was afraid of M.C. This evidence was sufficient to warrant
monitored visitation until M.C. could show that unmonitored
visits would be in the children’s best interests.
V. ICWA
Lastly, M.C. argues that DCFS breached its duty of inquiry
by failing inquire about the children’s extended family members,
specifically, paternal grandmother and maternal aunt, about
their possible Indian ancestry.
Pursuant to ICWA, in “any involuntary proceeding in a
State 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
25
tribe . . . of the pending proceedings and their right of
intervention.”9 (25 U.S.C. § 1912(a).) This notice requirement
enables a tribe to determine whether a child is an Indian child
and, if appropriate, to exercise jurisdiction over a child custody
proceeding. (In re Isaiah W. (2016) 1 Cal.5th 1, 8.)
During the pendency of a dependency proceeding, the
juvenile court and DCFS have an affirmative and continuing duty
to inquire whether a child is or may be an Indian child. (§ 224.2,
subd. (a); Cal. Rules of Court, rule 5.481(a).) The duty to inquire
extends to, asking the child, parents, legal guardian, Indian
custodian, extended family members, and others who have an
interest in the child.10 (§ 224.2, subd. (b).)
9 ICWA defines an “ ‘Indian child’ ” as “any unmarried
person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); see § 224.1, subd. (a).)
10 ICWA defines “ ‘extended family member’ ” as any person
so defined by the law or custom of the Indian child’s tribe, or in
the absence of such law or custom, “a person who has reached the
age of eighteen and who is the Indian child’s grandparent, aunt
or uncle, brother or sister, brother-in-law or sister-in-law, niece
or nephew, first or second cousin, or stepparent.” (25 U.S.C.
§ 1903(2).)
26
We review the juvenile court’s ICWA findings for
substantial evidence. (In re D.F. (2020) 55 Cal.App.5th 558, 565.)
M.C. argues that DCFS breached its duty of inquiry under
ICWA because it did not ask the paternal grandmother and
maternal aunt about Indian heritage. We disagree.
There is a split among the Courts of Appeal as to a child
welfare agency’s duty to investigate a child’s possible Indian
ancestry where the parents deny any Indian ancestry. Several
Courts of Appeal have held that, even where a parent denies any
Indian ancestry, section 224.2, subdivision (b) requires DCFS to
inquire of a child’s extended family members regarding his or her
possible Indian ancestry. (See In re Antonio R. (2022)
76 Cal.App.5th 421 [although mother reported she had no Indian
ancestry, court erred by concluding DCFS had conducted
adequate ICWA inquiry because it failed to inquire of extended
family members]; In re A.C. (2022) 75 Cal.App.5th 1009 [same];
In re H.V. (2022) 75 Cal.App.5th 433 [court erred by terminating
parental rights when DCFS failed to inquire of the maternal
great-grandmother and maternal great-grandfather even though
mother denied Indian ancestry].) Other courts have held that a
parent’s unequivocal denial of Indian ancestry is substantial
evidence to support a juvenile court’s finding that ICWA does not
apply. (See In re Charles W. (2021) 66 Cal.App.5th 483, 486–488,
490–491 [court and agency made adequate ICWA inquiry where
mother denied Indian ancestry]; In re Austin J. (2020)
47 Cal.App.5th 870, 887–888 [father’s in-court statement and
declaration provided substantial evidence that DCFS and court
satisfied their initial duties of inquiry regarding ICWA]; In re
A.M. (2020) 47 Cal.App.5th 303, 323 [no need for further inquiry
if no one has offered information that would give court or child
27
welfare agency reason to believe child might be Indian child]; In
re H.V., supra, 75 Cal.App.5th at p. 441 (dis. opn. of Baker, J.)
[parent’s denials of Indian ancestry were substantial evidence to
support court’s finding ICWA did not apply].)
We agree with those cases that have held that the parents’
unequivocal denial of Indian ancestry is substantial evidence to
support the juvenile court’s finding that ICWA does not apply.
Applying that standard here, the record shows that the juvenile
court’s finding that ICWA did not apply was supported by the
parents’ unequivocal denials of Indian ancestry. M.C.’s claim
that DCFS should have inquired further with maternal aunt and
paternal grandmother is not persuasive. Importantly, the family
was the subject of a previous dependency case, and the record
reflects the previous case “deemed no known ICWA ancestry for
the children.” We also note that DCFS asked paternal
grandmother L.R. about possible Indian heritage regarding son,
and she indicated there was none. Because M.C. was the
presumed father of daughter and son, paternal grandmother’s
denial of Indian ancestry would apply equally to daughter. M.C.
also indicated on his ICWA-020 form that he had no Indian
ancestry. Thus, there is no indication that inquiring further with
paternal grandmother would have yielded any additional
information regarding Indian ancestry. However, the record also
reflects that M.C., despite being the presumed father, was not
daughter’s biological father. Despite efforts by DCFS to contact
daughter’s biological father, he could not be located. However,
the record reflects that biological father had been involved in a
previous dependency case with daughter, and thus the previous
no-ICWA finding would apply here.
28
Likewise, there is no indication that maternal aunt would
have had any information bearing on the children’s possible
Indian ancestry. Like M.C., mother indicated on her ICWA-020
form that she had no Indian ancestry and there is no indication
that maternal aunt had any additional information. Maternal
aunt and mother were in close contact, saw each other often, and
talked “all the time.” On this record, it is reasonable to infer that
mother and maternal aunt had access to the same ancestral
information. There is no indication in the record that there was a
discontinuity of family history or information available to mother.
Further, during its investigation, DCFS interviewed the “parties”
and indicated that it was not informed of any new information
which would indicate the children were Indian children.
Under these circumstances, we conclude that the juvenile
court’s finding that ICWA did not apply was supported by
substantial evidence.
DISPOSITION
The juvenile court is ordered to strike the allegations of
emotional abuse in counts a-4 and b-7 against M.C. In all other
respects, the orders are affirmed.
NOT TO BE PUBLISHED.
KIM, J.*
I concur:
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
29
LAVIN, Acting P. J., Concurring and Dissenting:
I agree with the majority opinion except for the
interpretation and application of the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) and related state laws
implementing ICWA (Welf. & Inst. Code, § 224 et seq.).
The Department of Children and Family Services
(Department) has a duty to inquire of the child’s extended family
members regarding the child’s possible Indian ancestry—even
when the parents denied having Indian ancestry. (See, e.g., In re
Antonio R. (2022) 76 Cal.App.5th 421, 431 [“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.”].) And while
the Department may have asked the paternal grandmother about
the children’s possible Indian heritage, it did not make a
meaningful effort to locate and interview other extended family
members to obtain whatever information they may have as to the
children’s possible Indian status. (See In re K.R. (2018) 20
Cal.App.5th 701, 709.) Further, the Department cannot omit
from its reports “exactly which and when other family members
were asked about Indian ancestry” and then claim that the
sufficiency of its efforts cannot be challenged on appeal. (See In re
Josiah T. (2021) 71 Cal.App.5th 388, 406 [the Department has a
duty to document its inquiry and to provide clear information to
the court so the court may rule on the question of whether ICWA
applies].)
In sum, the juvenile court’s finding that ICWA did not
apply was error. I otherwise join in the analysis and conclusions
of the majority opinion.
LAVIN, Acting P. J.
2