Opinion
F084310
12-19-2022
In re G.K., a Person Coming Under the Juvenile Court Law. v. ANASTASIA L., Defendant and Appellant. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Lindy Giacopuzzirotz, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. JVDP-22-000014. Ann Q. Ameral, Judge.
Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Lindy Giacopuzzirotz, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Appellant Anastasia L. (mother) is the mother of the one-year-old child G.K. (the child), who is the subject of a dependency case. Mother challenges the juvenile court's orders issued at a combined jurisdiction and disposition hearing that resulted in the child being placed in out-of-home care with no family reunification services provided to mother pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10), (11), and (12).
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
On appeal, mother contends that recent amendments to section 361.5, subdivision (b)(10) and (11), exempted her from those bypass provisions, and she further argues that there was no substantial evidence to support a finding that she did not make reasonable efforts to address her substance abuse problem. Mother also argues that the denial of reunification services based upon her prior conviction of a violent felony violated her constitutional rights. Finally, mother asserts that the juvenile court and the Stanislaus County Community Services Agency (agency) failed in their duty of initial inquiry under section 224.2.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Dependency Proceedings
In October 2010, the agency received a referral after mother tested positive for THC (tetrahydrocannabinol) at the time of her son J.L.'s birth. Mother admitted to using marijuana at least once per week, and she was not taking any medication for her bipolar disorder. The father of J.L. was unknown because mother reported he was conceived while she was drunk at a party. Maternal grandmother agreed to help mother care for J.L. as hospital staff was concerned that mother, at age 14, was not able to care for him on her own. The referral was evaluated out as mother and maternal grandmother agreed to participate in voluntary family maintenance services.
Two months later, maternal grandmother informed the agency that she would obtain legal guardianship of J.L. because mother moved to San Francisco with her boyfriend. However, maternal grandmother never filed the documents to establish the guardianship, and the voluntary family maintenance case was closed in January 2012 due to a failure to participate in the case plan and the time limit expiring for voluntary services. Upon mother's return from San Francisco, she learned that maternal great-grandmother was actually caring for J.L. instead of maternal grandmother.
In April 2012, the agency received a referral that mother was unable to care for J.L. An agency social worker made contact with mother, her boyfriend, and J.L. Mother reported that she never wanted to be a mother, and maternal grandmother talked her out of obtaining an abortion when she was pregnant. Mother and her boyfriend wanted to "do their own thing without having to care for [J.L.]." They were living at a motel for the last two months after being kicked out of maternal grandmother's home. Mother explained that "even if they were doing well financially and were stable they would still not be able to care for [J.L.] at this time . . . ."
Mother denied any recent use of marijuana, but she acknowledged using marijuana a few weeks prior. Mother also claimed that a handprint-shaped bruise on J.L.'s face was caused by a fall, however she was observed raising her hand to hit J.L. Mother intended to return to San Francisco with her boyfriend after giving custody of J.L. to the agency. The social worker took J.L., at 17 months of age, into protective custody with mother's agreement.
The agency filed a petition alleging J.L. was described by section 300, subdivisions (a), (b)(1), and (g). The petition alleged J.L. was at substantial risk of serious physical harm as a result of mother's physical abuse, inability to provide care, and history of substance abuse and mental health issues. The juvenile court adjudged J.L. a dependent and provided mother with family reunification services, including substance abuse treatment, counseling, and parenting. Mother's family reunification services were terminated on October 23, 2012, after mother failed to participate in services at the age of 16. The juvenile court found that it was unknown whether the Indian Child Welfare Act (ICWA) applied, and the section 366.26 hearing report indicated that ICWA was not applicable. A section 366.26 hearing was set for February 25, 2013, and J.L. was subsequently adopted in May 2013.
In February 2016, the agency received an emergency response referral after mother tested positive for methamphetamine at the time of her daughter A.L.'s birth. An emergency response social worker from the agency made contact with a hospital social worker the day after A.L.'s birth. The hospital social worker reported that mother, who was 19 years of age, was in foster care from the age of 13 through 18 years old and was a "chronic runaway." Mother disclosed" 'on and off'" use of methamphetamine with her most recent use being a few days prior. She was aware of the side effects of using methamphetamine while pregnant, but she did not believe the drug would affect her ability to care for A.L.
Mother claimed she recently started using methamphetamine again after staying sober for five months, and she was not taking any medications for her bipolar disorder. The social worker noted that mother's demeanor appeared unstable and changed several times throughout her interview. Mother expressed that she would participate in services if the agency required her to, but it appeared to the social worker that mother was not seeking treatment to address her substance abuse. Mother was unable to provide a stable housing plan for herself and A.L., and maternal grandmother and mother appeared to have poor insight into the effect that mother's drug use would have on her ability to care for A.L. The agency informed mother of the decision to place A.L. in protective custody. Mother indicated that she wanted to obtain treatment and be a parent for A.L. The social worker informed mother about family reunification services and visitation, and mother denied having any Native American ancestry.
The agency filed a petition alleging A.L. was described by section 300, subdivisions (b) and (j) based upon mother's substance abuse and mental health issues. Mother failed to maintain contact with the agency and schedule visitation with A.L. The agency recommended that mother not be provided reunification services pursuant to section 361.5, subdivision (b)(10) and (11) because they were unable to assess her ability to engage in services. The juvenile court ordered that mother would not be provided reunification services on March 24, 2016, pursuant to section 361.5, subdivision (b)(10) and (11), and ICWA was found to be not applicable. On July 22, 2016, mother's parental rights were terminated as to A.L., and mother was 20 years of age at the time of the section 366.26 hearing.
Current Dependency Proceedings
Initial Removal
In February 2022, the 11-month-old child, G.K., was taken into protective custody after mother was arrested for driving a stolen vehicle with the child in the vehicle. Mother admitted to being under the influence of fentanyl while she was currently pregnant. The child was found crying, hungry, and in need of a diaper change. Law enforcement discovered a "meth pipe" in the child's diaper bag, which was taken for evidence.
The child's father, B.K. (father), was incarcerated as a result of allegations of domestic violence by mother. Father informed the agency social worker that he wanted the child returned to him once he was released from jail, and he reported that he would do everything he needs to regain custody of his children. Father expressed his concerns with mother and her family using methamphetamine, and he was aware of extensive child welfare and criminal history for maternal family members. Father wanted the child placed with paternal grandmother, but he denied having any other relatives or friends to consider for placement.
Paternal grandmother did not want placement of the child at the time because of potential COVID-19 exposure and her plan to move out of state. Mother dropped off the child's two-year-old sibling at paternal grandmother's home on January 4, 2022, indicating it would be for a "few days" after mother claimed she was in need of a" 'break.'" Paternal grandmother intended to file for guardianship of the child's sibling.
The agency filed a petition alleging the child was described by section 300, subdivisions (b)(1), (g), and (j). The petition alleged the child was at substantial risk of suffering serious physical harm as a result of mother's substance abuse problem, history of domestic violence, prior neglect of the child's siblings, and decision to drive a stolen vehicle while under the influence of fentanyl. The petition further alleged that mother and father were incarcerated without the ability to arrange for the care of the child.
At the detention hearing held on February 14, 2022, mother was present while in custody, and father was in quarantine at the jail. The juvenile court directly inquired of mother regarding any Indian ancestry in her family, and she denied having any knowledge of Indian ancestry in her family. Mother also represented that father did not have any Indian ancestry. Paternal grandmother had started the resource family approval process, and she hoped to be considered for placement of the child once she returned from out of state.
Counsel for the agency noted that "mother, at this time, denied any Indian ancestry. Prior cases there was a tribe, but at this point, she says none." A Parental Notification of Indian Status form (ICWA-020 form) was filed on mother's behalf indicating there was no reason to believe the child was an Indian child. A placement specialist for the agency informed the juvenile court that paternal grandmother denied having any Indian ancestry. The juvenile court stated it would "take [mother] at her word," and it found there was "no reason to believe that the Indian Child Welfare Act applies." It concluded the inquiry by acknowledging that "continuing inquiries should be made." The juvenile court ordered the child detained from mother, supervised visits for mother and father at once per week upon release from custody, monthly photographs to be provided to the parents while in custody, and the setting of a combined jurisdiction and disposition hearing for March 28, 2022.
Jurisdiction and Disposition
The agency filed a request to continue the jurisdiction and disposition hearing to prepare a thorough assessment of the parents' progress in services and allow mother extra time to engage in services while she was out of custody. The agency's report for the continuance request detailed the results of a hair follicle test of the child, which came back positive for amphetamine, methamphetamine, cocaine, marijuana, and acetylmorphine. Mother disputed the test results and insisted that she only used methamphetamine. At the initial date set for jurisdiction and disposition, mother was back in custody, and the hearing was continued.
The agency's jurisdiction and disposition report recommended that the allegations in the petition be found true, reunification services be denied to mother pursuant to section 361.5, subdivisions (b)(10), (11), and (e)(1), and reunification services be denied to father pursuant to section 361.5, subdivision (e)(1). The child remained placed in a resource family home until an anticipated move to paternal grandmother's home.
The ICWA section of the report detailed the denials of Indian ancestry by mother, father, and paternal grandmother. The agency documented its efforts to locate maternal grandfather, an adult sibling, and paternal aunt. Maternal grandfather did not answer the social worker's call, and the social worker left a voice message with their contact information. An adult sibling could not be reached by phone because their voice mail box was either full or not set up. The contact information available for a paternal aunt was incorrect, and the social worker was unable to locate an additional phone number for her. During the prior dependency proceedings for A.L., the child's maternal great-grandmother reported that the family had no Indian ancestry. Attached to the report, a due diligence search identified multiple family members that were sent letters by the agency.
The report also included descriptions of mother's and father's prior child welfare and criminal history. The past referrals involved domestic violence incidents between mother and father in November 2020 and November 2021 and mother's admission of past drug use at the time of the child's birth. Mother was previously convicted of charges related to obstructing or resisting an executive officer, prostitution, theft, property damage, and soliciting a lewd act. Mother had pending charges for buying or receiving a stolen vehicle arising from the arrest that led to the child's removal. Father had multiple felony convictions for unlawful sex with a minor, domestic violence, drug possession, grand theft, receiving stolen property, and battery with serious bodily injury. Father had pending felony domestic violence charges arising from the two separate incidents involving mother.
Visits were going well between the child and her paternal grandmother and sibling. Mother missed scheduled appointments to visit with the child during the brief period of time that she was out of custody. She also failed to complete any steps necessary to begin services for counseling, parenting education, and substance abuse that she was referred to by the agency in that time. In April 2022, mother was provided with parenting packets from a service provider along with instructions on how to participate in any available services at the jail after she was arrested for the second time in four months.
The agency's recommendation to deny services to mother was based on mother's prior termination of reunification services as to the child's sibling in October 2012 pursuant to section 361.5, subdivision (b)(10), prior termination of parental rights as to the child's siblings in May 2013 and July 2021 pursuant to section 361.5, subdivision (b)(11), and current incarceration with a tentative release date of July 31, 2022, pursuant to section 361.5, subdivision (e)(1). Father was incarcerated pending a trial that could have resulted in a third strike conviction, and the agency recommended that he be denied reunification services pursuant to section 361.5, subdivision (e)(1). Mother and father both requested a contested jurisdiction and disposition hearing that was set for April 28, 2022.
On April 22, 2022, the agency submitted an addendum report that provided an additional basis to deny mother reunification services pursuant to section 361.5, subdivision (b)(12). Mother was convicted of a violent felony (robbery pursuant to Pen. Code, § 211) on April 1, 2022. The police report from the incident that resulted in mother's conviction detailed an altercation that mother had with the victim. The victim previously lived with mother, and she approached him at a gas station claiming that he owed her money. Mother sprayed the victim in the eyes with pepper spray and took a suitcase belonging to the victim before leaving the gas station.
Mother was sentenced to 180 days of jail time with credits for 24 days of time served. The social worker received confirmation from mother that she completed the parenting packets provided to her, and she was working on substance abuse and domestic violence packets from the jail. A reentry officer from the jail provided mother with information on substance groups, classes, and jobs.
At the contested jurisdiction and disposition hearing, mother and father were both present with their appointed counsel. The juvenile court found ICWA did not apply, and all counsel stipulated that the social worker would testify to certain facts about mother's voluntary family maintenance case that began in September 2019. Mother engaged in a parenting class and participated in random drug testing throughout the case. Mother tested positive for alcohol on different occasions, but she tested negative for controlled substances. The case was closed in March 2020. The social worker received all the parenting packets that mother was provided during her recent incarceration.
Mother testified that she completed course packets for substance abuse, domestic violence, parenting, and employment during her current incarceration, which began on March 21, 2022. She was working on a packet for anger management at the time of the contested hearing. Mother claimed she missed visits that were scheduled during the brief period she was out of custody in February and March of 2022 due to an illness, court hearing, and arrest. Mother believed reunification services would allow her to become a better mother and live without returning to drug use.
Mother acknowledged having a substance abuse issue because she used drugs as a coping skill. Her drug of choice was crystal methamphetamine, and she was 11 when she began using it. The longest period that mother was able to maintain sobriety was for three and a half years beginning in 2018. She claimed the period of sobriety began when she was in jail for a few months. Mother anticipated entering an inpatient program upon her release from jail. Her relapse in January 2022 was caused by a depression and her oldest daughter "acting out." From the course packets she completed, mother learned how to distance herself from unhealthy relationships and take care of her own responsibilities. Mother admitted she did not want to be a mother to her first two children. She learned to begin acting as an adult, and she was trying to be a mother.
Mother did not believe her arrest that resulted in a robbery conviction was "acting like an adult." She admitted to methamphetamine use during her current pregnancy and smoking in the bathroom of her apartment while the child was "pretty close." Mother also acknowledged that she began using drugs one month before A.L. was born in February 2016. The due date for mother's current pregnancy was at the end of July.
All counsel accepted father's offer of proof that he was denying the allegations of domestic violence against him and anticipating his release after considering a settlement offer at his upcoming preliminary hearing. Father had completed his parenting, domestic violence, anger management, and substance abuse packets.
Counsel for the agency argued that mother had not made reasonable efforts to address the problems from the prior dependency proceedings and requested that the juvenile court deny mother reunification services pursuant to section 361.5, subdivisions (b)(10), (11), (12), and (e)(1). The child's counsel agreed with the agency's position except for the application of section 361.5, subdivision (e)(1) based upon mother's anticipated release date in July 2022.
Mother's counsel conceded the agency met its burden as to jurisdiction. Her counsel argued there was not clear and convincing evidence to support the bypass provisions under section 361.5, subdivisions (b)(10), (11), and (e)(1). It was also argued reunification services would be in the child's best interests despite the applicability of section 361.5, subdivision (b)(12).
In its ruling, the juvenile court acknowledged mother's difficult circumstances having been the judicial officer that handled her parents' dependency proceedings. The juvenile court then proceeded to find the allegations of the original petition true. The juvenile court stated that even if mother's case involving J.L. was put aside, mother was positive for methamphetamine during A.L.'s case, and "clearly the mother has used methamphetamine and other illegal drugs at least during the pendency and prior to the beginning of the case." It was also concerned with the child's positive hair follicle test and mother's criminal activity. Ultimately, the juvenile court removed the child from parents' custody, denied reunification services to mother pursuant to section 361.5, subdivision (b)(10), (11), and (12), and provided reunification services to father.
DISCUSSION
I. DENIAL OF REUNIFICATION SERVICES
Mother contends the juvenile court committed reversible error when it denied her reunification services pursuant to section 361.5, subdivision (b)(10) and (11). Mother argues that recent statutory amendments preclude the juvenile court from relying on her prior termination of reunification services and parental rights in applying those bypass provisions. Alternatively, mother argues there was insufficient evidence for the juvenile court to find she failed to make reasonable efforts to address the problems that led to the removal of the child's siblings. The agency requests that we decline to address mother's contention that the statute did not apply to her because this argument was not raised in the juvenile court.
A. Applicable Law
"As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to 'the child and the child's mother and statutorily presumed father.'" (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer S.), quoting § 361.5, subd. (a).) However, reunification services need not be provided when the court finds by clear and convincing evidence "[t]hat the parental rights of a parent over any sibling or half sibling of the child [have] been permanently severed . . . and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent." (§ 361.5, subd. (b)(11).)
Effective January 1, 2022, the Legislature amended section 361.5, subdivision (b)(10) and (11) by adding an additional subpart to each of those bypass provisions. These two bypass provisions now include the following language:
"(B) This paragraph does not apply if the only times the court ordered termination of reunification services for any siblings or half siblings of the child were when the parent was a minor parent, a nonminor dependent parent, or adjudged a ward of the juvenile court pursuant to Section 601 or 602. For purposes of this subparagraph, 'minor parent' and 'nonminor dependent parent' have the same meaning as in Section 16002.5." (§ 361.5, subd. (b)(10).)
"(B) This paragraph does not apply if the only times the court permanently severed parental rights over any siblings or half siblings of the child were when the parent was a minor parent, a nonminor dependent parent, or adjudged a ward of the juvenile court pursuant to Section 601 or 602. For purposes of this subparagraph, 'minor parent' and 'nonminor dependent parent' have the same meaning as in Section 16002.5." (§ 361.5, subd. (b)(11).)
Section 16002.5, subdivision (h) states: "For the purpose of this section, 'minor parent' refers to a dependent child who is also a parent."
"In order to meet the burden to establish, by clear and convincing evidence, a lack of reasonable efforts in this regard, child welfare workers must focus on the facts underlying the previous dependency action and its resolution, as well as on any efforts made by the parent since the sibling removal." (Jennifer S., supra, 15 Cal.App.5th at p. 1126, italics omitted.) Moreover, "[t]he 'reasonable effort to treat' standard 'is not synonymous with "cure." '" (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.) "[A] 'parent who has worked toward correcting his or her problems [has] an opportunity to have that fact taken into consideration in subsequent proceedings.'" (Ibid.) "To be reasonable, the parent's efforts must be more than 'lackadaisical or half-hearted.'" (Ibid.)
"Moreover, not every 'effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made.'" (Jennifer S., supra, 15 Cal.App.5th at p. 1121, italics omitted.)
B. Standard of Review
"A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence." (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 (Cheryl P.).) Substantial evidence exists when the evidence is "reasonable in nature, credible, and of solid value," so that "a reasonable mind would accept [it] as adequate to support [the] conclusion." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard of review, we consider the record as a whole, in the light most favorable to the juvenile court's findings and conclusions. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) "[W]e do not make credibility determinations or reweigh the evidence." (Jennifer S., supra, 15 Cal.App.5th at p. 1121.)
C. Analysis
On a challenge to the sufficiency of the evidence to support a denial of reunification services under section 361.5, subdivision (b), we review the record to determine whether there is substantial evidence to support the court's order denying reunification services. (Cheryl P., supra, 139 Cal.App.4th at p. 96.) Where the juvenile court finds more than one statutory basis for denying a parent reunification services, we may affirm if there is sufficient evidence to support one of them. In this case, we conclude substantial evidence supports the court's order denying mother reunification services under section 361.5, subdivision (b)(11). Therefore, we need not review the juvenile court's denial of services under subdivision (b)(10) and (12).
First, we acknowledge that mother made no specific objection to the applicability of the bypass under section 361.5, subdivision (b)(11) based upon her alleged status as a dependent child who was also a parent when her parental rights were terminated as to J.L. at the age of 16. Appellate courts have applied the waiver (forfeiture) doctrine in dependency proceedings in a variety of contexts in which the parent has failed to object. (In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.) However, we decline to find mother forfeited the issue because she contested the agency's recommendation to deny her reunification services, which required the agency to prove one of the statutory bases for denying services by clear and convincing evidence. (See In re Javier G. (2006) 137 Cal.App.4th 453, 464 ["when the merits of a case are contested, a parent is not required to object to the agency's failure to carry its burden of proof"].)
Next, we reject mother's contention that the recent amendments to section 361.5, subdivision (b)(11) preclude application of this bypass provision to her. Mother does not dispute her parental rights were terminated on two separate occasions at the ages of 16 and 20. Although the record was unclear as to the exact timeframes that mother was a dependent child of the juvenile court, there was no evidence suggesting mother was a nonminor dependent at the time her parental rights were terminated as to A.L. Therefore, even if we accept the passing references to mother's potential status as a foster child from the ages of 13 to 19 as true, there would be no basis to conclude mother was a dependent of the juvenile court when her parental rights as to A.L. were terminated.
Mother's argument that a literal reading of amended section 361.5, subdivision (b)(11) would create an absurd result in mother's circumstances is unavailing. The Legislature's intent was clearly articulated when it set forth that the bypass provision would not apply when the "only time[]" a parent had their parental rights terminated was when they were a dependent or ward of the juvenile court. The Legislature could have easily expanded the scope of the limitation in section 361.5, subdivision (b)(11)(B) to encompass situations where the parent only received reunification services as a minor. That mother had her parental rights terminated after being denied reunification services based on the former statute in A.L.'s case may result in unfortunate consequences for mother. However, the language of the statute clearly outlines the prior termination of parental rights that it intended to exempt from the bypass provision's reach. The Legislature"' "wrote the statute it wrote-meaning, a statute going so far and no further." '" (Jensen v. iShares Trust (2020) 44 Cal.App.5th 618, 641.) Therefore, mother's issue is more appropriately directed toward the Legislature.
Finally, we consider whether there was sufficient evidence to support the bypass of reunification services for mother under section 361.5, subdivision (b)(11). Mother asserts that "when viewed in light of the surrounding statutory scheme and also the context of her own life history, her effort to treat her substance abuse problem is at the least reasonable." Mother correctly notes that "the 'reasonable effort to treat' standard . . . is not synonymous with 'cure.'" (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) However, as previously noted, the juvenile court may consider the" 'duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness.'" (Jennifer S., supra, 15 Cal.App.5th at p. 1121, italics omitted.)
In the present case, mother's parental rights to A.L. were terminated in July 2016 and the child was removed in February 2022. Thus, mother had more than five years to address the problems that led to A.L.'s removal. (Jennifer S., supra, 15 Cal.App.5th at p. 1126 ["child welfare workers must focus on the facts underlying the previous dependency action and its resolution, as well as on any efforts made by the parent since the sibling removal" (italics omitted)].) At the time of A.L.'s removal, mother and A.L. both tested positive for methamphetamine and mother admitted to resuming drug use. Mother's drug use was well documented as beginning at age 11, and her continued struggle with substance abuse also led to the removal of the child in the present case.
There is no evidence that mother made any real efforts to address her substance abuse problem prior to the child's removal. Mother did not maintain contact with the agency after A.L. was removed from her custody, and that failure prevented the agency from being able to assess her ability to participate in services as an adult parent. Although mother claimed she stopped using controlled substances for three years, she still tested positive for alcohol during the voluntary family maintenance case that was open from September 2019 to March 2020. This unsubstantiated claim of passive sobriety that mother attributed to time spent in custody does not demonstrate a "reasonable" effort in the context of mother's many years of struggling with substance abuse. Mother neither completed nor participated in any substance abuse treatment programs that would have provided her with meaningful insight into her substance abuse problem in the five years after A.L.'s removal.
Mother made no meaningful effort to treat her substance abuse problem until after her arrest for a violent felony in April 2022. Although her completion of a self-study substance abuse packet while in custody during the two months leading up to the contested hearing may demonstrate early progress toward rehabilitation, it was not reasonable in the context of mother's extensive history of substance abuse. Her completion of a self-study packet alone does not negate what was otherwise a general lack of effort and commitment. Such last-minute efforts to participate in services in the weeks leading up to the contested hearing were simply not enough. Accordingly, on this evidence, the juvenile court could find that mother failed to make reasonable efforts to treat her substance abuse.
II. ICWA INQUIRY
Mother also contends the juvenile court's finding that ICWA did not apply was not supported by sufficient evidence because the record does not include interviews conducted by the agency with all known extended family members regarding the child's potential Indian ancestry.
A. Legal Principles
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe . . . have a right to intervene" (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)). An" 'Indian child'" is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child is or may be an Indian child . . . ." (Cal. Rules of Court, rule 5.481(a); see § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child "can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has "any information that the child may be an Indian child." (§ 224.2, subd. (a).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) The court must also require each parent to complete form ICWA-020. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the agency or the juvenile court has "reason to believe" the proceedings involve an Indian child but "does not have sufficient information to determine that there is reason to know that the child is an Indian child." (§ 224.2, subd. (e).) As recently clarified by the Legislature, a "reason to believe" exists when the juvenile court or agency "has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (Id., subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the agency "shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e).) Further inquiry includes, but is not limited to, "[i]nterviewing the parents, Indian custodian, and extended family members," and contacting the Bureau of Indian Affairs (BIA), the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)-(C).)
The final duty component arises when the court or agency has" 'reason to know'" the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A "reason to know" exists if one of the following circumstances is present: "(1) A person having an interest in the child . . . informs the court that the child is an Indian child[;] [¶] (2) The residence . . . of the child [or] the child's parents . . . is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding . . . informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child . . . gives the court reason to know that the child is an Indian child[;] [¶] (5)The court is informed that the child is or has been a ward of a tribal court[;] [or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d)(1)-(6).)
If the juvenile court makes a finding that proper and adequate further inquiry and due diligence have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the ICWA does not apply, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. Standard of Review
Where the juvenile court finds ICWA does not apply to a child after completion of an initial inquiry, "[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We review the juvenile court's ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) We must uphold the juvenile court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.) The appellant "has the burden to show that the evidence was not sufficient to support the findings and orders." (Ibid.)
C. Analysis
Mother contends the agency failed in its duty of initial inquiry because the record does not indicate it inquired of additional extended family members that she claims the agency had "access" to. We disagree.
In the present case, mother denied having knowledge of any Indian ancestry in her family at the detention hearing. At that hearing, counsel for the agency made a statement that "mother, at this time, denied any Indian ancestry. Prior cases there was a tribe, but at this point, she says none." Mother also informed the agency that she did not have any Indian ancestry in previous dependency proceedings involving her child, A.L. Both the father and paternal grandmother also denied that their family had any Indian ancestry when directly asked by the agency.
The agency documented its inquiries with mother, father, and paternal grandmother in the social worker's report, and it similarly documented its attempts to contact the child's maternal grandfather, an adult sibling, and paternal aunt. However, the agency was unable to make contact with those relatives and there was no evidence in the record that their calls were returned. The agency also sent numerous letters to other relatives that it identified, but there was no indication that those family members responded to the agency's attempts to reach them.
Mother claims that the agency had "access" to the child's maternal grandmother, maternal cousin, adult sibling, paternal aunt, and several other relatives that do not qualify as "extended family members." (§ 224.2, subd. (b).) The record does not indicate that the agency had any direct contact with maternal grandmother. Law enforcement merely informed the agency that maternal grandmother was present and requesting custody of the child when mother was arrested, but there is no discussion of maternal grandmother's presence when the agency arrived to take the child into custody. The agency did in fact send a letter to maternal grandmother as it did to at least 15 other relatives of the child.
We reject mother's argument that the agency failed in its duty of initial inquiry because it failed to obtain responses from family members that were not available. In support of her argument, mother cites to the case of In re Benjamin M. (2021) 70 Cal.App.5th 735. In Benjamin M., one parent was not available to report or deny Indian heritage, and the agency never inquired of any of the missing parent's available relatives. (Id. at pp. 744-745.) Here, there is no evidence that the agency made actual contact with any of the child's relatives that she now claims should have been interviewed, which differs significantly from Benjamin M. where the mother was challenging the child welfare agency's failure to interview paternal relatives that the agency either directly spoke to or had obtained an address for. (Id. at pp. 740, 742, 744-745.)
Mother's reliance upon the case of In re Antonio R. (2022) 76 Cal.App.5th 421, 430 (Antonio R.) is similarly unpersuasive. Antonio R. expressly held it was prejudicial error for the department not to inquire of extended family members. (Id. at p. 431.) However, in that case the appellate court found prejudicial error because there were available or readily available extended family members that the department failed to inquire of. (Ibid.)
In Antonio R., the juvenile court found ICWA did not apply based on the mother, the father, and the paternal great-grandmother's denials of Indian ancestry, but there were still known and available extended family members that the department could have contacted to inquire about possible Indian ancestry. (Antonio R., supra, 76 Cal.App.5th at p. 431.) Specifically, the maternal grandmother was interviewed by the department prior to the detention hearing, the child was later placed with the maternal grandmother, and multiple maternal relatives were present at the disposition hearing. (Ibid.) None of those identified and readily available relatives were questioned regarding potential Indian ancestry. (Ibid.) On appeal, the court found the error prejudicial. (Id. at p. 426.)
Antonio R. is distinguishable from the present case because there is no evidence in the record that additional relatives were interviewed by the agency, attended hearings in the matter, or were even considered for placement of the child. In fact, the agency attempted to make contact with multiple family members, and its calls went unreturned. Mother's suggestion that the agency had "access" to several additional relatives ignores that there is no evidence the relatives responded to the agency's letters or voicemail messages such that they were actually available to the agency.
The present case also differs significantly from this court's recent decision in In re K.H. (2022) 84 Cal.App.5th 566, where the parent was challenging the child welfare department's failure to obtain information from relatives who were available and already interviewed by social workers. (Id. at pp. 587, 599-600.) "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]." (In re A.M. (2020) 47 Cal.App.5th 303, 323.) "[T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute" Indian ancestry. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)
"By far, the least burdensome option is simply to ensure that an adequate initial inquiry is made of maternal relatives on both sides where available and paternal relatives on both sides where available, and that the inquiry and its results are documented in the record, as required by California law. (§ 224.2, subd. (b); [Cal. Rules of Court,] rule 5.481(a)(5).) This will supply evidence upon which the juvenile court may exercise sound discretion in determining there has been 'proper and adequate further inquiry and due diligence.' (§ 224.2, subd. (i)(2).)" (In re K.H., supra, 84 Cal.App.5th at p. 619.)
Therefore, it is speculative to assume remand for interviews of additional members of the child's family would reveal additional information about the child's potential Indian ancestry. (See In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 ["appellant assumes without any basis in the record that . . . other . . . maternal relatives were available to be interviewed . . . and could have supplied" missing information].) The record supports a finding the agency adequately interviewed the available members of the child's family to determine what information was known to them. Thus, mother's claim that the juvenile court's dispositional order should be conditionally reversed is without merit.
DISPOSITION
The orders appealed from are affirmed.
WE CONCUR: HILL, P. J. PEÑA, J.