Opinion
B299570
05-08-2020
In re A.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NATHAN G., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19LJP00180) APPEAL from an order of the Superior Court of Los Angeles County, Steven E. Ipson, Judge. Affirmed and remanded. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
Nathan G. (father) challenges the juvenile court's jurisdiction and disposition orders declaring his four children—Amir (born June 2014), Nai.G (born December 2015), Naj.G (born March 2017), and Xavier (born November 2018)—dependent children under Welfare and Institutions Code section 300, subdivision (b), and removing them from the custody of father and Aaliyah U. (mother). Father contends insufficient evidence supports the jurisdictional findings that he abused drugs and placed the children at substantial risk of physical harm. He also contends that respondent Los Angeles County Department of Children and Family Services (DCFS) failed to properly inquire of the children's Indian heritage under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We affirm the jurisdiction and disposition orders, but remand the case for the limited purpose of compliance with ICWA's inquiry and notice requirements.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Initiation of Dependency Proceedings
In November 2018, DCFS received a referral that mother and Xavier tested positive for cocaine after mother gave birth to the child. As part of a voluntary family maintenance case beginning in January 2019, mother and father agreed to take drug tests and complete a parenting class.
On February 26, 2019, father tested positive for cocaine and methamphetamine. Two days later, mother tested positive for amphetamine. Father again tested positive for drugs (cocaine, methamphetamine, and amphetamine) on March 6, 2019.
A social worker met with the family in a motel room on March 12, 2019. When asked about his February drug test, father reported that he and mother traveled to Los Angeles from their motel in Palmdale to celebrate his brother's birthday. While at the party, father unknowingly consumed his "brother's drink [which] had been spiked with pills." With regard to his March drug test, father stated that he again was celebrating his brother's birthday and unknowingly consumed a drink containing narcotics.
Mother and father were homeless and living on motel vouchers. They planned to stay with maternal great aunt while their 21-day voucher was being renewed.
Mother also reported that she unknowingly consumed a spiked drink at the February birthday party. Prior to traveling to Los Angeles, mother and father left the children with maternal great aunt in Palmdale. A subsequent investigation revealed that maternal great aunt had a prior criminal case for possession of drug paraphernalia. At the conclusion of the March 12 meeting with the social worker, mother and father denied having a substance abuse problem, but agreed to a referral to an outpatient drug treatment program.
Maternal great aunt's criminal case was dismissed sometime around 2016 after she completed community service and attended meetings for alcoholism and substance abuse.
The Petition and Detention Hearing
After the children were detained and placed in a resource family home on March 18, 2019, DCFS filed a petition pursuant to section 300, subdivision (b), based on parents' history of drug abuse. In two counts not relevant to this appeal, DCFS alleged the children were at risk due to mother's drug abuse. In count b-3, DCFS alleged father's substance abuse, including current use of cocaine, amphetamine, and methamphetamine, placed the children at risk of serious physical harm. At the detention hearing, the court found a prima facie showing the children were persons described by section 300, and ordered the children detained from parents with monitored visitation and family reunification services.
Count b-1 alleged Xavier was born suffering from a detrimental condition consisting of a positive toxicology screen for cocaine, the condition of which would not have existed but for mother's substance abuse.
Count b-2 alleged mother's substance abuse, including current use of cocaine and amphetamine, placed the children at risk of serious physical harm.
The Jurisdiction/Disposition Report and Hearing
On April 18, 2019, a DCFS investigator (DI) spoke with mother and father over the phone. Mother admitted she had used cocaine during her pregnancy with Xavier. Father stated that he and mother "don't do drugs at all."
DCFS also reported on the children. Nai.G and Naj.G had speech delay issues, and Xavier appeared to be developmentally delayed. During monitored visits, all four children exhibited troubling behaviors. The children threw tantrums, acted aggressively, and slammed each other against doors. During one visit in April 2019, father allowed Amir to get up after a caregiver placed the child in a timeout. After Amir resumed playing, father raised his hand toward Amir and yelled at the child to stop.
The children were not interviewed due to their young age and inability to provide meaningful statements.
The court held a jurisdiction hearing on May 6, 2019. Counsel for father requested that the petition be dismissed because parents' drug use was accidental, and the children were not present when the parents used drugs. The court sustained the petition in its entirety, finding the children were very young, and parents used drugs over a period of time. The court continued the disposition hearing.
The Addendum Report
In a July 18, 2019 addendum report, DCFS reported that father had revealed he was the person who supplied mother with cocaine while she was pregnant with Xavier. He also admitted that he knew the drinks at the parties were laced with drugs. Father missed one drug test on April 29, 2019, but consistently tested negative for drugs between May and July 2019.
DCFS also reported that father had been temporarily suspended from his drug treatment program for missing too many classes. DCFS was concerned about father's parenting skills, as he had been "observed on a number of occasions raising his hands to the kids to hit them as a form of discipline."
By letter dated July 23, 2019, the drug treatment program informed the court that father was noncompliant with the program because he failed to work with a sponsor and did not show proof of attending 12-Step meetings.
The Disposition Hearing
During the disposition hearing on July 24, 2019, father testified and denied raising his hand to strike his children. Following argument by counsel, the court found by clear and convincing evidence that there was a substantial risk to the children's physical health; and that there were no reasonable means by which the children's health could be protected without removing them from the parents' custody. The court expressed concern over the likelihood that father could use corporal punishment. It also took note of the parents' "serious" drug use and father's suspension from the drug treatment program.
Father filed a timely notice of appeal challenging the jurisdiction and disposition orders.
DISCUSSION
1. Jurisdictional Findings
Father contends insufficient evidence supports the juvenile court's jurisdictional findings in count b-3 that he had a history of drug abuse, and that his drug abuse placed the children at risk of physical harm. "'In reviewing the jurisdictional findings and the disposition, we look to see if 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 . . . .' [Citations.]" (In re R.T. (2017) 3 Cal.5th 622, 633.)
Section 300, subdivision (b)(1), requires a showing that "(1) one or more of the statutorily specified omissions in providing care for the child ( . . . inability to provide regular care for the child due to . . . substance abuse); (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561.) "The third element 'effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).' [Citation.]" (In re Alexzander C. (2017) 18 Cal.App.5th 438, 448; In re T.V. (2013) 217 Cal.App.4th 126, 133 ["'[t]he court need not wait until a child is seriously abused or injured to assume jurisdiction'"].)
Section 300, subdivision (b)(1) provides in relevant part: "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, . . . by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's . . . substance abuse."
For a parent to suffer from "substance abuse" within the meaning of section 300, subdivision (b)(1), the record must include a diagnosis from a medical professional or evidence of criteria recognized by the medical profession as indicative of a substance abuse disorder. (In re Alexzander C., supra, 18 Cal.App.5th at p. 447.) Some of the recognized criteria include the parent's failure to fulfill major life obligations, cravings to use, spending significant time getting, using, or recovering from drug use, and legal problems stemming from drug use. (Ibid.)
Father asserts that DCFS should have presented expert testimony that he and mother engaged in "substance abuse" as opposed to "drug use." Neither a medical diagnosis, nor evidence that a parent meets the definition of substance abuse in the DSM-IV-TR, is a necessary prerequisite for a finding of substance abuse under section 300, subdivision (b)(1). (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218 (Christopher R.) [definition set forth in In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.), "is not a comprehensive, exclusive definition mandated by either the Legislature or the Supreme Court"].)
In this case, substantial evidence supports the finding that father suffered from substance abuse at the time of the jurisdiction hearing. In the midst of a voluntary maintenance program designed to avoid court intervention, father tested positive for cocaine, amphetamine, and methamphetamine. He also failed to provide justification for missing a drug test, further demonstrating he had abused drugs over the course of three consecutive months. (Christopher R., supra, 225 Cal.App.4th at p. 1217.) Prior to that time, father had supplied mother with cocaine while she was pregnant with his youngest child, whose developmental delays can be reasonably attributed to prenatal drug exposure. (Cf. In re Rebecca C. (2014) 228 Cal.App.4th 720, 726 [life-impacting effects of drug use support finding of substance abuse problem].)
In re L.C. (2019) 38 Cal.App.5th 646, on which father relies, is distinguishable. In that case, the child's legal guardian did not crave drugs, did not purchase drugs, and arranged for his own drug tests and classes to prove he had stopped using drugs. (Id. at p. 652-653.) The court concluded that though the guardian had used drugs for two months, there was insufficient evidence he had abused drugs. (Id. at p. 653.) There was no similar evidence in this case. Father either procured or consumed drugs over the course of six months, the timing of which overlapped with father's participation in a drug program arranged by DCFS. Father was suspended from his drug program and remained noncompliant as of the day of the July 2019 disposition hearing. In short, father not only used various drugs, substantial evidence supports a finding that he abused them.
Anticipating this conclusion, father asserts that his (and mother's) drug abuse did not place the children at substantial risk of harm because the children never witnessed him (or mother) use drugs. The argument misses the mark. Because all four children, between the ages of four years and 6 months, were children of "tender years" at the time of the jurisdiction hearing, the court's finding of substance abuse was prima facie evidence of a substantial risk of harm. (Christopher R., supra, 225 Cal.App.4th at p. 1219; Drake M., supra, 211 Cal.App.4th at p. 767.) Notwithstanding, mother and father demonstrated the risk attendant to their drug abuse by obtaining and consuming drugs during mother's pregnancy. (See In re Troy D. (1989) 215 Cal.App.3d 889, 899 [prenatal use of dangerous drugs is probative of future child neglect].) When they used drugs, parents left the children, each exhibiting developmental delay and/or troubling behavior, with an adult who had a criminal record for possessing drug paraphernalia. From these facts, the court could reasonably infer that the children were not adequately supervised and were in danger of being exposed to drugs, even when not in parents' care. Thus, the court could reasonably find there was a substantial risk that all four children would suffer serious physical harm absent dependency jurisdiction.
2. Removal Orders
Father contends the juvenile court's findings under section 361 are not supported by substantial evidence. (Christopher R., supra, 225 Cal.App.4th at p. 1216.) Before ordering a child removed from parental custody, section 361 requires that the juvenile court find by clear and convincing evidence that there is, or would be, 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 [them] from the . . . parent's . . . physical custody." (§ 361, subd. (c)(1).)
Substantial evidence supports a finding there was substantial danger to the children's health, safety, protection, or well-being if they were returned home to father. In addition to the reasons discussed above (In re R.V. (2012) 208 Cal.App.4th 837, 849 [jurisdictional findings are prima facie evidence the children cannot safely remain in the home]), father threatened physical discipline of the children by raising his hand on several occasions, and displayed poor parenting skills. Father's conduct, alongside his continued minimization of the sustained allegations (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197), supports the court's removal order.
Substantial evidence also supports a finding that no reasonable means existed by which the children's health could be protected without removing them from father's custody. Father suggests more frequent drug testing would safeguard the children's well-being. We fail to see how more frequent drug testing would alleviate the risk to the children, as father had tested positive for drugs during a voluntary maintenance program and remained noncompliant in a drug treatment program. Substantial evidence supports the court's disposition order.
3. Limited Remand to Ensure Compliance with ICWA is in Order
Father contends, and we agree, that DCFS did not comply with ICWA because it did not adequately investigate his or mother's possible Indian heritage.
A. Relevant Background
At the March 19, 2019 detention hearing, mother and father indicated they might have Indian ancestry. When a DI first spoke with parents about their family history on April 22, 2019, mother stated she had Blackfeet heritage through her maternal grandfather. Though she could not provide any identifying information for her maternal grandfather, mother provided her mother's name, birthplace, and date of birth, as well as her maternal grandmother's name, alias, and place of residence.
Father reported he had Blackfeet and Cherokee heritage, also through his mother. Though his mother was hospitalized and unable to be contacted at the time, father provided her home address and date of birth. Father "was not sure of the spelling of his maternal grandmother, but that he could get the information and would provide it at a later time." The DI left father two voicemails on April 23 and 24, 2019, requesting a call back regarding his Indian heritage.
On April 29, 2019, DCFS sent notice forms (ICWA-030) to parents, the Secretary of the Interior, the Bureau of Indian Affairs, the Blackfeet Tribe of Montana, the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Bank of Cherokee Indians in Oklahoma. The forms listed (1) the names, addresses, birthdates and birth places, and reported tribal affiliation of the children and parents; (2) the name, birth date, birth place, and reported tribal affiliation of mother's mother; (3) the name and city of residence of mother's maternal grandmother; (4) the tribal affiliation of mother's unnamed maternal grandfather; and (5) the name, current address, known birth information, and reported tribal affiliation of father's mother.
DCFS received response letters from three of the four Indian tribes (the Blackfeet Tribe of Montana, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee in Oklahoma). The tribes reported that the children were not enrolled in or eligible for enrollment.
DCFS also received four certified return receipts for ICWA notices it had sent to the Indian tribes.
At the disposition hearing, counsel for DCFS requested that the court make a finding that ICWA did not apply based on the notices, certified return receipts, and tribal responses. With no disagreement from parents' counsel, the court found ICWA did not apply.
B. Analysis
In assessing whether a court and DCFS has complied with ICWA, we review the record for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) ICWA violations are subject to harmless error review. (In re E.R. (2016) 244 Cal.App.4th 866, 878.)
Under ICWA and the California statutes enacted to implement it (§§ 224-224.6), a juvenile court and, as its delegate, DCFS, have (1) a duty to investigate and inquire whether a child is an "Indian child" and, if the court "knows or has reason to know" that he is, (2) a duty to notify the child's parent and either the Indian child's tribe or, if the tribe is unknown, the Secretary of the Interior and the Bureau of Indian Affairs. (25 U.S.C. § 1912, subd. (a); see also id., § 1903(4); § 224.2, subds. (c), (d), (e)(1); § 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a).)
To satisfy ICWA's duty of inquiry, the juvenile court and DCFS are "required . . . to interview the child's parents, extended family members, . . . and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility" in an Indian tribe. (In re Michael V. (2016) 3 Cal.App.5th 225, 233, 235.) If the agency obtains contact information for extended family members who might have additional information on the child's Indian heritage, DCFS must "make a meaningful effort to locate and interview [those] extended family members." (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
Substantial evidence does not support the conclusion that the juvenile court and DCFS satisfied ICWA's duty of inquiry. Both parents informed DCFS that they had Indian heritage through their maternal side. Despite being in contact with mother's aunt, DCFS never attempted to ask her about mother's grandfather or possible Indian heritage. DCFS also had contact information for father's mother. That father ignored the DI's voicemails did not relieve DCFS of its obligation to inquire of his mother, particularly as there is no evidence that she was uncooperative or unavailable. Thus, because extended family members could have provided DCFS with information in regards to the individuals identified as having possible Indian heritage, we cannot say that DCFS's failure to meaningfully locate and interview those family members was harmless. (In re E.R., supra, 244 Cal.App.4th at p. 878.)
The matter must be remanded with directions to the juvenile court to ensure compliance with ICWA. Our order remanding the matter does not affect our ruling affirming the jurisdiction and disposition orders. If, after proper inquiry and notice, a tribe determines the children are Indian children, the tribe, a parent, or the children may petition the court to invalidate an action of placement upon a showing that the action violated ICWA. (In re Damian C., supra, 178 Cal.App.4th at p. 200.)
Reversal is not necessary because this appeal does not involve termination of parental rights. Rather, only limited remand is required to permit compliance with ICWA in conjunction with the disposition order removing the children from father's custody. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re Damian C. (2009) 178 Cal.App.4th 192, 199-200.)
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DISPOSITION
The jurisdiction and disposition orders are affirmed. The matter is remanded to the juvenile court with directions that the court shall direct DCFS to comply with the inquiry and notice provisions of ICWA. If, after proper inquiry and notice, a tribe determines the children are Indian children, the tribe, a parent, or the children may petition the court to invalidate an action of placement upon a showing that the action violated ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.