Opinion
E082973
09-18-2024
In re Adam S. et al., Persons Coming Under the Juvenile Court Law. v. C.S. et al., Defendants and Appellants. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Rich Pfeiffer for Defendant and Appellant, C.S. Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant, H.S. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. DPRI2300408. Mona M. Nemat, Judge. Affirmed in part; vacated in part and remanded with directions.
Rich Pfeiffer for Defendant and Appellant, C.S. Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant, H.S.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
Defendants and appellants C.S. (father) and H.S. (mother) are the parents of six children: Adam, Jacob, Ethan, Matthew, Ashlyn, and Katriella. In November 2023, Riverside County Department of Public Services (DPSS) initiated dependency proceedings, pursuant to Welfare and Institutions Code section 300, and the juvenile court adjudged the children dependents of the court and removed one child (Matthew) from the parents' custody based on allegations of parental neglect and serious emotional damage. (§ 300, subds. (b)(1), (c), &(j).) Both parents challenge the sufficiency of the evidence to support the court's jurisdictional and dispositional orders. Father also asserts DPSS and the court failed to comply with the inquiry requirements set forth in the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and Welfare &Institutions Code section 224.2. The ICWA finding is vacated; otherwise, we affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
I. PROCEDURAL BACKGROUND AND FACTS
A. Child Welfare History.
Since 2017, there have been many referrals to DPSS regarding general neglect/physical abuse of the parents' children: Adam (born 2010), Jacob (born 2011), Ethan (born 2012), Matthew (born 2014), Ashlyn (born 2016), and Katriella (born 2019). Most of the referrals involved the children having visible injuries, and since 2018, Matthew has been the primary recipient of the injuries. During the investigation of the March and June 2022 referrals, the parents made arrangements for Matthew to live with a family friend in Tennessee through June 2023, possibly longer.
B. Initiation of Current Dependency.
1. 2023 Referrals.
According to a referral received on August 30, 2023, during the prior week, Matthew came to school with various injuries, including a welt on his temple under his hairline and red scratches on his inner elbows. On September 1, a social worker (Arthur Guzman) met with each child individually at their school. Ashlyn (seven years old) said her siblings harm each other, and the parents ask the children not to do so. She reported Ethan hurts her. Matthew (eight years old) accused Ethan of causing his injuries, stating that Ethan is constantly hitting, scratching, and hurting him in his parents' presence, but they do not always intervene. Matthew has seen Ethan harm Ashlyn.
Ethan (11 years old) admitted hitting Matthew with a broom and getting in trouble for being mean to his siblings. He identified father as the parent who punishes the children by spankings or writing sentences like "'the rules are rules.'" He accused his siblings (Ashlyn, Adam, and Matthew) of bothering him, calling him names, and messing with him, but claimed mother does not intervene.
Jacob (12 years old) was severely delayed in his responses and looked distressed and anxious. He said that he has seen Ethan hit Matthew, and confirmed that Ethan was punished. Jacob "explained his parents are usually downstairs when his siblings are fighting." Adam (13 years old), who was likewise severely delayed in his responses, confirmed seeing his siblings fight often, but would not respond to the social worker's other questions. He was also distressed and anxious.
Jacob and Adam have been diagnosed with selective mutism. "Selective mutism is an anxiety disorder where a person is unable to speak in certain social situations, such as with classmates at school or to relatives they do not see very often." (https://www.nhs.uk/mental-health/conditions/selective-mutism, as of September 17, 2024.)
The social worker spoke with school staff who said that Matthew is compliant and does not have behavioral problems at school. He struggles to go inside when mother drops him off, but he calms down and goes into school willingly. Staff had noticed scratches on Matthew's right arm, asked Matthew about them, and were told that Ethan had caused them. Previously, Matthew has shared that Ethan had hit him with a broom, a door, and his body, causing injuries. Also, staff noticed bite marks on Matthew's arm. They expressed concern that Matthew's siblings are abusing him. They indicated that talking to the parents is challenging because father is aggressive, and mother is intimidating.
On September 7, 2023, the social worker was contacted by school officials who noted that Matthew had arrived with scratch marks on the side of his face. Via a drawing, Matthew conveyed that Ethan had hit him with a broom, and he (Matthew) bit his own arm because he was angry. He also had contusions with skin discoloration on his arms. On September 10, another referral was generated when the parents brought Matthew to Kaiser for a "golf ball sized bump/bruise underneath the eye with a one-inch horizontal abrasion across the bruise." Matthew said Adam threw a broom at his face.
The doctor was concerned about suspicious circumstances as father was overheard coaching Matthew to say his brother hit him. Matthew had bite marks, faded bruises, puncture marks, and old scabs on his arm. Adam confirmed throwing the broom and hitting Matthew in the face, and the parents had consistent stories. According to father, the siblings were upset at Matthew's behavior. The parents expressed a desire for "inhome therapy" for Matthew.
On October 25, 2023, a social worker (Denise Stoops) visited the family home; both parents were home with Katriella, but the older children were at school. The parents stated they need DPSS to remove Matthew from their home for being disruptive and a bad kid. They explained that his behaviors are getting worse, his cry is extremely loud and frustrating, he has been slow to mature, late to walk and speak, and has breakdown tantrums. Initially, the parents said the tantrums are unprovoked, but then admitted the siblings instigate Matthew because he is an "easy target for his siblings to tease" and they are tired of his behaviors. Father said he asks the children to stop teasing Matthew. The parents "reiterated Matthew's tantrums are daily, and he needs to be moved out of the home."
According to the parents, Matthew acts completely different with everyone outside of the home. When presented with the idea of medicating Matthew, they became "extremely resistant, but then stated they would have to discuss it if the time came." The parents noted that Matthew received occupational therapy in the past, currently receives speech therapy, and has seen the school psychologist. When told that Matthew is "perfect at school," mother opined, "He hates us and loves everyone else. We aren't good for him if he hates us." When asked what services the parents have sought to address Matthew's behaviors, they claimed Kaiser does not help them. The parents could not explain why Kaiser provided counseling for some of their children, but not Matthew; mother exclaimed, "It's Kaiser. They are horrible." The social worker encouraged them to request counseling services first before asking for more detailed therapy services that are usually referred only after counseling is found to be ineffective. The parents "sighed heavily" and were frustrated that the social worker could not just take Matthew somewhere else. When they were told that DPSS's first goal is to offer services, one parent commented, "[S]ee they aren't going to do anything." When the social worker offered names of therapeutic agencies outside of Kaiser, mother said, "I don't want to drive too far." When she was assured that the agencies would be within 15 miles of her home, she said, "So how long do we have to do this until you see it isn't working and take him out of the home?"
The social worker asked about the parents' support system. They stated they have none; "neither of their families talk to them or want to help them." They would not elaborate why. They sent Matthew to Tennessee to live with a family friend, K.B., during the academic year of 2022-2023. Although the child had no behavior problems in Tennessee, they resumed when he returned home. When asked what had worked for K.B. that was different from what was going on in their home, mother replied, "He hates us. He isn't made for our big family."
The parents described Matthew's outbursts as destructive; he throws things at his siblings, hits them, and hurts himself. When the social worker suggested removing his siblings from the room where he is experiencing an outburst, they said that removing the siblings makes them the ones being punished, not Matthew. She explained that removal is for their physical safety, not a punishment. When they discussed the fighting among the siblings, the parents minimized the actions of all their children except Matthew, whom they described as the "worst out of all of them." When the social worker advised the parents to call the police when Matthew is a threat to himself and others, they claimed that by the time the police arrived, Matthew would "be an angel" for them. She advised videotaping the outbursts to show to the police. Prior to leaving the parents, the social worker provided a list of suggested actions for them to try, including "providing Matthew with an option to pick a safe space in the home, document details of his outbursts, and remove the rest of the children when [he] is having his behavior outburst."
On October 25, 2023, K.B. called the social worker and shared many concerns regarding Matthew and how differently he is outside his own home. He had stayed with her for one year, between May 2022 and July 2023. During that time, he had no serious behavior problems other than a couple of acting out episodes that were all related to normal child behaviors. K.B. was worried for Matthew's safety; mother had said that she does not want Matthew and asked numerous people to take him. The parents and his siblings talk negatively about him, mother refuses to get him therapy because it interferes with the siblings' outside activities, and she refuses to let him participate in outside activities because of his behaviors. K.B. said that mother is not attached to Matthew, does not work on a relationship with him, and refuses to help him with homework. When he was with K.B., he earned straight A's and awards for his behavior.
On the evening of October 25, 2023, the parents texted the social worker and stated that Matthew "was at his worst," so they would not send him to school on the 26th, but would send him to the paternal uncle (D.S.) and his fiancee (M.T.) for the weekend. On October 26, the social worker met with Matthew's siblings at their school. They described the sibling fights and types of punishments. Regarding Matthew being sent to his paternal uncle's home, Ethan said, "Mom wants him to go there and not come back. Matthew makes my mom's life terrible."
After finishing the interviews at school, the social worker went to the parents' home and met with mother, Matthew, Katriella, and M.T. When the social worker asked what prompted the decision to have a relative take Matthew for the weekend, mother said that Matthew refused to come inside the house after school. She asked why mother did not allow him to stay outside and/or sit with him for a short time, mother explained that she has other kids to care for. Mother videotaped the incident, which showed the other children jumping in front of Matthew and causing his outburst to escalate. Later, when he sat in the corner and refused to talk to anyone, mother allowed the other children to go up to him, causing him to get upset. She did not stop the other children because "[t]hey didn't do anything wrong." She stated that Matthew is the problem, not his siblings.
The social worker expressed concern that Matthew is the target in the family and advised mother to hold a family meeting while Matthew is gone to help his siblings understand how to help him versus instigate him. Mother accused everyone of judging her and getting mad at her; the social worker explained she was trying to help the household. She empathized that a stay-at-home mother of six children could be overwhelmed and offered counseling and parenting referrals; mother declined.
On October 27, 2023, K.B. texted the social worker with a request to make sure that Matthew was getting proper food because he came to Tennessee weighing 38 pounds, and left weighing 51 pounds. She shared a text exchange wherein mother stated she has always wanted three boys and three girls, and suggested that this may have put a strain on her relationship with Matthew. In another text, the parents asserted Matthew is the problem and they are convinced that he needs to live somewhere else. The social worker contacted the parents, asking for specific information and details regarding mental health services they obtained or attempted to obtain for Matthew. She also asked for their consent to have the child undergo a physical examination; they refused. On October 29, 2023, M.T. informed the social worker that they had no problems with Matthew during the weekend, and that he interacted and played well with their six-year-old special needs grandchild.
On October 31, 2023, based on concerns regarding Matthew's safety and emotional well-being in the home of his parents, DPSS obtained a protective custody warrant and removed him from his parents' custody.
The warrant was later recalled and quashed.
2. Initiation of Dependency and Detention.
On November 2, 2023, DPSS initiated dependency proceedings pursuant to section 300, subdivisions (b)(1) (failure to protect), (c) (serious emotional damage as to Matthew only), and (j) (abuse of sibling). The juvenile court found prima facie evidence to temporarily detain Matthew only; the hearing was trailed to November 7; parents and a paternal uncle appeared in court. The parents submitted Judicial Council Forms, form ICWA-020 parental notification of Indian status (ICWA-020), denying any Indian ancestry. Without questioning the paternal uncle, the court found no reason to believe or know the children are Indian children. Parents asked that Matthew be placed with a relative or family friends. The court ordered DPSS to assess the family/friends suggested for placement, conduct weekly unannounced visits to interview the children, and refer Matthew for therapy. The court authorized visitation and set a contested jurisdiction hearing.
3. Contested Jurisdiction Hearing.
In its jurisdiction/disposition report filed December 5, 2023, DPSS recommended the children be declared dependents of the court, Matthew be removed from the family home, and the parents be offered reunification services (domestic violence/anger management and parenting class, along with therapy, to help them understand the importance of safety) and visitation. DPSS remained concerned about the parents' lack of supervision, the unexplained injuries and bruising, and Matthew's safety in their care without further monitoring. The social worker interviewed the parents on November 18, 2023, they asserted that (1) they do not neglect the health, safety, and wellbeing of the children, (2) they do not allow them to hurt each other, (3) when the children fight mother immediately stops and separates them, while father redirects and disciplines them, (4) they do not treat Matthew differently from their other children, (5) they neither abuse nor neglect him, (6) they have sought treatment to address his outbursts, and (7) the other children are not at risk for the same perils as Matthew.
The Child Abuse and Neglect Examination (CANS) dated November 1, 2023, revealed neglect. The numerous reports to CPS were described as "highly concerning." There were indications of father coaching Matthew about the cause of his injuries, and a prolonged history of emotional neglect as shown by maladaptive behaviors. Evidence in the detention report obtained from interviews with the parents, the children, school staff, and family members and friends support the allegations in the petition.
The social worker interviewed the parents. Mother stated she is the youngest of three children, has a good relationship with her mother and siblings, and her support system is the paternal uncle (D.S.) and Carol D. She is unemployed. Despite her prior requests to have Matthew removed from the family home, on November 18, 2023, she stated, "I feel happy that my children are in our care. I love taking care of them, they make me happy. Since Matthew has been out of our care we have been feeling sad, crying, and very emotional. We miss him and want him back in our care as soon as possible. If my children are removed from my care and I am unable to reunify, I want my children to be placed in their father's care or their paternal [uncle and M.T.]." Father is the youngest of five children and has a good relationship with his parents who live in Oklahoma. He works as a nurse at Kaiser in the Labor and Delivery unit. His support system is mother, his parents, D., and Randy a family friend. Father also indicated he is happy that the children are in his care, saddened by Matthew's absence, and if any of the children are removed from his care, he preferred them to remain with mother, D., Nelly, or his parents. Neither parent had enrolled in any services.
The parents described their family strengths as love, a strong bond, and family time. They indicated they need help with the children and to reunify with Matthew. Matthew agreed his family needs him to return home and he wants to live with mother and father. He was currently living in a foster home, doing well. His caregiver reported that he gets upset when he cannot have his way, he self-harms, throws things on the floor, and pinches and bites himself. The other children were doing well in the custody of their parents.
DPSS supervised visitation between Matthew and his family. On November 20, 2023, when the family arrived, Katriella and Ethan ran to Matthew and hugged him, Matthew looked at mother, smiled really big, and said, "'Hi mom.'" She looked directly at him and ignored him; she neither approached him nor spoke to him. Father picked up Matthew, hugged him, and carried him to the visiting room. Mother made negative comments about the family being in the metro office for visits. The parents appeared to be more preoccupied with voicing their grievances-father ranted about the cameras in the room-and asking questions about visits instead of making the best of their time with Matthew. When the social worker intervened in the visit to redirect mother about her lack of interaction with Matthew, she said, "What do you want me to do. We are here in this room and the kids are playing with each other. I'm letting them play." Mother made no physical contact with Matthew, did not engage with him in any meaningful way, and did not utter a word to him. In the presence of their children, the parents commented about how a two-hour visit in a room was too long and boring; the eldest children mimicked this comment and were playing video games on their phones/tablets. Matthew interacted with Ethan, Katriella, and Ashlyn. The only contact between Matthew and mother was a hug goodbye at the end of the visit. The parents cancelled the November 29th visit because they were sick; Matthew cried upon hearing the news.
On December 14, 2023, the social worker provided an update on the case via an email to the superior court. On December 1, the social worker conducted an unannounced visit. The parents answered the door and stated that everyone was sick. When the social worker spoke with Ashlyn, she stated that they are doing well, they are "doing school at home," and that everyone fights a lot. The parents intervened and explained that what Ashlyn means is "normal sibling rivalry between the kids. They are more like innocent arguments and fights over toys." When asked the reasoning behind homeschooling, father stated, "'We basically want to have more control over the children's curriculum and learning material. We also like the fact that we can have more family time when the children are home. Their last school switched the schedule from two in-person days and three online days to five days of in-person schooling and that just didn't work for us anymore.'" At a visit on December 13, the social worker observed Jacob and Ashlyn doing schoolwork at the kitchen table, and Ethan walking around the kitchen; she was told that Adam was upstairs in his room but mother was unsure what he was doing. Father was at an appointment with Katriella.
The social worker interviewed the children on December 12, 2023. Adam and Jacob stated that when the siblings fight, the parents tell them to stop and exert punishment (spankings and writing sentences) if needed. Ethan declined to be interviewed. The family was being screened for Wraparound services. Regarding the children's special needs, the parents claimed that only Matthew has an IEP, which they will seek resources from the school to assist them in helping him achieve the goals set forth in his IEP. The social worker contacted the children's prior schools and was informed that Adam and Jacob both received Multi-Tiered System of Support Tier 3 intervention in math and reading for several years, despite the parents declining these services.
At the jurisdictional hearing, Denise Stoops, the social worker who prepared the detention report, testified that this case was reassigned to her in early October 2023, after social worker Arthur Guzman left DPSS. She stated the parents were about 50 percent responsive to her suggestion to access services at Kaiser; they said Kaiser was not helpful. The parents discussed the services they sought for Matthew, stating they "wanted him placed outside the home" temporarily to get a break. They came up with a plan of action until placement could be found. The parents indicated they had no support from anyone. Although the parents said they would cooperate, they did not. Five days after the parents had sent Matthew to the paternal uncle's home on October 26, he was removed due to concerns about his immediate safety.
Father testified. He stated that Matthew was late in hitting milestones like crawling, walking, and talking. Thus, they consulted their pediatrician and obtained speech and occupational therapy for him, along with a referral for a pediatric developmental psychiatrist. When Matthew was school age, they put him into special education. Father acknowledged the first social worker, Mr. Guzman, had mentioned programs to help in the home. He explained that from September 12 through October 25, they tried different things to address Matthew's behavior, such as timeouts, separate him from his siblings, and talk to him about why he was removed from them and how to address his outbursts; however, they declined to cave to his demands in response to his tantrums. Father claimed that neither of them minimize their children's behaviors; rather, they deal with each situation based on the severity of the behavior. He denied blaming Matthew for the physical altercations in the home.
Regarding pursuing therapeutic services for Matthew, father testified that he called Miss Hopper to initiate the outsourced therapy. When Matthew had a tantrum on October 25, 2023, they asked family and friends if they would temporarily take him, but all refused. Previously, Matthew had spent an entire year, except for three weeks, living with family friends in Tennessee. When the paternal uncle and his "longtime girlfriend"/fiancee agreed to temporarily take Matthew, the plan was to see if the weekend went well, and if it did, discuss the possibility of a longer stay. Father stated that he would welcome any in-home services to help his family, and he wanted in-home services because that is the "best way to address" Matthew's behavior since it is only exhibited in the family home. Father stated they are now prepared to have Matthew return home. The juvenile court noted Matthew's prior removals from the family home and asked, "What's going to be different this time?" Father replied, "[W]e have Wrap services that's going to be started and will provide in-home therapy, in-home care.... [¶] . . . [¶] That is the biggest change. And we're resolved, we're dedicated, we're committed to loving Matthew, wanting him in the home. Our whole goal was to have him be in the home. That's the goal for his entire life." Mother did not testify.
DPSS submitted on the reports and recommendations. Mother's counsel argued there is no evidence to support the allegations because Matthew's outbursts were not caused by the parents' conduct or behavior, and the parents took adequate steps to protect the children or seek appropriate medical or mental health treatment. Alternatively, if the juvenile court finds the allegations to be true, counsel asked that Matthew be allowed to remain with the parents (because there is no longer a threat to him) or relatives, and the parents be provided the opportunity to attempt to continue to care for him while treating the issues. Finally, mother's counsel argued the parents be provided "some respite, whether it's a year, whether that is something over a school year, whether it's a month or a weekend, . . . to have some time where [they have time for themselves without the children]." Father's counsel joined in the argument regarding jurisdictional issues, adding Matthew's self-harming behavior is not limited to parents' homes because it has happened in the foster home. He argued the evidence shows the parents have tried to obtain the appropriate therapeutic services for Matthew, and asked that Matthew be returned home with Wraparound services in place, and the other children not be adjudged dependents of the court.
Matthew's counsel reviewed the timeline of Matthew's behaviors, the seriousness of his injuries, the parents' reactions to his injuries, the parents' repeated actions of sending Matthew to live with others, and their description of him as being a "'bad kid.'" Counsel expressed concern about the visitation report that noted Matthew was excited to see mother, but she "just stared at him and ignored him." She never engaged with him or made physical contact with him until the end of the visit when she hugged him goodbye. Counsel questioned whether "emotion and love [are] intentionally being withheld from [Matthew] as a punishment." She asked the juvenile court to sustain the allegations in the petition and amend the case plan to add psychological evaluations for both parents to determine if parental detachment is a concern and what services may apply. Noting the numerous prior referrals, she pointed out that many mirror the visit and one doctor previously raised the issue of parental detachment.
The other children's counsels requested the juvenile court sustain the allegations and declare them to be dependents. They expressed concern about the combative relationships among the boys, the possibility they internalize and repeat the parents' attitude towards Matthew, and the family's history with child protective services. DPSS asked that the court find the allegations (except b-3 which should be stricken) to be true.
After reading and considering all the reports, the witnesses' testimonies, and the evidence presented, the juvenile court found that ICWA does not apply, struck allegation b-3, and found allegations b-1, b-2, b-4, c-1, and j-1 true. The court provided an extensive review of the evidence to support its findings. The court adjudged all the children to be dependents of the court, removed Matthew from the parents' custody, ordered family reunification services as to Matthew, allowed the other children to remain in their parents' care under family maintenance, ordered Wrap services for all the children, psychological evaluations, and supervised weekly visitation, and authorized liberalized visitation up to and including returning Matthew prior to the next hearing date with seven days' notice to all counsel.
II. DISCUSSION
A. Jurisdiction.
"'The purpose of California's dependency law is "to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." [Citation.] In its effort to achieve this overarching goal, the law balances a number of vital interests: children's interests in safe and stable homes; parents' interests in raising their children; families' shared interests in each other's companionship; and the state's interest in protecting society's most vulnerable members.' [Citation.] [¶] 'Dependency proceedings span up to four stages: jurisdiction, disposition, reunification, and permanency. [Citations.] At the jurisdictional stage, the juvenile court determines whether to declare a child a dependent of the court because the child is suffering, or at risk of suffering, significant harm.' [Citation.] '"A dependency adjudication is a preliminary step that allows the juvenile court, within specified limits, to assert supervision over the endangered child's care." [Citation.] After the juvenile court takes that preliminary step, the court may impose limitations on parental authority as necessary to protect the child. [Citations.] It may also order that the child be removed from a parent's physical custody if there is clear and convincing evidence that removal is necessary to protect the child from a substantial risk of harm. [Citations.] In some cases, a dependency adjudication may lead to termination of parental rights.' [Citation.]" (In re N.R. (2023) 15 Cal.5th 520, 537.)
Relevant to this case, the juvenile court may adjudge a child to be a dependent of the court under section 300, subdivision (b)(1) ("there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of [¶] [t]he failure or inability of the child's parent . . . to adequately supervise or protect the child"); subdivision (c) ("child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian"); and subdivision (j) ("child's sibling has been abused or neglected, as defined in subdivision (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"). Here, the court sustained the allegations in the petition under all of these subdivisions; however, the parents focus on the allegations under subdivisions (b)(1) and (c).
"Although section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the [juvenile] court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re Cole L. (2021) 70 Cal.App.5th 591, 601-602; accord, In re L.O. (2021) 67 Cal.App.5th 227, 238 ["'Although there must be a present risk of harm to the minor, the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection.'"].) The court may consider past events in deciding whether a child presently needs the court's protection and a parent's "'"[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.'" (In re Cole L., at p. 602; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1048.) We apply the substantial evidence test to the court's jurisdictional findings. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) "The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order." (In re Cole C. (2009) 174 Cal.App.4th 900, 916.)
The parents contend there is insufficient evidence to support the jurisdictional findings under section 300, subdivisions (b)(1) and (c), because the evidence shows they did many things to help keep Matthew safe. They point out that they sought individual therapy, intervened when another child physically hit Matthew, and requested in-home care services for him. They further assert Matthew did not suffer harm from mother's action or inaction as evidenced by the fact she sought help from Kaiser, DPSS, family, and friends; Matthew enjoyed visiting her; he was upset when the visit was cancelled; and they hugged following the visit. According to the parents, all they need are in-home services.
We reject parents' challenges to the jurisdictional findings. According to the record before this court, mother is the primary caregiver of the children because father works outside the home. For reasons known only to her, she treated Matthew differently from her other children; a family friend conveyed that she had wanted three boys and three girls, and Matthew was the fourth boy. Regardless of her reasons, Matthew was labeled a problem child from the time he was a toddler. As he grew older, his male siblings bullied, teased, and physically harmed him, with minimal intervention by the parents. If the harm was more serious, the parents would punish the siblings, but minimize their actions, stating that Matthew was the worst of all of their children. In response to his siblings' actions, Matthew had tantrums and engaged in self-harm when he was angry. The parents explained the siblings instigate Matthew's tantrums because they are tired of his behaviors, and he is an easy target. They did nothing to de-escalate the situation because the siblings "are not the problem[,] it is Matthew." After multiple referrals to DPSS in 2022, the parents sent Matthew to live with friends in Tennessee. While away from home, Matthew had no behavioral problems. However, shortly after returning home in 2023, the sibling attacks resumed and multiple referrals to DPSS resulted in the initiation of this dependency.
When the social worker suggested various actions the parents could take, they responded by asking when Matthew would be removed. Since DPSS did not remove the child, they sent him to the paternal uncle's home for the weekend. Shortly after his return, the social worker initiated the paperwork to remove Matthew from the family home based on her concern that he was being targeted in the family. During the first supervised visit, Matthew was more excited to see mother than she was to see him. The parents spent little time with him, and mother seemed detached, only engaging in physical contact with the child when they were leaving.
Nonetheless, the parents contend that with the case plan in effect that provides inhome services (Wrap and respite care), things are different; "[p]rogress will be made." According to mother, they "were seeking help, not for Matthew to be a dependent of the juvenile court, and certainly not to be removed from their care." However, that was precisely what mother had asked the social worker in response to the recommendation that they seek assistance from various agencies, "So how long do we have to do this until you see it isn't working and take him out of the home?" According to the parents, "Matthew's tantrums are daily, and he needs to be moved out of the home." Moreover, neither parent explains how the in-home services would ensure that Matthew will be protected from his siblings when the parents (1) have repeatedly failed to follow through with services for him in the past, (2) have excused their neglect of Matthew when it interfered with his siblings' activities, (3) have been vocal about blaming Matthew for the physical altercations with his siblings, and (4) have maintained that they cannot be in the immediate presence of the children every given minute of the day.
In sum, the evidence supports the jurisdictional findings that the parents' neglect of Matthew's mental and physical health, safety, and well-being, along with their failure to protect him from his siblings has resulted in his withdrawal or untoward aggressive behavior toward self or others.
B. Removal.
Section 361, subdivision (c), "'"is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed . . . unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no 'reasonable means' by which the child can be protected without removal."' [Citation.] [¶] A finding of parental abuse cannot alone provide the clear and convincing evidence necessary to justify removing a child. [Citations.] Rather, the juvenile court must determine whether a child will be in substantial danger if permitted to remain in the parent's physical custody, considering not only the parent's past conduct, but also current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. [Citations.] [¶] 'On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the [juvenile] court was required to make its order based on the higher standard of clear and convincing evidence.' [Citations.]" (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
In challenging the removal order, the parents contend there is no substantial danger to Matthew because the family would be receiving in-home services, and there would be regular contact with Ethan's therapist, multiple attorneys involved in the case, and Wrap service provider. We do not agree. As noted ante, there was substantial evidence that Matthew was the victim of his male siblings' bullying, teasing, and physical assaults that caused him serious emotional and physical injuries. The parents exhibited no insight into their or the male siblings' behaviors toward Matthew, or his response to it. Instead, the parents blamed Matthew for his brothers' verbal or physical assaults on him while in the home. A parent's lack of insight provides support for the juvenile court's finding that a child would be at future risk with the parent in an unsupervised setting. (In re Cole C., supra, 174 Cal.App.4th at p. 918 [evidence supported the juvenile court's finding that no reasonable means to protect the child were available without removing him from the parent's custody where parent failed to acknowledge the inappropriate nature of his parenting techniques and disciplinary methods]; In re Yolanda L. (2017) 7 Cal.App.5th 987, 996 ["father's lack of insight into the danger posed . . . provided support for the potential of future risk"]; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].)
Regardless of the in-home services and the unannounced visits, the parents fail to explain how Matthew will remain safe during the many hours in the day when he will be home alone with his siblings and parents, especially his mother since the children are being homeschooled. Mother refused to remove the other children from Matthew's presence because it makes them the ones being punished. Because there are six children, she admitted that she cannot keep an eye on all of them all of the time. Moreover, neither parent has shown a willingness to prioritize Matthew's needs during the course of his lifetime.
Mother's reliance on In re Jasmine G. (2000) 82 Cal.App.4th 282, 285-288, is misplaced. In that case, a 15-year-old girl was removed from her custodial parent's home because the parents used excessive corporal punishment to discipline her for violating house rules. (Id. at p. 285.) At the dispositional hearing, both parents had forsworn corporal punishment, expressed remorse, undergone therapy, and completed parenting classes. (Id. at pp. 285, 288-289.) Nonetheless, the juvenile court found it unsafe to return the child to their care. The court relied upon the social worker's opinion that the child "should [not] be returned because the 'parents seem to lack understanding of their responsibility and their roles in the incident that brought [the child] to [the] social service agency's attention.'" (Id. at p. 286.) The social worker also "complained about the parents' 'lack of cooperativeness and the hostility that's been presented to [the social worker].'" (Ibid.) The Court of Appeal reversed, finding insufficient clear and convincing evidence of substantial danger to the child under section 361, subdivision (c)(1). (Jasmine G., at pp. 285, 289-290.) Here, in contrast, the parents did not express remorse for their actions or inactions regarding Matthew; they did not take advantage of the prior referrals for parenting classes, therapy, or services; and their treatment of Matthew was over the course of several years, in contrast to the Jasmine G. incidents of physical discipline that occurred in a one-week period.
Accordingly, for the reasons discussed ante, we conclude the juvenile court did not err by removing Matthew from his parents' custody.
C. ICWA.
Father contends the juvenile court and DPSS failed to comply with the initial duty of inquiry under section 224.2, subdivision (b). DPSS agrees the record does not show that a readily-available relative (paternal uncle) was asked about Indian ancestry; however, it argues that since Matthew was detained pursuant to a protective custody warrant under section 340, the inquiry obligation for extended relatives was not triggered. Nonetheless, DPSS agrees with father's assertion that directing the "[juvenile court and DPSS] to conduct additional ICWA inquiry is sufficient to address this issue." In light of DPSS's agreement, we will vacate the finding that ICWA does not apply and direct DPSS and the juvenile court to conduct additional ICWA inquiry into Matthew's possible Indian ancestry. However, since we conclude there was sufficient evidence to support the jurisdiction and disposition orders, as discussed in the preceding sections, "we need not disturb the juvenile court's jurisdiction/disposition order just because the duty of initial ICWA inquiry has not yet been fully satisfied." (In re S.H. (2022) 82 Cal.App.5th 166, 175.) As the court in In re S.H., at pages 175 and 179, concluded, there is no need to conditionally reverse or conditionally affirm the juvenile court's erroneous order finding ICWA does not apply, because the ICWA duty of inquiry and notice will continue after this appeal and remand, regardless of the previous ICWA finding.
III. DISPOSITION
The finding that ICWA does not apply is ordered vacated. DPSS and the juvenile court are directed, upon remand, to comply with their continuing ICWA inquiry and notice obligations. In all other respects, the jurisdiction and disposition findings and orders are affirmed.
We concur: CODRINGTON J. FIELDS J.