62 Cal. App. 5th 678
Cal. Ct. App.2021Background:
- Mother (A.T.) has prior dependency history (2006) involving substance abuse, criminal convictions, and prior removal of children.
- June 2019 referral: social workers received reports that Mother and her boyfriend Robert used crack in a motel where 12‑year‑old M.S. was present; J.S. (16) and maternal relatives reported drug paraphernalia and Robert’s apparent drug dealing.
- Mother repeatedly denied drug use and refused Department drug tests; Robert also refused testing; grandparents and children reported ongoing exposure and Mother’s lack of protection.
- July 2019: Department filed a section 300 petition (counts including physical abuse, leaving child unsupervised, exposure to drugs, Mother’s mental health and substance abuse). Juvenile court detained children with grandparents.
- September 2019: juvenile court dismissed the physical‑abuse counts but sustained the remaining counts (including b‑5 substance abuse) under §300, declared the children dependents, removed them under §361(c), and ordered services. ICWA inquiry prompted by father’s form led to ancestry.com results from paternal grandmother but no tribe identified; court found no reason to know ICWA applied.
Issues:
| Issue | Plaintiff's Argument (Department) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Sufficiency of evidence for jurisdiction based on Mother’s substance abuse (§300, subd. b) | Mother has history of substance abuse, refused drug tests (equated to positive), lived with Robert who used/sold drugs in children’s presence, and denied risks — substantial risk exists | Evidence insufficient; Mother denied use and argued children recanted or minimized allegations | Affirmed: substantial evidence supported jurisdiction under b‑5 (mother’s substance abuse and failure to protect) |
| Removal from Mother’s custody (clear and convincing standard §361(c)) | Given ongoing substance risk, Mother’s denials/refusals and Robert’s presence, removal was necessary and reasonable efforts were made to avoid removal | Removal unnecessary; Department failed to show no reasonable means to protect children short of removal | Affirmed: clear and convincing evidence supported removal; court’s omission of on‑the‑record §361(e) factual findings was harmless error |
| ICWA inquiry/notice when father alleged possible Native American ancestry | Department conducted further inquiry (interviewed paternal grandmother), ancestry.com results did not identify a tribe or provide usable geographic/tribal info, so there was no reason to know and no notice required | Department and court failed to make ICWA‑compliant inquiry and failed to give notice to Interior/BIA/tribes when tribe identity was unknown | Affirmed: substantial evidence supported finding there was no reason to know ICWA applied; further inquiry was adequate and notice was not required |
| Physical‑abuse counts (a‑1, b‑1, j‑1) alleged against Mother | Department relied on timely statements (including M.S.’s earlier account) to support allegations | Mother argued witnesses recanted/minimized and evidence was insufficient | Juvenile court dismissed those physical‑abuse counts at hearing; appellate court affirmed overall judgment because other sustained grounds supported jurisdiction and disposition |
Key Cases Cited
- In re I.J., 56 Cal.4th 766 (standard of review and deference to juvenile court findings)
- In re Kadence P., 241 Cal.App.4th 1376 (missed/refused drug tests can be treated like positive results in dependency context)
- In re Christopher R., 225 Cal.App.4th 1210 (substance abuse, missed tests, and denial support jurisdiction)
- In re Drake M., 211 Cal.App.4th 754 (substance‑related risks may support jurisdiction and removal)
- Conservatorship of O.B., 9 Cal.5th 989 (clear and convincing standard review in dependency/removal context)
- In re D.S., 46 Cal.App.5th 1041 (ICWA inquiry/notice framework and limits of ancestry information)
- In re M.W., 49 Cal.App.5th 1034 (further inquiry under §224.2 and when notice is required)