Opinion
F085700
11-21-2023
In re E.H., a Person Coming Under the Juvenile Court Law. v. C.H., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Ana M. Ovando, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. JD143007-00 Susan M. Gill, Judge.
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Ana M. Ovando, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Appellant C.H. (mother) is the mother of the 10-year-old child E.H. (the child), who is the subject of this dependency case. Mother challenges the juvenile court's orders issued at a disposition hearing that resulted in the child being placed in out-of-home care with no family reunification services provided to mother pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11). On appeal, mother contends (1) the juvenile court erred in detaining the child from mother's custody; (2) there was insufficient evidence to support the jurisdictional allegations against mother; (3) there was insufficient evidence to support denial of reunification services pursuant to section 361.5, subdivision (b)(10) and (11); and (4) the juvenile court and Kern County Department of Human Services (department) failed in their duty of further inquiry under section 224.2.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The department concedes that it failed to conduct an adequate inquiry. We conditionally affirm the orders and remand for the juvenile court and the department to comply with the inquiry provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. In all other respects, we affirm the juvenile court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
On January 14, 2022, the department received a referral alleging mother selfreported" 'eat[ing] meth,'" drinking alcohol, and smoking marijuana daily. Mother stopped taking medication for her mental health after a Differential Response case with the department was closed. The social worker assigned to investigate the referral met mother at her home on January 21, 2022, to discuss the referral. A Differential Response social worker stayed outside with the child because she did not want to go into the home. Mother reported the child did not like the home and asked if they could sleep in the car.
Differential Response services are voluntary services provided in situations that do not call for the filing of a dependency petition. (See § 10609.9, subd. (a)(1)(D); see also <https://www.cdss.ca.gov/inforesources/child-welfare-protection/differential-response> [as of Nov. 21, 2023].)
At the start of the interview, mother began crying and she continued to do so throughout the interview. She informed the social worker of her continued experience of trauma from the passing of her son in 2001, which resulted in dependency proceedings. Mother claimed she had been diagnosed with posttraumatic stress disorder (PTSD), and she denied the referral's allegation that she had a diagnosis of schizophrenia. Mother indicated she had not taken medication for her mental health "in years" because she did not like the way they made her feel. She claimed her last use of methamphetamine was one month earlier, and she was not willing to submit to drug testing. Mother admitted to marijuana and alcohol use, but she insisted that she did not drink or smoke around the child.
The social worker asked mother about a report that people were coming into her home and assaulting her. Mother responded that law enforcement did not believe her. She believed people were leaving dead rats and drugs in her home, but she was asleep when everything happened. Mother also believed she was assaulted while she was asleep because she woke up with a black eye and feces on herself. She recently became aware of the child's disclosure of sexual abuse by individuals that were coming into the home. Mother felt something was wrong, and she believed her neighbors were following her because she did not get along with them.
An incident report from law enforcement noted mother's complaint that her neighbor and old friend, Sandra, and Sandra's son were entering mother's home and committing a battery against mother. Law enforcement concluded no further assistance was required after family members explained that mother was usually paranoid.
Mother advised the social worker to speak with the child about individuals coming into their home because the child was the one who saw them. She was not willing to take medication that made her feel drowsy, but she was willing to take "Zolof[t]" because she believed it helped her. Mother also agreed to take the child to mental health counseling, and she would participate in substance abuse counseling for herself. The social worker was able to observe mother's home, and it was found to be free from health and safety hazards. Mother claimed she knew someone came in the home at night because the doors were unlocked when she woke up. Mother took the child to railroad tracks and told the child that she would leave her there if she did not tell mother what was happening while she was asleep. Mother acknowledged she should not have told the child this, and she insisted that she would never leave the child at the railroad tracks.
The social worker was able to interview the child in private with mother's permission. The child was observed to be free from visible signs of abuse or neglect. Mother homeschooled the child, and the child reported being safe with her mother. The child described drugs as medicine, and she denied knowledge of any other drugs. Mother smoked outside, but she did not smoke around the child. The child claimed people coming into the home hit her mother and came into her room to touch her vagina. She agreed to tell the police about the people coming into her home. The social worker noted that the child had a conversational tone and her facial affect did not change during the conversation. Law enforcement was contacted by the social worker due to the sexual abuse disclosures, and a referral was made to Differential Response for mother and the child to attend mental health services.
Law enforcement spoke with mother and the child on January 22, 2022. The child indicated that mother's friend, Sandra, came into her bedroom window while mother was asleep in November 2021. There were two additional incidents described by the child involving Sandra and her son. The second incident involved the two individuals touching mother and the child while mother was sleeping. The child claimed she was taken from the home in a vehicle during the third incident, but she could not explain what happened after she was taken from the home. A forensic interview was going to be arranged by law enforcement.
The social worker conducted a follow-up interview on January 24, 2022. Mother identified Sandra and her son as the individuals that were coming into the home and assaulting herself and the child. Sandra reportedly came to mother's home and was banging on the door after law enforcement came to the home. Mother was advised to contact law enforcement when uninvited individuals came to the home, but she claimed law enforcement did not believe her.
The social worker was allowed to complete her interview with the child. The child recounted the three incidents that she reported during her interview with law enforcement. She provided additional information about Sandra and her son touching her during the third incident. Her mother was only recently told about the incidents, and she could not explain why she did not tell her mother earlier. The child repeatedly emphasized that she felt safe with mother, and she denied that mother ever acted strange.
Mother explained that she was a heavy sleeper, and she denied taking any medications that caused her to sleep. She no longer wanted to live in the house because she felt people were watching her, and she believed that her and the child were human trafficking victims due to the incidents. Mental health assessments were scheduled for both mother and the child. Mother also agreed to attend substance abuse counseling despite her claim that she was not using drugs. The following day, mother agreed to a Differential Response case plan involving mental health and substance abuse services. N.R., mother's adult daughter, spoke to the social worker on January 25, 2022. She was not close with mother and had not seen mother in over a month. N.R. reported mother had never been" '100%'" due to mother's diagnosis of bipolar.
On January 28, 2022, a forensic interview of the child was completed. Law enforcement informed the social worker that there were no calls for service to mother's home on the night mother claimed Sandra was banging on her door, and the last call for service occurred on January 17, 2022. The child stated she did not like her home because people came into the home. She described the incidents where Sandra and her son came into the home while mother was sleeping with numerous details. The child explained how she was transported to Sandra's home during the third incident, and she alleged Sandra scratched her during a struggle to pull off her pants. The social worker noted that the child did not exhibit any emotional distress while recounting the events.
Later that same date, mother attempted to leave the child at the office of the Differential Response social worker because she did not believe anyone was helping her. Mother eventually agreed to take the child with her after the Differential Response social worker spoke to her. A review of mother's records from her previous Differential Response case revealed mother's past prescription for "[S]eroquel, [R]ebetron and [Z]olof[t]" to treat schizophrenia. The Differential Response social worker believed mother was smoking marijuana while she was in the car with the child.
The social worker investigating the referral received a message from mother on January 31, 2022, requesting information about where the department could put mother and the child to keep them safe. The social worker advised mother to stay at the home of a trusted person or shelter if she did not feel safe in her home. Mother met with the social worker later that day to sign consents to release information for her and the child's mental health services. The social worker explained the importance of addressing the child's mental health needs before she was able to close the referral. Mother responded that she was not "crazy" or schizophrenic. She attended her mental health appointment and was waiting for a transfer to a doctor that was familiar with her. After discovering that the consents initially signed by mother were not valid, mother agreed to sign new consent forms with the mental health provider.
On February 9, 2022, the investigating social worker was informed that mother signed a consent to release information, but she did not attend her appointment scheduled for that morning. The mental health provider indicated there were no appointments scheduled for the child, and mother only needed to call their office to schedule an appointment for the child. The Differential Response social worker was having difficulty contacting mother, and she was going to attempt one last contact before closing the Differential Response case. Mother told the investigating social worker that she did not know about the appointment and would schedule one for the following day.
On February 14, 2022, mother reported the child refused to get up for either her mental health assessment or "[Z]oom" classes. Mother claimed she was waiting for a call for her own mental health appointments, but she intended to complete a walk-in appointment on that date. Later that day, the social worker contacted the nurse practitioner who completed a physical examination of the child on January 26, 2022. The child's vagina was described as irritated, but the irritation could have been caused by a lack of cleaning. The nurse practitioner informed the social worker that mother was behaving erratically during the visit, and she believed mother appeared to be on drugs. The child did not wish to have mother present during the examination, and mother failed to complete follow-up labs to determine the cause of a green discharge from the child's vagina. There was no clear indication of a sexual assault, but medical staff were unable to make a complete assessment due to a lack of cooperation from the child.
A protective custody warrant was authorized by the juvenile court on February 16, 2022. The social worker received a call from mother's mental health provider on that same date, and the provider indicated mother was not compliant since November 2021. Mother missed several appointments in January and February 2022. Mother was diagnosed with borderline personality disorder and unspecified depressive disorder, and she was previously diagnosed with schizoaffective disorder as well.
A pediatric medical office notified the social worker that mother was outside of the clinic and kicking trash cans on February 16, 2022. Medical staff believed mother's breath smelled like alcohol. Mother accused the medical office of" 'dropping the ball'" because she believed the child had obvious signs of being sexually abused. Mother also told medical staff that people came into her home the previous night and law enforcement did not respond to her call for service. Mother left the medical office before the social worker could arrange for law enforcement to assist with execution of the protective custody warrant. Law enforcement indicated that mother made no calls for service in January or February 2022.
The social worker attempted to serve the protective custody warrant with law enforcement on February 17, 2022. An adult male answered the door and stated mother was taking the child to the doctor. Afterward, the social worker contacted mother regarding her whereabouts. Mother confirmed that the child reported individuals coming into the home, but mother did not believe the child. She also claimed that law enforcement did not respond to her call for service. Mother's friend and boyfriend spent the night at mother's home, but she denied that they were living in the home. Mother would not disclose her current location, and she claimed she had not been home for a few days. She agreed to notify the social worker when she went home. The social worker made several unsuccessful attempts to locate the child, including the home of mother's adult son, J.R. Mother previously lived with J.R. until he made her leave the home.
On February 19, 2022, the social worker received a call from a law enforcement officer after he observed an open door at mother's residence. Law enforcement located the child and took her into protective custody on that date. The department filed an original petition alleging the child was described by section 300, subdivisions (b)(1) and (j). The petition alleged the child was at substantial risk of suffering serious physical harm as a result of mother's mental illness, substance abuse, and failure to seek mental health services for the child. The petition further alleged that the child's siblings were abused or neglected by mother and the child was at substantial risk of suffering abuse or neglect.
The department's detention report set forth mother's child welfare history, which involved numerous referrals and two dependency proceedings over the years of 1998 to 2021. In March and April 1998, a referral alleged mother physically abused her children and left them unattended. The allegations of general neglect for lack of supervision were substantiated, and mother declined a referral to supportive services. In April 2000, allegations of sexual abuse were substantiated against an unrelated male for sexual abuse of mother's four-year-old daughter. In May and July of 2000, referrals were received alleging mother was using drugs and providing improper supervision. The referrals were unfounded, but the department confirmed that mother's nine-month-old son, R.R., was burned when his siblings were lighting fireworks.
A referral alleging general neglect was substantiated in May 2001 after mother tested positive for amphetamine and marijuana at the time of the sibling N.R.'s birth. N.R. also tested positive for amphetamine, but mother attributed the positive drug test to someone putting" 'something'" into a beer that she drank at a party. Mother was provided voluntary family maintenance services. The following month, a referral was received alleging general neglect when R.R. was left unattended at a car wash for 30 to 45 minutes. Mother was observed to be very lethargic and slurring her words, and a urine specimen revealed a positive result for marijuana. The allegations for general neglect were substantiated.
On August 4, 2001, a referral alleged mother was under the influence and her actions resulted in the death of the child's sibling, R.R. A California Highway Patrol officer stated mother was drinking alcohol the previous evening, and mother backed her car up without realizing that R.R., at almost two years of age, had gotten out of the home. R.R. was hit by mother's car, and he was pronounced dead at the hospital an hour later. Mother was arrested, and her four other children were placed into protective custody. It was noted that mother was not compliant with her voluntary family maintenance services at the time.
A petition was filed alleging the siblings were at risk due to mother's use of alcohol and illegal controlled substances and her failure to provide the siblings with a safe and appropriate home. The petition further alleged that R.R. died as a result of neglect by mother. The allegations in the petition pursuant to section 300, subdivisions (b) and (f) were found true, and mother was ordered to participate in family reunification services. The reunification services included counseling for substance abuse, child neglect, and parenting training. At the six-month review hearing in April 2002, mother's family reunification services were terminated because she failed to make substantial progress, and the siblings were placed with their father on a plan of family maintenance services. The siblings' father was granted sole legal and physical custody of the siblings upon termination of jurisdiction, and mother was allowed supervised visits for two hours each week.
In June and July 2004, a referral alleged mother was using methamphetamine while pregnant and living with the siblings and their father. The siblings' father admitted that mother was living in the home, but he claimed that he was unable to make mother leave the home. The referral was closed as inconclusive after the department was unable to make further contact with the family.
The department received a referral in March 2006, alleging mother was using methamphetamine and leaving her one-month-old child, A.C., in the care of the trailer park manager without adequate provisions. Law enforcement placed A.C. and her one-year-old sibling, C.C., into protective custody, and the department filed a petition alleging the children were described by section 300, subdivisions (b), (f), and (j). The petition alleged A.C. and C.C. were at substantial risk of suffering serious physical harm due to mother's use of illegal controlled substances.
The allegations in the petition were found true and family reunification services were ordered for mother. Mother was ordered to complete counseling for anger management, mental illness, and substance abuse. At a review hearing in February 2007, mother's family reunification services were terminated due to her lack of progress in services. Mother's parental rights to A.C. and C.C. were terminated at a section 366.26 hearing held in November 2007.
In July 2010, two of the child's teenage siblings were involved in an argument during mother's visitation with the child's four older siblings. One of the siblings reported mother pushed her and began choking her after she started hitting mother repeatedly. The siblings' father required mother to leave the home, and he agreed that mother would not be allowed to have unsupervised visits with the siblings. The referral for physical abuse was unfounded, but a referral for general neglect by mother was substantiated.
On January 12, 2017, a referral alleged mother made strange statements and allegations, which created concerns for mother's declining mental health state. Mother told law enforcement that the child, at three years of age, disclosed inappropriate touching by the child's father, E.A. (father). According to the mother, father had taken the child from their home to the neighbor's house and touched her "privates" while mother was asleep. Mother was unable to provide specific details of the" 'inappropriate things'" that she believed to occur between father and the child. She also suggested that the child was involved in human trafficking without providing any information to support her belief. The child made no disclosures to law enforcement, and the criminal investigation was closed. The department was unable to make in-person contact with mother and the child because mother went to Texas. Mother reported a diagnosis of bipolar disorder, but she was not under a doctor's care or taking medication. The allegation was deemed inconclusive and a report was made to child welfare services in Texas.
Two weeks later, another referral alleged father and two of the child's teenage siblings did" 'sat[a]nic'" stuff to the child. The department received a referral alleging father was involved in a cult in March 2017, and mother claimed father" 'sold'" the child's soul. In April 2017, a referral included allegations that mother was living with her son and her son's girlfriend despite mother's report that the son's girlfriend was sexually abusing the child. Mother did not report the suspected abuse to law enforcement, but she claimed that the child did not lie. The referrals were evaluated out after the department concluded no allegations of abuse or neglect were made.
In June 2017, a referral alleged mother was requesting shelter and reporting a threat of sexual abuse by the child's father. Mother stated father broke into their home and made the child watch pornographic videos with him. The referral was evaluated out because mother had not provided a location of her whereabouts. The following day, another referral was received after mother told social services personnel that father and another man frequently raped mother and the child. Mother claimed law enforcement did nothing except advise her to take the child to the doctor for a physical examination, which she had not done. The reporting party indicated mother verbally abused the child and lacked patience. The referral was closed as inconclusive because the department was unable to make contact with mother.
In August 2018, a referral for general neglect by mother alleged the child, now five years old, disclosed being touched in her privates without additional information provided. It was alleged mother smoked marijuana and "other drugs." Mother also reportedly made threats to kill her neighbor after mother was caught stealing from them. The allegations were determined to be unfounded without additional explanation. The next week, a referral was received alleging the child was sexually abused by a neighbor that lived in her apartment complex three to four weeks earlier. A nurse practitioner noted the child's hymen was abnormal and sent her to the emergency room for further evaluation. The referral was evaluated out because mother was described as "aware and protecting."
On September 12, 2018, a referral alleged mother was seeking counseling services for herself and the child after the child disclosed sexual abuse by father. Mother reported it had been one year since the child made a report of sexual abuse, and mother recently returned to Bakersfield from Texas. Mother indicated father did not go to jail because there was inconclusive evidence. The referral was evaluated out due to similar allegations being investigated in Los Angeles County. On October 24, 2018, a referral was received alleging the child was taken to a neighbor's apartment while she was with a babysitter in July 2018. Mother reported there were rumors that the neighbor paid the babysitter to allow him to sexually abuse and take photographs of the children she babysits. Mother reported the abuse to law enforcement, and the child reported that father touched her when she was three years old. The referral was evaluated out.
In August 2019, a referral alleged general neglect by mother based upon concerns that mother was frequently reporting that the child was being molested and having increasing thoughts that the child was not in a safe environment. Mother and the child had four housing changes since May 2019 due to mother's claims that her landlords were trying to molest the child and placing cameras in their home. Mother barricaded the door to their bedroom with furniture and stayed up late at night watching the door to protect the child. There were concerns that mother was emotionally abusing the child through constant discussion of molestation and frequent housing changes. The referral also alleged mother may be using illegal substances, and mother was attending mental health counseling. The referral was evaluated out because it did not meet the criteria for an inperson response.
On March 4, 2020, a referral alleged mother's neighbors had to provide the child food and mother smoked marijuana in the home every day in the child's presence. The reporting party stated mother takes out her stress on the child with verbal insults, and a bruise was observed under the child's eye. The allegations were deemed unfounded.
On March 9, 2020, a referral alleged the child's reporting of touching by father on her" 'private part.'" Mother indicated the inappropriate touching occurred when they were living in Bakersfield in 2016, and the child no longer had contact with father. The child also disclosed inappropriate touching by her paternal grandfather and his friend in Texas in 2017. The referral was evaluated out due to a referral with similar allegations already under investigation.
In April 2021, a referral was received alleging mother was possibly suffering from mental health issues. Mother suspected her landlord was stealing from her, and she did not believe her current residence was safe. The referral was evaluated out due to not meeting the criteria for an in-person response.
In June 2021, a referral alleged mother had an unknown mental health diagnosis, and she did not want to take her medication. Mother claimed her roommate cut her hair and shaved off her eyebrows, but her hair and eyebrows were neither cut nor shaved. There were initial allegations made by mother that an individual sexually abused the child, but mother later laughed about the allegations and denied that she ever made them. The reporting party did not believe mother was mentally stable, and the child witnessed mother's erratic behaviors. Mother admitted to isolating the child in order to protect her, and mother believed people were stealing from her room. Mental health services were being provided to mother, and she was willing to work with Differential Response. Mother refused to drug test, and she was not certain of her mental health diagnosis.
At the detention hearing held on February 24, 2022, mother was present and represented by counsel. Mother's counsel entered denials to the allegations and submitted on the issue of detention. The juvenile court directly inquired of mother regarding any Indian ancestry in her family, and she claimed Navajo or Apache ancestry through her maternal family. To mother's knowledge there was no Indian ancestry in the family of the child's father.
Mother provided the names of her mother, maternal grandfather, and maternal aunt. Mother did not believe her maternal grandfather or own mother were alive, and she denied having any living brothers or sisters. She explained that both her and her maternal cousin received "property and shares" due to their mothers' Indian heritage. Her deceased maternal aunt reportedly had an enrollment number, and she agreed to provide the contact information for the maternal aunt's son after the hearing. Mother completed a Parental Notification of Indian Status form (ICWA-020 form), which indicated Navajo or Apache ancestry through her maternal grandfather.
The juvenile court found there was a reason to believe the child may be an Indian child through the maternal family and ordered further inquiry to be completed. Without any objections from the parties, the juvenile court found reasonable efforts were made to prevent or eliminate the need for removal of the child from the physical custody of mother, and it ordered the child detained from mother. Supervised visits were to be provided for mother at twice per week, and a combined jurisdiction and disposition hearing was set for April 13, 2022.
Jurisdiction and Disposition
The department's jurisdiction report, dated April 8, 2022, recommended that the allegations in the original petition be found true. The child was placed in a resource family home. The child's care provider noted that the child was a "night person," and she wanted to stay awake all night on her tablet. There were concerns that the child would refuse to go to school and shower, and mother was giving the child false promises about going home during phone calls. At the jurisdiction and disposition hearing, mother requested a contested hearing, which was set for May 31, 2022.
On April 29, 2022, the juvenile court authorized the department to consent to a mental health assessment and treatment for the child. In a declaration in support of the requested order, the social worker described the child's problem with lying and displaying "similar traits of mother." At the continued jurisdiction and disposition hearing on May 31, 2022, counsel for the department requested that mother be referred for a voluntary psychological evaluation. The hearing on jurisdiction and disposition was continued to August 4, 2022, after mother was appointed new counsel.
On June 7, 2022, the department filed a request for an ex parte hearing to arrange a psychological evaluation of mother to determine if she was able to benefit from services. Mother's counsel informed the department that mother did not object to the request. At the ex parte hearing held on June 10, 2022, mother's counsel was present on her behalf. During the hearing, her counsel noted that he spoke thoroughly with mother about her agreement to submit to a psychological evaluation. The department preferred that two evaluations were arranged, but it agreed that the juvenile court could order one evaluation at a time. The juvenile court granted the request based upon mother's agreement, and it appointed Dr. Michael Musacco to conduct an evaluation of mother to determine if she can benefit from services. Any services that would assist mother in effecting reunification with the child would also be identified if it was determined that mother could benefit from services.
The department submitted a declaration of its paralegal regarding the ICWA inquiry on August 2, 2022. The paralegal reviewed notes indicating that mother's cousin should be contacted for further information, and a phone number was provided for her cousin. Information from an inquiry in previous proceedings in 2006 provided the first and last names for the child's maternal grandmother and great-grandfather. A notice to the Bureau of Indian Affairs was located, but the paralegal could not locate notice to the identified tribes of Navajo and Apache.
The paralegal contacted the mother's maternal cousin, and he claimed he was enrolled in a tribe. However, the cousin was unsure whether the tribe was Navajo or Apache, and he denied having any documentation on his enrollment. The cousin confirmed the name of the child's maternal great-grandfather and additional information on the child's maternal great-aunt. He did not have any information on living family members that might have more knowledge regarding the family's ancestry. Mother had also provided the paralegal with the name of another maternal great-aunt, who passed away about six years earlier. Mother believed that the child's maternal grandmother was murdered because she had not seen her since she was about nine years old.
The department sent formal notice pursuant to ICWA to eight Apache tribes, Ramah Navajo Chapter, Colorado River Indians, and Navajo Nation. The Tonto Apache Tribe and Fort Sill Apache Tribe responded that the child was neither enrolled nor eligible for enrollment in their tribe. The Ramah Navajo Chapter responded that they could not confirm or deny if the child was eligible for enrollment because the Navajo Nation makes that determination. In a supplemental declaration, the paralegal stated that the Yavapai-Apache Nation, Navajo Nation, San Carlos Apache Tribe, Jicarilla Apache Nation, and Colorado River Indian Tribes denied that the child was either enrolled or eligible for enrollment in their tribes. The responses from three Apache tribes were still pending. A letter from the Navajo Nation, dated August 5, 2022, explained that it was still in the process of verifying whether the child was enrolled or eligible for enrollment in the tribe.
On August 4, 2022, mother was present and represented by counsel for the contested jurisdiction hearing. Counsel for the department requested a continuance in order to submit Musacco's completed psychological evaluation of mother into evidence for jurisdiction. Mother's counsel objected to the evaluation being considered for the jurisdiction hearing. The juvenile court inquired of the department's counsel to determine if there were issues raised in the evaluation that were not covered in the report. Counsel for the department responded, "No, Your Honor. I think it's just supportive of the allegations." The juvenile court denied the request for a continuance of the jurisdiction hearing, and the department's counsel submitted on the jurisdiction report without the psychological evaluation being submitted into evidence.
The parties stipulated that mother would testify that she was participating in her voluntary case plan. Mother was enrolled in parenting and child guidance classes and attending weekly mental health sessions with a counselor. She was also enrolled in substance abuse counseling since March, and she submitted to one drug test per month at the substance abuse program. There were positive drug test results for tetrahydrocannabinol (THC), and she reported needing marijuana for anxiety and "some issues that she's going through." A doctor would be consulted to determine if marijuana was the best alternative for her to treat anxiety and other issues. Mother offered no additional evidence regarding jurisdiction.
Mother's counsel argued that mother's child welfare history was "ancient history" and insufficient to support the allegations under section 300, subdivision (j). Her counsel acknowledged the various reports by the child, mother, law enforcement, and reporting parties, but mother was unable to "really nail a lot of that down for the Court." He further argued that the allegations under section 300, subdivision (b) were "wishy-washy" because they relied upon mother's failure to take the child to certain appointments. Finally, mother's counsel concluded that mother had not used methamphetamine since December 2021, and the department failed to prove that there was a danger to the child such that the petition should be dismissed.
In its ruling, the juvenile court explained that the facts of the case were confusing due to "perceptions by someone who's suffering from mental health issues that have been coloring the child's awareness and the child's perceptions and I think the risk is very apparent." The juvenile court found the allegations in the original petition true while amending an allegation under section 300, subdivision (b) to omit the words "eats meth." It noted that the facts underlying the section 300, subdivision (j) allegations were dated, but they provided "historical context" that it found important. The juvenile court indicated that the age of the allegations would be afforded less weight at disposition.
At the conclusion of the hearing, counsel for the department informed the parties that the current disposition recommendation would be to deny reunification services to mother pursuant to section 361.5, subdivision (b)(10) and (11). The disposition hearing was continued to September 21, 2022, due to outstanding ICWA inquiries and the need for a second psychological evaluation.
The department's disposition report, dated September 23, 2022, recommended that mother not be provided family reunification services pursuant to section 361.5, subdivision (b)(10) and (11). Father's whereabouts continued to be unknown, and it was recommended that he not be provided family reunification services pursuant to section 361.5, subdivision (b)(1). The child remained placed in a resource family home, and she was enrolled in mental health services. On March 14, 2022, a family finding social worker attempted to call the child's adult siblings J.R., C.R. and N.R., but none of the siblings could be reached. An adult sibling, C.M., contacted the worker and expressed interest in applying for placement of the child.
The report described mother's supervised visits with the child from March to June 2022. Mother and the child both cried during their first supervised visit, and the child expressed her desire to return home. During the twice per week supervised visits, mother and the child ate, played games, watched videos, and had conversations together. Mother told the child she would be coming home after an upcoming court date. In March 2022, mother told the social worker that she did not want to take any medication for her mental health, and she denied having a diagnosis of schizophrenia. She claimed that she had a diagnosis of borderline split personalities and PTSD, and she stopped taking her prescription of Zoloft after one week. Mother admitted to smoking marijuana in order to help her anxiety.
At a supervised visit on April 25, 2022, mother stated" '[the department] took my daughter for no reason.'" The child told mother that two children in the resource family home hit her and pulled her hair, and she wanted to move to another home. After the visit, the child refused to go with her care provider, and mother asked the child if someone was abusing her. The child responded, "[Y]es," but she went with the care provider after another social worker came to assist.
During the next visit, the child responded affirmatively when mother asked if she was still being mistreated in the home. Mother told the child that she was in a" 'very unhealthy home,'" and she indicated the child's behavior was" 'an outcome of what is going on.'" Mother attempted to end the visit early because she felt it was a" 'bad visit.'" The child refused to end the visit, and she was observed to "shut down" and sit away from mother. The social worker supervising the visit was unable to observe any bruises on the child's arm, and the child admitted that she did not tell the care provider about the alleged incident. Mother was informed that placement discussions were being initiated after the care provider gave notice that she was no longer willing to have the child placed in her home.
In a supervised visit on May 2, 2022, mother repeatedly discussed various complaints about the child's resource family home with the child. Mother then stated," 'let's see how many homes you will be going to'" and" '[y]ou are being abused and make sure you document things.'" Mother indicated she would make a report because the department was not doing anything about the care provider. Near the end of the visit, the child began crying because she did not want to leave. Mother asked the child if she was being abused in the home in a loud voice. A social worker intervened to end the visit, but mother began yelling at the social worker. Security was called to escort mother out of the facility, and the child left with her care provider.
On May 5, 2022, the child was temporarily living at the Jamison Children's Center until she was placed into a new foster home on the following week. The child told mother she was doing well at the Jamison Children's Center during a supervised visit on that date. Mother told the child" '[w]e've been in this room for two months'" and" '[t]hey are violating our rights.'" The child appeared uninterested in engaging in conversation with mother, and mother asked the child about her feelings and" 'ugly attitude.'" The child became frustrated and moved to another sofa to color in a book. Mother told the child that she was going to end the visit early due to the child's attitude. She explained that she was unable to communicate with the child because the child was not opening up about her feelings. The child confirmed that she wanted to end the visit early, and she left without hugging and kissing mother as in prior visits.
On May 12, 2022, mother was dropped from her parenting class due to unprofessional behavior toward the provider's staff. Mother's counselor informed the social worker that mother became upset after she was turned away from class for being late. The absence counted as her third, and she was told that she would need to restart the course. The counselor explained that mother would have "high manic episodes" followed by depression. Mother would be allowed to restart the program as long as she did not act unprofessionally toward the program's staff. At a home visit with the social worker on May 25, 2022, mother explained that she was learning to cope with her diagnosis of borderline personality disorder. According to a progress report on mother's bi-weekly individual counseling, she was making minimal progress on her treatment plan to address trauma and adjustment issues.
On June 6, 2022, mother began talking to the child about the case during a supervised visit. The child stated that mother told her about the care provider giving a 14-day notice to change the child's placement. The social worker advised the child that the information from mother was not accurate and she was not going to be moved. As the visit resumed, the child would not reciprocate mother's hugs as they watched videos on mother's phone. The child attempted to talk about her experience at the care provider's church. Mother told her that individuals at the church were "very bad men," and she warned the child not to let them touch her. On the following date, mother refused to submit to a drug test, and told the social worker," 'I'm dirty for weed.' "
The social worker informed mother by text message that the child did not want to participate in a supervised visit on June 9, 2022. Visitation resumed on June 20, 2022, without any noted concerns. On June 22, 2022, the child disclosed to a respite care provider that she was sexually abused by the children of her mother's friend, Sandra. The child also reported that a total of eight people had "hurt" her, and her father also hurt her before she started kindergarten. The care provider was concerned that mother was constantly putting things in the child's mind. The child was worried that mother was going to get hurt and that Sandra would "always find her."
On June 28, 2022, a supervised visit was almost terminated after mother argued with the social worker and security guard in front of the child regarding a cell phone that was taken from the child while in her placement. Mother and the child continued to watch videos on mother's phone after the argument resolved. Mother told the child that her anxiety was" 'really bad right now'" before whispering something into the child's ear. On that same date, the child's new care provider described the child's disclosure of anxiety and a previous panic attack. The care provider expressed that she was able to see how mother "adds fuel to the fire."
Musacco completed a psychological evaluation of mother on July 5, 2022. He offered a diagnosis of "Unspecified Schizophrenia Spectrum Disorder." Mother exhibited symptoms of psychosis such as disorganized thoughts, speech, and behaviors. She denied having auditory hallucinations, but she presented with paranoid delusional beliefs. Musacco concluded it was clear that mother exhibited a significant impairment in her mood, thought processes, and reality contact. Mother denied that she had a major mental illness, and she did not believe that psychiatric treatment would be useful. She attributed her difficulties to events external to herself, including her belief that individuals were breaking into her home and that the department was lying and manipulating the child. Based upon these facts, Musacco opined that mother was unable to benefit from reunification services.
A progress report from mother's substance abuse program was provided to the department on July 6, 2022. Mother's date of enrollment was March 22, 2022, and she attended three of 13 sessions. There was a positive drug test for THC on June 15, 2022. Her degree of participation was "minimal," and her progress was "unsatisfactory." The program staff recommended that mother attend self-help meetings in the community and gain coping skills to aid in discontinuing substance use. Her expected date of completion was approximately December 15, 2022.
On July 7, 2022, and July 11, 2022, supervised visits were cancelled because the child did not want to attend. The care provider encouraged the child to call mother on the phone, but the child refused. Mother called the social worker a" 'liar,'" and she denied that the child would ever request to not visit with mother. During a phone call, the social worker explained that the child did not want to attend visits because they were confrontational. Mother blamed the social worker for any confrontations between them, and she repeatedly talked over the social worker throughout the phone call before hanging up the phone.
The social worker and her supervisor spoke to the child regarding her refusal to visit on July 21, 2022. The child explained that she did not like how mother became upset and had the security guards interrupt their visit. Mother's argumentative behavior was described as typical behavior, and the child wanted to take a break from it. The child agreed to inform the care provider once she was willing to visit with mother again. The care provider indicated mother called on the phone" 'all the time,'" but the child did not want to answer the phone. On August 15, 2022, the child continued to state that she did not want to visit or speak with mother. The child also indicated that she loved her new placement and was treated well by the care provider.
On August 24, 2022, the social worker met mother at her home. Mother claimed she was scared of her home because her neighbor's son was "breaking into her home and destroying stuff." She was frustrated that she was unable to see the child, and she told the social worker that the child did not "run the show." Mother stated that she was taking medications Olanzapine and Sertraline.
On September 6, 2022, the care provider informed the social worker that the child was "breaking down" and did not want to return to mother. The child was afraid that mother would have her around "bad people," and she was crying hysterically while begging to remain in the foster home. The care provider also stated that the child still refused to visit or speak to mother. The current resource family home was the child's fourth placement. Mother completed her parenting program on September 14, 2022, and she refused to submit to voluntary random drug testing. The second psychological evaluation was not completed due to mother missing multiple appointments, and the doctor was no longer willing to reschedule.
On November 18, 2022, the department submitted a supplemental report to provide updates on the family's circumstances. On September 22, 2022, the child informed the social worker that she loved her placement and wanted to stay in the home forever. She reported having no issues in the home or at school, and she got along well with the care provider's daughter. The social worker encouraged the child to visit with mother, but the child indicated she was afraid of mother and did not want to see her.
A supervised visit occurred on September 26, 2022, between the child and mother. Near the end of the visit, the child began crying and telling mother that she did not want to go back to her foster home. She also told mother that the other child in the home hits her before changing the subject to Halloween. The social worker informed mother that the child did not make any complaints about the home during her recent home visit. Mother stated she was going to call the regional director and have the child moved out of the home tomorrow. The child no longer cried as she prepared to leave the visit, and she received a hug from mother.
On the next day, the care provider called the social worker to explain how the child cried for hours after the visit. The child stated that she hated going to her visits and mother lectured her instead of visiting with her. The care provider told the child that she would have to think about the option of guardianship when the child asked about a guardianship. The child wanted a break from mother, and mother reportedly told the child that she would be coming home in November.
Mother called the social worker on September 28, 2022, and claimed that someone vandalized her house and put a dirty diaper inside. Mother indicated that she was not attending any more classes until she was ordered to do so by the court. Mother claimed the child was being abused because the department took away mother and the child's rights. The social worker explained that the child did not want to visit, but mother continued to insist that the child wanted to see her. Mother then stated the child is "not going to run nothing," and she ended the phone call by hanging up.
In October 2022, the child told her newly assigned social worker that she felt safe and happy in her placement. The child did not want to attend therapy because she felt it was boring and unnecessary. She had to switch therapists due to her placement changes, and she did not like retelling her story to a new therapist. The social worker encouraged the child to visit mother, but the child indicated she no longer wanted to see mother or give her another chance. She refused to call mother on the phone or attend joint counseling with mother. The care provider indicated that the child had depression and anxiety, and the child would take time to calm down from crying some nights. The child told the care provider that she had to tell mother that she did not like the placement because she did not want to upset mother. The social worker attempted to take the child to a scheduled visit on October 21, 2022, but the child refused before locking herself in her room.
On October 24, 2022, the social worker was informed that mother made a report that her neighbor was trying to kill her. The social worker went to mother's home to provide her a bus pass a few days afterward. As the social worker arrived, mother was in her vehicle, and she started yelling," 'get the f[**]k out of here b[***]h.'" Mother then hit the accelerator, which caused the tires to spin and create smoke. She pulled her car in front of the social worker's vehicle and demanded that she hand her the bus pass. Mother explained that she started smoking weed again because she was only prescribed Seroquel, and she stated that she wanted her" 'mood meds.'" She eventually declined the bus pass and drove away from the social worker.
The child's therapist called the social worker for an update on the child's situation on November 3, 2022. The therapist indicated the child was not ready to visit with mother, and she believed that the child would react against attempts to push her. The child opened up to the therapist about her trauma, and the therapist would be seeing the child weekly. The therapist believed the child had been through a lot of trauma, and she developed fear when even thinking of returning to that type of trauma. The child was attending therapy regularly to address issues of anxiety, anger, aggression, and adjustment and attachment issues. Her progress was noted as both "slow" and "amazing."
As of the writing of the supplemental report, mother was no longer participating in substance abuse counseling, and she admitted to ongoing marijuana use. She tested positive for methamphetamine on August 10, 2022, in her substance abuse program, and she continued to decline voluntary drug testing. The department continued to recommend that mother not be provided family reunification services.
After multiple continuances, the contested disposition hearing was finally held on January 18, 2023. Mother was present and testified on her own behalf. She testified that it had been "a long time" since she used methamphetamine, but she did not know the exact date. Mother also testified that unknown individuals continued to break into her house, and she did not believe it was safe in her home. It was her hope that the department could put mother and the child somewhere safe. She intended to move to Los Angeles and live in a shelter if the child was returned to her care.
Mother testified that her doctor at Behavioral Health ended her prescription of Zoloft, which she used to like "very much." She did not believe that she should take her new prescription for Seroquel because it made her feel "sleepy." Mother indicated she was willing to resume substance abuse counseling, and she acknowledged that she was not enrolled in mental health counseling. Mother also claimed that she obtained a "marijuana card," but the card was in her impounded vehicle. She concluded her testimony by explaining that she loved the child a lot and previously took her to counseling.
The department submitted on its reports and counsel for mother requested that the juvenile court consider ordering family maintenance services to allow mother to live in a shelter with the child. In the alternative, her counsel requested that she be provided family reunification services. Mother's counsel acknowledged her positive drug test for methamphetamine in August 2022, and he insisted there were many problems that impacted her ability to "clearly show that it would be safe for the child to go home." In closing, her counsel argued that mother took reasonable steps to overcome the issues that led to her previous cases, and he suggested that the resurfacing of an issue should not be held against her. Counsel for the child and the department submitted on the social worker's reports and recommendations.
In its ruling, the juvenile court acknowledged that mother loved the child and faced a lot of challenges in her life. However, it expressed that the child also had a lot of trauma and challenges in her own life. The juvenile court then discussed the application of the bypass provisions under section 361.5, subdivision (b)(10) and (11) as follows:
"Part of the issue before was substance abuse but part of the issue before was Mother's erratic behavior, mental illness, and unfortunately, that's what we're still dealing with, and that's what [the child], as she said, wants a break from. [¶] That's not a reason to bypass, the fact that the child needs a break, but Mother said she's not in mental health counseling. I know she's having -- she's taking medication so she's receiving some mental health services, but the problem is still there. [¶] So based on the evidence before the Court, I'll make the following findings and orders."
The juvenile court then proceeded to order the child removed from mother's custody and denied family reunification services to mother pursuant to section 361.5, subdivision (b)(10) and (11). The juvenile court found the child was not a proper subject for adoption or guardianship, and it selected a plan of placement in foster care with a permanent plan of placement with a fit and willing relative. Supervised visitation was ordered to occur between mother and the child every other week for two hours. The juvenile court also found that there was no reason to believe the child was an Indian child, and therefore, it concluded ICWA was not applicable.
DISCUSSION
I. Order on Detention
Mother contends, for the first time on appeal, that there was insufficient evidence to support the juvenile court's initial order removing the child from her custody at the detention hearing. She argues the detention report did not contain an assessment of available services or less extreme alternatives that would have eliminated the need to remove the child from mother.
A. Applicable Law
Section 319 governs the detention hearing and requires the juvenile court to release the child to parental custody, unless it finds a prima facie showing the child is described by any of the subdivisions of section 300, continuing the child in the parent's home is contrary to the child's welfare, and as relevant here, there is a substantial danger to the physical health of the child and there are no reasonable means by which the child's physical health may be protected without removing the child from the parent's custody. (§ 319, subd. (c)(1).)
The juvenile court must also make a determination on the record, referencing the social worker's report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from his or her home. (§ 319, subd. (f)(1).) Where, as here, the child's parent is enrolled in a substance abuse treatment facility that allows a child to be placed with the parent, subdivision (f)(4) of section 319 requires the court to specify the factual basis on which it determined return of the child to parental custody would pose a substantial danger to the child's physical or emotional well-being.
"[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted; see In re S. O. (2002) 103 Cal.App.4th 453, 459, 460 [failure to raise issue of sufficiency of dependency petition]; In re L. Y. L. (2002) 101 Cal.App.4th 942, 956, fn. 8 [adequacy of assessment report not raised below]; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1484, fn. 5 [objection to removal order waived by failure to challenge below]; In re Amos L. (1981) 124 Cal.App.3d 1031, 1038 [no objection to inadequacy of social study].)
B. Standard of Review
On a challenge to the juvenile court's findings and orders, appellant bears the burden of affirmatively showing error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) We review the record for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On a substantial evidence review, we do not determine whether the record contains substantial evidence to support the finding appellant contends should have been made; we consider only what evidence (contradicted or uncontradicted) was before the trial court at the time of the ruling and determine whether it was substantial, and if so, whether it supported the finding actually made. (People v. Sy (2014) 223 Cal.App.4th 44, 63.) Further, we will "infer a necessary finding provided the implicit finding is supported by substantial evidence" (In re S.G. (2003) 112 Cal.App.4th 1254, 1260) and uphold the court's decision if it is correct on any basis, even if the stated reasons are erroneous or incomplete. (In re Lucero L. (2000) 22 Cal.4th 1227, 1249-1250.)
C. Analysis
First, we find mother forfeited any argument regarding the sufficiency of the department's report when she submitted at the detention hearing without raising the issue. At no point did mother argue that there were any deficiencies in the detention report or that available services or alternatives existed that would have prevented removal of the child. Accordingly, she has forfeited this argument on review.
Even if we were to excuse mother's forfeiture, we reject mother's claim on the merits. Mother argues the department failed to make reasonable efforts to assist mother with housing. She suggests the department could have secured alternative housing or arranged for mother to move in with her adult daughter. However, the lack of adequate housing was not the reason for the child's removal. Mother's unaddressed substance abuse and mental health problems posed a danger to the child regardless of their living situation. Accordingly, alternative housing or temporary placement for the child would not have prevented the need for the child's removal.
Mother's extensive history of referrals in the months leading up to the child's removal established that she had already been referred to numerous services by the department in an effort to prevent removal of the child. The department began providing mother with Differential Response services in June 2021, but she did not engage in those offered services. Her argument that an additional attempt to provide these services was required prior to removal is unavailing. Therefore, we conclude the department made reasonable efforts to prevent the child's detention.
Finally, mother contends the juvenile court failed to adequately state the facts on which its decision to detain the child was based, and she also argues the evidence was insufficient to demonstrate that continuance in the home was contrary to the child's welfare. Although the juvenile court did not specifically recite a factual basis for its decision to detain the child, we find it is not reasonably probable the result would have been more favorable to mother absent this error. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.)
"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." (In re D.B. (2018) 26 Cal.App.5th 320, 332; accord, In re I.R. (2021) 61 Cal.App.5th 510, 520.) "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; accord, In re Yolanda L. (2017) 7 Cal.App.5th 987, 993.)
Mother had a long-standing problem with substance abuse and mental health that she failed to adequately address. Her admission of recent methamphetamine use, failure to recognize the severity of her mental health issues, and self-medication with marijuana were more than sufficient reasons to detain the child from mother's care. Under these circumstances, we find it improbable the juvenile court would have made a different decision on the question of the child's detention, even if it had made all the factual findings required by section 319. Mother's citation to missed medical and therapy appointments as improper bases to detain the child ignores the significant evidence that supported the juvenile court's finding on a prima facie standard. As discussed previously, mother's extensive history involving neglect leading to the death of a child accompanied with continuing issues of substance abuse and mental health provided overwhelming evidence to support the child's detention. Therefore, we find no reason to disturb the juvenile court's order on detention.
II. Jurisdictional Findings
Next, mother contends the jurisdictional findings were not supported by substantial evidence because mother's mental health challenges and substance use did not establish a causal link between mother's behavior and a substantial risk of harm to the child. She also argues that a discussion of mother's psychological evaluation at the contested jurisdiction hearing violated her rights to due process. Mother concedes that her challenge to the juvenile court's findings under section 300, subdivision (j) are moot if the jurisdictional findings under section 300, subdivision (b) are upheld. Nevertheless, she urges this court to exercise its discretion to consider her challenge to the sufficiency of the findings under section 300, subdivision (j).
We affirm the juvenile court's findings pursuant to section 300, subdivision (b). Accordingly, we find mother's challenge to the remaining allegations moot and decline to exercise our discretion to reach the merits of that claim. The findings under section 300, subdivision (j) relating to mother's previous neglect of the child's siblings is not a prerequisite for application of the bypass provisions under section 361.5, subdivisions (b)(10) and (11) as mother appears to suggest. Therefore, a review of the merits to that challenge would not impact our review of the disposition orders. (See In re D.P. (2023) 14 Cal.5th 266, 276.)
A. Applicable Law
Section 300, subdivision (b)(1)(A), provides that a child comes within the jurisdiction of the juvenile court 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 . . . [¶] . . . [t]he failure or inability of the child's parent or guardian to adequately supervise or protect the child." (Ibid.)
A finding under section 300, subdivision (b)(1) requires three elements: "(1) one or more of the statutorily specified omissions in providing care for the child . . .; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness. [Citations.]" (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561; see In re R.T. (2017) 3 Cal.5th 622, 626-628.) "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]." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) Thus, the juvenile court "may consider past events in deciding whether a child presently needs the court's protection. [Citation.]" (Id. at p. 1216.)
While "evidence of past conduct may be probative of current conditions, the court must determine 'whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citations.] Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300. There must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135-136, italics omitted, abrogated on another ground in In re R.T., supra, 3 Cal.5th at p. 628.) "The existence of a mental illness is not itself a justification for exercising dependency jurisdiction over a child." (In re Joaquin C., supra, 15 Cal.App.5th at p. 563.) To prove jurisdiction is warranted, an agency must show the children have been or will be harmed due to the parent's mental illness. (See James R., supra, 176 Cal.App.4th at p. 136.)
The Legislature has recognized that, in general, substance abuse has a negative effect on the home environment and the safety of children living in that environment. (§ 300.2, subd. (a) ["The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child."].) A parent's drug-centered lifestyle can be found, in and of itself, to expose a child to substantial risks - the risk that the child's physical and emotional well-being will be seriously compromised and the risk that the child will ingest drugs. (In re Rocco M. (1991) 1 Cal.App.4th 814, 825-826.) Using drugs while responsible for a child's welfare and leaving drugs within a child's reach simply are not "parental acts." (In re Leticia S. (2001) 92 Cal.App.4th 378, 382.)
B. Standard of Review
A juvenile court's jurisdictional findings are reviewed using the substantial evidence standard of review, where we determine whether evidence of reasonable, credible and solid value supports the juvenile court's findings. We do not reweigh the evidence, nor do we consider matters of credibility. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)" '[W]e must uphold the [trial] court's [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.'" (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
C. Analysis
First, we reject mother's claim that her due process rights were violated when the department's counsel expressed that mother's psychological evaluation was "supportive of the allegations." The parties, including mother's counsel, each received a copy of the psychological evaluation, and the juvenile court was not provided a copy. The juvenile court denied the department's request to continue the contested hearing to allow the juvenile court to receive and consider it.
Mother argues that the jurisdictional findings were "arguably biased" by this statement by department's counsel. However, the juvenile court had already provided a tentative ruling that the evidence submitted was "very compelling" without the evaluation. The juvenile court did not cite to the favorability of the psychological evaluation in its ruling on jurisdiction, and there is no indication that it gave counsel's comment any weight in making its findings. Accordingly, we reject mother's claim on this issue.
Next, mother insists that, despite her past drug use, there is insufficient evidence of a risk of harm to the child as of the jurisdiction hearing. In support, she points out she was open about her use of marijuana and claims she never smoked in front of the child. Mother also claims that her two positive tests for methamphetamine were "isolated incidents." However, mother refused to participate in random drug testing offered by the department, and she only submitted to drug tests at her substance abuse counseling program once per month. Given her positive test results with a relatively small sample, the juvenile court could reasonably conclude that mother's drug use was much more extensive than her own self-serving testimony that denied any use of methamphetamine.
The case of In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.), upon which mother primarily relies, concluded a parent's use of substances could not be the sole basis for such a finding of substance abuse. (Id. at pp. 764, 767.) It did not determine a medical diagnosis of substance abuse is a required element to find a substance abuse problem. (Ibid.; In re Rebecca C. (2014) 228 Cal.App.4th 720, 726.) In assessing whether the parent's marijuana use in Drake M. was sufficient to establish substance abuse, the court examined whether the substance use was life-impacting, identifying that the parent was employed, had no criminal history or recurrent substance-related legal problems, and did not use drugs to deal with social or interpersonal problems. (Drake M., supra, at pp. 767-768.)
The facts here are distinguishable from those in Drake M. in that mother's substance abuse reinforced her mental illness and left it untreated. Mother admitted that she used marijuana to "self-medicate," and she also regularly denied that she had any mental health diagnoses. Mother's substance abuse problem spanned decades and is established by adjudicated findings that ultimately resulted in the loss of custody and termination of her parental rights over the child's half siblings. Her admission of ongoing and regular use of marijuana with recent use of methamphetamine was more than sufficient to establish an unresolved substance abuse problem. (In re Rebecca C., supra, 228 Cal.App.4th at pp. 726-727 [finding of substance abuse where [the m]other's drug use spanned many years, relapse following involvement in drug program, rationalization for use of drugs and admission to having a substance abuse problem constitute substantial evidence of substance abuse].)
Mother next argues that there is no nexus between her alleged mental illness or substance abuse and any current, substantial risk of harm to the child. (See In re David D. (1994) 28 Cal.App.4th 941, 953 [harm cannot be presumed from the mere fact of a parent's mental illness, there must be a showing of how it affects or jeopardizes a child's safety].) But the record is replete with events and statements linking the two. The child indicated she was fearful of her home because individuals came into the home while mother was asleep. At only nine years of age, the child was not capable of providing for or protecting herself while mother was incapacitated or acting upon her delusions. Although mother denied that she intended to harm the child, she admitted to bringing the child to train tracks to compel her to speak.
Mother's erratic and paranoid behavior, which was exacerbated by her substance abuse, did pose a substantial risk to the child. The risk the child was exposed to is apparent from mother's lengthy history of struggling with her substance abuse and mental health issues. Notably, mother's first dependency proceedings in 2001 were initiated after mother caused the death of R.R. There were reports that mother was drinking prior to the incident, and the court found that mother used illegal controlled substances in that case. Mother provided numerous positive tests for methamphetamine throughout her first case. In 2007, mother's parental rights were terminated for the child's siblings, A.C. and C.C., due to mother's use of methamphetamine while caring for C.C.
In 2017, the child disclosed sexual abuse by father at only three years of age. At the time, mother claimed a diagnosis of bipolar without any type of treatment. In 2018, mother made reports that the child was sexually abused by a neighbor. In 2019, mother frequently moved due to her belief that homeowners were trying to molest the child and place cameras in their home. In 2021, mother was offered Differential Response services to address her mental health because there were concerns that she did not want to take her medication. In 2022, the child disclosed being sexually abused by the son of mother's friend while mother was sleeping.
These prior neglectful acts each demonstrate that mother's untreated mental illness and substance abuse problem have subjected the child and her siblings to both an actual harm and a substantial risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824 ["evidence of past conduct may be probative of current conditions"].) Mother's continued substance use, lack of insight into the reasons why the child was detained, and denial of having an untreated mental illness present" 'some reason to believe the acts may continue in the future.'" (Ibid.; see In re A.L. (2017) 18 Cal.App.5th 1044, 1050 [parent's history "may be predictive of future dangers"].)
Relying on In re David M. (2005) 134 Cal.App.4th 822, mother claims the department did not demonstrate any specifically identifiable harm to the child. But the department is not required to "precisely predict how [m]other's [mental] illness" or substance abuse will harm the child. (In re Travis C. (2017) 13 Cal.App.5th 1219, 1226; see id. at p. 1227 [sufficient to demonstrate that the parent's illness and choices create "substantial risk of some serious physical harm or illness" (italics omitted)].) Although mother suggests the child was safe with mother, and there was no evidence that she used the drugs in the child's presence, a court "need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843.)
A court could reasonably conclude there was substantial evidence to support a finding of risk of harm. (See In re Casey D. (1999) 70 Cal.App.4th 38, 53 ["Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact."].) We conclude, based on mother's prior neglectful conduct, ongoing substance abuse, and untreated mental illness, that there was substantial evidence of a current risk of substantial harm to support the juvenile court's jurisdictional findings under section 300, subdivision (b).
III. Denial of Reunification Services
Mother contends the juvenile court committed reversible error when it denied her reunification services pursuant to section 361.5, subdivision (b)(10) and (11). Mother argues that there was insufficient evidence to deny reunification services because the instant case stemmed from a different "key issue" than the problems that led to the removal of the child's half siblings.
A. Applicable Law
"As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to 'the child and the child's mother and statutorily presumed father.'" (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer S.), citing § 361.5, subd. (a).) However, reunification services need not be provided when the court finds by clear and convincing evidence "[t]hat the parental rights of a parent over any sibling or half sibling of the child [have] been permanently severed . . . and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent." (§ 361.5, subd. (b)(11).)
"In order to meet the burden to establish, by clear and convincing evidence, a lack of reasonable efforts in this regard, child welfare workers must focus on the facts underlying the previous dependency action and its resolution, as well as on any efforts made by the parent since the sibling removal." (Jennifer S., supra, 15 Cal.App.5th at p. 1126, italics omitted.) Moreover, "[t]he 'reasonable effort to treat' standard 'is not synonymous with "cure." '" (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.) "[A] 'parent who has worked toward correcting his or her problems [has] an opportunity to have that fact taken into consideration in subsequent proceedings.'" (Ibid.) "To be reasonable, the parent's efforts must be more than 'lackadaisical or halfhearted.'" (Ibid.)
"Moreover, not every 'effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made.'" (Jennifer S., supra, 15 Cal.App.5th at p. 1121, italics omitted.)
B. Standard of Review
"A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence." (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 (Cheryl P.).) Substantial evidence exists when the evidence is "reasonable in nature, credible, and of solid value," so that "a reasonable mind would accept [it] as adequate to support [the] conclusion." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard of review, we consider the record as a whole, in the light most favorable to the juvenile court's findings and conclusions. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) "[W]e do not make credibility determinations or reweigh the evidence." (Jennifer S., supra, 15 Cal.App.5th at p. 1121.)
C. Analysis
Mother asserts the problems that led to the removal of the child's half siblings involved substance abuse, general neglect, and death of a child, and she argues the present case is "primarily" focused on her mental health issues. However, mother's argument essentially ignores the juvenile court findings, in the present case, that mother's mental illness and substance abuse placed the child at substantial risk of serious physical harm. Thus, mother's unresolved problem of substance abuse was one of the reasons for the child's removal from mother's custody. Mother acknowledges that her substance abuse problem was one of the problems leading to her previous dependency cases. Accordingly, the juvenile court was able to properly consider mother's reasonable efforts to address that problem.
In support of her contention, mother cites to the case of In re Albert T. (2006) 144 Cal.App.4th 207 (Albert T.), where the court incorrectly focused on a mother's efforts to treat her alcoholism rather than the domestic violence issues that prompted the removal and then termination of her parental relationship with her older children. In Albert T., the child, Albert, was removed on sustained allegations there was domestic violence in the home and his mother had created a dangerous environment for him by exposing him to her current male companion. (Id. at pp. 213-214.) At the disposition hearing the family services department recommended denial of reunification services under section 361.5, subdivision (b)(10), because the mother" 'has lost a child before'" due to neglect. (Albert T., at p. 216.) The juvenile court, without any additional argument on the point, agreed and ordered no family reunification services be offered to the mother. (Ibid.)
In Albert T., the juvenile court's order was reversed because the earlier petition filed with respect to Alan, the older brother, had been based upon the mother's claim she was unable to provide for his ongoing care and supervision due to his mental and emotional problems. The mother was cognitively disabled, and Alan was diagnosed as having both bipolar disorder and attention deficit hyperactivity disorder. Although the earlier petition alleged the mother had a history of problems with domestic violence, domestic violence was not part of the reason for Alan's removal or continued status as a dependent child; and the mother was not ordered in that proceeding to complete domestic violence counseling. (Albert T., supra, 144 Cal.App.4th at pp. 210-211, 219.) Thus, in Albert T. the problem that led to the earlier removal of the sibling was essentially unrelated to the mother's current situation. (Id. at pp. 210, 219.)
Here, mother is correct that the juvenile court was concerned with mother's mental illness and mental illness was not singled out as a contributing factor to the removal of the child's half siblings. But mother's mental illness was not the sole problem behind the child's detention and subsequent removal. Contrary to mother's suggestion, the statute does not make a distinction that the parent need only make reasonable efforts to treat the "key issue" that led to a child's removal. Unlike the mother in Albert T., whose domestic violence issues were unrelated to the problems she had caring for her older son, mother's past substance abuse was inextricably linked to her unresolved problems of mental illness and substance abuse. Mother's positive methamphetamine drug test result and admitted use of marijuana to "self-medicate" evidenced mother's ongoing problem with substance abuse.
Under these circumstances we find no error in the juvenile court's decision to deny mother reunification services. In the present case, mother's reunification services were terminated as to the child's half siblings in April 2002. Mother's parental rights to A.C. and C.C. were terminated in 2007, and the child was removed in February 2022. Thus, mother had 20 years to address the problems that led to the siblings' removal. (Jennifer S., supra, 15 Cal.App.5th at p. 1126 ["child welfare workers must focus on the facts underlying the previous dependency action and its resolution, as well as on any efforts made by the parent since the sibling removal" (italics omitted)].) At the time of the child's removal, mother acknowledged recent methamphetamine use and continuing marijuana use. Mother's drug use was well documented over the course of her child welfare history, and her continued struggle with substance abuse exacerbated her mental health issues in the present case.
There is no evidence that mother made any real efforts to address her substance abuse problem prior to the child's removal. Mother made no meaningful effort to treat her substance abuse problem until after the child was removed from her custody. Although her participation in substance abuse counseling for a period of time prior to the contested hearing may demonstrate early progress toward rehabilitation, it was not reasonable in the context of mother's extensive history of substance abuse. Her brief efforts, that did not result in completion of a substance abuse program, did not negate what was otherwise a general lack of effort and commitment. Accordingly, on this evidence, the juvenile court could find that mother failed to make reasonable efforts to treat her substance abuse problem.
IV. ICWA Inquiry
Mother also contends the juvenile court's finding that ICWA did not apply was not supported by sufficient evidence because the record does not include interviews conducted by the department with all available extended family members regarding the child's potential Indian ancestry.
A. Applicable Law
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe . . . have a right to intervene" (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224.2, subd. (e)). An" 'Indian child'" is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) &(8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child is or may be an Indian child ...." (Cal. Rules of Court, rule 5.481(a); see § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child "can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has "any information that the child may be an Indian child." (§ 224.2, subd. (a).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) The court must also require each parent to complete form ICWA-020. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the agency or the juvenile court has "reason to believe" the proceedings involve an Indian child but "does not have sufficient information to determine that there is reason to know that the child is an Indian child." (§ 224.2, subd. (e).) As recently clarified by the Legislature, a "reason to believe" exists when the juvenile court or agency "has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (Id., subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or 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).) Further inquiry includes, but is not limited to, "[i]nterviewing the parents, Indian custodian, and extended family members," and contacting the Bureau of Indian Affairs (BIA), the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)-(C).)
The final duty component arises when the court or agency has" 'reason to know'" the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A "reason to know" exists if one of the following circumstances is present: "(1) A person having an interest in the child . . . informs the court that the child is an Indian child[;] [¶] (2) The residence . . . of the child [or] the child's parents . . . is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding . . . informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child . . . gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] [or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d)(1)-(6).)
If the juvenile court makes a finding that proper and adequate further inquiry and due diligence have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the ICWA does not apply, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. Standard of Review
Where the juvenile court finds ICWA does not apply to a child after completion of an initial inquiry, "[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We review the juvenile court's ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) We must uphold the juvenile court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.) The appellant "has the burden to show that the evidence was not sufficient to support the findings and orders." (Ibid.)
C. Analysis
Mother contends the juvenile court's finding that ICWA did not apply was not supported by sufficient evidence because the department failed in its further inquiry of a claim of Indian ancestry by the child's maternal family. The department concedes that it failed to complete an extensive inquiry of extended family members, but it contends the defect can be cured because the case is ongoing citing to In re S.H. (2022) 82 Cal.App.5th 166, 179.
In the present case, mother claimed possible Indian ancestry through her maternal grandfather. She identified the Navajo and Apache tribes, and she indicated her maternal cousin would have more information. The department interviewed the maternal cousin and sent formal notice to the Navajo and Apache tribes. Three tribes had not responded by the time of the disposition hearing, and the Navajo Nation was still in the process of verifying whether the child was either enrolled or eligible for enrollment in the tribe.
The agency was required to ask extended family members about the child's possible Indian ancestry pursuant to its duty of further inquiry. (§ 224.2, subd. (e).) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) There was at least one extended family member, an adult sibling, C.M., who contacted the worker and expressed interest in applying for placement of the child prior to disposition. The social worker interviewed C.M., but the department either failed to ask this extended family member about Indian ancestry or did not document it. Under the circumstances, we accept the department's concession and conclude the department did not fulfill its statutory duty of further inquiry.
In light of its acknowledgment, the department argues that the appropriate remedy is simply to affirm the judgment, citing the case of In re S.H., supra, 82 Cal.App.5th 166. In In re S.H., the mother appealed from the dispositional order, arguing inadequate ICWA inquiry, and the agency conceded the error. (In re S.H., at pp. 170-171.) The court held that "when a social services agency accepts its obligation to satisfy its inquiry obligations under ICWA, a reversal of an early dependency order is not warranted simply because a parent has shown that these ongoing obligations had not yet been satisfied as of the time the parent appealed." (Id. at p. 171.) Instead, if "the social service agency acknowledges error and we thus have reason to believe that its duty of inquiry will be satisfied[,] . . . we see no reason to set aside the jurisdiction/disposition order-even conditionally" because "the duty to inquire is a continuing one [citing § 224.2, subd. (a)]" and a conditional reversal "may lead to unnecessary additional hearings, delay, and the micromanagement of further ICWA inquiry." (Id. at pp. 176-177.) The court affirmed with the understanding that "[t]he Agency must comply with its broad duty to comp[l]ete all appropriate inquiries and apprise the court, and the court has a continuing duty to ensure that the Agency provides the missing information." (Id. at p. 179.)
Because the juvenile court and the department have an affirmative and continuing duty to inquire into the child's Indian status, and the juvenile court retains the power to reverse a prior finding that ICWA does not apply, it may make little or no practical difference whether we vacate the court's ICWA finding. Nonetheless, at least on this record, we find it appropriate to do so. To affirm the orders unequivocally leaves intact an implicit judicial finding of ICWA compliance that the parties agree is not supported by substantial evidence. While the department will continue its investigation and the juvenile court may make a different finding in the future, here the previous inquiries by the court and the department separately fell short. Under the circumstances, we conclude there is no reason to let the court's ICWA finding stand.
DISPOSITION
The juvenile court's orders are conditionally affirmed. The juvenile court's January 18, 2023 finding that ICWA does not apply is vacated. We remand for the department and the juvenile court to comply with the inquiry provisions of ICWA and California law. If the court finds the child is an Indian child, it shall conduct new proceedings in compliance with ICWA and related California law. If not, the court's original orders will remain in effect.
WE CONCUR: POOCHIGIAN, Acting P. J. SNAUFFER, J.