Opinion
B307302
10-12-2021
In re S.R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.S. et al., Defendants and Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant S.S. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant T.B. Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 19LJJP00701A-C. Stephanie Davis, Judge Pro Tempore. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant S.S.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant T.B.
Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
OHTA, J. [*]
The juvenile court exercised dependency jurisdiction over three children: S.R. (born 2008); Princeton N. (born 2016); and S.N. (born 2018). Mother S.S. and father T.B. are the parents of Princeton and S.N., and mother is the parent of S.R. The court exercised jurisdiction and removed the children from the parents based on: a prior sustained allegation father sexually abused an older half-sibling, father's aggressive behavior due to possible undiagnosed mental health issues, and the parents' neglect of the children. The court denied reunification services to father due to the prior sexual abuse finding. The record is rife with the parents' belligerence and refusal to cooperate throughout the dependency process.
The juvenile court found T.B. to be the presumed father of Princeton and S.N. S.R.'s father is deceased. Although T.B. is not S.R.'s father, we use the label “father” for convenience.
The evidence supports the orders. We also find no error in the court's finding the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) did not apply. We reject the parents' challenges and affirm.
BACKGROUND
The record in this case is extensive. We set forth the facts in light of our deferential substantial evidence standard of review. (In re R.T. (2017) 3 Cal.5th 622, 633.)
Jurisdictional Findings
The juvenile court sustained the following allegations against the parents pursuant to Welfare and Institutions Code section 300, subdivisions (b), (d), and (j):
Statutory citations refer to the Welfare and Institutions Code.
Counts b-1, d-1, j-1: In May 2013 and on prior occasions, father sexually abused the children's half-sibling M.B. since she was four years old. “Such sexual abuse consisted of [father] forcibly raping [M.B.] by placing [his] penis inside [her] vagina. On 5/12/2013, [M.B.] was medically examined and was found to have physical findings consistent with the ongoing rape of the half-sibling. On prior occasions, [father] fondled [M.B.]'s vagina. The juvenile court sustained the sexual abuse allegation on January 22, 2014. [Father] was not offered family reunification services for [M.B.] pursuant to [§] 361.5(b)(6). [Mother] knew or reasonably should have known of the sexual abuse of the half-sibling by the father and failed to protect the children by allowing [father] to reside in the children's home and have unlimited access to the children.”
Count b-2: Father had a criminal history, including convictions for possession of controlled substances and criminal threats and arrests for spousal abuse. He also had “documented history of violent and aggressive actions.” In September 2019, father acted aggressively with Department of Child and Family Services (DCFS) personnel and law enforcement. The children were present. Since that incident, father made threats to other DCFS personnel on social media and over the phone.
Count b-3: Father displayed delusional and paranoid behavior, “such as making statements that his oldest child was molested by Martians and/or the maternal grandmother with a screwdriver.” Father displayed aggression without control or concern for the circumstances and those present, such as by acting aggressively toward DCFS and law enforcement personnel. His behavior may have been indicative of an undiagnosed and/or untreated mental health issue endangering the children.
Count b-4: Mother and father failed to provide the children “with the necessities of life including regular medical care [and] proper hygiene.”
The court dismissed a count related to father's history of drug abuse.
Prior Sexual Abuse of M.B.
In May 2013, a paternal great aunt brought eight-year-old M.B. into the emergency room, reporting father had been having intercourse with her since she was four years old. A registered nurse at Antelope Valley Hospital examined her and concluded there was “clear evidence” of sexual abuse. M.B. reported father had been putting his privates inside of her about once a week. She reported that after intercourse, “there would be snot like stuff on [her] underwear” and that intercourse didn't hurt. An examination revealed M.B.'s hymen was not intact and there was “strong evidence of the child being sexually abused.” No “SART” exam was done since M.B. reported the last incident occurred one month prior. M.B. was reported to have “a lot damage in her vagina.” M.B. said father did not take her to the doctor or allow her to go to school because she might reveal he was having sex with her. When the aunt texted father, he threatened to come to the hospital and take M.B.
Police interviews of the nurse, the aunt, and M.B. corroborated the report.
Later investigation cast some doubt on the abuse. A November 2013 supplemental sheriff's report indicated a Certified Child Abuse Examiner for the Valley Oasis Sexual Assault Response Team reported a full examination of M.B. was not done. She said the nurse who examined M.B. was not a child expert and should not have made the statements she did. The examiner reported the High Desert Scan clinic conducted a forensic exam of M.B. and came up with no medical findings. On the forensic exam report, the examiner noted the exam was a normal anal-genital exam with findings consistent with the history provided.
M.B. also changed some details of her report. In an interview with law enforcement and a deputy district attorney, M.B. said father put his privates inside her, but couldn't explain what “inside” meant. She said her underwear was always on during the abuse, and she only had two pairs. In an interview the next day, she changed these details, saying she had more than two pairs of underwear and father would tell her to pull them down when he would have intercourse with her. She apparently did not change her statement that father was having intercourse with her. The aunt also reported M.B. told her the intercourse hurt initially but then stopped hurting, which the aunt attributed to stretching in M.B.'s vaginal area. The investigator was doubtful that an eight-year-old would not experience pain.
The investigator worried these changes suggested M.B. might have been coached. The aunt agreed M.B.'s “credibility was shot.”
During this period, father called the aunt and threatened to kill her and her whole family. Father had been accusing his own mother of molesting M.B. with screwdrivers, a hammer, and nails. He also said Martians were molesting M.B. The aunt believed he had mental issues and she feared for her safety. She even obtained a restraining order against him. Social media posts by father claimed humans evolved from aliens and showed screwdrivers and other things he found in his mother's bedroom. He denied molesting M.B. and claimed it was a conspiracy against him.
Given M.B.'s conflicting statements, no criminal charges were filed related to the allegations due to “insufficient evidence.” However, the juvenile court sustained the dependency allegations in January 2014 that father sexually abused M.B. by raping her. The court ordered that he not have contact with her and it denied reunification services.
Detention of the Three Children
The parents and three children at issue here came to the attention of DCFS because it was reported the family's home was “filthy/dirty” and mother appeared to be under the influence of some substance. A social worker arrived for an unannounced visit, and mother denied access to the home, slamming the door in her face.
The social worker returned with law enforcement and an investigative warrant. Father answered, became angry, and did not let the social worker interview the children. He claimed the visit was retaliation because he was suing DCFS for “losing [his] daughter in the system for six years.” He called the social worker a kidnapper. He lied about mother not being home. She appeared and video recorded the encounter to post on Facebook Live to expose DCFS's wrongdoing. Father began video recording as well. The social worker could see the children from the doorway. At one point, mother picked up one of the children and “continued her ranting.”
Father claimed DCFS was a private entity that used unlawful tactics to take children. He became agitated, yelling and screaming derogatory statements at the social worker. He said he hated DCFS, and a prior social worked had lied about him. He said he would “buck up” at the social worker if she entered the home, which the social worker understood as getting in her face and disrespecting her with belligerent comments or trying to stare her down.
For her safety, the social worker did not enter the home. As she walked away, the parents yelled at her and used profanity. Father repeatedly pounded his chest and shouted his own name, saying, “You should know who I am!”
Two social workers and law enforcement returned with a removal warrant. Father came to the door, screaming there was going to be a murder that day. He started video recording the confrontation for Facebook Live, telling the audience the cops were there to kill him. He told the social worker if someone stepped foot into the house, someone was going to die. The social worker gave him the warrant, but he refused to release the children. He said he would bring them to the scheduled hearing. He brought up M.B., claiming she was dead and implying she died while in the dependency system.
Additional officers arrived and convinced the parents to exit the house. They were handcuffed and DCFS removed the children. The paternal grandmother, who resided with the family, sat outside as DCFS went in. She expressed willingness to take the children and a social worker took down her phone number.
One-year-old S.N. was found asleep in a bedroom. Her face was completely covered with food particles. She wore a dirty onesie and her feet and fingernails were covered in dirt. Three-year-old Princeton was dirty, wore dirty clothes, and his feet and fingernails were covered in dirt. The house was dirty and cluttered. A later examination revealed S.N. had eczema on her arm and most of Princeton's body was inflamed due to eczema.
In an interview, eleven-year-old S.R. said she felt safe at home and didn't know what drugs were. She said the parents were caring, and she referred to father as her dad. She denied any physical discipline, any lack of food, and any domestic violence or abuse. She was happy. She was home schooled.
The parents later called the social worker. Father denied he sexually abused M.B., and claimed an aunt had done so. He denied saying M.B. was dead. He began ranting. He said he was “working on illegal moves” and “knows how to threaten people without getting into trouble.” He said his threat that someone was going to die when DCFS removed his children referred to himself, and he was “ready to die.” He accused DCFS of sex trafficking his children and their removal was in retaliation for a lawsuit he had filed against the mayor of Lancaster, where the family lived. He claimed one of the emergency response workers had a pornographic website. He claimed he had signed up for services through Mental Health of America, but then rambled incoherently.
The social worker expressed concern about mother being the children's caregiver given father's history with DCFS. Mother said father did not reside in the home. She claimed it was cluttered because they had moved in a few months ago and were still settling in. Father refused to discuss any discipline of the children.
In another call, mother told the social worker they did not believe in vaccinations and relied on holistic remedies. The children did not have a primary doctor and the parents only took the children to the hospital for emergencies.
Prior to the detention hearing, DCFS informed the court that the children's foster parent reported the parents called her and threatened to kill her. DCFS also informed the court father came to the DCFS offices and dropped off an “affidavit, ” a rambling document entitled “CPS and Partners Trafficking.”
At the detention hearing, the court ordered the children detained from the parents and ordered visitation in DCFS offices. It ordered the parents not to make disparaging remarks, not to record DCFS personnel, and not to post about the case on social media.
Restraining Order
After the detention hearing, the juvenile court granted a temporary retraining order for the three DCFS social workers involved in the removal of the children in order to protect them from father. The three social workers submitted declarations consistent with the record recited above. Additionally, one of them declared that father had been posting her full name on social media, claiming she had a pornographic website. He also had called and threatened her that she should “have [her] affairs in order” because he was having her arrested for lying. Another attested father left her a threatening voicemail, saying DCFS personnel were going to jail and he was going to “fucking cheer” and “put it live on my fucking Facebook page” as they “rot in a fucking jail cell.”
At the hearing on the temporary restraining order, father continued to claim those involved in the case were going to jail. Mother agreed. He proclaimed, “88 percent of you guys are raping kids.” The court noted he and mother spoke over others during the hearing. Father exited the courtroom loudly and aggressively, muttering.
The court held hearings on granting a longer restraining order and heard testimony from the three social workers consistent with their declarations. Father also testified. He denied threatening anyone. He clarified that when he said there would be a murder that day, he was referring to himself, as in the children would be removed over his “dead body.” The court eventually issued a restraining order in favor of one of the social workers and ordered father not to have any contact with the other two.
The hearing took several days, and the parents continued to talk over the court despite repeated prior warnings. In the court's view, they were “clearly unable to follow instructions from the court or their attorneys.” Their behavior forced the court to remove them from the courtroom at least twice.
Jurisdiction/Disposition Report
In the jurisdiction/disposition report, DCFS outlined the parents' continued belligerence and refusal to cooperate. For example, the dependency investigator called the parents to arrange a meeting at the DCFS offices and the parents became irate. Mother yelled that the dependency investigator had kidnapped her children. Father said they would not come to the meeting and hung up.
A meeting was eventually scheduled, but father left multiple angry, aggressive, and profanity-laced voicemails for different DCFS personnel, refusing to meet.
DCFS managed to interview mother, but she refused to answer questions and claimed DCFS had no jurisdiction. She claimed the proceedings were a “set up.” She believed her children had been kidnapped and DCFS personnel were going to jail. Mother said she had known father since 2012 and had been in a relationship with him since 2013. The investigator believed mother likely knew about M.B.'s molestation because the report was made in May 2013. Mother denied M.B. was molested and said the “mayor” and DCFS tried to cover up the circumstances.
In a call with a social worker, father appeared “incoherent in his presentation.” He claimed evidence had been destroyed and a forensic report “buried, ” which apparently referred to M.B.'s sexual abuse. He made other “incoherent statements” about various governmental entities, including DCFS. He reported he had been diagnosed with “Parental Alienation and Bipolar.”
In an interview, S.R. denied anyone ever touched her in a way that made her uncomfortable. She was aware of father's abuse of M.B., but denied it was true. She believed M.B. had been molested by her mother's boyfriend or her great aunt. She said father was a nice person but gets mad and will start screaming. Sometimes he goes outside to talk to himself, claiming they were being spied on by drones. On the day the children were detained, father “got frustrated” and punched a wall, saying “don't murder me.” S.R. was “really scared” and took her siblings into another room.
The foster caregiver for the two younger children reported Princeton was covered “head to toe” in untreated eczema that left him with scarring after it was treated. S.N. had patches of eczema. They had dental issues and may have been malnourished. They were “filthy” when the foster caregiver bathed them, leaving a bathtub filled with dirt. Their hair was severely matted. They were developmentally delayed-they had no muscle tone and could not climb stairs, walk up small slopes, or hold utensils; and they were not toilet trained. When they arrived, they were lethargic with their eyes rolling back in their heads. They slept for 18 hours a day until they grew accustomed to a schedule. Neither could speak. They were improving in foster care.
HUB examinations of Princeton and S.N. confirmed their global developmental delays and eczema. DCFS determined the two younger children immediately needed a Regional Center assessment and developmental services. Mother refused to sign the form to authorize the assessments, so the court ordered them over her objection.
Although the parents were given monitored visitation after the detention hearing, they refused to visit the children. S.R. said she talked with mother on social media, and mother called DCFS employees kidnappers.
Father's Criminal History
Father had an extensive criminal history, including convictions for burglary, assault, drug possession, and criminal threats. He reported he was sent to prison at 21 years old for robbing a bank. In 2004, he was arrested for domestic violence after he hit M.B.'s mother while she was pregnant.
In April 2018, he was arrested for trespassing at the Lancaster City Hall. He was carrying a three-inch pocketknife. He had been told at least ten times he was not allowed to enter City Hall because he had been verbally aggressive toward staff and created a disturbance. Staff reported they were too afraid to speak to him out of fear he would physically and verbally assault them.
Jurisdictional Findings
The court held the jurisdictional hearing on and off for months starting on November 25, 2019. It sustained the petition on March 2, 2020. The parents repeatedly asked to have their attorneys removed, and those requests were continually denied. The court again had to order them removed from the courtroom at one hearing and father left on his own at another hearing.
On December 3, 2019, DCFS reported the younger children were taken to the emergency room for breathing treatment because Princeton may have had asthma and had a cold. The social worker contacted the parents, and they did not ask how serious it was. They did not indicate they were very concerned or that they intended to go to the hospital.
During the jurisdiction hearings, the court denied father's request to relitigate the 2013 sexual abuse petition. It held father presented no new evidence that would allow the court to reopen the case.
The parties stipulated the court could consider the testimony from the social workers during the restraining order hearing. The court heard testimony from the dependency investigator, mother, and father. The court admitted the parents' two exhibits: the 2013 forensic report from the High Desert Health System SCAN/HUB Clinic (exhibit A) and a 2015 unpublished appellate opinion reversing father's probation revocation (exhibit B).
The dependency investigator testified she considered that father was never criminally charged for the abuse of M.B., there were questions about M.B.'s credibility and the physical findings conflicted. As for father's mental health issues, she did not have information that he had been diagnosed or had been involuntarily hospitalized. She acknowledged the statements that father claimed Martians and the paternal grandmother molested M.B. were second-hand and made years ago. She noted he told a social worker that he was diagnosed with “parental alienation and bipolar.” Father had initially agreed to speak with her, then declined. Mother declined to answer questions about the children's medical history, and father did not provide any history for the children. While the investigator acknowledged children at S.N. and Princeton's ages might not be potty trained, she was concerned about their eczema and scarring and global developmental delays.
Mother testified she met father in 2012 and at some point after that lived with him on and off for six years. She was not currently residing with father and had last lived with him a month and a half prior. She did not believe father had abused M.B. Even if the court had found those allegations true, she had no concerns about father having custody of the children.
Father testified he never sexually abused any of his children and claimed the allegations involving M.B. were “proven fraud.” He claimed the aunt kidnapped M.B., beat her, and forced her to claim father raped her. He said he and mother bathed the children and had a holistic doctor who treated Princeton's eczema. He admitted he never saw a therapist or received a formal diagnosis for any mental health issues. Other than admitting some of his criminal history, father essentially denied all the allegations involving the children. He said if the court ordered that he could not be around the children in the home without a monitor, he would abide by that order, even though “it would be an unlawful order.”
Having “read and considered all of the documents... placed into evidence [and] all of the testimony, ” the court sustained the jurisdictional allegations as set out above. As to the sexual abuse count, the court explained: “The court finds that the sexual abuse allegations sustained by the juvenile court are true and have not been rebutted. There was no evidence [father] participated in any sexual-abuse-related programs. The totality of the evidence supports the conclusion that [father] denied the allegations at the time the petition was sustained by the juvenile court in 2014, and he continues denying the allegations today. Therefore, the court can reasonabl[y] infer [father] has not participated in any sexual-abuse-related programs as he does not believe he needs to participate in any such programs because the allegations are untrue.
“The court finds as to the mother... that she knew of the sexual abuse allegations against [father] involving his daughter [M.B.]. The evidence shows at no time did [mother] believe the allegations-sexual abuse allegations against [father], and she continues to this day to believe the allegations are not true. [Mother's] unwavering loyalty to [father] and her belief that he did not sexually abuse his daughter [M.B.] presents a substantial risk of serious harm, damage, and danger and sexual abuse to her children.
“The court believes it is important to comment on the evidence admitted on [father's] behalf.... As to father's [exhibit] A [the 2013 forensic exam], the court has previously found it was not... new evidence and maintains that conclusion. Additionally, the court will note... [it] does not prove what [father] suggests it does; namely, that there was no rape because this forensic exam states there was no physical findings. At best the physical exam states there were no physical findings; however, the portion of the exam which cannot be ignored but which [father] wants the court to ignore is the detailed description given by [M.B.] during the forensic interview....”
As to the allegations of father's violent behavior, the court explained: “The court finds that since the incident described in b2 and also mentioned in b3, [father] has continued to act aggressively and in an intimidating manner throughout these proceedings. The court has observed [father's] numerous aggressive behaviors, which the court has documented throughout these proceedings. [Father] has been threatening inside the court, for example, when he violently banged on the courtroom door as he was exiting, which could have caused serious damage to someone standing outside the courtroom. [Father] was acting in an intimidating manner outside the courtroom, and this court had noted hearing [father's] voice raised so loudly and speaking in an intimidating tone that this bench officer was able to hear him from inside. This has occurred on more than one occasion.
“After each hearing involving [father], and including today, more than one sheriff deputy has been required because of his threatening and aggressive behavior. The court has noted [father's] mood and behaviors have been extreme, extremely unpredictable, ranging from disrespectful, threatening, intimidating, and bullying to subdued, calm, and respectful.
“While these recent behaviors have not been in the children's presence, fortunately, because their appearance has been waived by their attorney, the evidence that [father] is unable to control his behaviors in a setting such as court or with DCFS personnel supports the conclusion the children are at risk of physical and emotional harm and damage and further supports the sustaining of counts b2 and b3.
“As to b3, the court further notes that it believes, as alleged in count b3, that [father's] behaviors are indicative of an undiagnosed and/or untreated mental health issue and that these behaviors create a detrimental home environment, placing the children at risk of physical and emotional harm.
“As to b4, the court finds it is true and sustained as previously amended. The court finds that the mother and father's chosen medical treatments for the children were insufficient to treat their specific medical issues, including improperly treated eczema, which led to permanent scarring, and a failure to recognize and/or treat the children's severe developmental delays.”
As the court tried to schedule the disposition hearing, it ordered father escorted from the courthouse for disrupting the proceedings.
Disposition Proceedings
Prior to the disposition hearing, the parents' aggressive and uncooperative behavior continued. During an attempted virtual visit with the children, father turned his phone toward the social worker and began recording. He threatened the social worker and called him a pedophile. S.R. posted the video on Facebook.
The social worker texted father about immunizations for the children. Father texted back, “If you shoot them with ANYTHING... COWARD, IT WILL BE ME AND YOU, TRUST THAT, NPOSTIMG [sic] THIS TO MY FACEBOOK WELL BOY, Return MY CHILDREN BITCH”.
When asked if they would comply with any court-ordered reunification services, the parents said they would not.
When they were referred for monitored visitation, the parents responded with a rambling text message demanding the social worker report the “child endangerment” of their children as a “mandated reporter.”
When the social worker notified the parents he had bus passes for them, father responded (errors in original): “... Naw, shove them up your asshole PUSST, YOUR GOING TO JAIL PEDOPHILE, YOUR DONE ?? COMING VERY SOON, ALL OF YOU ARE GOING TO JAIL...”
At a park when he was visiting the children, father recorded the social worker for his Facebook audience. At the end of the visit, he became so irate and threatening that law enforcement was called. He refused to return the children to the social worker. Mother and S.R. were agreeing with him. All of this happened in front of the children.
Father attempted to find the addresses of the social worker and the children's caregiver, and sent text messages threatening to conduct background checks on the social worker and his family.
The social worker believed the parents had unmet mental health needs. Until those issues were addressed, DCFS's efforts to get the parents to comply with court orders or reunify with the children would be unsuccessful. The social worker noted the parents continued to refuse to participate in any services “because they have reported that in doing so they are aligning with the Court to commit fraud against themselves.”
The court held a series of disposition hearings. At one hearing, the court did not allow father into the courtroom due to his unpredictable behavior in the midst of social distancing during the COVID-19 pandemic. At another hearing, the court ordered both parents to leave the courtroom due to their unruly behavior. Father was aggressive, pointing his finger in the bailiff's face. The court believed father had done everything that he could to disrupt the proceedings and mother had followed his lead.
The parties stipulated if S.R. were to testify, she would tell the court she wished to reside with mother and her siblings if father were not residing in the home.
For disposition, the court removed the children from the parents' custody. The court noted father continued to deny the prior abuse allegations and mother chose to support father rather than protect her children from the danger he posed. The court found DCFS used reasonable efforts to provide services, but it was met with “nothing but resistance, denial, aggression.” The court ordered reunification services for mother but not for father pursuant to section 361.5, subdivision (b)(6)(A), noting father would not participate in services anyway.
DISCUSSION
A. Substantial Evidence Supported Jurisdiction
Father contends insufficient evidence supported exercising jurisdiction over Princeton and S.N. Mother joins father's arguments as applicable to all three children. We review the trial court's orders to determine whether “ ‘substantial evidence, contradicted or uncontradicted, supports them. [Citation.] 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.' ” (In re R.T., supra, 3 Cal.5th at p. 633.)
Sexual Abuse Allegation
The trial court sustained the counts involving father's prior sexual abuse of M.B. under section 300, subdivisions (b)(1), (d), and (j). Under subdivision (b)(1), the court may exercise jurisdiction over a child if it finds “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of... his or her parent... to adequately supervise or protect the child....” (§ 300, subd. (b)(1).)
Under subdivision (d), the court may exercise jurisdiction if “[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused... by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” (§ 300, subd. (d).)
Under subdivision (j), the court may exercise jurisdiction if a “child's sibling has been abused or neglected as defined in subdivisions (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of the child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.” (§ 300, subd. (j).)
The parents argue section 355.1, subdivision (d) was insufficient to sustain this allegation. That provision creates a rebuttable presumption that a parent's prior sexual abuse endangers his or her children: “Where the court finds that either a parent, a guardian, or any other person who resides with, or has the care or custody of, a minor who is currently the subject of the petition filed under Section 300... has been found in a prior dependency hearing... to have committed an act of sexual abuse... that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence.” (§ 355.1, subd. (d)(3).)
Under this provision, a prior abuse finding “functions as prima facie evidence of risk and imposes on the parent the burden of producing some evidence to show he or she does not pose a substantial risk of harm to the child. If evidence is introduced that would support a contrary finding, the presumption disappears and the matter must be determined based on all the evidence presented, including the fact of the prior [abuse finding] and reasonable inferences derived from it.” (In re Quentin H. (2014) 230 Cal.App.4th 608, 610.)
The parents' argument is apparently in response to DCFS's contention in the juvenile court urging the court to find the section 355.1 presumption had not been rebutted. The record reflects, however, that the trial court did not rely on the section 355.1 presumption to sustain this allegation. While the court found “that the sexual abuse allegations sustained by the juvenile court are true and have not been rebutted” (italics added), the court said it had examined the “totality of the evidence, ” including “all of the documents” and “all of the testimony” placed into evidence. Based on the full record, the court concluded the children were at risk because father continued to deny the allegations and had not sought out or received any sort of sexual abuse counseling. As for mother, the court concluded she knew of the abuse allegations against father but never believed them. Her “unwavering loyalty” to father and her continued denial presented a substantial risk of harm to the children.
Because the section 355.1 presumption did not play a part in the juvenile court's decision, we need not address the parties' arguments over it. Instead, we simply review whether there was substantial evidence in the record to support the court's finding. (In re Quentin, supra, 230 Cal.App.4th at p. 610.) There was.
Father repeatedly and continually denied the sustained sexual abuse allegations involving M.B. Father has pointed to nothing to suggest he sought any counseling or undertook any effort whatsoever to address the sexual abuse that led to M.B.'s removal only six years earlier. His denials and uncooperative behavior throughout this case made clear he would not seek such counseling in the future. Mother likewise stood steadfast by his side throughout these proceedings, never once acknowledging even the possibility that he sexually abused M.B. or that he could pose a danger to the other three young children in their home.
The parents point to the evidence in the prior dependency case that cast some doubt on M.B.'s report of abuse, such as M.B.'s retraction of certain details and the later report from the High Desert SCAN clinic showing no medical findings. The juvenile court here found this 2013 forensic report was before the prior court, and the parents have not shown that finding to be incorrect. The juvenile court here accurately noted the later medical report did not prove no rape occurred; it simply said “there were no physical findings.” As the court concluded, it did not undermine the “detailed description given by [M.B.] during the forensic interview.”
The juvenile court did not make a specific finding that the prior court considered the November 2013 supplemental sheriff's report containing M.B.'s contradictory interview. But the court here could have reasonably inferred the prior court had the report since it predated the January 2014 order sustaining the allegations. Nor have the parents pointed to anything showing this report was new evidence coming to light after the 2014 jurisdictional finding. In any case, the supplemental report might have changed some details of M.B.'s description of the abuse, but it did not change her claim father continuously raped her. The district attorney may not have felt there was sufficient evidence to criminally charge father, but the prior dependency court could have credited M.B.'s report to sustain the abuse allegation.
Although there was no allegation father had abused the three children involved in this case, “ ‘ “[t]he court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.”' ” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 222 Cal.App.4th 149, 163-164.) Father was previously found to have regularly raped his young daughter since she was four years old. Given the severity of this abuse along with the parents' refusal to acknowledge that finding and father's refusal to seek any help, the juvenile court's exercise of jurisdiction was supported by the evidence. (See id. at p. 164 [“ ‘[T]he more severe the type of... abuse, the lower the required probability of the child's experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300.' ”].)
Other Counts
Normally, after concluding the evidence supported one ground for jurisdiction, we “ ‘need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' ” (In re I.J. (2013) 56 Cal.4th 766, 773.) Nevertheless, we briefly address the other grounds found true by the juvenile court because the evidence overwhelmingly supported exercising jurisdiction on those bases as well.
The juvenile court sustained counts b-2 and b-3 involving father's aggressive behavior and undiagnosed and untreated mental health issues, viewing them as interrelated. The record supported those findings.
We need not repeat all the details we have recited above. In brief, father's violent criminal history was well-documented, ranging from convictions for possession of controlled substances and criminal threats to an arrest for spousal abuse. It was particularly egregious that father was arrested in 2004 for hitting M.B.'s mother while she was pregnant. During the 2013 proceedings involving M.B.'s abuse, he threatened to kill the aunt and her family. He was also arrested in 2018 at City Hall while carrying a pocketknife. City Hall staff was so afraid of him they refused to speak to him.
In these proceedings, when a social worker initially came to the family's home, father aggressively rebuffed her, called her a kidnapper, and threatened that he would “buck up” at her if she entered the home, which the social worker understood as getting in her face and disrespecting her. The social worker could see the children nearby inside the home, and mother even picked one of the children up and “continued her ranting.” Understandably, the social worker did not enter the home, and yet the parents continued yelling and using profanity, and father pounded his chest and shouted his name, adding, “You should know who I am!”
When social workers returned with law enforcement to remove the children, father screamed at them there was going to be a murder that day, and if anyone came into the home, someone was going to die, apparently referring to himself. The children were inside. The parents were eventually handcuffed so the children could be removed. Most alarming, the oldest child S.R. reported father “got frustrated” that day and punched a wall, saying, “don't murder me.” S.R. was “really scared”-so much so, she took her siblings into another room. While father argues none of his behavior placed the children in danger, the record reflects he became violent and aggressive without regard to who was around him, including the children. Father's behavior led the juvenile court to issue a restraining order to protect one of the social workers and to prevent him from contacting the other two.
While the case moved forward, father's aggression and belligerence intensified. The parents called the foster parent and threatened to kill her. Father ranted on a call with the social worker, accusing DCFS of sex trafficking his children and claiming their removal was in retaliation for a lawsuit he had filed against the mayor of Lancaster. Father left multiple angry, aggressive, and profanity-laced voicemails for different DCFS personnel. The parents were disruptive during court proceedings and had to be removed from the courtroom multiple times. Given father was aggressive and belligerent both inside and outside the courtroom with no regard to whether the children were around, the record supported the trial court's conclusion father's unchecked aggression posed a serious risk of physical and emotional harm to the children.
The record also supported the court's conclusion father's behavior was indicative of an undiagnosed and/or untreated mental health issue that put the children at serious risk. Back in 2013, he not only denied any abuse of M.B., but he blamed his own mother for violating M.B. with screwdrivers, a hammer, and nails. Then he claimed Martians molested her. He made related posts on social media. In the current case, he continually labeled DCFS personnel as kidnappers and pedophiles. In a call with the social worker, he claimed he had signed up for services through Mental Health of America, but then rambled incoherently. In another call, he was incoherent and reported he had been diagnosed with “Parental Alienation and Bipolar.” He admitted in testimony he never saw a therapist or received a formal diagnosis.
Father analogizes to cases concluding a parent's mental condition alone does not support finding a child is at risk of harm in the care of that parent. (See, e.g., In re Jamie M. (1982) 134 Cal.App.3d 530, 540 [“Harm to the child cannot be presumed from the mere fact of mental illness of the parent....”]; see also In re A.L. (2017) 18 Cal.App.5th 1044, 1050.) He also points out he was never formally diagnosed with mental health issues. The court in this case did not presume harm from father's undiagnosed mental health issues. It found a risk of harm from father's aggressive and dangerous behavior, which it attributed to his mental health condition. Given how bizarre and aggressive father's behavior was, the record amply supported that finding.
Finally, the record supported the court's exercise of jurisdiction based on count b-4, which alleged the parents failed to provide the children medical care and proper hygiene. The children were found dirty and suffering from eczema. Princeton's eczema was so bad it left him with scarring. The children suffered developmental delays, lacking muscle tone and unable to climb stairs, walk up small slopes, or hold utensils. They were not toilet trained. In the foster home, they were initially lethargic with their eyes rolling back in their heads and sleeping for 18 hours a day. The record showed the parents did not provide the children medical care, telling the social worker they did not believe in vaccinations and relied on holistic remedies. The children did not have a primary doctor, and the parents only took the children to the hospital for emergencies. Mother even refused to sign the form authorizing Regional Center assessments for Princeton and S.N. This amply supported a finding of neglect that put the children at risk of harm.
The parents suggest there was no “nexus” between the children's condition and the risk of harm because the children's condition improved by the time of the jurisdiction hearing. But the parents had nothing to do with that improvement. The children's foster caregiver cleaned them up and obtained treatment for their eczema. The children's improvement outside of the parents' care did not address the reason the children were removed in the first place-the parents' neglect. There is nothing in the record to suggest the parents recognized their failure to meet the children's medical and developmental needs or that they would meet them if the children were returned to their care without supervision. The record demonstrated the parents' neglect placed the children at serious risk of harm.
B. Substantial Evidence Supported Removal
The parents also challenge the order removing the children from their custody. “Under section 361, subdivision (c)(1), a dependent child may not by taken from the physical custody of the parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence ‘[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's... physical custody.' (§ 361, subd. (c)(1). ‘The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).)' [Citation.] ‘ “The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]' ” (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
We review the disposition order for substantial evidence, keeping in mind the juvenile court had to find clear and convincing evidence supporting removal. (In re V.L. (2020) 54 Cal.App.5th 147, 154-155.) We must decide “ ‘whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.' ” (Id. at p. 155.)
For the reasons already outlined, the record demonstrated the children faced “substantial danger to [their] physical health, safety, protection, or physical or emotional well-being” (§ 361, subd. (c)(1)), had they been returned to the parents. They faced myriad risks. They faced the risk father might molest one of them, given his history of raping M.B. and the parents' complete refusal to acknowledge the abuse. They faced the risk father's unchecked aggressive and violent behavior-likely caused by his unaddressed mental health issues-might physically injure them, and it almost certainly emotionally injured them when they witnessed it. And they faced the risk of neglect, given the parents neglected their basic medical and developmental needs and refused to acknowledge that failure.
The parents' behavior leading up to the court's disposition order reinforced the court's conclusion. Father sent threatening and insulting text messages to the social worker in response to innocuous messages. During a visit with the children, he became so irate and threatening that law enforcement was called, and he refused to return the children to the social worker. Mother and the oldest child S.R. agreed with him. And the parents explicitly refused to comply with any court-ordered services.
Mother argues the juvenile court could have ordered father out of the home and placed the children with her as a reasonable means to protect them. The record amply showed she would not abide by that court order. As the juvenile court found at the disposition hearing, mother not only continued to deny the prior abuse by father, but “she continues to present a danger to her children as long as she continues her allegiance to the father.” The court found her “unwavering loyalty to the father is evident by her actions.” The court noted S.R. did not want to return home to mother if father was there. The record supported the court's belief that “by the mother's actions and by her statements she has... chosen to be with [father] and follow him and his beliefs and his position and has chosen not to protect her children and do what she needed to do to be with them.”
Substantial evidence supported the juvenile court's removal of the children from the parents' custody.
C. The Court Properly Denied Father Reunification Services
Father challenges the juvenile court's denial of reunification services pursuant to section 361.5, subdivision (b)(6)(A). That provision permits the court to deny reunification services if it finds by clear and convincing evidence “[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.” (§ 361.5, subd. (b)(6)(A).)
In determining whether reunification services would benefit a child under this subdivision, the court “shall consider any information it deems relevant, including: [¶] (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child's sibling or half sibling. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or the child's sibling or half sibling. [¶] (3) The severity of the emotional trauma suffered by the child or the child's sibling or half sibling. [¶] (4) Any history of abuse of other children by the offending parent or guardian. [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunited with the offending parent or guardian.” (§ 361.5, subd. (i).)
The court can only grant reunification services to a parent falling within section 361.5, subdivision (b)(6) if it finds by clear and convincing evidence that reunification is in the best interest of the child. (§ 361.5, subd. (c)(2).) The parent bears the burden of proving the child's best interests would be served by reunification. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) This determination “encompasses a consideration of the parent's current efforts, fitness and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. [Citation.] A best interests finding also requires a likelihood that reunification services will succeed. [Citation.] ‘In other words, there must be some “reasonable basis to conclude” that reunification is possible before services are offered to a parent who need not be provided them. [Citation.]' ” (In re A.G. (2012) 207 Cal.App.4th 276, 281.)
We review the juvenile court's finding a parent falls within section 361.5, subdivision (b)(6) for substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) We review the court's best interests determination under section 361.5, subdivision (c)(2) for abuse of discretion. (In re William B., supra, 163 Cal.App.4th at p. 1229.)
The juvenile court here found clear and convincing evidence father committed severe sexual abuse of half-sibling M.B., and Princeton and S.N. would not benefit from reunification services for father. The court reasoned: “The court is finding pursuant to all of the information before, including the father's numerous statements throughout these proceedings, it is not in the best interest for reunification services to be offered to him because the father will not participate in any services that were to be ordered by this court if they were to be ordered. The court has evidence that the father would refuse services as he has refused services throughout these proceedings. Additionally, the facts are that the father continues to be completely resistant to any kind of treatment and he continues to-since 2014-to deny the allegations that were sustained with respect to the severe sexual abuse by him of his daughter.
“... [Father] has failed to accept any responsibility for any of his actions, not just the allegations regarding sexual abuse, but the allegations regarding... drug use, the allegations regarding his previous domestic violence, his criminal history. He has denied absolutely everything that's been sustained against him from... the first case and the sustaining of allegations in this case as well. So his complete refusal to acknowledge his responsibility in any of this makes reunification services not in the children's best interest.”
Father argues the juvenile court erred in denying services because, in his view, the court speculated he would not participate in them. It is not clear whether this argument targets the court's finding the children would not benefit from reunification services (§ 361.5, subd. (b)(6)(A)), or the court's finding reunification would not be in the children's best interests (§ 361.5, subd. (c)(2)). Either way, the court's order was valid.
Father contends the juvenile court erroneously found he denied drug use and his criminal history. He misinterprets the record. The court found he “failed to accept any responsibility for any of his actions, ” including drug use, domestic violence, and his criminal history. (Italics added.) The record amply supported that finding.
Father demonstrated over and over he would not participate if services were ordered. He never obtained any counseling or treatment after the sexual abuse allegations involving M.B. were sustained. He and mother told the social worker point-blank they would refuse to participate in any court-ordered services in this case. He refused to cooperate with anyone from DCFS or with the court at nearly every stage in the case. He directed threats and profanity at social workers and others involved. He called them kidnappers, pedophiles, and sex traffickers. A restraining order was granted to protect a social worker from him. At the end of a visit with the children, he refused to return them and law enforcement was called. All of this behavior was likely attributable at least in part to father's unaddressed mental health issues. In finding DCFS reasonably serviced the case, the court noted the agency had been met with “nothing but resistance, denial, aggression.”
In his reply brief, father argues nothing in section 361.5, subdivision (b) allowed the juvenile court to deny services based on a parent's refusal to participate in them. True, a parent's refusal to participate in services is not a factor listed in section 361.5, subdivision (i), but that subdivision directs that the court “shall consider any information it deems relevant” (italics added) in deciding whether reunification services would benefit the children under section 361.5, subdivision (b)(6)(A). Certainly, a parent's demonstrated refusal to take advantage of reunification services is “relevant” to that determination. If a parent refuses to participate in services, the children cannot benefit from them.
Likewise, because “[a] best interests finding also requires a likelihood that reunification services will succeed, ” (In re A.G., supra, 207 Cal.App.4th at p. 281), father's refusal to participate in any services demonstrated ordering reunification would not be in the children's best interests. The court acted well within its discretion in concluding there was no “ ‘ “reasonable basis to conclude” that reunification is possible,' ” so services were not warranted. (In re A.G., supra, at p. 281.)
D. The Court's ICWA Inquiry Was Adequate
The parents contend the juvenile court's finding that ICWA did not apply must be reversed because DCFS did not make an adequate inquiry into the children's Indian ancestry. We find no error.
ICWA Proceedings
In the detention report, the parents claimed American Indian heritage. They did not know which tribes, but they said they would obtain more information.
Mother completed but refused to sign an ICWA-020 Parental Notification of Indian Status form. She claimed she may have had Indian ancestry and wrote: “Cherokee and other but not sure of the tribe[.] Mother will get further info to DCFS.” She did not check boxes claiming she or the children were members or eligible for membership in any tribes, or claiming any parents, grandparents, or other lineal ancestors were members of federally recognized tribes. The record contains no ICWA-020 form for father.
At the initial appearance of the parties on September 27, 2019, the juvenile court noted mother filled out an ICWA-020 form and there might be Cherokee heritage in her background. It found as to mother that the children may be Indian children. It ordered DCFS to investigate and provide notice to the tribe to determine if the case fell within ICWA. It also ordered DCFS to contact the Bureau of Indian Affairs. It ordered the parents to keep DCFS, their attorneys, and the court aware of any new information relating to the children's ICWA status.
In the jurisdiction and disposition report, DCFS reported mother claimed she had Cherokee and unknown tribe ancestry. When the dependency investigator asked for information related to the maternal grandparents “to conduct ICWA notices, ” mother declined to provide any information. Father made no statements to the dependency investigator, but he told a social worker he was Native American, and indicated “Chief, Cheyenne, Cherokee.” The parents thereafter refused to cooperate with the dependency investigator and made no further statements regarding their Indian ancestry.
With the limited information it had, DCFS sent ICWA notices for the three children to three Cherokee Tribes, the Secretary of the Interior, and the Bureau of Indian Affairs. For Princeton and S.N., DCFS also sent notices to the Cheyenne Tribes. For all three children, the notices listed mother's name and birth date. For Princeton and S.N., the notices listed both mother's and father's names and birth dates, and a former address for father in Las Vegas. The notices did not list any information for any other relatives.
DCFS received a letter from the Cheyenne River Sioux Tribe stating S.N., mother, and father were not enrolled. Letters from the Eastern Band of Cherokee Indians indicated, “based on the information received, ” none of the children were registered or eligible to register as tribe members.
On June 17, 2020, father informed DCFS he did not want additional contact with the social worker regarding “any issue” other than a report that the social worker was returning his children. On July 6, 2020, the social worker attempted to obtain information from the parents “whether either parent has any Native American Ancestry.” There is no indication whether the parents responded or provided any information.
At the disposition stage on August 18, 2020, the juvenile court concluded ICWA did not apply.
Standard of Review
“ ‘The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.' ” (In re A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.).) The facts are undisputed, and our question is whether those facts triggered a duty for DCFS to make further inquiry. We review that question independently. (Ibid.) We review any of the juvenile court's factual findings for substantial evidence. (Ibid.)
Current ICWA Law
There have been some recent changes to the law in California regarding the standards triggering ICWA notice. Several courts have outlined the law at length. (See, e.g., A.M., supra, 47 Cal.App.5th at pp. 314-318.)
ICWA applies to “ ‘an unmarried individual under age 18 who is either a member of a federally recognized Indian tribe or is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. [Citations.]' ” (A.M., supra, 47 Cal.App.5th at p. 315; see § 224.1, subd. (b).) ICWA creates two separate notice requirements: “the obligation to give notice to a tribe, and the obligation to conduct further inquiry to determine whether notice is necessary.” (A.M., supra, at p. 315.) We are concerned here with whether the information collected by DCFS triggered its obligation to conduct further inquiry.
Throughout dependency proceedings, an agency has “an affirmative and continuing duty to inquire whether a child for whom a petition under section 300... may be or has been filed, is or may be an Indian child. The duty of inquiry begins with the initial contact, including, but not limited to, asking the party reporting the child abuse or neglect whether he or she has any information that the child may be an Indian child.” (§ 224.2, subd. (a); see Cal. Rules of Court, rule 5.481(a).)
If the child is placed in custody of the agency, the agency “has a duty to inquire whether that child is an Indian child. 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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).)
At the first court appearance of the parties, “the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
Prior to January 2019, California law required further inquiry if the agency “ ‘knows or has reason to know or believe that an Indian child is or may be involved' in the case. (Cal. Rules of Court, rule 5.481(a)(4), italics added.)” (A.M., supra, 47 Cal.App.5th at p. 315 .) Under state law, an agency had “ ‘reason to know' a child may be an Indian child if, for instance, a ‘person having an interest in the child... provide[d] information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe.' ” (Id. at p. 316.) This standard did not demand much to trigger ICWA notice. (Ibid.)
As of January 2019, state law dictates that a court or agency has “reason to know” a child is an Indian child if, inter alia, “[a] person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child, ” or “[a]ny participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” (§ 224.2, subd. (d)(1), (3).)
If the court or social worker has “reason to believe” that an Indian child is involved in the proceeding, the court or social worker “shall make further inquiry regarding the possible Indian status of the child.” (§ 224.2, subd. (e).) The phrase “reason to believe” was not statutorily defined in the 2019 amendments, although it is now. Once there is a “reason to believe” a child may be an Indian child, the new law sets out the steps for the agency's inquiry, including, “(1) Interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3 [information required in ICWA notice]. [¶] (2) Contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility. [¶] (3) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.... Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.” (§ 224.2, subd. (e).)
Section 224.2, subdivision (e) was amended effective September 18, 2020 to define information triggering a “reason to believe” as “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. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d).” (Stats. 2020, ch. 104, § 15.) The court in this case made the ICWA determination prior to this amendment, so the version in effect at that time applies. (See In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14 (T.G.).)
Effective January 2020, rule 5.481(a)(4) of the California Rules of Court was similarly amended to mandate further inquiry if a social worker or investigator “ ‘knows or has reason to know or believe that an Indian child is or may be involved.' ” (See T.G., supra, 58 Cal.App.5th at p. 291, italics added.)
Once ICWA notice is triggered, “the notice to the tribe must include a wide range of information about relatives, including grandparents and great-grandparents, to enable the tribe to properly identify the children's Indian ancestry.” (A.M., supra, 47 Cal.App.4th at p. 317.) That information includes “ ‘[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known.' ” (Ibid., quoting § 224.3, subd. (a)(5)(C).) “ ‘Any violation of this policy requires the appellate court to vacate the offending order and remand the matter for further proceedings consistent with ICWA requirements. [Citation.]' ” (A.M., supra, 47 Cal.App.5th at p. 317.)
ICWA Inquiry
Father notes a split in the case law on the meaning of “reason to believe” and whether these 2019 changes to the law narrowed the duty of further inquiry. (Compare In re Austin J. (2020) 47 Cal.App.5th 870 (Austin J.) with T.G., supra, 58 Cal.App.5th 275.) In Austin J., the mother told the court she had been told her mother had Cherokee ancestry and wrote in her parental notification of Indian status form that her children may have had Indian ancestry. (Austin J., supra, at p. 886.) She also told a social worker she may have had a connection to Cherokee and other tribes but she did not know if she was registered. (Ibid.) The mother's maternal aunt made similar statements that mother's maternal grandmother may have had Cherokee heritage and mother's maternal grandfather possibly had Indian heritage to an unknown tribe. (Id. at pp. 886-887.) Mother's maternal grandparents were both deceased. (Id. at p. 887.)
The court held this did not create a “reason to know” the children may have been Indian children. (Austin J., supra, 47 Cal.App.5th at p. 886.) Focusing on the definition of “Indian child, ” the court reasoned, “There is no evidence that anyone informed the court that any of Mother's children is a member of a federally recognized Indian tribe, eligible for such membership, or that either of their biological parents is a member of such a tribe. Nor did anyone inform the court they had discovered information indicating such facts.” (Ibid.) Instead, “these statements merely suggest the possibility that the children may have Cherokee ancestry; Indian ancestry, however, is not among the statutory criteria for determining whether there is a reason to know a child is an Indian child. The statements, therefore, do not constitute information that a child ‘is an Indian child' or information indicating that the child is an Indian child, as is now required under both California and federal law. (§ 224.2, subd. (d)(1) & (3); 25 C.F.R. § 23.107(c).)” (Id. at p. 887.)
The court thought it was a closer question whether these same statements gave rise to a reason to believe the children were Indian children triggering a duty of further inquiry. The court acknowledged that “a belief that a child is an Indian child presumably requires a lesser degree of certitude or factual support than knowing a child is an Indian child.” (Austin J., supra, 47 Cal.App.5th at p. 888.) Nonetheless, “the duty of further inquiry still requires a legally sufficient reason for that belief. The statutorily-defined reason to know a child is an Indian child is based on a logical and reasonable relationship between a fact-such as the child's living on a reservation or having been a ward of a tribal court-and the resulting knowledge that the child is an Indian child. (§ 224.2, subd. (d).) So too must a logical and reasonable relationship connect facts with a resulting belief that a child is an Indian child for the purpose of the statute. Information about a tribal connection that ‘is too vague, attenuated and speculative' will not support a ‘reason to believe the children might be Indian children.' ” (Austin J., supra, at p. 888.) The mother's statements gave rise only to a “mere possibility” of Indian ancestry, and “Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member.” (Id. at p. 889.)
The court further held that the 2019 amendments to California ICWA-related law did not loosen these requirements. “In the recent changes to California's ICWA-related law, the Legislature removed the language, ‘information suggesting the child is a member of a tribe or eligible for membership in a tribe,' from the list of circumstances that provided one with a ‘reason to know' a child is an Indian child. Significantly, it did not add that language to a definition of the newly created ‘reason to believe' standard for further inquiry. We will not infer its incorporation into that standard.” (Austin J., supra, 47 Cal.App.5th at p. 889.)
The court in T.G. disagreed with this analysis. In that case, the mother filed an ICWA-020 form claiming Cherokee ancestry on her maternal side and possible Indian ancestry through her paternal grandfather. (T.G., supra, 58 Cal.App.5th at p. 292.) The mother and maternal grandmother confirmed this information at the detention hearing, and the mother added that an aunt might have more information. The court asked the mother to talk to the aunt and report any additional information. The maternal grandmother did not know which relatives could be traced for Cherokee ancestry. The court did not ask if other relatives might have more information. (Ibid.)
The court held this “unquestionably provided reason to believe Indian children might be involved in these dependency proceedings and triggered the Department's duty to make further inquiry.” (T.G., supra, 58 Cal.App.5th at p. 292.) Turning to Austin J., the court rejected that court's insistence that “a parent's express statement of Indian ancestry does not constitute a reason to believe an Indian child may be involved” because it was “fundamentally at odds with well-established ICWA law. To be sure, an ‘Indian child' is defined in terms of tribal membership, not ancestry. But the question of membership is determined by the tribes, not the courts or child protective agencies.” (T.G., supra, 58 Cal.5th at p. 294.)
The court also rejected Austin J.'s related assumption the 2019 amendments were “intended to weaken the robust requirements for making further inquiry.” (T.G., supra, 58 Cal.App.5th at p. 295.) While the phrase “information suggesting” was not included in the new “reason to believe” standard, the court found it “difficult to understand how, as a matter of plain meaning, a parent's statement that she has been told she has Indian ancestry through a particular tribe or a specific relative ‘suggests' her child is eligible for tribal membership [citations], but does not also provide ‘a reason to believe' the child may be eligible under the current statute.” (Id. at pp. 295-296.)
As we noted above, the Legislature recently defined “reason to believe” by adding the “information suggesting” language into section 224.2, subdivision (e). That supports T.G. and likely undermines the Austin J. court's reasoning on this point. Given our resolution of the ICWA issues in this case, however, we need not decide the issue.
Two other cases merit discussion. In re S.R. (2021) 64 Cal.App.5th 303 (S.R.) sided with T.G. to find “reason to believe” the children in that case were Indian children after the maternal grandparents disclosed the children's great grandmother was a member of the Yaqui tribe. (S.R., supra, at p. 315.) The court disagreed with Austin J. and agreed with T.G., concluding “the statutory scheme plainly treats evidence of Indian ancestry as relevant to the tribe's determination about the child's status. We therefore conclude that the very specific evidence of Indian ancestry present in this case does provide reason to believe the children are Indian children, even if that evidence does not directly establish the children or their parents are members or eligible for membership.” (S.R., supra, 64 Cal.App.5th at p. 317.)
Finally, in A.M., the mother was told and believed she may have had Indian ancestry with two tribes but was not registered, and she listed her grandfather as having possible Indian heritage but provided no additional information. (A.M., supra, 47 Cal.App.5th at p. 322.) The court held this was insufficient to give the agency “ ‘reason to know' ” the children were Indian children. (Ibid.) However, this created a “ ‘reason to believe' ” the children were Indian children, which required the agency to interview the mother's extended family members, at a minimum. (A.M., supra, 47 Cal.App.4th at p. 322.) Nevertheless, the court essentially held the agency's failure to interview family members was not prejudicial because the record reflected no family members had information. The maternal grandparents were deceased; the mother was raised in foster care and had no contact with her biological relatives; and the mother provided no information as to any maternal relative to trace Indian ancestry. (Id. at p. 323.)
The court reasoned, “ICWA does not obligate the court or [the agency] ‘to cast about' for investigative leads. [Citation.] There is no need for further inquiry if no one has offered information that would give the court or [the agency] reason to believe that a child might be an Indian child. This includes circumstances where parents ‘fail[] to provide any information requiring followup' [citations], or if the persons who might have additional information are deceased [citation], or refuse to talk to [the agency].” (A.M., supra, 47 Cal.App.5th at p. 323.)
Under these circumstances, “Mother has not demonstrated there was a viable lead that would require [the agency] ‘to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status.' [Citation.] Since both of Mother's biological parents were deceased and Mother had no information concerning any other relatives, [the agency] could not contact Mother's parents or any other relatives to obtain additional ICWA information. In addition, [the agency] requested additional ICWA information from Mother. However, Mother was unable to provide new or additional information concerning ICWA. Mother has not demonstrated error, and reversal is not warranted under the circumstances of this case.” (In re A.M., supra, 47 Cal.App.5th at p. 323.)
Father urges us to follow T.G. and S.R. to conclude DCFS had a reason to believe Princeton and S.N. may have been Indian children, requiring further inquiry. DCFS urges us to adopt the reasoning in Austin J. to conclude parents' statements did not create a reason to believe the children may have been Indian children, so it had no duty to further inquire into their status. We need not take a side in this debate. The record before us falls below the standard set by any of these cases. The facts here did not give rise to a “reason to believe” the children may have been Indian children, so no further inquiry was required.
The parents' statements of their Indian ancestry provided almost no information to DCFS and the court. On mother's ICWA-020 form-which she refused to sign-she claimed only that she may have had Indian ancestry and wrote: “Cherokee and other but not sure of the tribe[.] Mother will get further info to DCFS.” Father did not submit an ICWA-020 form, and made only the partly nonsensical statement that he was “Chief, Cheyenne, Cherokee.” When the dependency investigator attempted to talk to the parents, they completely refused to share any information or cooperate in the proceedings. With the limited information it had, DCFS sent ICWA notices to the relevant tribes, the Secretary of the Interior, and the Bureau of Indian Affairs. It received responses from the tribes indicating the children were not registered or eligible to register.
This quantum of information is far less than the information in T.G., S.R., or A.M. giving rise to a “reason to believe” and triggering the duty of further inquiry. In all three of those cases, the agencies had at least some information pointing to specific relatives who might have Indian ancestry or might have more information. In T.G., the mother claimed Cherokee ancestry on her maternal side, identified possible Indian ancestry through her paternal grandfather, and told the court an aunt might have more information. In S.R., the maternal grandparents disclosed the children's great grandmother was a member of the Yaqui tribe, who was still alive and lived with the grandparents. In A.M., the mother listed her grandfather as having possible Indian heritage. Even in Austin J., the mother's maternal aunt made statements that mother's maternal grandmother may have had Cherokee heritage and mother's maternal grandfather possibly had Indian heritage to an unknown tribe. That still wasn't enough for the court to find a “reason to believe” the children were Indian children.
Here, the court and DCFS had none of that information. The parents did not identify a single relative from whom they inherited Indian ancestry or a single relative who might have more information. When asked for more information, they refused to provide it. All DCFS had to go on were the parents' vague statements they might have had some Indian ancestry. DCFS included the information it had in the notices it sent, and the tribes did not indicate the children were registered or eligible to register. With the limited information provided by the parents coupled with their complete refusal to provide more information, DCFS was not obligated “ ‘to cast about' for investigative leads.” (A.M., supra, 47 Cal.App.5th at p. 323; see In re K.M. (2009) 172 Cal.App.4th 115, 119 [“The record shows the Agency attempted on several occasions to elicit further information from the child's family, but was unsuccessful due to the family's hostility toward the Agency. In sum, the Agency did all that can and should be reasonably expected of it to meet its obligation to the child, to the family, to the tribes and to the court.”].)
Father faults DCFS for not interviewing the paternal grandmother as part of its further inquiry into the children's Indian status. Mother faults DCFS for not acting on its own initiative to discover the identity of her biological parents by examining her prior dependency case that led to her adoption. The parents also attack the sufficiency of the notices DCFS sent to the tribes. Those arguments are moot. Because we conclude there was no reason to believe the children may have been Indian children, DCFS was not obligated to take any steps to further inquire into the children's Indian status. ICWA requirements were satisfied in this case.
We feel compelled to point out mother rests her lengthy argument on only the following facts: she disclosed she was adopted, she provided her former last name and birth date, and she told the dependency investigator “she was kidnapped by DCFS from her biological mother and was adopted.” From that, she argues DCFS did not fulfill its duty of inquiry because “the record does not reflect DCFS reviewed mother's own dependency case, which presumably would have included relevant information.” Mother's vague statement she was “kidnapped by DCFS” does not demonstrate she even had a prior dependency case, let alone trigger a duty for DCFS to undertake a speculative search to find it. No rational interpretation of ICWA requirements required DCFS to further pursue her vague statement.
DISPOSITION
The orders are affirmed.
We Concur: STRATTON, Acting P. J., WILEY, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.