In re B.G. CA2/2

Filed 6/1/22 In re B.G. CA2/2
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re B.G. et al., Persons B312174
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 20CCJP04488A-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CANDACE V.,
Defendant and Appellant.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Marguerite Downing, Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Deputy
County Counsel, for Plaintiff and Respondent.
******
Candace V. (mother) appeals from a judgment of the
juvenile court asserting jurisdiction over her four children,
Aubrey V. (born May 2008); B.G. (born October 2009); M-S.G.
(born June 2012); and M.G. (born December 2014). Mother
challenges the juvenile court’s order removing the children from
her custody. Mother further argues that the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with the inquiry provisions of the Indian Child Welfare
Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
We affirm the judgment and removal order.
FACTUAL AND PROCEDURAL BACKGROUND
Aubrey’s presumed father is Louis V. DeShawn G. (father)
is the father of B.G., M-S.G., and M.G. Neither Louis V. nor
father is a party to this appeal. At the time the dependency
proceedings were initiated, all four children were living with
mother and father in Chino, California.1 The family was in Los
Angeles visiting B.G., M-S.G., and M.G.’s paternal grandmother
1 There was conflicting evidence in the record as to whether
father was living with the family at the time the dependency
proceedings commenced. Mother reported that she lived alone
with the four children. However, M-S.G. reported during
separate interviews that he and M.G. lived with mother, father,
and their two sisters.
2
when the events that triggered the dependency petition
occurred.2
Referral, petition, and detention—M-S.G. and M.G.
On August 25, 2020, DCFS received a referral alleging
M-S.G. and M.G. were victims of severe neglect by mother. Los
Angeles County Sheriff’s Department (LASD) deputies observed a
car driving on the wrong side of the road, run a red light, drive on
the sidewalk, and almost run into a brick wall. The deputies
found mother driving the car with M-S.G. and M.G. also inside.
The deputies observed that mother was under the influence of
“something.” Mother refused to submit to a sobriety test. When
it was determined the vehicle mother was driving was stolen,
mother was arrested for the stolen vehicle, reckless driving, and
child endangerment. M-S.G. and M.G. were taken into protective
custody.
A DCFS social worker responded but was unable to speak
with mother until after the booking process. M.G. told the social
worker that he and his brother, M-S.G., were with their mother
in the car, that they did not live in Los Angeles, but were visiting
paternal grandmother so that she could buy them clothes. M.G.
said they were supposed to go home, but mother had an accident,
of which M.G. could not recall details because he was “mostly
asleep and did not see anything.”
M-S.G. said the family lives in Chino but had come to Los
Angeles to do some shopping with his grandmother. M-S.G.
2 We hereby grant DCFS’s motion for judicial notice of
postjudgment evidence, including minute orders reflecting that
the matter was transferred to San Bernardino County, soon after
the disposition hearing. The juvenile court in San Bernardino
County now has jurisdiction of this matter.
3
provided the social worker with an address in Chino where the
family lived. M-S.G. stated that he lived with mother, father,
M.G., and two sisters B.G. and Aubrey. At first, M-S.G. denied
that they had been in a car accident. M-S.G. later said they had
a small accident because mother must have stepped on the gas by
mistake. When asked about mother’s drug use, M-S.G. reported
that mother “smokes one blunt a month” but would smoke it
outside the home.
During the interview, M.G. interrupted M-S.G. and said
mother was “drunk.” M-S.G. immediately snapped at his brother
in disagreement. M.G. told the social worker that it was M-S.G.
who earlier said mother was drunk, which M-S.G. denied. The
social worker asked M-S.G. if mother had been smoking a blunt
or drank alcohol during this trip. M-S.G. denied mother ever
smoked a blunt or drinking alcohol. When the social worker
informed M-S.G. that the social worker would try to contact
father, M-S.G. said he would rather go back with his mother and
informed the social worker that his father was probably not
home.
The social worker attempted to locate the address in Chino
provided by M-S.G., but the address did not exist. The social
worker also tried to contact father at his last known telephone
number but was unable to reach him.
On August 27, 2020, DCFS filed a petition on behalf of
M-S.G. and M.G. pursuant to Welfare and Institutions Code
section 300,3 alleging in count b-1 that mother had placed the
children in a detrimental and endangering situation by driving
3 All further unspecified statutory references are to the
Welfare and Institutions Code.
4
recklessly while under the influence of a controlled substance
with the children in the car.
At the September 2, 2020 detention hearing, mother
provided a form ICWA-020 indicating she had no Indian
ancestry. Under the heading, “Indian Status,” mother checked
the box indicating “None of the above apply.” Father also
provided a form ICWA-020, indicating “None of the above apply.”
Upon inquiry from the court, mother said father had no Indian
ancestry. Based upon the mother’s response, the court found no
reason to know that ICWA applied or that the children were
Indian children. The court found father to be the presumed
father of M-S.G. and M.G.
The juvenile court found that DCFS had established a
prima facie case that the children were described by section 300.
The court detained the children from the mother and ordered
them released to father.
On October 15, 2020, DCFS filed a first amended petition
(FAP), which amended count b-1 to add that during the
August 25, 2020 incident, the children were not secured in the
car with seat belts. Count b-1 was further amended to add that
mother had been arrested for grand theft of an auto.
The FAP further alleged in count b-2 that M-S.G. and
M.G.’s father had an extensive criminal history including felony
convictions for burglary, felon in possession of a firearm,
possession of phencyclidine for sale, possession of marijuana for
sale, and was a registered controlled substance offender. The
FAP asserted that father’s criminal history endangered the
children’s physical and emotional health, safety, and well-being.
On October 20, 2020, the juvenile court received the FAP
and dismissed the original section 300 petition.
5
Jurisdiction/disposition report
In its November 5, 2020 jurisdiction/disposition report,
DCFS reported that the children were residing with the maternal
grandmother in San Bernardino, along with their siblings
Aubrey V. and B.G. Father left the children with maternal
grandmother and was no longer willing to cooperate with DCFS’s
investigation.4
DCFS provided father’s criminal history, which began in
1991 and included numerous arrests and convictions. Father’s
criminal history included several convictions for possession of
drugs for sale. While father acknowledged his criminal history,
he refused to talk about it further. Father did not know anything
about the August 25, 2020 incident involving mother. He was not
enrolled in any programs.
DCFS also provided the LASD report regarding mother’s
August 25, 2020 arrest, including that the deputies observed
M-S.G. and M.G. disoriented and crying on the floorboard of the
car mother was driving. The children were not wearing seat
belts, nor did they have appropriate child seats. At the scene the
deputies were approached by a woman, Tamika S., who identified
herself as the owner of the car mother was driving. Tamika S.
reported that she observed mother and the children walking on
Wilmington Avenue and stopped to offer them a ride. While she
was out of the vehicle assisting mother who was getting the
children in the car, mother got in the car and drove off at a high
rate of speed on El Segundo Boulevard.
4 There was an open child welfare investigation regarding
Aubrey and B.G. as well.
6
M-S.G. reported having no recollection of what happened
on the day of the accident. He only remembered falling asleep in
the car and waking up at the LASD office.
Mother provided the DCFS investigator with a detailed
story surrounding the car accident. She explained that she was
visiting father’s mother in Compton, after she agreed to give a
ride to a friend, Eugene, who wanted to go to the Compton area.
Once in Compton, mother went to Eugene’s family home where
she had one drink. She speculated her drink was spiked or laced
with something because she started to lose her motor skills and
had a vague recollection of things thereafter. Mother explained
that she was followed by gang members after leaving Eugene’s
home. At a gas station they were followed by the same
individuals, who began provoking Eugene. After she and the
children got out, one of the men arguing with Eugene got in
mother’s car and drove off. Eugene ran after the car. Mother
never saw him again. Then, some women started trouble with
mother. They jumped mother, but one of the women had left her
vehicle door open, so feeling threatened, mother got into the car
and drove off. Mother stated she then began “blacking out,” and
had no recollection after that. Mother insisted that she never
drove on a sidewalk and that the deputies contradicted
themselves and never read her Miranda5 rights after arresting
her. Mother suggested it did not make sense for her to steal a car
when she owned a brand new car.
Mother reported that since the accident, she had enrolled
in a parenting program and was on a wait list for a substance
abuse program and individual counseling at the same facility.
5 Miranda v. Arizona (1966) 384 U.S. 436.
7
Second amended petition—M-S.G. and M.G.
On November 19, 2020, DCFS filed a second amended
petition (SAP), alleging in count b-3 that father left the children
with the maternal grandmother without making a plan for the
children’s ongoing care and supervision.
Maternal grandmother informed DCFS that she had
attempted to contact father since he dropped off the children at
her home, to no avail. Father’s whereabouts were unknown to
DCFS.
Section 300 petition and detention—Aubrey and B.G.
On December 7, 2020 a section 300 petition was filed on
behalf of Aubrey and B.G. The petition set forth the same
allegations as the SAP filed on behalf of M-S.G. and M.G. B.G.
and Aubrey were distraught about having to leave home. Mother
expressed concern that the maternal grandmother was abusing
the children. B.G. disclosed that maternal grandmother hit her
with a belt about a month before, and Aubrey confirmed that it
happened. The social worker agreed not to take B.G. and Aubrey
to maternal grandmother’s home. Aubrey and B.G. were placed
together in a foster home, while M-S.G. and M.G. remained with
maternal grandmother.
The accompanying detention report provided details
regarding the family’s prior child welfare history, including a
case in San Bernardino in 2016. On August 6, 2016, the juvenile
court sustained a petition that alleged father physically abused
Aubrey by hitting her with a belt, leaving marks and bruises, and
sexually abused her by making her place her tongue in his mouth
while he touched her vagina. The petition further alleged that
both mother’s and father’s marijuana use impaired their ability
to safely parent and care for their children. The case was closed
8
in February 2017 with the children remaining in mother’s
custody. The family’s child welfare history also included a 2010
unfounded referral of caretaker absence and neglect by mother,
and a 2015 referral with no disposition for Aubrey, stating that
she showed her private parts to a group of students at school, at
which time one student allegedly touched her vaginal area.
At the detention hearing for B.G. and Aubrey, mother filed
a second ICWA-020 form claiming she did not have Indian
ancestry. Mother also confirmed that father did not have any
Indian ancestry. The juvenile court again found that ICWA did
not apply to the case. The court found a prima facie case that
B.G. and Aubrey were children described by section 300 and
detained them from the parents.
DCFS noted that the whereabouts of Aubrey’s alleged
father, Louis V., were unknown.
When DCFS attempted to interview mother and father
about the allegations regarding Aubrey, mother refused to
provide a statement and referred the social worker to her
attorney. Maternal grandmother reported that father had left
the children in her custody, and she had been forced to take a
leave of absence from work in order to care for the children.
The social worker interviewed Aubrey and B.G. about the
allegations in the petition. Aubrey related what she had heard
from mother—that someone put something in mother’s drink and
mother’s friend got into a fight. Aubrey stated that mother did
not drink alcohol “that much,” but that she began drinking more
when the COVID-19 pandemic began. Aubrey also said mother
used to smoke marijuana but no longer did so.
B.G. similarly reported that someone put something in
mother’s drink the day of the accident and that mother’s friend
9
“got jumped.” B.G. stated that mother drank alcohol “once in a
while because it makes her sick afterwards.” B.G. informed the
social worker that mother was “addicted to weed.” Mother
“would get frustrated with my brothers and it would make her
feel calmer when she smoked. She would smoke outside or in her
bedroom or her bathroom.” B.G. did not know where mother kept
the weed.
Regarding services, mother had completed a “Parenting
Skills Book Study Class” dated November 8, 2020, from
LifeMatters.com. She also completed an eight-hour drug and
alcohol awareness class on December 10, 2020. Mother had
enrolled in therapy on November 24, 2020, and as of
December 14, 2020, had participated in three sessions. Mother
tested positive for marijuana on September 9, 2020, and was a
no-show on September 25, 2020, October 14, 2020, October 26,
2020, and November 23, 2020. Mother tested negative on
December 10, 2020.
February 2021 last minute information for the court
On February 4, 2021, DCFS provided last minute
information for the court indicating that a heated argument took
place between mother and maternal grandmother in the presence
of the children. Due to the dispute, M-S.G. attempted to leave
the home. Maternal grandmother had a history of domestic
violence investigations with DCFS. Due to the argument, M-S.G.
and M.G. were removed from maternal grandmother’s home and
placed with Ramona R.
Jurisdiction/disposition hearing
At the February 4, 2021 jurisdictional hearing, the juvenile
court found Louis V. to be Aubrey’s presumed father, based on
similar findings made in San Bernardino County. The court
10
received the various reports and exhibits into evidence. Mother
argued that this was a one-time incident and there was a lack of
evidence of current risk of harm to the children. Mother argued
that her missed tests were due to the fact that she lived out of the
county and lack of communication with the social worker.
Mother pointed out that she submitted three consecutive
negative tests.
The children’s counsel asked the court to sustain the counts
related to mother’s reckless driving and father’s failure to make a
proper plan for the children’s care. Counsel argued for dismissal
of the count related to father’s criminal history. The court agreed
with children’s counsel and sustained counts b-1 (related to
mother’s reckless driving) and count b-3 (related to father’s
failure to make a proper plan for the children’s care). The court
continued the matter for disposition.
First notice of appeal
On March 10, 2021, mother filed a notice of appeal from the
juvenile court’s February 4, 2021 order.
March 2021 and April 2021 last minute information for the
court
DCFS filed two subsequent updates for the court. On
March 22, 2021, DCFS reported that in February 2021 Aubrey’s
presumed father, Louis V., contacted the DCFS investigator and
provided additional information about the family’s previous
dependency case in San Bernardino County. According to
Louis V., he attempted to keep his daughter safe when father was
abusing her. However, during visitation, mother convinced
Aubrey to retract what she had alleged regarding the sexual
abuse by father. Louis V. stated that mother convinced Aubrey to
say that Louis V. had hit her, so that mother could regain
11
custody. Louis V. expressed disappointment that mother chose to
protect father instead of Aubrey.
Mother missed a drug test appointment in January 2021
but tested negative in February and March. Father’s
whereabouts remained unknown.
In a last minute information for the court filed April 6,
2021, DCFS reported that mother’s criminal case was dismissed
due to mother’s compliance with an informal court-ordered
diversion. Mother completed an eight-hour drug and alcohol
awareness class, which was not an approved DCFS program.
Mother failed to show for her drug test on March 18, 2021, but
tested negative on March 19, 2021. Mother rescinded release of
information from her therapist, so there was no confirmation of
her treatment plan, nor could DCFS confirm mother’s progress in
demonstrating insight into child safety issues. On January 7,
2021, mother’s therapist reported that mother had attended three
sessions, but no progress could be reported due to lack of
attendance. Mother cancelled her appointment on December 16,
2020, and did not attend on December 21 and 28, 2020. The
therapist was unable to contact mother, as her voice mail box was
full.
Father was arrested in San Bernardino on November 6,
2021, for being a felon in possession of a firearm. Father was
incarcerated.
All four children had been placed together in the home of
foster parent Ramona R. DCFS recommended that the matter be
transferred to San Bernardino County after disposition.
April 6, 2021 disposition hearing
At the April 6, 2021 dispositional hearing the children’s
counsel noted that the children wanted to be home with mother.
12
The children’s counsel pointed out that mother was attending a
parenting class and had enrolled in Alcoholics Anonymous.
Counsel acknowledged that mother’s parenting and substance
abuse treatment programs were not approved by DCFS but
argued that mother understood that she needed to enroll in
additional programs.
Mother’s counsel argued that mother was being proactive,
that there were measures in place to ensure the children’s safety
in mother’s custody, and that it had been seven months since the
accident.
DCFS argued that the children should be removed from
mother, noting that the objectives of the dependency court and
the criminal court were different, and the family’s dependency
history in San Bernardino was serious. Counsel observed that
mother never acknowledged the safety risk she created for the
children or provided explanations for the accident that did not
show accountability for her actions. Mother also had tested
positive for marijuana after dependency proceedings were begun
and had missed many drug testing appointments.
The juvenile court declared the children dependents of the
court, noted that mother had not yet accepted responsibility for
her behavior and was not enrolled in any programs addressing
child safety issues. The court found mother’s limited
participation in counseling was insufficient, removed the children
from mother’s custody and ordered family reunification services
with monitored visitation.
Second notice of appeal
On April 13, 2021, mother filed a notice of appeal from the
April 6, 2021 dispositional orders of the juvenile court.
13
DISCUSSION
Mother challenges the court’s order removing the children
from her custody. She also argues that a remand is necessary
because DCFS and the juvenile court failed to properly discharge
the duty of inquiry under ICWA. We address each contention
separately below and conclude that mother has failed to show
reversible error.
I. Removal order
A. Applicable law and standard of review
Once jurisdiction is established, the juvenile court must
determine the appropriate disposition for the child. The court is
not limited to the content of the sustained petition when it
considers what disposition would be best for the child. (In re
Rodger H. (1991) 228 Cal.App.3d 1174, 1183.) Additional social
study reports, special evaluations, and “other relevant and
material evidence” may be considered. (§ 358, subd. (b).) In
determining whether a child may remain in the custody of a
parent, the juvenile court may also 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.)
To remove a child from parental custody under section 361,
subdivision (c)(1), DCFS must prove by clear and convincing
evidence that there is or would be a substantial danger to the
child’s physical health, safety, protection, or physical or
emotional well-being, and no reasonable way to protect the child
from these dangers in the parent’s home. “This is a heightened
standard of proof from the required preponderance of evidence
standard for taking jurisdiction over a child.” (In re Hailey T.
(2012) 212 Cal.App.4th 139, 146 (Hailey T.).) “Clear and
14
convincing evidence” has been defined as evidence requiring “a
high probability, such that the evidence is so clear as to leave no
substantial doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684,
695.) The heightened burden of proof is “‘premised on the notion
that keeping children with their parents while proceedings are
pending, whenever safely possible, serves not only to protect
parents’ rights but also children’s and society’s best interests.’”
(In re D.P. (2020) 44 Cal.App.5th 1058, 1066-1067.)
“The standard of review of a dispositional order on appeal
is the substantial evidence test.” (Hailey T., supra, 212
Cal.App.4th at p. 146.) In assessing juvenile court error
concerning removal of a child from a parent, we must apply the
substantial evidence test “‘bearing in mind the heightened
burden of proof.’” (Ibid.) In other words, we must determine
“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, 995-996.) At the same time, we still must “view
the record in the light most favorable to the prevailing party
below and give due deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts in the
evidence, and drawn reasonable inferences from the evidence.”
(Id. at p. 996.)
B. Substantial evidence supports the juvenile
court’s order removing the children from mother
Mother argues that substantial evidence did not support
the juvenile court’s determination that removal of the children
from mother’s custody was required. Specifically, mother
contends that the evidence did not show a current, substantial
danger to the physical health and safety of the children in
15
mother’s care or that there were no reasonable means to protect
the children without removal.
We disagree. The juvenile court set forth in detail its
rationale for removing the children from mother’s care. While
acknowledging that the criminal court assigned mother some
“programming,” the court noted that the criminal court was not
concerned with the children’s safety.6 The court expressed its
concern that mother did not attend any programs regarding
drinking and driving or smoking and driving. In addition,
mother did not have the children in seat belts at the time of the
incident. Because the programs mother had completed for the
criminal court did not address child safety or the actions of
mother that endangered the children, the court found “the little
bit of programs she has done is not sufficient.”
The court further noted that mother did not take
responsibility for her actions. Instead, mother insisted that
someone put something in her drink. The juvenile court was not
required to believe mother’s version of the events leading up to
mother’s reckless driving and serious endangerment of her
children. The juvenile court had before it ample evidence that
mother had problems with substance abuse. Mother had a prior
dependency case in 2016 originating in part due to substance
abuse that interfered with mother’s ability to parent her children.
M.G. reported that mother was drunk at the time of the accident.
Mother admitted to drinking but insisted that her drink was
laced with an unknown substance. M-S.G. disclosed that mother
used to smoke “blunts,” and B.G. indicated that mother was
6 The record shows that following her accident and arrest,
mother completed a one-day, eight-hour drug and alcohol
awareness class.
16
addicted to marijuana. Aubrey further noted that mother had
started consuming more alcohol than usual during the pandemic.
There was evidence that mother’s substance use persisted during
the pendency of the case, as mother tested positive for marijuana
in September 2020 and missed several subsequent drug tests.7
This evidence supported the juvenile court’s determination that
the brief class that mother attended was insufficient to ensure
that mother would refrain from use of substances that could
cause harm to her children. As the juvenile court noted, “[s]he
could have killed these kids.”
In addition, the court noted that mother never
acknowledged her criminal behavior in stealing a car. Again, the
court was not required to believe mother’s story regarding the
events leading up to the accident. Mother’s failure to take
responsibility for her reckless behavior presented a substantial
danger to the children’s safety and well-being. Mother’s failure to
acknowledge or address her behavior constituted evidence that
the danger to the children’s safety is ongoing.
Finally, not only had mother failed to complete any
programs that addressed the children’s safety, mother revoked
her release of therapeutic information to the social worker. Thus,
the social worker had no way of knowing how mother’s treatment
was progressing. Mother’s unwillingness to cooperate with the
social worker and DCFS, or keep them apprised of her progress,
prevented the court from being able to declare that there was no
present danger to the children. Instead, the evidence and
circumstances supported the juvenile court’s decision that there
7 The juvenile court may properly consider missed drug tests
as positive tests. (In re Christopher R. (2014) 225 Cal.App.4th
1210, 1217.)
17
remained a substantial danger to the children if they remained in
mother’s care and that no reasonable alternatives to removal
existed.
Mother argues that the juvenile court’s emphasis on
mother’s acceptance of responsibility was wrong, as the juvenile
court intervenes to protect a child, not punish a parent. (Citing
In re Malinda S. (1990) 51 Cal.3d 368, 384, superseded by statute
as stated in People v. Otto (2001) 26 Cal.4th 200, 207, and quoted
in In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) While it is true
that the court’s intervention is to protect the child, the parent’s
acknowledgement of her behavior is a significant step towards
the safety of the child. “One cannot correct a problem one fails to
acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
The court did not err in considering mother’s “response to the
conditions that gave rise to juvenile court intervention.” (In re
D.B., supra, 26 Cal.App.5th at p. 332.)
Mother further argues that there was no past physical
harm to the children, thus any risk of future harm to the children
was merely speculative. Mother relies on case law concerning the
assertion of jurisdiction over a child, not the removal from
custody. (See, e.g., In re J.M. (2019) 40 Cal.App.5th 913, 921 [“a
juvenile court must find the risk of harm exists at [the] time of the
jurisdiction hearing to take jurisdiction over the minor”]; In re
J.N. (2010) 181 Cal.App.4th 1010, 1023 [dependency jurisdiction
is not authorized based on a single incident resulting in physical
harm absent current risk]; In re David M. (2005) 134 Cal.App.4th
822, 830 [finding dependency jurisdiction unwarranted where
harms to children were “merely speculative”], abrogated on other
18
grounds by In re R.T. (2017) 3 Cal.5th 622, 628.)8 Mother has not
challenged the juvenile court’s assertion of jurisdiction over her
children, therefore the cases are irrelevant.9
Mother also relies on In re Steve W. (1990) 217 Cal.App.3d
10, 22, for the proposition that “speculation about the mother’s
possible future conduct is not even sufficient to support a finding
of dependency much less removal of the physical custody of the
child from the parent.” Steve W. is distinguishable. In that case,
the juvenile court removed a child from the custody of his mother
after the father killed the child’s half brother. The mother had
begun counseling, was living in an adequate apartment and was
self-supporting. In addition, she had taken appropriate steps to
prosecute the father, who was incarcerated, and expressed a clear
desire not to have anything to do with him. The Steve W. court
found that the court’s speculation that she would resume her
relationship with the father, or enter a new relationship with yet
8 To the extent that mother argues that dependency
jurisdiction in this matter is based on a single incident, we
disagree. The juvenile court was permitted to consider the
family’s dependency history, the children’s allegations regarding
mother’s drinking and drug use, mother’s failure to address these
concerns, and mother’s failure to cooperate with DCFS in
determining that jurisdiction was appropriate here.
9 Mother also cites Nahid H. v. Superior Court (1997) 53
Cal.App.4th 1051, 1070, discussing the denial of reunification
services to a parent due to her political beliefs and activities, and
concluding that such reasoning was based “on the minors’
perceptions of risk rather than actual evidence of risk.” (Ibid.)
The court concluded that such speculative risk was insufficient.
The case is irrelevant, as this matter does not involve a denial of
reunification services.
19
another abusive type of person, was “little more than speculation”
and did not suffice to support removal. (Ibid.)
Here, in contrast, it was mother’s own behavior that
endangered her children. Mother failed to acknowledge or
address her actions or the substance abuse problems that led to
her reckless behavior and car accident. The juvenile court was
not merely speculating when it found that there remained a
substantial danger to the children’s safety and well-being if left
in her care.
Mother’s reliance on In re Drake M. (2012) 211 Cal.App.4th
754 is also misplaced. Preliminarily, we note that Drake M.
involved a challenge to a jurisdictional finding, and the juvenile
court’s jurisdictional findings are uncontested in this matter.
Mother argues that the record does not support a finding that
mother suffered from substance abuse issues. She cites Drake M.
for the proposition that lawful use of marijuana does not support
a finding of substance abuse absent a medical opinion or a
diagnosis meeting the criteria set forth in the American
Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders (DSM). (Drake M., at p. 766.) Mother argues
that DCFS did not present either type of evidence in this matter.
We note that subsequent case law has confirmed that a parent
does not need to meet the criteria for substance abuse set forth in
the DSM in order for a juvenile court to properly find the parent’s
substance abuse renders the parent unfit to care for a young
child. (See In re Rebecca C. (2014) 228 Cal.App.4th 720, 725; In
re Christopher R., supra, 225 Cal.App.4th at pp. 1218-1220.)
Contrary to mother’s position, there is evidence in the
record that mother suffered from substance abuse issues. Mother
had a prior dependency case that was initiated in part due to her
20
substance abuse issues. Mother’s children all attested to
mother’s use of marijuana and alcohol. B.G. reported that
mother was addicted to marijuana, and Aubrey reported that
mother’s drinking had increased during the pandemic. Mother’s
reckless acts of stealing a car and driving while under the
influence of a substance—with her children in the car without
seat belts —is further evidence that mother’s substance use was
interfering with her ability to safely parent her children.
Further, the juvenile court did not assume jurisdiction solely
because of the mother’s substance use.
Mother failed to acknowledge responsibility for her actions
and failed to cooperate with DCFS. She did not consistently drug
test and was unwilling to complete programs approved by DCFS
and necessary to help ensure the safety of her children. She
refused to speak with a social worker and rescinded her
permission for release of information about her treatment. The
juvenile court justifiably considered mother’s actions and attitude
during the pendency of the matter in declining to place the
children in mother’s care.
Mother attempts to distinguish this case from In re M.R.
(2017) 8 Cal.App.5th 101. In M.R., DCFS filed a dependency
petition after learning that the mother had been arrested for
driving under the influence of alcohol with her two children in
her car, not properly restrained by seat belts. The parents
contended that the one-time incident was insufficient to support
jurisdiction, and the M.R. court disagreed. The court noted that
the mother minimized her actions, and the parents’ acceptance of
responsibility seemed to worsen, rather than improve, as the
dependency proceedings progressed. (Id. at p. 109.) Mother
argues that this case differs from hers because here mother had
21
her criminal case successfully dismissed, had provided negative
tests, and had completed programs approved by the criminal
court. However, like in M.R., there was also evidence that
mother seriously minimized her actions. In addition, as in M.R.,
mother became less cooperative as the matter progressed in the
dependency court. The juvenile court was entitled to consider
these factors in determining that there was a substantial danger
to the children’s well-being in mother’s care.
Finally, mother argues that the record showed there were
reasonable means to protect the children short of removal from
mother’s care. Mother points out that she had consistently
visited her children up until the time of the disposition hearing
without incident or concern. The children wanted to return to
her care. Mother argues that reasonable means to protect the
children existed, such as family preservation services,
unannounced visits, and drug tests. Mother argues that the
children were old enough to voice any concerns.
We find that the evidence supported the juvenile court’s
decision that no reasonable means existed short of removal to
protect the children. Mother was not compliant with DCFS.
Mother told DCFS an implausible story to explain the car
accident involving her children. She tested positive for
marijuana and missed many drug tests. When DCFS attempted
to interview mother and father about the allegations in the
petition regarding Aubrey, mother refused to provide a statement
and referred the social worker to her attorney. Mother rescinded
her release of information from her therapist, so mother’s
treatment plan could not be confirmed nor could DCFS confirm
mother’s progress demonstrating insight into child safety issues.
Mother’s therapist reported that after three sessions, no progress
22
could be reported due to lack of attendance. Given mother’s lack
of cooperation with DCFS, the juvenile court was justified in
determining that no reasonable means existed short of removal to
protect the children.
In sum, there existed clear and convincing evidence that
there was a substantial danger to the children’s physical health,
safety, protection, or physical or emotional well-being, and no
reasonable way to protect the children short of removal from
mother’s home.
II. Duty of Inquiry under ICWA
Mother contends that if the court does not reverse the order
of removal, a remand is still necessary because the juvenile
court’s finding that ICWA did not apply was not supported by
substantial evidence. Specifically, mother contends that DCFS
and the court failed to make inquiry of mother’s relatives and
father’s relatives. Mother argues that the error was a continuing
violation under federal and state ICWA law because the juvenile
court and DCFS both have a continuing duty to inquire whether
the children may be Indian children. DCFS concedes that the
record does not demonstrate that DCFS interviewed maternal or
paternal relatives regarding the children’s possible status as
Indian children.
DCFS failed to fulfill its statutory duty of initial inquiry by
not asking these extended family members about the children’s
possible Indian status. The failure to do so was error. We
conclude, however, that the error was not prejudicial, given the
parents’ disclaimer of any knowledge of Indian ancestry and the
absence of any indication in the record that there was readily
obtainable information likely to bear meaningfully upon whether
23
the children are Indian children. (In re Benjamin M. (2021) 70
Cal.App.5th 735, 744 (Benjamin M.).)
A. Applicable law and standard of review
ICWA and related California statutes reflect the
Legislature’s intent “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families.” (25
U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706,
fn. 3.) An “Indian child” is defined as any unmarried person
under the age of 18 who is either a member of an Indian tribe or
is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe. (25 U.S.C. § 1903(4); Welf.
& Inst. Code, § 224.1, subds. (a), (b).)
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.) “The duty to
inquire begins with the initial contact, including, but not limited
to, asking the party reporting child abuse or neglect whether the
party has any information that the child may be an Indian child.”
(§ 224.2, subd. (a).) The court and child welfare department
“have an affirmative and continuing duty” to inquire whether a
child for whom a petition under section 300 may be or has been
filed may be an Indian child. (Ibid.)
Under California law, the child welfare department’s initial
duty of inquiry includes, but is not limited to, “asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
24
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
term “extended family member” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be a person who has reached the age of eighteen
and who is the Indian child’s grandparent, aunt or uncle, brother
or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2).)
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile court 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).)
If the “initial inquiry creates a ‘reason to believe’ the child
is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make
that inquiry as soon as practicable.’ ([§ 224.2], subd. (e), italics
added.) [I]f that further inquiry results in a reason to know the
child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to
inquire at the first appearance whether anyone ‘knows or has
reason to know that the child is an Indian child’]; id., subd. (d)
[defining circumstances that establish a ‘reason to know’ a child
is an Indian child]; § 224.3 [ICWA notice is required if there is a
‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
25
Neither the duty of further inquiry nor the ICWA notice
provisions are at issue here because no one contends there is
reason to know the children are Indian children. We review the
juvenile court’s ICWA findings for substantial evidence. (In re
D.N. (2013) 218 Cal.App.4th 1246, 1251.) Deficiencies in ICWA
inquiry may be deemed harmless error. (Ibid.)
B. No prejudicial error
Mother’s ICWA challenge is based on DCFS’s failure to ask
extended family members (both maternal relatives and father’s
relatives), about potential tribal membership.10 The statutory
duty to ask extended family members about a child’s possible
Indian heritage is imposed by California law on child welfare
agencies only. (§ 224.2, subd. (b).) Federal law imposes no such
duty. (In re S.S. (2022) 75 Cal.App.5th 575, 581; In re A.C. (2021)
65 Cal.App.5th 1060, 1069.) The failure to inquire of extended
family members accordingly is an error under state law only.
Under California law, we may not reverse unless we find that
error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M.,
supra, 70 Cal.App.5th at p. 742.)
In determining whether the failure to conduct a proper
ICWA inquiry was prejudicial, several appellate courts have held
that reversal is warranted only when the record indicates there
was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.
(Benjamin M., supra, 70 Cal.App.5th at p. 744; In re A.C. (2022)
10 Mother initially contended that DCFS failed to inquire of
father. However, the record shows that DCFS did inquire of
father, who filed an ICWA-020 form denying Indian ancestry, and
was present and represented by counsel at the September 2, 2020
hearing when the juvenile court noted that ICWA did not apply.
26
75 Cal.App.5th 1009, 1017 [applying Benjamin M. court’s
standard for prejudice]; In re Darian R. (2022) 75 Cal.App.5th
502, 509 [same]; In re S.S., supra, 75 Cal.App.5th at p. 581
[same].)
The courts in In re Antonio R. (2022) 76 Cal.App.5th 421,
435-436 (Antonio R.), and In re H.V. (2022) 75 Cal.App.5th 433,
438 (H.V.), adopted different standards, holding that the DCFS’s
failure to interview extended family members during its initial
ICWA inquiry was prejudicial error and therefore either (1)
reversible per se (H.V.) or (2) above such a low bar for prejudice
that it was reversible (Antonio R.). In Antonio R., the parents
both denied knowledge of any Indian ancestry. DCFS spoke with
a paternal great-grandmother, who also denied knowledge of any
Indian ancestry. The Department did not inquire about possible
Indian ancestry with any maternal extended family members,
including the maternal grandparents who were designated as the
prospective adoptive parents, and maternal aunts and a maternal
uncle who were present at the disposition hearing. The court in
Antonio R. concluded that the failure to do so was prejudicial
error.
In H.V., the only person asked about possible Indian
ancestry was the minor’s mother, who filed an ICWA-020 form
denying knowledge of any Indian ancestry and informed the
juvenile court that the minor’s alleged father (who did not
appear) had no Indian ancestry. Although DCFS interviewed the
minor’s maternal great-grandmother and maternal great-
grandfather, the record did not indicate whether the social
worker asked any of these relatives about the minor’s possible
Indian ancestry. The court in H.V. concluded that the failure to
do so was prejudicial and reversible error.
27
We decline to adopt the standard applied by the courts in
Antonio R. and H.V. We apply instead the standard for
prejudicial error articulated by the court in Benjamin M., supra,70 Cal.App.5th 735.
The record in this case reveals no readily obtainable
information that was likely to bear meaningfully on whether the
children were Indian children, and mother does not assert that
such information exists. Both mother and father told the social
worker that they had no knowledge of any Indian ancestry. Both
mother and father filed ICWA-020 forms stating they had no
Indian ancestry to their knowledge. Both mother and father
appeared at the detention hearing at which the juvenile court
found, based on the parents’ representations, that it had no
reason to know that ICWA applied. There is no reason to believe
that the parents’ extended families, with whom the parents were
in close contact, were withholding any relevant information.
There is no other information in the record suggesting that
further inquiry would have revealed potential Indian ancestry.
In short, the deficiencies in inquiry are harmless error in this
case.
Benjamin M., supra, 70 Cal.App.5th 735 and In re Y.W.
(2021) 70 Cal.App.5th 542 (Y.W.), on which mother relies, are
factually distinguishable. The father in Benjamin M. never
appeared in court and was never asked whether he had reason to
believe the subject minor was an Indian child. (Benjamin M., at
p. 744.) The child welfare agency never asked the father’s
brother and sister-in-law, whom the agency contacted in an effort
to locate the father, about the minor’s possible Indian ancestry.
The court in Benjamin M. noted that the father’s brother’s
knowledge of his own Indian heritage was likely to bear
28
meaningfully on the father’s status. (Id. at p. 745.) Here, in
contrast, both mother and father appeared in the juvenile court,
both filed ICWA-020 forms denying any knowledge of Indian
ancestry, and both denied knowledge of any Indian ancestry.
In Y.W., supra, 70 Cal.App.5th 542, the mother, who was
adopted, filed an ICWA-020 form stating she had no knowledge of
Indian ancestry. The social services agency interviewed the
adoptive maternal grandmother, who did not know whether
mother’s biological family had any Indian ancestry. The adoptive
maternal grandmother told the social worker that she knew the
name of mother’s biological father but had no additional
information about him or his relatives. The adoptive maternal
grandmother further stated she could obtain contact information
for the mother’s biological maternal aunt. The agency never
followed up or sought to obtain further information about the
mother’s biological parents. (Id. at p. 549.) The court in Y.W.
held that the agency’s failure to do so was prejudicial error. (Id.
at pp. 552-553.) In this case, in contrast, neither mother nor
father was adopted, thus there was no reason to believe they
were unaware of their biological ancestry.11
On the record presented here, we cannot conclude that the
DCFS’s failure to ask mother’s relatives and father’s relatives
11 In In re A.C., supra, 75 Cal.App.5th at page 1017 the court
found DCFS’s failure to interview extended family prejudicial
because the mother, as a former foster child, may not have known
her cultural heritage, and because a detention report indicated
that A.C. may have been an Indian child with no followup on that
representation. Under those circumstances, the parents’ denial
of Indian ancestry was insufficient to dispel prejudice from
DCFS’s failure to inquire of extended family. No such
circumstances exist in this case.
29
about the children’s Indian ancestry was prejudicial error. This
is particularly true in this case because the matter has been
transferred to San Bernardino County for further proceedings.
As set forth above, the duty under ICWA is a continuing one.
The parties are instructed to inform the court of any additional
information bearing on the children’s status under ICWA. (25
C.F.R. § 23.107(a); Welf. & Inst. Code, § 224.2, subd. (c).) Thus,
the parties remain under a continuing obligation to inquire into
the children’s Indian status throughout the pendency of the
matter and comply with the notification provisions if necessary.
(In re Isaiah W. (2016) 1 Cal.5th 1, 12 [“the juvenile court’s
[initial] determination of ICWA’s inapplicability . . . had no effect
on its ongoing inquiry and notice obligations under sections 224.2
and 224.3(a)”].)
DISPOSITION
The judgment and removal order are affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
30