Opinion
B320972
06-01-2023
In re V.R. et al., Persons Coming Under the Juvenile Court Law. v. D.R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly G. Emling for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Nos. 21CCJP05752A, 21CCJP05752B, 21CCJP05752C, Daniel Zeke Zeidler, Judge. Conditionally affirmed and remanded with directions.
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly G. Emling for Plaintiff and Respondent.
EGERTON, J.
Father appeals from the jurisdictional findings and disposition orders of the juvenile court. He contends the evidence was insufficient to support a finding that his children were at a current or future risk of serious physical harm due to his alcohol use, and the court erred in removing the children without considering reasonable alternatives to removal or stating the factual basis that supported removal. Finally, father argues the court prematurely found the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) did not apply because the Los Angeles County Department of Children and Family Services (DCFS) had yet to ask the children's extended family members about their Indian status as required under state law implementing ICWA. (See Welf. &Inst. Code, § 224.2.)
Undesignated statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do the same for consistency, although we recognize other terms are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
We conclude substantial evidence supports the juvenile court's jurisdictional findings and disposition orders, and there is no prejudicial error. As DCFS does not oppose a remand for it to make an ICWA inquiry of the children's known and available extended family members, we conditionally affirm the jurisdiction and disposition orders and remand the matter for DCFS to do so.
FACTS AND PROCEDURAL BACKGROUND
1. Facts relating to jurisdiction and disposition
Father and mother have three children together, V.R. (born May 2004), S.R. (born January 2006), and E.R. (born April 2012). Parents were married from about 2006 until 2012.
V.R. turned 18 in May 2022 and is no longer a juvenile dependent. Mother is not a party to this appeal. We do not include facts relevant to her unless necessary for context.
On December 17, 2021, DCFS filed a section 300 petition on behalf of the children. The petition alleged mother physically abused E.R., left the children alone at home for extended periods and left them with paternal grandmother without a care plan, and kept methamphetamine in the home within the children's reach; and father abused alcohol and had been intoxicated while caring for the children. The detention report showed father's criminal history included DUIs (driving under the influence).
The report states "DUI - convicted Prob/jail" on June 9, 2017 and July 9, 2020, and "DUI - 30 days jail" on November 6, 2020.
In late October 2021, DCFS received a referral about then-15-year-old S.R. She had a panic attack at school and had reported feeling unsafe ever since having witnessed a security guard kill a woman with whom she had gotten into an altercation outside of school the month before. The reporting party- presumably a school staff member-called mother, who said," 'I do not want to be responsible for her, talk to her dad.'" The reporting party called father, but he said mother was responsible for S.R. and ended the call.
A DCFS social worker (CSW) visited S.R. at paternal grandmother's home on November 2, 2021. Paternal grandparents and E.R. were sharing the only bedroom, S.R. was sleeping on the living room couch, and father was sleeping on a mattress in the dining room. S.R. told the CSW she was traumatized by the shooting incident; everyone blamed her for the woman's death. She said she would like to get services and felt safe in paternal grandparents' home.
S.R. told the CSW mother had left her and E.R. with paternal grandmother about two months earlier. She said mother is a stripper and had left with a man whom S.R. believed sold drugs. S.R. stayed in the apartment alone until she was evicted. Paternal grandmother confirmed mother had moved out and asked her to keep E.R. She said mother "would always leave the girls alone at home" and ask paternal grandmother-who lived next door-to take care of E.R. Paternal grandmother had been caring for the children since mother left. Paternal grandparents could not sign documentation S.R.'s school required.
S.R. revealed that father drinks on Fridays, but does not drink in front of the children, and said he goes straight to sleep when he comes home drunk. During an interview a few days later at the DCFS office, then nine-year-old E.R. described father as an alcoholic. She said father "drinks a lot" and didn't spend time with them. E.R. reiterated the points S.R. made about mother and added that mother had hit her. Paternal grandfather said father was a "good father," and he didn't drink every day.
The CSW interviewed V.R. at paternal aunt's home where she was staying. V.R. was then 17 years old and a senior in high school. She confirmed father lived with paternal grandparents. She said he wasn't very involved, was an alcoholic, and she didn't have a relationship with him. She stated he abused alcohol and S.R. abused marijuana. V.R. told the CSW she always has had to care for her sisters. She asked for her "babysitter" Evelyn to be assessed for E.R.'s placement.
The CSW assessed nonrelated extended family member Evelyn's home for E.R.'s and V.R.'s placement. Evelyn told the CSW father had once tried to assault her when he was drunk.
After unsuccessful attempts, the CSW reached father and arranged to interview him at the DCFS office. The day of the appointment, November 18, 2021, she called him to ask if he still was coming. The CSW reported "[f]ather sounded as if he was under the influence and did not understand why [the CSW] was calling." The CSW asked father if he was under the influence. She heard "a man in the background yell[,] 'we're having beers.'" She ended the call.
Twelve days later, father called the CSW claiming he did not recall having any appointments with her and that no one had communicated with him. He agreed to drug test the next day, which he did, and to meet with the CSW. After trying to avoid the appointment, father had paternal grandfather drive him to the DCFS office for his interview. Father told the CSW his "drinking problems got bad" after he and mother divorced, and he was attending AA and DUI classes. He said mother often left and had the girls stay with paternal grandmother. They were "fine with him." S.R.'s school needed a parent to sign a release so S.R. could receive therapy, but father would not sign any documents. He wanted mother's input as they shared custody. The CSW told him mother was not cooperating with DCFS.The supervising CSW (SCSW) explained parents' failure to sign the release the school needed was neglectful. Father agreed to go to S.R.'s school to sign the necessary paperwork and the next day confirmed he had received the documents.
Mother finally met with the CSW and supervising CSW at her home. She denied abandoning the children.
DCFS obtained an order authorizing the removal of the three children from mother and father. When the CSW picked up E.R. from school, E.R. told her father had been drunk the day before, December 14, 2021. E.R. and V.R. were placed with Evelyn. S.R. was placed in foster care.
About five days before the detention hearing, father called the SCSW after receiving a voicemail about visitation. Father sounded as if he were under the influence of alcohol-his speech was slurred and "his tongue was heavy when he pronounced certain words." The SCSW asked father if he had been drinking. He responded," 'Drinking? What? No! Have you been drinking?!'" Father ranted about why DCFS was involved. He vacillated between becoming emotional and crying to becoming angry and using profanity. He apologized throughout the conversation.
Father called the SCSW again the day before the hearing. He still was not clear on why the children had been detained. The SCSW went over DCFS's concerns of general neglect based on parents' failure to enroll S.R. in therapy, and S.R. and E.R. having been left alone after mother moved out. Father blamed mother for leaving the children. The SCSW informed father he was responsible, as the other parent, to ensure the children were not living alone. He made excuses as to why, despite his living next door, the children had been left alone.
The juvenile court conducted the first hearing in the matter on December 22, 2021. Mother attended but father did not. The court ordered the children detained from both parents, placed E.R. and V.R. with Evelyn, and placed S.R. in foster care. The court ordered monitored visitation for mother and monitored visitation for father "upon contact with the Department."
Father was arraigned on January 24, 2022.
DCFS filed its jurisdiction/disposition report on January 19, 2022, before father was arraigned. The dependency investigator (DI) attempted to interview father in January. They exchanged texts, but father had not made himself available for a telephonic interview as of the writing of the report.
As of the report's writing, V.R. and E.R. remained placed with Evelyn and S.R. had returned to paternal grandmother's home. The DI interviewed each child telephonically.
V.R. told the DI," 'Basically, my parents weren't taking care of us.'" For about a year, mother left them alone at night to go to work. Sometimes she came back in the morning, other times she would not return for days. Mother sometimes would have paternal grandmother or Evelyn watch the children, but other times assumed paternal grandmother would take care of them. V.R. left the home in August 2021, before mother moved out, after she and S.R. got into a physical altercation. When asked about father's issues with alcohol, V.R. said," 'He has been an alcoholic since I am able to recall. He only has worked to support his drinking. He has never contributed financially. My dad claims that he is depressed or has some mental issue and that is why he drinks. But, he has been an alcoholic all of my life.' "
The DI also asked E.R. about father's alcohol problem. She replied," 'Everything that my sister, [V.R.] said it's true.'" E.R. recanted her allegations about mother, however. She said the allegations about corporal punishment weren't true and that father" 'made me make that up'" because he wanted the children to stay together with paternal grandmother. She also said she didn't know anything about drugs or alcohol in the home. E.R." 'didn't think much of'" mother leaving her alone because her sisters were there, or she would go to her grandparents' home.
S.R. also recanted allegations about mother. When asked about mother leaving them alone, S.R. responded," 'That is a lie. I made everything up. It was more of an excuse.'" S.R. explained that, after the shooting incident, mother looked for a place to move. S.R. said mother "turned in" the apartment and she and her sisters went to live with paternal grandmother. S.R. also said she had lied about seeing drugs in the home. S.R. told the DI father had moved out of paternal grandparents' home. S.R. said father" 'used to drink a lot when we were younger, but he took classes, and has gotten a lot better. He is managing it well.'" S.R. had not seen father drunk since the July Fourth holiday. She said he" 'used to drink[ ], come[ ] home, and pass[ ] out on the couch.' "
The DI also spoke to paternal grandmother about the petition's allegations. She said," 'Look, all of the allegations are true. I am finding out that everyone is lying.'" According to the DI, paternal grandmother also "indicated" father "has a heaving drinking problem," and "has previously participated in classes, but requires help."
In a last minute information report (LMI) filed February 2, 2022, DCFS noted the DI interviewed father by phone on January 26, 2022. Father apologized for not making himself available earlier. He told the DI he never saw mother hit the children, and the children never said anything to him about seeing drugs. He admitted mother left the children alone for days to go to her boyfriend's home. As for his alcohol use, father said," 'I used to drink, but not anymore. I attend AA meetings now, and I am currently enrolled in my DUI classes. Things have calmed down, I don't drink anymore.'" He said he last had alcohol six months earlier. Father did not "feel" that he had an" 'alcohol problem.'" He claimed he drank because mother was cheating on him.
The DI also had met with each child in person. As to father, E.R. said father" 'drinks alcohol, and then he can't think straight. My grandmother takes him to classes, but I do not think the classes work, because he continues to drink. He goes with his friends.'" She confirmed she had seen father drunk. She said she'd once dumped a bag of alcohol in the toilet.
The children had a visit with father in late January and reported the visit went well. Father was scheduled to see them on Saturday and Sunday and planned to "maintain his visits."
At father's counsel's request, the court continued the February 8, 2022 adjudication hearing to March 29. Father filed objections to the admission of hearsay statements in DCFS's reports attributed to Evelyn, paternal aunt, and paternal grandmother.
On March 25, 2022, DCFS filed an LMI to update the court. Father tested negative for drugs and alcohol on February 9, but was a no-show for the next five weekly tests (February 14-March 17, 2022). The CSW suspected father was living in paternal grandmother's home. According to Evelyn, when V.R. took E.R. to visit paternal grandmother, E.R. told V.R. father was there and she had seen him take out a mattress and lie down. Father had not been participating in services. He visited the children only twice in February and had not scheduled any other visits as he was looking for a job.
The hearing again was continued due to a change in counsel for V.R. and E.R. DCFS updated the court for the continued hearing in an LMI filed April 20, 2022. Father had failed to appear for four more drug and alcohol tests between March 21 and April 14. He was not participating in services, and the CSW had been unable to reach him about visitation. E.R. told the CSW she did not want to speak to or visit father. She said he was pressuring her to move to paternal grandparents' home. Father had not visited the children since February. In a second LMI, DCFS reported it had learned father no longer was participating in AA "classes" and would be "terminated from the program" if he didn't attend.
The court wasn't sure what that meant as AA wasn't an enrolled program but meetings one attends voluntarily.
Father filed an exhibit demonstrating he had been complying with his 18-month criminal court alcohol program since he enrolled on November 30, 2020. As of November 16, 2021, father had completed alcohol education and participated in group sessions, individual counseling, and self-help meetings. He had yet to participate in transition sessions.
The court convened the continued adjudication and disposition hearing on April 25, 2022. Father was present. The court admitted into evidence DCFS's reports and attachments, and father's exhibit. S.R. testified the allegations against parents of drug use, alcohol use, and physical abuse of E.R. were false; she made them up because she was angry about not getting something her way. She also denied having been left home alone for extended periods. Paternal grandmother also testified. She stated father had lived with her "years prior," had visited her "prior to what is happening now," and did not live with her now. When asked whether father ever had been under the influence of alcohol in her home, paternal grandmother responded, "He knows that I don't allow that." She further testified she never had seen father drunk or under the influence of alcohol while caring for the children and had learned only recently father had been arrested for driving under the influence.
After the grandmother testified, the court tentatively found her testimony "to have been totally lacking in credibility." It said, "[H]er statements in the reports tend to be a lot more credible and lay out why her statements in court today might not have been credible." The court continued the hearing for further witness testimony.
Father was not present for the continued April 29, 2022 hearing. The CSW who had reported father seemed intoxicated during a call no longer worked for DCFS, so the SCSW testified. In response to father's counsel's questions, the SCSW stated it would have been appropriate for the CSW to ask father follow-up questions about his drinking when he sounded intoxicated on the phone. The SCSW also testified about her own phone conversation with father in December 2021 when father sounded as if he were under the influence. She said he was "fine," however, in her later conversations with him. She wasn't sure if he understood the reason for the case, however. She testified she explained DCFS's concerns several times and father said he understood but then, "a few days later," they would talk again and he'd again say he didn't understand. She testified father never fully took responsibility for his behavior.
V.R. then testified that father "showed up drunk" to her job "[o]n Tuesday" and on two other occasions, in mid-March and the end of December. She testified, "This time, he stayed outside and just talked with people coming in and out, as well as with my boss." When her counsel asked how she could tell if father was drunk, V.R. said he had his shirt off and was using his arms a lot, as well as puckering his lips when he talked. She confirmed he slurred his words when he was drunk. On the two other occasions, V.R. testified he either intimidated her coworkers or talked about their situation "out loud." When asked if she were concerned for her safety, V.R. said yes, on each occasion. Counsel also asked V.R. if father ever had driven her or her sisters in the car. She said yes as to both. She also testified she believed father had driven her and her sisters while intoxicated about a year earlier. He had waited in a bar while they waited in a long line to buy skates. Father's counsel did not cross-examine V.R.
Father's counsel argued the count against father should be dismissed due to the lack of a nexus between his alcohol use and a current risk of harm to the children. Counsel argued the statements in the reports and initial interviews with father did not demonstrate father ever drank in the children's presence or was alone with them when he came home intoxicated. Counsel argued paternal grandmother "was always there caring for the children," and "father's presence was incidental, in that he happened to sometimes live with the paternal grandmother and would come home under the influence." Counsel asserted there was no evidence of father being under the influence recently, or with the children under his care. He never behaved in a way to put them in danger nor did he ever supervise them alone while under the influence. Counsel noted father "didn't even live with the girls" when the petition was filed.
V.R.'s counsel argued the evidence supported the count against father: he had one DUI arrest in 2017 and two in 2020, paternal grandmother said father had a heavy drinking problem, father stopped attending AA meetings, he demonstrated erratic behavior during DCFS's investigation, and V.R. testified he drove with the children while under the influence a year earlier. E.R.'s counsel joined. DCFS's counsel also argued there was ample evidence to sustain the count.
The juvenile court sustained the subdivision (b)(1) counts as to father's alcohol abuse and mother's leaving the children alone and dismissed all other counts. The court stated it found V.R. "to be very credible [and] had issues with the grandmother's credibility."
Moving on to disposition, father's counsel asked the court to release the children to him on the condition the family live with paternal grandparents to allow for supervision and support from paternal relatives. V.R.'s counsel argued having the children live with paternal grandmother was not a reasonable means to protect the children given her lack of candor with the court and "minimization and denial of father's alcohol problem." E.R.'s counsel also asked the court to order the children suitably placed and argued paternal grandmother had not been able to protect the children given father had lived in and out of grandparents' home despite her knowledge that he had an excessive drinking problem.
Based on mother having left the children with relatives, the court found it appeared she was the custodial parent, although each parent denied responsibility and said to call the other parent when contacted about S.R. The court found by clear and convincing evidence that remaining in mother's home- or father's home if the court were wrong about mother being the custodial parent-would pose substantial danger and risk of detriment to the children's well-being. The court found DCFS had provided reasonable services to prevent removal and no available services existed to prevent further detention. The court declared the children dependents under section 300, subdivision (b), ordered placement with father would pose substantial danger and risk of detriment to the children's safety and well-being, removed the children from parents' custody, and ordered the children suitably placed.
The court noted V.R. would become a non-minor dependent on her upcoming 18th birthday, which would terminate reunification services as to her. The court ordered DCFS to provide her with permanent placement services and set a non-minor dependent review hearing for October 2022.
The court ordered DCFS to provide parents with reunification services and ordered father to complete a full drug and alcohol program with aftercare, and to participate in weekly testing, a 12-step program with sponsor, parenting education, and individual counseling to address case issues. The court also ordered father's visits were to be monitored, and he was to stay away from V.R.'s workplace.
Father appealed.
2. Facts relating to ICWA
The ICWA-010(A) forms DCFS attached to the petition indicated a social worker had asked both parents about the children's Indian status and neither parent had given DCFS a reason to believe the children were Indian children. The detention report noted father and mother each "verbally denied" the children had any Indian ancestry. In December 2021, mother denied Indian ancestry during an in-person interview with a CSW, and she signed and filed an ICWA-020 form stating none of the listed Indian status items applied to the children.
At the initial hearing, the juvenile court acknowledged mother had filed an ICWA-020 form indicating she had no Indian heritage, and father told the CSW he had no heritage. The court found it had no reason to believe ICWA applied. In January 2022, father's counsel filed an unsigned ICWA-020 form indicating none of the listed Indian status items applied to the children. The jurisdiction/disposition report states ICWA did not apply and referred to the court's December 22, 2021 finding.
DISCUSSION
Father contends substantial evidence does not support the juvenile court's finding that he posed a current risk of serious harm to the children at the time of the jurisdictional hearing. He also contends the juvenile court erred in removing the children without first considering reasonable alternatives to removal and in failing to state the factual bases supporting removal. Finally, father argues the juvenile court prematurely found no reason to believe the children were Indian children because DCFS had not inquired of the children's extended family members. DCFS argues substantial evidence supports the court's findings and orders. It does not oppose father's request for remand to conduct an ICWA inquiry of known and available extended relatives.
1. Standards of review
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. . . . "[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.]' "[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.) Substantial evidence is" 'evidence which is reasonable, credible, and of solid value.'" (In re I.C. (2018) 4 Cal.5th 869, 892.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re E.E. (2020) 49 Cal.App.5th 195, 206.)
With respect to the court's removal orders, which require proof of substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minors by clear and convincing evidence (§ 361, subd. (c)), we "must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
2. Substantial evidence supports the court's jurisdictional findings
Section 300, subdivision (b)(1) authorizes dependency jurisdiction over a child if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." (See In re E.E., supra, 49 Cal.App.5th at p. 205.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child presently needs the court's protection. [Citation.] A parent's' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.'" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216; see also In re James R. (2009) 176 Cal.App.4th 129, 136 ["There must be some reason beyond mere speculation to believe the alleged conduct will recur."].)
Generally, a parent's substance abuse, "without more," is an insufficient basis to assert dependency jurisdiction. (In re L.W. (2019) 32 Cal.App.5th 840, 849 (L.W.).) Rather, DCFS must show the parent's substance abuse harms the child or places the child at substantial risk of harm. (In re Drake M. (2012) 211 Cal.App.4th 754, 766-767, disapproved on another ground by In re D.P. (2023) 14 Cal.5th 266, 282-283.)
The evidence demonstrated father abused alcohol. He admitted he did, V.R. and E.R. both described father as an alcoholic, and S.R. testified father drank every Friday. More importantly, father had DUI convictions in 2017 and 2020 and had been enrolled in an 18-month criminal court alcohol program since November 30, 2020. (See L.W., supra, 32 Cal.App.5th at p. 850 [mother's two DUI arrests and conviction the year before the investigation demonstrated her substance abuse placed the child at risk of harm].) As father asserts, his status as an alcoholic and admission of a past drinking problem did not mean he currently was abusing alcohol and placing the children at risk. Here, however, substantial evidence established there was something "more" to support a finding that father's abuse of alcohol-and his inability adequately to care for his children as a result-remained unresolved or was likely to recur and placed the children at risk of harm.
For one, the juvenile court reasonably could find father's denial of having an alcohol" 'problem'" demonstrated his lack of insight. Father told the CSW his "drinking problems got bad" after parents divorced. He later said alcohol" 'got me into problems, but I don't think I have a problem. I was drinking because the mother was cheating on me and was having sex with random people.'" Father thus blamed his drinking on his divorce from mother, and the circumstances surrounding it. In his statement regarding parentage, however, father indicated he and mother no longer were married after 2012. Thus, his DUI convictions in 2017 and 2020 demonstrated father's abuse of alcohol was not simply a bad reaction to his divorce, which took place years earlier. Paternal grandmother also told the DI that father had a "heavy drinking problem" and, although he had participated in classes, "requir[ed] help." At the adjudication hearing she denied knowing father had a problem with alcohol until recently and claimed never to have seen him drunk, but the juvenile court found that testimony "totally lacking in credibility." We defer to that credibility finding.
Moreover, 17-year-old V.R., whose testimony the court found "very credible," told the DI father claimed he drank because he was "depressed" or due to "some mental issue." She said he had been an alcoholic as long as she could remember-" 'all of [her] life.'" Father's abuse of alcohol thus was longstanding, and he had driven under the influence just the year before the DCFS began its investigation. Given father's minimization of his problem, the court reasonably could find it likely father's drinking would impair his ability to care for his children, placing them at risk of harm, such as by again driving while intoxicated. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["[o]ne cannot correct a problem one fails to acknowledge"].)
Second, the evidence showed father had resumed drinking. The CSW and SCSW believed father was intoxicated during phone calls with them. Father argues they merely speculated he was intoxicated. We disagree. The evidence supports their assessment that father was under the influence. In the November 2021 call, the CSW stated father sounded like he was under the influence, and she could hear someone say they were" 'having beers.'" Moreover, when father called back 12 days later, he seemingly had no memory of that earlier call or even that he had made an appointment to meet with the CSW. From this, the CSW-and the court-reasonably could infer the CSW's initial assessment had been correct. The SCSW testified to her reported statement about father's thick and slurred speech in their December 17, 2021 call, leading her to believe he was intoxicated, as well as his erratic behavior throughout the call. We can infer the juvenile court found the SCSW credible and that her testimony and DCFS's report sufficiently established father was intoxicated.
True, there was no evidence father was caring for any of the children during those calls. Nevertheless, viewing the evidence in the light most favorable to upholding the juvenile court's order, the court reasonably could find father likely would continue to abuse alcohol, and would do so while around the children, placing them at substantial risk of harm. Indeed, the evidence supports the court's implied finding that father had been intoxicated around the children.
On December 15, 2021, when the CSW took E.R. into custody under the court's removal order, E.R. said father had been drunk the day before. It's unclear if E.R. meant she had seen father, but the court reasonably could infer that she had, as, in January 2022, E.R. told the DI she had seen father drunk before. Moreover, V.R. testified father had appeared at her work drunk right before the adjudication hearing, in mid-March, and in late December. In his reply, father argues V.R. provided no evidence establishing father was intoxicated. She testified, however, that he was using mannerisms he usually used when intoxicated-gesturing with his hands and pursing his lips when he talked. He also wasn't wearing a shirt. In any event, the juvenile court found her testimony "to be very credible." We defer to the court's credibility findings. We also can infer the court found credible E.R.'s statements in the DCFS reports about father's drinking.
Sufficient evidence also supports the court's finding that father's alcohol abuse presented a risk to the children. V.R. testified she felt unsafe when father came to her work, and E.R. said she did not want to visit father. Based on E.R.'s report to the CSW that father had been drunk, the court reasonably could attribute at least part of E.R.'s reluctance to see father to his drinking. Additionally, V.R. credibly testified she believed father, a year earlier, had driven her and her sisters while intoxicated because he had waited for them in a bar. Father's counsel did not question V.R. about that incident or her testimony about father appearing at her work drunk.
Moreover, father had stopped attending his AA meetings, was not otherwise participating in services, and was not testing. The progress letter from his criminal court program reflected father's participation in classes only up to November 16, 2021. Without the help that even paternal grandmother said father needed-and given the reports of father's recent intoxication, erratic behavior, and seeming lack of insight into the severity of his issues with alcohol-the juvenile court reasonably could find father's alcohol abuse prevented him from adequately caring for the children and posed a substantial risk of harm to them without court supervision.
Father nonetheless argues there was no evidence he was unable to provide the children with care and supervision because he "allowed the paternal grandmother to care for them when [m]other was absent." Yet, father had not provided appropriate care for the children. He admitted he knew mother left the children alone for days, but there is no evidence he stepped in to care for them during those times or had the children come live with him. Rather, everyone assumed paternal grandmother would care for them. This time, S.R. was alone in the apartment until she was evicted, with no sign of father. Moreover, he refused to take any responsibility for S.R. when the school called about her panic attacks and need for therapy. Instead, father blamed mother and essentially abdicated his parental responsibilities. The SCSW had to remind father he too was responsible to ensure the children were not left alone.
Father never took responsibility for his own neglect of the children. Indeed, father demonstrated his lack of awareness of the severity of the problem. After the CSW explained the allegations to father twice, he simply responded that he "tried his best to make mother happy and nothing was ever good enough for her." Two weeks later, after the children were detained, father told the SCSW he didn't understand why they had been detained, and the SCSW went over DCFS's concerns again. (The court also could infer father's confusion as to the basis for the case was a result of his having been intoxicated when the SCSW explained DCFS's concerns to him.)
Considering the totality of the evidence, we conclude it substantially supports the juvenile court's jurisdictional findings as to father.
3. Substantial evidence supports the court's removal order
Section 361, subdivision (c)(1) provides for the removal of a dependent child from the physical custody of the parent "with whom the child resides at the time the petition was initiated" if the court finds by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." Subdivision (d) contains similar provisions with respect to removal from a parent with whom the child did not reside. (§ 361, subd. (d) [removal requires finding of substantial danger, as in subd. (c)(1), for the parent to live with the child rather than for the child to return home].)
In determining whether a child may safely remain in a parent's physical custody, the juvenile court "must also consider whether there are any reasonable protective measures and services that can be implemented to prevent the child's removal from the parent's physical custody." (In re D.B. (2018) 26 Cal.App.5th 320, 332, citing § 361, subd. (c)(1).) "A removal order is proper if based on proof of parental inability to provide 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.'" (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.) Under section 361, subdivision (e), the juvenile court "shall state the facts on which the decision to remove the minor is based."
As an initial matter, we agree with the juvenile court that it appears mother, not father, was the custodial parent here. E.R. and S.R. were staying in paternal grandmother's home with father when DCFS began its investigation. However, the evidence established the children did not regularly reside with father. V.R. said she didn't have a relationship with father and he wasn't very involved, E.R. said father didn't spend much time with them, and S.R. said her parents separated when she was "very young," and she always had lived with mother. Nor was father fulfilling a parental role, having denied responsibility for S.R. Moreover, S.R. told the social worker mother had left her and E.R. with paternal grandmother-not father, and paternal grandmother confirmed mother had asked her to watch E.R. And, as DCFS notes, father's counsel described his presence at paternal grandmother's home as "incidental." Whether considered the parent with whom the children did or did not reside, the court evaluated the evidence before it and determined the children would not be safe in father's care.
Father contends the court's disposition order must be reversed because the court did not state the facts on which it based its decision to remove the children from father and did not consider whether reasonable protective measures could be implemented to prevent the children's removal. Before ordering the children removed from father (and mother), the court stated it had "read and considered the evidence, [and] listened to and considered the testimony." The court did not articulate the facts on which it based its decision to remove the children from father, however, as required by the statute.
"[W]hen a juvenile court fails to make the factual findings required under section 361, subdivision (e), its removal order is subject to the constitutional mandate that no judgment shall be set aside 'unless, after an examination of the entire cause, including the evidence, the [appellate] court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' [Citations.] Under this mandate, a 'miscarriage of justice' will be declared only when the appellate court, after examining the entire case, is of the opinion that' "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."' [Citation.] A' "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'" (In re D.P. (2020) 44 Cal.App.5th 1058, 1068.) We conclude the court's error in failing to set forth its factual basis for removal here was harmless.
The facts we discussed that support the juvenile court's jurisdictional findings also support to a high probability the court's finding that the children's release to father's custody would pose a substantial danger and risk of detriment to their "physical health, safety, protection, or physical or emotional well-being." For one, the court could infer father's continued abuse of alcohol posed a risk of danger to the children. Father's DUI arrests were in 2020 and 2017, and V.R.'s account of father driving the children related to an incident a year earlier. Based on the facts already discussed, the court reasonably could find that, if the children were left in his care, father again could drive while intoxicated-such as in an emergency-placing the children in danger of physical harm.
Moreover, as V.R.'s counsel noted, father's criminal court ordered treatment plan did not "appear to have had the desired results," as substantial evidence supports finding father had been intoxicated during the investigation of the case, and in front of V.R. and E.R. Father also had stopped attending AA meetings and denied having a problem with alcohol, had not made himself available to DCFS during the investigation, was not visiting the children or participating in services, and did not appear on the second day of the combined adjudication and disposition hearing. (See In re D.B., supra, 26 Cal.App.5th at p. 332 ["In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention."].) Further, as her counsel noted, E.R. "was very clear . . . that she does not want to live with the paternal grandparents, and was in fact attempted to be coerced into indicating that she did want to live there." E.R. also told the social worker she did not want to visit father. Considering the entire case, we cannot say the court likely would have found the children's placement with father would not place them in danger or pose a substantial risk of detriment.
Substantial evidence also supports the juvenile court's finding that there were no reasonable means to protect the children to prevent removal. Father specifically asked, through his counsel, that the court release the children to his custody on the condition that "they reside in the paternal grandparents' home." Counsel argued that having the children in paternal grandparents' home would "allow for supervision and support from the paternal relatives." We can infer the court considered father's proffered plan and found it was not a reasonable alternative to prevent removal. Substantial evidence supports that implied finding. As V.R.'s and E.R.'s counsel argued, paternal grandmother already had failed to protect the children by allowing father to live in and out of the house-while one or more of the children were present-despite her initial statements that she knew father had an excessive drinking problem and needed help. The court could find her lack of candor in her testimony demonstrated both a minimization and a denial of father's alcohol problem, as counsel argued. It thus is not likely the court would have found this arrangement sufficient to protect the children from future harm had it stated the factual basis for its decision on the record.
S.R. wanted the case dismissed, but her counsel was not in agreement. She presented only S.R.'s desire to have unmonitored visits with mother if she could not return to home of mother.
On appeal, father asserts another reasonable alternative would have been to place the children with him at paternal aunt's home, with whom V.R. had stayed. Father's counsel never offered that as a possible alternative, however. In any event, it is not reasonably probable the court would have found that arrangement reasonable. As noted in DCFS's report, paternal aunt told the CSW she was unwilling to take S.R. because she was a "big headache," and was unable to care for E.R. because she was "too young." She also was "disgusted" and "embarrass[ed]" by the way father and mother parented the girls.
Father's alternative suggestion on appeal, that the court could have issued a plan of protection under section 361, subdivision (c)(1)(B) if the court "believe[d] it will be followed," also was not probable. Given father's lack of cooperation with DCFS during the case investigation, including his failure to drug test and visit the children, as well as his having stopped attending AA sessions, the court reasonably could conclude father would not follow a protection plan or no plan would effectively protect the children without removing them from father.
Accordingly, substantial evidence supports the juvenile court's disposition order, and its failure to state the factual basis for its decision was harmless.
4. We remand for compliance with ICWA
Both the juvenile court and DCFS "have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child" in all dependency proceedings. (§ 224.2, subd. (a).) Under section 224.2, subdivision (b), if a child is placed in DCFS's temporary custody, the agency must inquire whether the child is or may be an Indian child by asking a nonexclusive group that includes the child, the parents, and extended family members. Parents denied the children were Indian children, but the record does not indicate DCFS asked the children's extended family members about their possible Indian status. Extended family members include grandparents, aunts and uncles, siblings, sibling-in-laws, nieces, nephews, first or second cousins, and stepparents. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) DCFS does not oppose a remand "for the purpose of making the required ICWA inquiry, including inquiry of the children's paternal grandmother, paternal grandfather, and paternal aunt, as well as potential maternal relatives." We accept DCFS's concession and conditionally affirm the matter for DCFS to inquire of known and available extended family members.
DISPOSITION
The juvenile court's jurisdiction and disposition orders are conditionally affirmed. We remand the case for further proceedings (1) to ensure DCFS has made an ICWA inquiry of paternal grandmother, paternal grandfather, and paternal aunt, as well as potential maternal relatives, to the extent they are available; and (2) for the juvenile court to determine whether ICWA applies based on that inquiry. If the court determines it has no reason to believe ICWA applies, the jurisdictional and dispositional orders shall remain in effect. If DCFS's inquiry gives the court a reason to believe ICWA applies, the court shall vacate the disposition orders and conduct further proceedings consistent with ICWA and related state law.
We concur: LAVIN, Acting P. J., BENKE, J. [*]
[*]Retired Justice of the Court of Appeal, Fourth District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.