In re Angel Z. CA2/8

Filed 8/16/23 In re Angel Z. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ANGEL Z., a Person Coming B319424
Under the Juvenile Court Law.
________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP04563)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.Z.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Marguerite Downing, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
A.Z. (Father) appeals the jurisdictional findings and
dispositional orders concerning his son, Angel Z., who was
adjudicated a dependent of the juvenile court under Welfare and
Institutions Code1 section 300, subdivisions (b) and (j). Father
argues there was insufficient evidence to support the juvenile
court’s jurisdictional findings and the removal of Angel Z. from
his custody. Additionally, he requests the matter be remanded
for compliance with the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Initial Investigation
Angel Z. came to the attention of the Los Angeles
Department of Children and Family Services (DCFS) shortly
after his birth in September 2021, when a referral was made
alleging both parents used marijuana, Angel Z. had been exposed
to the drug during pregnancy, and the parents engaged in
domestic violence. The reporting party advised DCFS Mother
had two older children removed from her care due to alcohol
abuse and domestic violence between Mother and her prior
partner; Mother and her children had not reunified. Mother was
participating in services but failed to apply the lessons learned.
She was unable to set boundaries with her older children, and
her visits were monitored.
DCFS met with Mother on September 21, 2021. Although
Father was present, DCFS was unable to interview him because
he left for work.
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2
Mother denied currently using drug or alcohol. She said
she had taken a drug and alcohol test in late August 2021, was
admitted to the hospital on August 30, and had missed three
tests. Mother reported being the victim of domestic violence by
her prior partner. According to Mother, the case involving her
older children was opened due to domestic violence and alcohol
abuse, but she did not have alcohol issues. Mother was enrolled
in individual counseling, domestic violence classes, and parenting
classes.
Mother tested positive for marijuana on September 22, 24,
and 28, 2021.2 She again claimed not to use marijuana or any
other drug, and she claimed secondhand smoke could be
responsible for the test results. Mother said she had previously
tested positive for marijuana and did not know why. She
admitted using marijuana in the past but said she had not
smoked marijuana in 10 months.
DCFS left messages for Father on September 24 and 27,
2021, and then reached out to him via Mother. DCFS
interviewed Father on September 28, 2021. He reported living
with Mother and Angel Z. He denied using drugs or alcohol. He
said he was willing to take a drug test but would have to request
time off work. Although the social worker offered to locate a
testing location near his worksite, Father said he worked from
7:30 a.m. to 7:00 p.m. and did not know when he would have time
to test.
Father told DCFS Mother was a good parent. He denied
Mother had any drug or alcohol issues and said he had never
2 Mother had also tested positive for marijuana August 19
and 24, 2021, during her pregnancy.
3
seen her use drugs or alcohol during their time together. Father
transported Mother to her drug and alcohol tests for DCFS.
Father denied engaging in domestic violence with Mother
and said they had “ ‘no problems or reasons to fight.’ ” Father
told DCFS he and Mother communicated well and had no issues
in their relationship. He reported being a victim of domestic
violence in a previous relationship.
Father said he had no need for or interest in services such
as parenting or counseling.
On October 4, 2021, the social worker working with
Mother’s other children related that Mother was not permitted
unmonitored visits because of her lack of progress. Mother did
not comprehend what she was learning in classes and seemed not
to have matured at all.
DCFS left phone messages for Father on October 4 and 5,
2021. On October 6, 2021, Father answered his phone and DCFS
asked him to take a drug test. He was hesitant and questioned
the need to test. DCFS explained that in light of Mother’s five
positive tests, DCFS wanted to confirm his account that he did
not use drugs. Father said he was unaware Mother used
marijuana and he had never seen her use it. He agreed to test.
Father tested positive for marijuana on October 8 and 14,
2021. When the social worker discussed the results with him, he
reiterated he did not use marijuana and said he did not know
why he had tested positive. Father reported his neighbors used
marijuana so he may have tested positive due to secondhand
smoke.
Mother also tested positive for marijuana on October 6 and
14, 2021.
4
On October 18, 2021, paternal grandmother contacted
DCFS and reported Mother had telephoned her at 2:00 a.m. or
3:00 a.m. that morning and said she and Father had been
drinking and were now arguing. Paternal grandmother said she
“heard yelling and the baby crying. They were swearing at each
other. Then they both mutually told each other bad words. The
aggression was mutual.” Paternal grandmother could hear Angel
Z. crying loudly, and she also heard Mother tell Father, “Don’t
pull me, don’t throw me, you pulled me.” Mother asked paternal
grandmother to come calm Father down, but when she arrived,
Father locked the door and the parents would not let her in.
On October 20, 2021, a social worker spoke with one of the
family’s neighbors. The neighbor said her husband had heard
Mother and Father arguing, and over the past few nights, he
heard the baby crying loudly. Father and Mother argued less
than they had in the past. Both parents used to drink alcohol,
but Father stopped when Mother became pregnant. Mother
continued to drink and smoke. When Mother was intoxicated she
verbally harassed the neighbor, and they had arguments. The
neighbor said her husband almost had a physical altercation with
Father because Father was insulting her.
The social worker knocked on the family’s door but received
no answer. She telephoned Mother, who said she was not home.
The social worker told Mother she could hear her voice through
the window. Mother said she lied to the social worker about
being home because she was taking care of a child, which she
knew was forbidden because of her open dependency case.
Mother let the social worker into the home, and when the
social worker entered, she saw Father exit the bedroom. The
social worker spoke with each parent about the new allegations.
5
Father said he did not know the last time he saw Mother
consume alcohol. He stated, “[N]othing happened. We were not
drinking, there is no abuse of anything. I have no reason to lie to
you.” Father blamed his jealous neighbors for the report DCFS
had received, claiming they made false allegations to keep the
parents apart. Father reported getting into a physical fight with
a belligerent neighbor who called Mother and Father names.
Mother denied having a domestic dispute with Father. She
denied the new allegations and attributed the report to the
neighbors. Mother said Father had been in an altercation with
one neighbor.
According to paternal grandmother, on October 23, 2021,
Mother and Father were drinking and using drugs in their car
around 2:00 a.m. Angel Z. was in the car with them. At
approximately 3:00 a.m., Mother and Father dropped Angel Z. off
in his car seat with paternal grandmother so they could continue
drinking and using drugs. The parents were “fighting and
arguing.” At around 4:00 a.m., Mother and Father returned to
pick up the baby. Paternal grandmother could smell alcohol on
their breath when they picked up Angel Z. Their pupils were
dilated and she believed they could be using cocaine or crystal
methamphetamine. Paternal grandmother allowed the parents
to take Angel Z. because she did not want them to get violent and
try to hurt her.
Paternal grandmother told DCFS Mother admitted she and
Father lied to DCFS about the domestic violence incident and
said they would continue to deny it.
On October 24, 2021, a neighbor heard the parents arguing
at 1:00 a.m. Father, angry the baby was crying when he wanted
to sleep, told Mother to “shut the fucking baby up.” The baby
6
cried a lot that night. The baby did not cry all the time, but when
he did, it was excessive. The neighbor believed the parents used
marijuana because the smell coming from their residence was
very strong.
On October 29, 2021, DCFS received a call reporting that
Mother and Father were “drugged up” and intoxicated. The
parents used marijuana and were caring for Angel Z. while under
the influence. According to the reporting party, Mother and
Father began to argue. Father pushed Mother out of the house
and locked himself inside with Angel Z.
II. Petition and Detention
Angel Z. was placed in protective custody on November 1,
2021. He was less than two months old. On November 3, 2021,
DCFS filed a petition alleging he was subject to juvenile court
jurisdiction under section 300, subdivisions (a), (b)(1), and (j).
Under each subdivision, DCFS alleged Mother and her prior
partner had both engaged in domestic violence.
Under section 300, subdivisions (b)(1) and (j), DCFS alleged
Mother had a history of substance abuse, used marijuana during
her pregnancy, and was presently abusing alcohol and
marijuana. Additionally, Mother’s older children had become
dependents due to her substance abuse. DCFS alleged Mother
had been under the influence of alcohol and marijuana while
Angel Z. was in her care and supervision, and that her substance
abuse interfered with her ability to care for and supervise him.
Under section 300, subdivision (b)(1), DCFS alleged Father
had a history of substance abuse and was currently abusing
marijuana and alcohol. He had tested positive for marijuana
twice and had been under the influence of alcohol and marijuana
while caring for Angel Z. DCFS alleged Father’s substance abuse
7
interfered with his ability to provide regular care and supervision
to Angel Z.
The court detained Angel Z. on November 9, 2021. Angel Z.
was soon placed in the home of paternal grandfather and
paternal step-grandmother.
III. Pre-Adjudication Investigation
A. Mother
Mother denied ever being violent with her ex-partner and
said she had been the victim. She acknowledged her arrest for
intimate partner violence with injury, and admitted her older
children were dependents due to her “engaging in violent conduct
with” her ex-partner. Mother denied domestic violence with
Father and said, “Things with [Father] are fine. He has never
done anything to me.”
Mother told DCFS she had not smoked marijuana or
consumed alcohol since her older children were removed from her
custody in August 2020. She said she did not know how she
tested positive for drugs because she had not used them.
Mother denied the allegation that she had a history of
substance abuse and was a current abuser of marijuana and
alcohol, rendering her incapable of regular care for Angel Z. She
denied abusing marijuana while pregnant with Angel Z. or being
under the influence when he was in her care. Mother
acknowledged her seven positive drug tests between August and
October 2021, but she maintained she had tested negative on
tests by her service provider. Mother admitted drinking a tea
made from marijuana leaves while she was pregnant to help her
sleep and eat.
Mother denied Father abused marijuana and alcohol. She
said she had never seen him under the influence or smoking in
8
her presence. She denied Father had been under the influence of
alcohol and marijuana while taking care of Angel Z. She denied
that Angel Z. was endangered by Father’s substance abuse.
Mother was enrolled in parenting, domestic violence, and
substance abuse programs, drug testing, and individual therapy,
and she provided a certificate of completion for a domestic
violence program. Mother told DCFS Father was enrolled in
classes.
B. Father
Father said he began using marijuana when he was about
16 years old, stopped for a period of time, and then resumed
using at age 21. He used to smoke about once per week, always
outside. The last time he smoked marijuana was in September
2021.
Father denied the petition’s allegation that he had a
history of substance abuse and currently abused marijuana and
alcohol, rendering him incapable of providing Angel Z. regular
care and supervision. He said he had not been under the
influence while caring for Angel Z. Father acknowledged testing
positive for marijuana twice, saying, “Yes, but I was about 30–
40%.” He denied substance abuse that endangered Angel Z.
Father denied current substance use.
Father denied Mother used marijuana while pregnant with
Angel Z. He denied the allegation that Mother had a history of
substance abuse and currently abused marijuana and alcohol,
rendering her incapable of caring for Angel Z. said that “at no
moment” was Mother under the influence while caring for Angel
Z. Father denied that Mother’s substance abuse endangered
Angel Z. or interfered with providing care to him. To Father’s
knowledge, Mother was no longer smoking or drinking. He knew
9
Mother tested positive for marijuana five times, but he
maintained that there were negative tests at another location.
Father denied any domestic violence and said he and
Mother got along great. Father said he had begun receiving
services; currently he was enrolled in parenting, individual and
couples therapy, and a substance abuse program with weekly
drug testing.
In January 2021, DCFS reported to the court that Father
had refused to make himself available to meet with the social
worker, stating he was busy and working.
C. Other Interviews and Information
On January 13, 2022, paternal grandmother informed
DCFS that at least once per week, Mother would telephone her,
say she and Father were arguing, and ask her to take care of
Angel Z. Arguments typically related to finances, and she could
usually hear them arguing over the phone. Paternal
grandmother regularly looked for marks or bruises on their faces,
but she did not see any.
Paternal grandmother told DCFS that on the day the
parents picked Angel Z. up from her in the middle of the night,
their clothes smelled of marijuana. On several occasions they
had admitted they used marijuana, but that day it was obvious
from the way the parents smelled.
Paternal grandmother thought the couple was better since
Angel Z. was removed from their custody, and she thought they
understood they needed to change. The parents told her they
were not using drugs.
Mother tested negative for drugs on November 10, 15, 24,
and 30, 2021. Father enrolled in drug testing on November 29,
2021, but he failed to appear for his first test on December 9,
10
2021. His tests on December 14, 22, and 29, 2021, as well as
January 5 and 12, 2022, were negative.
Paternal grandfather and paternal step-grandmother said
they used to test Father for drugs when he was a teenager
because of his marijuana use.
The social worker on the case involving Mother’s older
children said Mother was in therapy but did not apply what she
learned. Mother’s counselors had only positive things to say
about her; but while she was testing clean on their tests, she was
testing positive for marijuana for DCFS.
Mother’s counselor told DCFS she had told Mother she
needed a signed authorization before she could speak with DCFS.
The counselor never contacted DCFS to complete the interview,
but on December 9, 2021, another therapist at the agency wrote a
letter confirming Mother’s enrollment and describing her
progress and participation in individual and group
psychotherapy, individual rehabilitation, and case management.
Service logs showed Mother called the police in March
2021, saying Father hit her. Mother recanted when officers
arrived and claimed the altercation was verbal. The logs also
reflected Mother called the police in July 2021, stating that a
neighbor threatened her with a knife. The police noted it was
mutual combat and an ongoing issue between the parties.
At the detention hearing on November 9, 2021, Mother and
Father were granted monitored visitation, a minimum of three
times per week for three hours per visit. The court told the
parents during the hearing they were not to visit Angel Z.
together. However, Mother and Father visited Angel L. together
every Sunday for two hours. They took turns carrying Angel Z.
and spending time with him. Mother and the caregiver said they
11
were unaware of the prohibition on joint visits. The parents were
informed November 30, 2021, that they were not allowed to visit
together.
III. Jurisdictional and Dispositional Hearing
On January 27, 2022, the court conducted the jurisdictional
and dispositional hearing. As to Father, the court sustained the
allegation concerning Father’s failure to protect Angel Z.
pursuant to section 300, subdivision (b)(1). The court found true
the allegations against Mother under section 300, subdivisions
(b)(1) and (j). The court removed Angel Z. from the parents’
custody and granted them reunification services and monitored
visitation.
DISCUSSION
I. Sufficiency of the Evidence to Support Jurisdiction
Father argues the jurisdictional findings against him were
not based on sufficient evidence. Although Angel Z. will remain a
dependent child of the juvenile court regardless of our decision
here because of the uncontested jurisdictional findings
concerning Mother, Father’s appeal remains justiciable. (In re
D.P. (2023) 14 Cal.5th 266, 283 [“where a jurisdictional finding
‘serves as the basis for dispositional orders that are also
challenged on appeal’ [citation], the appeal is not moot”].)
Jurisdictional findings are reviewed for substantial
evidence and will be affirmed where there is reasonable, credible
evidence of solid value to support them. (In re Jonathan B.
(2015) 235 Cal.App.4th 115, 119.) “ ‘ “In making this
determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency
court; we review the record in the light most favorable to the
12
court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” [Citation.] “We do
not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the
findings of the trial court. [Citations.] ‘ “[T]he [appellate] court
must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence . . . such that a reasonable trier of fact could find [that
the order is appropriate].” ’ ” ’ ” (In re I.J. (2013) 56 Cal.4th 766,
773.) “Thus, we do not consider whether there is evidence from
which the juvenile court could have drawn a different conclusion
but whether there is substantial evidence to support the
conclusion that the court did draw.” (In re M.R. (2017)
8 Cal.App.5th 101, 108.)
Under section 300, subdivision (b)(1), the court may
exercise jurisdiction over a child who has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
or illness as a result of the failure of the parent to adequately
supervise or protect the child or to provide regular care for the
child due to the parent’s substance abuse. (§ 300, subd. (b)(1).)
Father first argues there was no substantial evidence to
support the finding he was a substance abuser. Father contends
he cannot be found to be a substance abuser in “the absence of a
medical diagnosis of substance abuse, and a lack of evidence of
life-impacting effects of drug use.” (In re Rebecca C. (2014) 228
Cal.App.4th 720, 726.) There is no medical diagnosis here, and
Father says there was no evidence of any “life-impacting effects”
related to his use of marijuana and alcohol. Father acknowledges
there is “some evidence” of domestic violence involving Mother,
13
but says there is no indication in the record that Father’s use of
marijuana or alcohol played a factor in the domestic violence.
We disagree. The altercation paternal grandmother heard
over the phone involved alcohol. Mother told paternal
grandmother she and Father had been drinking. They were
yelling and arguing viciously, and Angel Z. was crying in the
background. Mother said to Father, “Don’t pull me, don’t throw
me, you pulled me.” She asked paternal grandmother to come
over to calm Father down. Paternal grandmother said these calls
from Mother happened at least once per week. On another
occasion it was anonymously reported to DCFS that Mother and
Father used alcohol and marijuana and were “drugged up” and
intoxicated while caring for Angel Z. The parents began arguing,
and Father pushed Mother out of the house.
Additionally, the evidence shows Father was a longtime
user of marijuana who failed to take responsibility for his alcohol
and marijuana consumption. One may draw a reasonable
inference from his denials that he failed to recognize he had a
substance abuse problem. Father’s denial that he used alcohol
and marijuana cannot be squared with his positive drug test and
the numerous reports of Father drinking and using marijuana.
His later admission that he did use marijuana but stopped in
September 2021 is contradicted by the evidence of his drug use in
October 2021. In short, it was reasonable for the juvenile court to
conclude Father was not telling the truth about his marijuana
and alcohol consumption and to conclude he was attempting to
conceal substance abuse. (In re K.B. (2021) 59 Cal.App.5th
593, 601 [“The juvenile court was entitled to conclude the mother
had been transparently dissembling about her drug use. A
reasonable inference was the mother was trying to hide her
14
ongoing addiction. The trial court was entitled to draw this
reasonable inference.”) Father’s negative drug tests before the
jurisdictional hearing do not alter our conclusion that substantial
evidence supports the juvenile court’s finding of substance
abuse.3
Father next argues there was no evidence he cared for
Angel Z. while under the influence of marijuana and alcohol.
However, Angel Z. was in the parked vehicle with Mother and
Father while they used marijuana and alcohol, and they had
dilated pupils, breath that smelled of alcohol, and clothes that
smelled of marijuana when they picked up Angel Z. from paternal
grandmother. Father insists those facts do not show he was then
“under the influence,” but this too is a reasonable inference from
the evidence. Moreover, it is a reasonable inference that the
parents were caring for Angel Z. on the night they were drinking,
began to argue, and Father became physical with Mother, as the
family shared a bedroom, it was the middle of the night, and
3 Because Angel Z. is not yet six years old and is therefore of
tender years (In re Christopher R. (2014) 225 Cal.App.4th
1210, 1219), “the finding of substance abuse is prima facie
evidence of the inability of [the] parent . . . to provide regular care
resulting in a substantial risk of physical harm.” (In re Drake M.
(2012) 211 Cal.App.4th 754, 766-767, disapproved on other
grounds in In re D.P., supra, 14 Cal.5th at p. 283.) Here, the
tender years presumption applies and satisfies DCFS’s burden to
prove Father is unable to provide regular care, resulting in a
substantial risk of physical harm. However, as the continued
validity of the tender years presumption is before our Supreme
Court in In re N.R., review granted August 24, 2022, S274943, we
do not rely on the presumption to find jurisdiction appropriate
here.
15
Angel Z. could be heard crying loudly during Mother’s call to
paternal grandmother asking for help calming Father down.
Father argues that even if he did care for his son while
under the influence on one occasion, the evidence does not
demonstrate a current risk of harm to Angel Z. from his
marijuana or drug use. We disagree. Father started using
marijuana when he was 16 years old and was subjected to drug
testing even as a teenager due to his marijuana use. There were
many reports that Mother and Father regularly drank and used
marijuana, and the reports that he was using drugs and drinking
in October 2021 belied his claims that he did not drink alcohol
and had stopped smoking marijuana in September 2021.
Additionally, Father attempted to avoid, or at least delay,
drug testing. When asked to test, he hesitated and claimed he
would have to ask for time off work. Then he said he could not
find time to test, even though Father was the one who took
Mother to her drug tests and the social worker offered to find a
testing location near his work. After Father’s two positive tests
in October 2021, he did not enroll in a drug testing program until
November 29, 2021, and he was a no show for his first scheduled
test on December 9, 2021. Father blamed his positive tests on
secondhand smoke and minimized the results as “about 30–40%.”
Even though Mother tested positive many times for marijuana,
including while she was pregnant with Angel Z., Father
continued to deny she used marijuana, indicating he did not take
substance use seriously or think it a danger from which his son
needed to be protected.
Father also attempted to evade investigation. He left the
residence before being interviewed during the parents’ initial
contact with DCFS. Several times he did not answer the social
16
worker’s calls or respond to her messages. He was in the room
with Mother while she lied to a visiting social worker that she
was not home. By the time the jurisdictional hearing was
approaching, Father would not make himself available to DCFS
for an interview, saying he was “busy and ha[d] been also
working.” Father’s avoidance of DCFS during the investigation
supports the juvenile court’s conclusion that his substance abuse
posed a risk to Angel Z. (See In re E.E. (2020) 49 Cal.App.5th
195, 213–215.)
Given Father’s longtime use of drugs and alcohol, his
dishonesty about the extent of his drug and alcohol use, his
denial of Mother’s drug use and apparent indifference to her
substance use around Angel Z., and his avoidance of DCFS, there
was substantial evidence from which the court could infer there
was a substantial risk Father would again take care of his child
while under the influence. The evidence was sufficient to support
the finding against Father under section 300, subdivision (b)(1).4
II. Removal Order
Children may not be removed from parental custody unless
there is clear and convincing evidence of a substantial danger to
their physical health, safety, protection or physical or emotional
well-being and there are no reasonable means by which they can
be protected without removal. (§ 361, subd. (c)(1).) “A removal
order is proper if based on proof of parental inability to provide
4 We deny DCFS’s request for judicial notice of a minute
order terminating the parents’ reunification services as it is not
relevant to the determination of this appeal. (People ex rel.
Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2
[“any matter to be judicially noticed must be relevant to a
material issue”].)
17
proper care for the child and proof of a potential detriment to the
child if he or she remains with the parent. [Citation.] ‘The
parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child.’ [Citation.] The court
may consider a parent’s past conduct as well as present
circumstances.” (In re N.M. (2011) 197 Cal.App.4th 159, 169–
170, disapproved on other grounds by Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1011–1012.) However, removal cannot be
based solely on past abuse; it requires an “ongoing or future
danger” to the child. (In re A.E. (2014) 228 Cal.App.4th 820, 826.)
A removal order is reviewed for substantial evidence. (In re
Hailey T. (2012) 212 Cal.App.4th 139, 146.) “When reviewing a
finding that a fact has been proved by clear and convincing
evidence, the question before the appellate court is whether the
record as a whole contains substantial evidence from which a
reasonable fact finder could have found it highly probable that
the fact was true. In conducting its review, the court must view
the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at
pp. 1011–1012.)
Father concedes the evidence was sufficient for the juvenile
court to conclude there was an ongoing, unresolved domestic
violence problem. But he contends the court erred in removing
Angel Z. from his custody because DCFS failed to prove there
were no reasonable means by which Angel Z. could be protected
short of removing him. Specifically, he contends Angel Z. could
18
have been returned safely to him on the condition that he reside
with paternal grandfather and step-grandmother with whom
Angel Z. was placed, as he requested at disposition.
Alternatively, Father contends Angel Z. could have been placed
with him on the condition they live with paternal grandmother,
although he did not request this in the juvenile court.
Father fails to demonstrate a residency requirement would
have alleviated the concerns for Angel Z.’s safety. Father had a
history of physical altercations with Mother and others. He also
locked his door and would not let paternal grandmother inside
the home when she came to defuse the physical altercation taking
place between Mother and Father in the presence of a crying
Angel Z. This behavior is similar to the anonymous report that
when he was under the influence and angry Father pushed
Mother out of the house and locked himself and Angel Z. inside.
Having another person or people at the residence would not
ensure Angel Z.’s safety with a parent who, when he was
intoxicated and angry, was willing to physically prevent family
members from having access to Angel Z. Moreover, Father was
sufficiently intimidating when he was using drugs and alcohol
that paternal grandmother, who was highly concerned for and
very protective of Angel Z., still returned Angel Z. to him when he
appeared to be under the influence of alcohol and marijuana
because she was afraid he would hurt her if she did not. These
behaviors, as well as Father’s unresolved substance use and his
unwillingness to cooperate with DCFS, made less drastic
solutions short of removal insufficient to protect Angel Z.
Father argues the court’s removal decision was based on
erroneous findings that Father refused to cooperate with DCFS,
refused to be interviewed, and refused to engage in services.
19
These findings were supported by substantial evidence. Leading
up to the jurisdictional hearing, Father refused to make himself
available to DCFS for an interview, stating he was busy and
working. He had been somewhat cooperative earlier in the
course of the matter, but even prior to his refusal to speak with
DCFS he failed to return calls, left the home before being
interviewed, was reluctant to drug test, and was with Mother
while she attempted to deceive DCFS about her location in order
to conceal that there was a child in her home. As for services,
Father told DCFS at the start of the investigation he had no
interest in services. He told DCFS later he had enrolled in
services, but he does not identify, nor can we locate, any evidence
in the record that he actually participated in services beyond
submitting to five drug tests in December 2021 and January
2022. It is true, as Father points out, that the jurisdictional
report stated Father was receptive to services and cooperative
with DCFS, but that report was filed on December 7, 2021,
shortly after Father’s enrollment in drug testing, before his no-
show for a test, and before Father stopped speaking with DCFS.
Father faults DCFS for failing to explore a residency
requirement. However, as discussed above, the risk Father posed
would not have been alleviated by a change of residence. Father
refused contact with DCFS, had a history of evasion and
dishonesty about both his and Mother’s drug and alcohol use,
never acknowledged or expressed insight into the risk of serious
harm to which he had subjected his son, and, while under the
influence and in an altercation, denied others access to Angel Z.
This is in addition to his continued denial of domestic violence
despite evidence to the contrary. Placement with Father,
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regardless of where he lived, would have been insufficient to
protect Angel Z.
Father points out the juvenile court did not address his
request that Angel Z. be returned to his custody with a residency
requirement. The court was required to state the facts upon
which the decision to remove Angel Z. was based. (§ 361, subd.
(e).) It is arguable that the same facts that supported removing
Angel Z. from Father’s custody also demonstrated that a
residency requirement was insufficient to protect him. Father
contends, however, based on In re J.S. (2011) 196 Cal.App.4th
1069, that we should consider the failure to expressly address
Father’s proposed disposition as a failure to consider it. But in In
re J.S., the court said that while “the doctrine of implied findings
may be given limited scope where an express finding is required,”
that does not eliminate “the rule of harmless error. Before any
judgment can be reversed for ordinary error, it must appear that
the error complained of ‘has resulted in a miscarriage of justice.’ ”
(Id. at p. 1078.)
To any extent the court erred, we see no miscarriage of
justice arising from the trial court’s unexplained decision not to
place Angel Z. with Father in either grandparent’s home. Clear
and convincing evidence supported the court’s decision that no
reasonable means existed of protecting Angel Z. from Father
other than removal. Father’s false denials, his continued use of
marijuana and alcohol despite telling DCFS he had quit, his
unresolved domestic violence issues, his failure to take
responsibility for supervising Angel Z. while under the influence,
his denial of access to Angel Z. when intoxicated and angry, and
his refusal of contact with DCFS all support the court’s
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conclusion that Angel Z. could not be protected absent removal
from Father’s custody.
DCFS carried its burden to show that at the time of
disposition, there were no reasonable means of protecting Angel
Z.'s health and safety without removing him from Father. Based
on the record and taking into account the clear and convincing
burden of proof required for removal (see Conservatorship of O.B.,
supra, 9 Cal.5th at pp. 1011–1012), we conclude substantial
evidence supports the juvenile court's order removing Angel Z.
from Father’s custody.
III. ICWA
ICWA reflects a congressional determination to protect
American Indian children and to promote the stability and
security of Indian tribes and families. (25 U.S.C. § 1902; In re
Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.), superseded
by statute on other grounds as stated in In re E.C. (2022) 85
Cal.App.5th 123, 147.) To that end, ICWA established unique
standards for the removal and placement of American Indian
children. (25 U.S.C. § 1901 et seq.) Central to the protections of
ICWA are procedural rules to determine whether an Indian child
is involved. Federal regulations implementing ICWA require
state courts to ask participants in child custody proceedings
whether the participant knows or has reason to know the child is
an Indian child. (25 C.F.R. § 23.107(a) (2023).)
State law lays out the requirements for initial inquiry and
further inquiry. (Austin J., supra, 47 Cal.App.5th at p. 883.)
Initial inquiry includes the following: DCFS must ask “the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
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an Indian child.” (§ 224.2, subd. (b).) At each participant’s first
appearance at dependency proceedings, the court must ask
whether the participant knows or has reason to know the child is
an Indian child. (Id., subd. (c).)
Here, both parents denied Indian ancestry during their
initial interviews with DCFS and filed ICWA-020 forms denying
Indian ancestry on their first appearance in juvenile court. There
is no evidence in the record that prior to disposition DCFS
inquired of any extended family members, specifically either
paternal grandparent, whether Angel Z. is or may be an Indian
child. On appeal, Father asks that the matter be remanded for
an inquiry in compliance with ICWA and related California law.
We take judicial notice of the juvenile court’s December 21,
2022 minute order. (Evid. Code, §§ 451, 459.) The court ordered
DCFS to “interview/attempt to interview all extended family
members, including the paternal grandparents, about whether
the child, Angel Z[.], is, or may be, an Indian child as required
by . . . section 224.2(b).” Additionally, the court ordered DCFS to
document all its efforts and submit a written report on its results.
The court stated it would make further findings regarding ICWA
after reviewing the report and determining whether DCFS
interviewed all available extended family members.
As the court has now ordered the ICWA-compliant
investigation Father seeks on appeal, we can provide him no
effective relief on this issue. “[A]ll we could order in resolving
this appeal is that the Department and juvenile court fulfill their
inquiry and notice obligations under ICWA and related California
law.” (In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638–639.)
Because DCFS has been ordered by the juvenile court to do just
that, this issue is moot. (In re N.S. (2016) 245 Cal.App.4th 53, 60
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[“[T]he critical factor in considering whether a dependency appeal
is moot is whether the appellate court can provide any effective
relief if it finds reversible error”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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