Opinion
B317417
01-20-2023
In re Baby Girl L., A Person Coming Under the Juvenile Court Law. v. J.L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP01560A, Jean M. Nelson, Judge. Affirmed with directions.
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
EDMON, P. J.
J.L. (father) appeals from the juvenile court's order at a disposition hearing, declaring his infant daughter a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j), removing the child from parental custody, and granting father unmonitored visits outside his home. Father argues the court erred in declining to place the child with him as a nonoffending biological father, and in denying his request for unmonitored visits inside the home. Father also asserts the court and the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the inquiry provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. We find no error, and thus we will affirm with directions.
Unless otherwise stated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Dependency Referral and Petition
Father and S.L. (mother) are the parents of Baby Girl L. (B.L.), born in April 2021. Mother also has an older child, C.L., born in December 2017. C.L. was a former dependent of the juvenile court and was adopted after parental rights over the child were terminated. The current matter came to the attention of DCFS on April 2, 2021, based on a referral alleging that mother, who was homeless, had given birth in an ambulance, was engaging in erratic behavior at the hospital, and appeared to have mental health issues.
When the child social worker arrived at the hospital and spoke with mother's nurse, she was informed that mother was refusing to hold, feed, or spend any time with the baby, but had nevertheless stated she wanted the baby to leave with her upon discharge. Although a hospital psychologist had attempted to assess mother, she would not answer any questions. She also had been observed rocking back and forth with a blanket over her head. The social worker tried to speak with mother in her hospital room. Apart from stating that she did not know she was pregnant until the day she gave birth, mother refused to cooperate and told the social worker to leave.
The social worker contacted father. He previously had called the hospital because he was concerned about the baby being discharged with mother. Father told the social worker that he was mother's friend. Although he admitted he and mother had an on-and-off sexual relationship, he denied he was the baby's father. He stated, however, that if there was a chance he was the father, he wanted the child to be placed with him. When asked for his identifying information, father became guarded. He noted that he lived in Section 8 housing and did not want any trouble. He then provided his full name and date of birth, and agreed to follow-up with his address. He also disclosed that he had a 13-year-old daughter, but refused to provide any details. He reiterated he would want the baby if he was the father, but could not recognize the child as his own until DNA testing proved paternity.
On April 3, 2021, the social worker returned to the hospital with an emergency removal order. Mother was still refusing to care for the baby or to answer questions. The social worker provided mother with a copy of the removal order, and explained the baby would be placed in foster care. When asked if she had any family members with whom the baby could be placed, mother responded that she had none. She also stated she did not have a telephone and could not be contacted through father. Mother left the hospital later that day.
On April 5, 2021, Father contacted the social worker to inquire about a paternity test. He also spoke with the social worker the following day and was notified of the upcoming detention hearing. Father again indicated that he wanted a paternity test and to have the child in his care if he was the father. He provided his home address.
On April 6, 2021, DCFS filed a dependency petition on behalf of B.L. under section 300, subdivisions (b) and (j). The petition alleged that mother had mental and emotional problems that placed B.L. at serious risk of harm, and that the child's sibling, C.L., was a former dependent of the court and had received permanent placement services based on mother's mental and emotional problems. The petition included an Indian Child Inquiry Attachment (Judicial Council Form ICWA-010(A)), which indicated that the social worker had attempted to ask mother about B.L.'s Indian status, but mother refused to answer any questions.
A detention hearing for B.L. was held on April 9, 2021. Neither mother nor father appeared at the hearing. The juvenile court detained the child in shelter care, and deferred paternity and ICWA findings pending the parents' appearance. The court ordered DCFS to continue to provide father with notice of the proceedings and to interview him regarding paternity. B.L. was placed with Mr. and Mrs. H., the adoptive parents of her sibling, C.L.
II. Adjudication Hearing
In its jurisdiction/disposition report filed on May 7, 2021, DCFS stated that B.L. was doing well in the home of the H.'s. She was developing appropriately, and her sibling, C.L., was bonded with her. Mother's whereabouts were unknown, and she had not attempted to visit B.L. DCFS had contacted both the maternal grandmother and a maternal aunt, but neither relative had seen or heard from mother for some time. The maternal grandmother thought mother might be living on Skid Row, and the maternal aunt believed she was using drugs.
On April 21, 2021, father contacted DCFS to inquire about the possibility of B.L. being released to his care. DCFS agreed to a home assessment. On April 28, 2021, the social worker attempted to conduct the assessment of father's home. Mother was present in the home, however, and became agitated. She yelled through the window," 'Don't come in here.'" When the social worker tried to ask her some questions, mother threw a cup filled with water at her.
In an interview with the social worker, father stated he had never seen mother behave in that manner. He reported that she came to his home the night before complaining of stomach pain, and he allowed her to stay the night. He explained that mother was generally calm in his presence, but she would get agitated at times, especially when he asked a lot of questions. He believed mother had anxiety and depression, and noted that she" 'always seems sad,'" " 'gets upset quickly,'" and" 'does need some help.' "
Father reported that he met mother two to three years ago when they were both homeless and staying on Skid Row. He acknowledged that they had maintained some type of relationship since that time. According to father, he would go months without seeing mother, but he knew the areas on Skid Row where she tended to stay, and he would look for her in those areas when he did not hear from her. He denied mother resided in his home, and stated that she would show up sporadically.
With respect to B.L., father disclosed that he had suspected mother might be pregnant, and on the date of the birth, he called 911 when mother came to his home in labor. He also contacted the hospital because he was concerned about the baby's safety in mother's care. He was not sure if he was B.L's father and wanted a paternity test to confirm. He expressed, however, that even if he was not the father, he still wanted to care for the baby. On April 28, 2021, father signed a Statement Regarding Parentage form (Judicial Council Form JV-505), requesting DNA testing to determine whether he was the biological father.
The social worker also interviewed father's daughter, S.C., who was then 14 years old. S.C. was appropriately dressed and groomed, and showed no signs of abuse or neglect. She reported that she and father had been residing in the home for three to four years, and that she felt safe in father's care. S.C. disclosed that mother" 'comes once in a while, like twice a month'" and" 'just sits there most of the time.'" She also stated that mother was usually calm, but would become upset when father asked her questions. S.C. denied any physical abuse, or any drug and alcohol use, by father.
In its report, DCFS recommended that the juvenile court sustain the petition and deny reunification services to mother. The agency also recommended that B.L. not be placed in father's home at that time. Although DCFS had been unable to conduct an assessment of the home due to mother's aggressive behavior, the social worker had observed that there were boxes stacked against the wall and no visible furniture. The agency also was concerned that father was allowing mother access to the home. DCFS deferred making any further recommendations regarding father pending the results of the paternity test.
The adjudication hearing was held on May 24, 2021. Neither mother nor father appeared at the hearing. The juvenile court found that DCFS had given proper notice of the proceedings. The court sustained the petition as pled under section 300, subdivisions (b) and (j). The court set the matter for a disposition hearing, and ordered DCFS to continue a due diligence search for mother and report on any contact with father.
III. Pre-Disposition Reports and Hearings
In a last minute information for the court filed on July 21, 2021, DCFS reported that it had completed the due diligence search for mother, but her whereabouts were unknown. On June 16, 2021, father contacted DCFS and inquired about the court hearing. When asked why he had failed to call in for the last hearing, father stated," 'I was waiting for the [c]ourt to call me and no one called me.'" He indicated that he was still interested in participating in the proceedings. When asked if he had any recent contact with mother, father replied," 'Yes, she still comes here once in a while but only stays for a little while and then she leaves.'" In a subsequent call with the social worker, father reported that mother visited his home approximately two times a week, but only stayed for a short period of time. He also stated that he was sure he was B.L.'s father, and that the child should be placed in his care.
On July 26, 2021, father made his first appearance in court and was appointed counsel at that time. Through his counsel, father filed a Parental Notification of Indian Status form (Judicial Council Form ICWA-020), in which he checked the box indicating, "I have no Indian ancestry as far as I know." He also filed a new Statement Regarding Parentage form in which he stated he believed he was the child's father and was seeking presumed father status. At the hearing, father's counsel advised the court, "As to paternity, my client does know that he is the father, so he will not be requesting DNA, but he was not present at the birth, he is not on the birth certificate and has never lived with the child. However, all of his friends and family are aware that the child is his." In response to the court's inquiry as to whether father had Native American ancestry, his counsel replied, "There is no Native American ancestry in his heritage, Your Honor."
The court found that father was an alleged father, and that there was no reason to know that B.L. was an Indian child within the meaning of ICWA. The court also stated it was "order[ing] the Department to investigate." Counsel for DCFS asked the court to inquire about mother's Indian ancestry with a maternal aunt and a maternal great aunt who had called into the hearing and were present on the phone. The court stated, "Maternal aunt, please unmute your phone. Do you know, does your family have any Native American ancestry?" The speaker replied, "We do not." The court then addressed the maternal great aunt and asked, "Do you know if your family has any Native American ancestry?" The speaker answered, "No." The court granted father monitored visitation with discretion by DCFS to liberalize, and ordered DCFS to assess father's home for B.L.'s possible placement. At father's request, the court continued the disposition hearing.
In a last minute information for the court filed on August 16, 2021, DCFS reported that it had been unable to complete the assessment of father's home due to the continued presence of mother inside the home. On August 6, 2021, DCFS had attempted to conduct the assessment. When the social worker arrived at the home and asked who was there, father answered that S.C. and a" 'friend'" were present. When asked for the identity of the friend, father remained quiet. When asked if the friend was mother, father admitted that mother had come to his home the night before and had asked to stay the night. Although the social worker sought to proceed with the assessment, father would not consent because he was worried that mother would again be disrespectful to the social worker. The social worker expressed concern that father continued to allow mother access to the home, and explained that mother could not have access to B.L. if the child were placed with him. Father responded that mother visited his home once or twice a month, and that he would give her money to buy food.
Father denied using drugs or alcohol. He reported that he took prescribed medication for anxiety and previously received mental health services. With respect to B.L.'s paternity, father explained that he already had agreed to a paternity test and expected the court to request that he take one. He also stated he initially was unsure if he was the child's father, but once he reflected on his relationship with mother, he realized that he was the father. When asked about his support system, father stated that a paternal aunt, A.V., had helped care for S.C. in the past. He noted, however, that A.V. was busy with work, which would make it difficult for her to help care for B.L. Father indicated that he also had an in-law who might be supportive if the child were placed in his care.
On August 11, 2021, DCFS again attempted to conduct the assessment of father's home, but could not do so because mother was still present. According to father, he had asked mother to leave, but she refused. He had called law enforcement for help, but was not given a timeframe for their arrival because he told them it was not an emergency. Father consented to the assessment at that time, but asked that it be done quietly because mother was inside and had been exhibiting flu-like symptoms consistent with COVID-19. Based on the information provided by father, the social worker decided that it would be better to assess the home when mother was not present. Father indicated that he would contact DCFS once mother had left. Later that day, father called the social worker to report that law enforcement had escorted mother from the home and had advised him to obtain a restraining order. Father stated he would be in contact with DCFS to schedule the home assessment.
DCFS indicated in its report that it remained concerned about father's ability to care for and protect B.L. given that he continued to allow mother access to his home. The agency also noted that father had never asked to visit the child until his first court appearance on July 26, 2021. DCFS recommended B.L. remain in her current placement.
On August 20, 2021, the juvenile court granted father's request for a paternity test. In advising the court about the reason for the request, father's counsel stated, "I would like to clarify that my client does believe he is the father but the issue of paternity . . . keeps getting [raised], so he just would like to put this issue to rest." The court continued the disposition hearing to allow for DNA testing. The court also ordered DCFS to conduct a pre-release investigation of a maternal aunt for B.L.'s possible placement, and to provide an update on father's visits.
On August 30, 2021, DCFS submitted its pre-release investigation report regarding the maternal aunt. Although DCFS did not report any concerns about the maternal aunt's ability to care for B.L., it recommended the child not be placed with her at that time. The agency explained that B.L. had been with her current caregivers, Mr. and Mrs. H., since shortly after her birth, and had an established bond with her caregivers and her sibling, C.L. In addition, the results of the paternity test were still pending, and father had indicated his intent to seek custody if he was the biological father. Recognizing that father, the maternal aunt, and Mr. and Mrs. H. all wanted what was best for B.L., DCFS recommended that the child remain in her current placement. On September 2, 2021, the juvenile court ordered that B.L. remain placed with her current caregivers pending the disposition hearing.
In a last minute information for the court filed on October 13, 2021, DCFS stated that it had received the results of B.L.'s paternity test, and that father could not be excluded as the child's biological father since they shared genetic markers. DCFS also reported that it had conducted the assessment of father's home on October 4, 2021. The home was a one-bedroom apartment with a living room, kitchen, and bathroom. Upon entry into the home, the social worker observed multiple boxes stacked up against the wall in the entryway. The living room contained minimal furniture, and had multiple boxes on both the floor and furniture. The kitchen had a working refrigerator, microwave, and stove. S.C. reportedly slept in the bedroom, and father slept in a foldable bed in the living room. Father stated that his plan was to place a crib for B.L. inside S.C.'s bedroom if the baby were released to him. Father also reported that he was looking to rent a storage unit for all of the boxes inside the home.
When asked who would assist him in caring for B.L., father stated that he did not have a current plan. He identified S.C. as his primary support. When asked about his recent contact with mother, father reported that she had passed by his home the previous month but he did not allow her inside. He indicated the last time mother had been inside his home was in August 2021. The social worker noted that father had been visiting B.L. on a regular basis, and that he was attentive, caring, and nurturing toward the child during the visits.
Based on the results of B.L.'s paternity test, DCFS recommended that father receive family reunification services. The agency also recommended, however, that the child remain placed in the home of Mr. and Mrs. H., and not be released to father at that time. The social worker explained that father was not prepared to have B.L. in his care because he needed to remove the clutter from his home and to obtain a crib and other essential items for the child. The social worker also noted that father did not have an established support system, and that his reliance on his 14-year-old daughter for support was not appropriate.
On October 20, 2021, the juvenile court found that father was the biological father of B.L. Father's counsel requested that the court begin implementing a transition plan for B.L., consisting of unmonitored and overnight visits with father. The court ordered DCFS to assess father for unmonitored visits with B.L., and granted the agency discretion to liberalize the visits. The court also ordered DCFS to specify its reasons if the visits were not liberalized.
In a last minute information for the court filed on November 23, 2021, DCFS reported that it had not discussed unmonitored visits with father because it wanted him to continue working on his bond with B.L. and to begin parenting classes to gain the skills and knowledge necessary to properly care for an infant. According to the social worker, father still had not rented a storage space and continued to have boxes stacked against the wall and on the floor of the living room and bedroom. DCFS was concerned the boxes posed a safety risk to B.L. because the child would soon begin walking and the boxes could fall on her. In its report, DCFS noted that father had begun attending a mental health support group and a parenting class. The agency continued to recommend that B.L remain in her current placement, and that father receive reunification services.
IV. Disposition Hearing
The disposition hearing for B.L. was held on December 2, 2021. Mother did not appear at the hearing. Father attempted to participate via conference call, but his call disconnected. The juvenile court found that proper notice of the hearing had been given to both parents. Father's counsel requested that B.L. immediately be released to father, and if not, that father be granted unmonitored visits with the child. His counsel noted that father was a nonoffending parent, was participating in parenting classes, and had submitted to an assessment of his home. His counsel disputed that there were any safety concerns with the home, and argued that DCFS was "essentially thwarting father's efforts to elevate his status from biological to presumed." His counsel further asserted, "I don't think father currently being a biological instead of a presumed [father] is a good reason to deny him placement. It is really not father's fault that he is not presumed. He is more than willing to take the child into his home today and fully care for the child."
Counsel for B.L. and counsel for DCFS requested that the child not be released to father. While acknowledging that father had enrolled in parenting classes and been making an effort to visit B.L., the child's counsel argued that placement with father was not appropriate at that time, and that the presence of boxes inside the home was a legitimate safety concern. Counsel for DCFS opposed placement with father on the grounds that he was only beginning to bond with B.L., and that he failed to understand the safety risk that the boxes posed to the young child because he still had not removed them. Counsel for DCFS also asserted that father was not entitled to custody as a biological father, and that he could seek to elevate his status to a presumed father once he had more liberalized visits.
After hearing the argument of counsel, the juvenile court found that it was reasonable and necessary to remove B.L. from parental custody because there was a substantial danger to the child's physical health, safety, protection, or well-being, and there were no reasonable means to ensure her safety without removal. The court noted that DCFS had made a reasonable argument that father did not yet have a bond with B.L. sufficient for the child to be placed with him. The court further explained that, even though father was a nonoffending parent and was making an effort regarding B.L., he was not entitled to custody because he was not a presumed father.
The court declared B.L. a dependent of the court under section 300, subdivisions (b) and (j), removed the child from parental custody, and ordered reunification services for father. The court granted father monitored visits with B.L. a minimum of two to three times per week, which would become unmonitored once the home was safe. The court also granted father unmonitored visits to take place outside the home until father "confirm[ed] the box situation is cleared up." The court gave DCFS discretion to liberalize the visits, and ordered DCFS to make unannounced visits to the home to ensure that mother was not present. In addition to setting a six-month review hearing, the court set the matter for a progress hearing in two months to assess father's visits with B.L. and whether the child could be placed with him. In its written case plan for father, the court checked a box indicating that ICWA did not apply.
Father filed a timely appeal from the disposition order.
DISCUSSION
On appeal, father contends the juvenile court erred in (1) denying his request that B.L. be placed with him; (2) denying his request for unmonitored visits with the child inside his home; and (3) finding there was no reason to know B.L. was an Indian child within the meaning of ICWA and related California law. We conclude the juvenile court did not err in declining to place B.L. with father, ordering that unmonitored visits occur outside the home until it was safe for the child, and finding that ICWA did not apply.
I. Denial of Placement of B.L. With Father
Father argues the juvenile court erred in declining to place B.L. with him at the disposition hearing. He specifically asserts that he was entitled to placement of the child under section 361.2 as a nonoffending biological father, and that the court's reasons for denying placement were not supported by substantial evidence. We conclude this argument lacks merit.
We generally review challenges to the sufficiency of the evidence underlying disposition orders for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.)"' "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." '" (Ibid.)
Section 361.2 establishes the procedures that a juvenile court must follow for placing a dependent child who has been removed from a custodial parent. (In re Z.K. (2011) 201 Cal.App.4th 51, 70.) The statute provides, in relevant part, that "[i]f a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).)
Contrary to his contention on appeal, father was not entitled to have B.L. placed with him under section 361.2. "Dependency proceedings differentiate between 'alleged,' 'biological,' and 'presumed' fathers." (In re H.R. (2016) 245 Cal.App.4th 1277, 1283.) A biological father is one who has established his paternity, but has not achieved presumed father status. (Ibid.) Only a presumed father is entitled to custody of a child under section 361.2. (In re Zacharia D. (1993) 6 Cal.4th 435, 454 (Zacharia D.) [section 361.2's "use of the words 'parent' and 'custody' indicate that . . . only a presumed father is entitled to assume immediate custody"].) A biological father, on the other hand, has very limited rights. (In re J.H. (2011) 198 Cal.App.4th 635, 644.) He is not entitled to custody of the child, and he may not receive reunification services unless the court determines such services will benefit the child. (Ibid.)
The criteria for determining presumed father status include whether the man marries or attempts to marry the child's mother, whether the man and the mother execute a voluntary declaration of paternity, and whether the man receives the child into his home and openly holds out the child as his natural child. (See Fam. Code, §§ 7540, 7573, 7611, subds. (a)-(d).)
In this case, at the time of the disposition hearing, father had been found to be the biological father of B.L., but he had not achieved presumed father status. "Biological fatherhood does not, in and of itself, qualify a man for presumed father status .... On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection." (In re J.L. (2008) 159 Cal.App.4th 1010, 1018.) Because father was not B.L.'s presumed father, he was not a "parent" within the meaning of section 361.2, and was therefore not entitled to placement under that statute. (See In re E.T. (2013) 217 Cal.App.4th 426, 437.)
Father does not contend on appeal that he qualified as a presumed father as of the disposition hearing. Rather, citing Zacharia D., supra, 6 Cal.4th 435, he claims he met the criteria for placement under section 361.2 as a nonoffending biological father because "custody may be granted to a biological father to qualify as a presumed father." Father's reliance on Zacharia D. to support this claim is misplaced. In Zacharia D., our Supreme Court did observe that the" 'superior court ha[s] the authority to grant [a biological father] custody of his child so that he [can] qualify as a presumed father'" under the Uniform Parentage Act (Fam. Code, § 7600 et seq.). (Zacharia D., at p. 449.) The court made clear, however, that "[s]uch an order in the dependency context would be made pursuant to a motion under section 388" (id. at p. 449, fn. 17), and that "a biological father is not entitled to custody under section 361.2" (id. at p. 454). The court expressly rejected the argument that, absent a finding of detriment, a biological father had a right to custody under section 361.2, reasoning that this interpretation of the statute "elevates the rights of a biological father above the child's interest in stability and permanency." (Ibid.)
While a biological father is not entitled to custody under section 361.2, this does not mean that the court is precluded from ever placing a dependent child with a noncustodial, nonoffending biological parent at the disposition stage."' "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." '" (In re A.J. (2013) 214 Cal.App.4th 525, 536.) When a child has been adjudged a dependent of the court under section 300, "the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).) The court also "may direct all such orders to the parent" of a dependent child "as the court deems necessary and proper for the best interests of" the child, including orders concerning "the care, supervision, custody, conduct, maintenance, and support" of the child. (§ 245.5.) The juvenile court accordingly retains discretion to place a dependent child with a biological parent if such placement is in the child's best interests. (In re A.J., at pp. 536-537 [although section 361.2 did not apply to biological father seeking placement, juvenile court had inherent authority to place child with father where placement was in child's best interests].)
Here, the juvenile court reasonably could conclude that placement of B.L. with father was not in the child's best interests. At the time of the disposition hearing, B.L. was eight months old and had been in the care of Mr. and Mrs. H. since shortly after her birth. The child had developed a bond with her caregivers and with her older brother, C.L., who had been adopted by Mr. and Mrs. H. Father had been attending monitored visits with B.L. for about three and a half months, and he was nurturing and attentive to the child during those visits. However, DCFS was concerned that father did not have essential items in his home that he would need to care for an infant, and that he had not developed a strong enough bond with B.L. to support placing the child with him at that time. In denying father's request for placement, the juvenile court found these concerns about the lack of a bond between father and B.L. to be credible, noting that DCFS had "made a reasonable argument that father does not have a bond yet sufficient for placement with him."
The evidence also showed that father had not been forthcoming with DCFS about his ongoing contact with mother. Father initially told the social worker that mother only visited his home on a sporadic basis, and that he would not see her for months at a time. He later reported that mother would show up once or twice a month when she wanted food. However, on the three occasions that DCFS made an unannounced visit to father's home to assess the home for safety, mother was present each time. It also appears that father was reluctant to disclose to DCFS the extent of his contact with mother given her erratic behavior. During the social worker's second attempt at a home assessment, father vaguely described the visitor in his home as a "friend" and then remained silent when asked for the friend's identity. It was not until the social worker pointedly asked father if the "friend" was mother that he admitted her presence inside the home. He also declined to consent to the assessment at that time because he was concerned about mother's behavior. In fashioning the disposition order for B.L., the juvenile court thus directed DCFS to conduct unannounced visits to father's home to ensure that mother was not staying there.
In challenging the juvenile court's ruling, father argues that the lack of a preexisting bond between a parent and a child is not, by itself, sufficient to support a finding of detriment under section 361.2. He also asserts that this court should not consider other circumstances that might support a finding of detriment under the statute because the juvenile court did not expressly identify those circumstances in its ruling. As discussed, however, section 361.2 had no application in this case because the statute does not apply to placement of a child with a biological father who has not achieved presumed father status. The juvenile court did not reference section 361.2 in its ruling, nor did it suggest that it was assessing father's request for placement under that statute. In fact, in denying father's request, the juvenile court expressly noted that father was "not entitled to placement because he is not a presumed father."
In any event, we review the juvenile court's ruling, not its reasoning, and we may affirm that ruling if it was correct on any ground. (In re A.J., supra, 214 Cal.App.4th at p. 538; In re B.L. (2012) 204 Cal.App.4th 1111, 1116.) Based on the totality of the record in this case, the juvenile court reasonably could conclude that placement with father at disposition would not best serve and protect B.L.'s interests at that time. The court's denial of father's request that the child be placed with him was therefore supported by substantial evidence.
II. Denial of Unmonitored Visits Inside Father's Home
Father also contends the juvenile court erred in denying his request for unmonitored visits with B.L. inside his home. He specifically claims the court abused its discretion in ordering that such visits take place outside the home because there was no substantial evidence to support a finding that the home was unsafe for unmonitored visits. We find no abuse of discretion in the juvenile court's ruling.
A disposition order granting reunification services to a parent must provide for visitation "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) However, "[n]o visitation order shall jeopardize the safety of the child." (Id., subd. (a)(1)(B).) "The power to regulate visits between dependent children and their parents rests with the juvenile court and its visitation orders will not be disturbed on appeal absent an abuse of discretion." (In re D.P. (2020) 44 Cal.App.5th 1058, 1070.) An abuse of discretion exists only where the juvenile court"' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
In this case, the juvenile court granted father's request for unmonitored visitation with B.L., and simply required that such visits take place outside the home until the safety risk posed to the child inside the home had been removed. The juvenile court placed this condition on father's unmonitored visits to address DCFS's reported concern that father still had not removed the stacks of boxes inside his home, which would pose a danger to B.L. as the child became more mobile. B.L.'s counsel raised a similar concern at the disposition hearing, and argued that the continued presence of the boxes inside the home created a legitimate safety issue. Based on such evidence, the juvenile court reasonably could conclude that any unmonitored visits with B.L. should occur outside the home until that specific safety concern was eliminated.
In fashioning the visitation order, the juvenile court narrowly tailored the conditions it was placing on father's visits to address that safety risk, and thus, ordered that the unmonitored visits would only "need to be outside of the home until the father confirms the box situation is cleared up." The court also granted DCFS discretion to liberalize father's visits to take place inside the home once the boxes had been removed. In addition, the court set the matter for a two-month progress hearing to assess whether the home had been made safe for B.L. and whether the child could be placed with father at that time. On this record, the juvenile court's order for unmonitored visits outside father's home was not an abuse of discretion.
III. ICWA Inquiry and Finding
Lastly, father contends that DCFS conducted an inadequate inquiry concerning father's possible Indian ancestry pursuant to California law implementing ICWA (§ 224.2), and thus there was insufficient evidence to support the juvenile court's finding that ICWA did not apply. In particular, father claims that DCFS failed to interview him about any possible Indian ancestry despite being instructed to do so by the court, and failed to inquire of any extended family members on the paternal side of the family, including the paternal aunt, A.V.
Father does not argue on appeal that there was any ICWA inquiry error with respect to the maternal side of the family. Although mother never appeared in court and her whereabouts were unknown, the juvenile court inquired of both a maternal aunt and a maternal great aunt whether their family had any Indian ancestry, and both maternal relatives denied any such ancestry.
We disagree. As we have noted, at his first court appearance, father submitted an ICWA-020 form in which he stated under penalty of perjury that he had no Indian ancestry to his knowledge. In response to the court's inquiry, his counsel replied, "There is no Native American ancestry in his heritage, Your Honor." The court then found there was no reason to know B.L. was an Indian child within the meaning of ICWA.
For all the reasons discussed in In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1005 (Ezequiel G.), we conclude that the juvenile court did not err in concluding that ICWA does not apply. Stated briefly, because father denied Indian ancestry, there is no evidence that would have supported the conclusion that B.L. is an Indian child through father. Further, we find nothing in the record that would suggest that father might unknowingly be a member of an Indian tribe. The juvenile court thus did not abuse its discretion by concluding that DCFS had conducted an adequate ICWA inquiry as to father. (See Ezequiel G., at pp. 1003-1014.)
That said, although we believe DCFS's ICWA inquiry up through the time of the disposition hearing was adequate, we cannot ignore the current uncertainty in the law concerning DCFS's obligation to inquire of extended relatives. Many appellate courts routinely reverse (or conditionally affirm) juvenile court orders where agencies have failed to make ICWA inquiries of available extended family members (e.g., In re J.C. (2022) 77 Cal.App.5th 70, 79; In re Antonio R. (2022) 76 Cal.App.5th 421, 431), and our Supreme Court has recently granted review in several cases in which it will consider some of the many issues surrounding compliance with the California statutes implementing ICWA. (See, e.g., In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578; In re G.A. (2022) 81 Cal.App.5th 355, review granted Oct. 12, 2022, S276056; In re M.M. (2022) 81 Cal.App.5th 61, review granted Oct. 12, 2022, S276099; In re Kenneth D. (2022) 82 Cal.App.5th 1027, review granted Nov. 30, 2022, S276649.) Further, through this appeal, father has brought to the court's attention an extended family member of whom an ICWA inquiry was not made. Accordingly, as this case progresses, DCFS must remain mindful of its continuing duties to gather information potentially bearing on whether the children are Indian children, and it should continue to interview available relatives who may have reliable information about that critical question, including the paternal aunt. For the same reason, the juvenile court should require DCFS to report the results of its interviews, and it should make further ICWA findings as appropriate.
DISPOSITION
The disposition order is affirmed. On remand, the juvenile court shall direct DCFS to conduct a continuing ICWA inquiry as discussed more fully herein.
I concur:
EGERTON, J.
RICHARDSON (ANNE K.), J. [*] Concurring and Dissenting:
I agree that the juvenile court did not err in declining to place B.L. with father, and in denying father's request for unmonitored visits inside the home. I respectfully disagree solely with the majority's conclusion that the juvenile court did not err in finding that ICWA did not apply.
The language of the governing statute provides that: "Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child." (Welf. &Inst. Code, § 224.2, subd. (b).) There may be times when it is not feasible to make contact with all of the persons listed in the code: when they refuse to respond, when no contact information is provided, and certainly if there are no such relevant persons or such persons are deceased. In this case, however, DCFS failed to make any inquiry of father or any extended family members on the paternal side of the family about B.L.'s possible Indian ancestry, despite being ordered to investigate by the juvenile court. Under these circumstances, I would conclude that there was no substantial evidence to support a finding that DCFS's inquiry was proper, adequate, and duly diligent.
Given the juvenile court's continuing jurisdiction, the majority orders the court to conduct appropriate further inquiry, without vacating the ICWA finding. I would conclude that the proper remedy is to affirm the disposition order but vacate the finding that ICWA does not apply, and to remand for compliance with the inquiry, and, if applicable, notice requirements of ICWA and related California law. (See In re Dominick D. (2022) 82 Cal.App.5th 560, 567.) Either way, this is not a case where an ICWA error is being raised for the first time at a very late stage in the proceedings. Because the juvenile court continues to have jurisdiction and parental rights have not been terminated, there is still an opportunity to ensure ICWA compliance without delaying permanency for B.L.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.