In re Y.S. CA1/4

Filed 5/14/15 In re Y.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re Y.S. et al., Persons Coming Under the
Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Plaintiff and Respondent, A142541
v.
(Contra Costa County
G.S., Super. Ct. Nos. J14-00094
Defendant and Appellant. & J14-00095)

In this dependency proceeding, G.S. (Father) appeals dispositional orders under
Welfare and Institutions Code1 section 300 with respect to his daughter (Y.S.) and son
(I.S.). He claims there was insufficient evidence to support both the jurisdictional
findings and the findings at disposition that the children would be at risk of “substantial
danger to the[ir] physical health, safety, protection, or physical or emotional well-being”
if returned to their father’s custody due to his reported abuse of an older half-sibling.
(§§ 300, subd. (j), 361, subd. (c)(1).) He further contends the court erred by failing to
ensure that notice was sent to the Apache tribes under the Indian Child Welfare Act of

1
Statutory references, unless otherwise indicated, are to the Welfare and
Institutions Code.

1
1978, 25 U.S.C. § 1901 et seq. (ICWA) based on a claim of Indian ancestry by the
children’s mother. Finding no merit to his arguments, we affirm the orders.
I. BACKGROUND
This family’s dependency proceedings involve the removal of four young siblings
from Father’s custody. The ages of the children at disposition were ten, for J.M., a boy;
five, for Y.S., a girl; nineteen months, for I.S., a boy; and two months, for D.S., an infant
girl. C.Q. (Mother) is the biological parent of all four. Father is the biological parent of
the youngest three, and the stepfather of J.M. When the case arose, Father and Mother
(then pregnant with D.S.) were unwed but living together and raising J.M., Y.S. and I.S.
in one household as a family unit. Normally, Father stayed home and took care of the
children, while Mother worked full-time.
A. The report from J.M.’s school
The Contra Costa County Children and Family Services Bureau (Bureau) opened
an investigation after receiving a report that J.M. arrived at his elementary school one day
in January 2014 with his left index finger and hand extremely swollen and bruised. Two
days earlier, J.M.’s teacher had written his name on the blackboard at school for throwing
raisins at another student. When J.M.’s teacher reported the raisin-throwing incident to
Father at the end of the school day, she tried to emphasize its minimal nature and
suggested it warranted only mild discipline, such as requiring J.M. to give up television
for one night.
J.M. missed school the next day. When J.M. returned to school on January 23,
2014 with an injured hand, he explained to his teacher that his stepfather had disciplined
him for the raisin-throwing incident by bending back his left index finger. J.M. was
reluctant to talk about his injury because Father had told him not to tell anyone how it
happened. J.M. also reported to his teacher that Father told him if he told anyone what
happened, the police would come and take J.M. and his younger siblings away from the
family. Father gave J.M. a cover story—if Mother or anyone else asks about the injury,
he said, J.M. was to say he injured his hand by falling off a chair.

2
 In the course of the Bureau’s investigation, both J.M.’s teacher and principal said
it was unusual for him to be in trouble at school. He was a well-behaved and gifted child
who presented few if any problems for his teachers.2 Father, on the other hand, had been
a problematic figure at J.M.’s school. A school attendance secretary said Father had a
“bit of a temper” and an “intense personality.” Others at the school reported Father had
interacted inappropriately with school personnel in the past. According to school
officials, Father insisted on being informed of everything that happened with J.M. at
school, so they were always on “hyper alert” in responding to him. In fact, J.M.’s teacher
was reluctant to tell Father of any misbehavior by J.M. because she feared there would be
retaliation at home. J.M.’s teacher thought Father was much harder on J.M. than was
necessary for such a compliant child.
In accordance with their mandatory reporting obligations, school officials reported
the finger-bending incident involving J.M. to the Bureau the same day it occurred. J.M.
told the Bureau’s emergency response social worker he had been disciplined for failing to
complete a chore at home. His stepfather had taken him into a different room, away from
his half-siblings, when the discipline was imposed, he told the emergency response social
worker. As he had told his teacher, J.M. again reported Father’s instruction that he lie to
Mother or anyone else who asked about his injured finger in order to cover up how it
really happened. J.M.’s interview at school with the social worker also revealed other
evidence of physical abuse. J.M. reported that Father had spanked him in the past with a
belt, a shoe, and a clothes hanger. The week before the finger-bending incident, J.M.
reported, Father had slapped him across the face, which briefly left a red mark. One time,
Father got mad at J.M. while he was eating a slice of pizza. Father took the pizza and
rubbed it in J.M.’s face. J.M. also reported that Father occasionally spanked Y.S., but
I.S. was not spanked because he was too young.

2
J.M. did have some attendance problems, however, and ended up missing 20
days between the beginning of the school year and April 25, 2014.

3
 After being interviewed by an emergency response social worker at his school,
J.M. was taken to the hospital, where a doctor confirmed his finger was badly sprained.
When confronted with J.M.’s accusation against Father, Mother was at first incredulous
and said she had no knowledge any abuse was occurring, but she agreed to take the
children to the home of their paternal grandmother so as to separate them from Father.
Mother was cooperative with the Bureau and agreed to do anything necessary to keep the
children safe. When the social worker and a police officer went to the family home to
investigate further, both Y.S. and I.S. appeared to be healthy. The home was clean and
adequately furnished. No health or safety hazards were noted. Still, the children were
taken into protective custody, and Father was arrested for a violation of Penal Code
section 273, subdivision (a) (willful harm or injury to a child).3
The Bureau’s interviews of school personnel revealed another troubling incident at
J.M.’s school a few months earlier, in the fall of 2013. J.M. and another child “bonked”
heads together when they were walking in line. It appeared to school authorities to be a
minor incident, which left only a small bump above J.M.’s eyebrow. Ice was applied and
J.M.’s parents were contacted. The next day J.M. appeared at school with a black-and-
blue eye that seemed out of proportion to the incident the day before. Mother took J.M.
to the doctor the following week to have the head injury checked, as he was vomiting and
had “almost passed out.” X-rays were taken at that time and showed a “probable old
nose fracture.” J.M. missed a week of school, and when he returned he had two black
eyes. Mother told the school the injuries were the result of the “bonking” incident, but
the school authorities doubted that explanation.
B. The juvenile court proceedings
1. Detention and jurisdiction
On January 27, 2014, the Bureau filed section 300 petitions on behalf J.M., Y.S.
and I.S. The petition filed on behalf of J.M. alleged he had “suffered, or that there was

3
Upon Father’s release from jail, he agreed to move in with his brother in San
Leandro, thus acquiescing in a temporary living arrangement separate from his children,
pending whatever orders the court made in these proceedings.

4
substantial risk...[he] will suffer, serious physical harm inflicted nonaccidentally upon
[him] by [his] parent or guardian.” (§ 300, subd. (a).) For Y.S. and I.S., the Bureau
alleged their “sibling has been abused...as defined in subdivision (a)...and there is a
substantial risk that [they] will be abused...as defined in [that] subdivision[].” (§ 300,
subd. (j).)
The case came on for a detention hearing on January 28, 2014, the same day the
Bureau filed its Detention/Jurisdiction Report. The focus of the hearing was solely on
keeping the children safe from Father. The Bureau did not request detention from
Mother and did not recommend foster care for the children. The court found the Bureau
had made a prima facie section 300 showing and ordered the children detained from
Father—which had the effect of requiring him to live outside the family home—but
permitted them to remain in Mother’s custody. Father was ordered to have no contact
with J.M., Y.S. or I.S. until disposition.4
A contested jurisdiction hearing took place on February 26, 2014. At that hearing,
the only witness was the social worker who prepared the Detention/Jurisdiction Report.
When asked whether J.M.’s story about the finger-bending incident was corroborated, the
social worker said the doctor who examined J.M’s injured finger had offered the opinion
that the injury was consistent with the finger having been bent backwards. Finding
J.M.’s injuries were serious (his finger was “badly sprained” and “extremely swollen and
bruised”), the court sustained the allegation that Y.S. and I.S. were “at risk based on
father’s having physically abused the step sibling.”
Having found the Bureau’s core factual allegations to be true, the judge declared
Y.S. and I.S. to be dependents within the meaning of section 300, subdivision (j).
Pending disposition, the court continued the children’s detention from Father, but

4
There was some initial confusion about whether the court’s no contact order on
January 28 allowed Father to have visitation with Y.S. and I.S., but the issue was clarified
at a jurisdictional pretrial conference on February 6, 2014 and as of that point Father was
barred from contact with any of the three children pending disposition.

5
permitted weekly supervised visits at the Bureau with Y.S. and I.S.,5 while leaving in
place the bar on any contact with J.M. At this point in the proceedings, Mother was
within weeks of giving birth to D.S. The court withheld comment on whether Father
should be permitted to attend the birth and left that issue for the parties to work out. A
few weeks later, in mid-April, 2014, Mother gave birth to the couple’s third child, D.S.
Father requested at a hearing on April 30, 2014 that he be allowed to return to the
family home when Mother was present to help with the baby and to bond with her. The
Court denied his request, explaining “I’m not going to do that. I have... real concerns
about [Father] and his ability to be around children in a safe manner. The way in which
this physical abuse was inflicted, number one, I don’t believe that you can reasonably
conclude that this is limited to a child that’s not his biological child. [Father was] living
in the home and serving in many respects as a parental figure for the child. And the way
it was done in secret with coercion to the child to maintain the secrecy of it, I have
concerns that [he] poses a significant risk to any child that is in his presence....” 6
Father’s counsel argued that circumstances had changed and pointed out that
Father had recently enrolled in an anger management class and a parenting skills class
and was on a waiting list for an individual counseling program. The court was unmoved,
commenting that “[u]ntil he comes forward and...is able to demonstrate that he gets what

5
At a hearing a few weeks later, on March 19, 2014, the court granted Father’s
request to allow at least three weekly telephone calls to Y.S. and I.S., monitored by
Mother, in addition to the supervised visits.
6
A few weeks after her birth, the Bureau filed a section 300 petition with respect
to D.S. In line with the detention orders pertaining to Y.S. and I.S., the Bureau
recommended that “the Court detain [D.S.] from [Father] but allow the child to remain in
the custody of the mother.” Based on a determination that a prima facie case had been
made, the juvenile court held a detention hearing on May 19, 2014 and found “that
continuance of [D.S.]...in the home of the father is contrary to the welfare of the child in
light of the Court having already sustained and found proven true that father has
physically abused a half sibling of this particular child and that that abuse occurred in a
manner that was premeditated and not done out of spur of the moment anger, which
causes the Court grave concern for the safety of any child in the presence of the father.”
Accordingly, the Court adopted the Bureau’s recommendation and detained D.S. on the
same basis as it had previously done for Y.S. and I.S.

6
he did, that he takes responsibility for it and he understands...that that is completely
inappropriate behavior―I don’t really see the fact that he’s on [a] waiting list to engage
in counseling or that he’s attended however many parenting classes he’s attended that
he’s addressed the issues. The issue is whether or not he understands that what he did
was significant and severe child abuse.”
2. Disposition
A contested disposition hearing as to J.M., Y.S. and I.S. took place on June 9,
2014. According to the Bureau’s Disposition Report, dated May 19, 2014, there was a
mutual desire among Father, J.M. and Y.S. for Father to return to the family home. J.M.
and Y.S. both told the social worker they wanted Father to move back in with them.
Father told the social worker he wanted to return as well. He presented certificates of
enrollment in an anger management program, psychotherapy and parenting classes in an
effort to demonstrate that he was ready to do so. Father also testified at the disposition
hearing about his participation in anger management and therapy.
Father’s attitude about the abuse of J.M., however, had not changed. He asserted
his Fifth Amendment privilege when asked at the disposition hearing whether he was
responsible for J.M.’s injured finger, but had reported to the social worker prior to the
hearing he was not responsible for injuring J.M.’s finger. He stuck to his story that J.M.
hurt himself as a result of a fall in his room, with the added the explanation that J.M.’s
finger appeared to be dislocated and crooked after J.M.’s fall, so he pulled on it to try to
relocate it. Father had no explanation for why J.M. would have blamed him for the
injured finger, except perhaps that Father had taken away J.M.’s Playstation Plus game
system earlier in the week, presumably as a consequence for the raisin-throwing incident.
The evidence at the disposition hearing showed that J.M. suffered other suspicious
injuries, in addition to the black eyes and broken nose that had been reported previously
in the Detention/Jurisdiction Report. According to the Disposition Report, J.M. had been
taken to a hospital emergency room on December 14, 2013 with an injury to his left
index finger. J.M. reportedly told emergency room personnel that his finger had been

7
injured in a fall from his bicycle. His finger was not fractured on this previous occasion,
but he was diagnosed with a “dislocation, sprain [or] contusion” of his finger.7
At the conclusion of the disposition hearing, the court adopted the Bureau’s
recommendation and ordered J.M., Y.S. and I.S. removed from Father’s physical custody
while permitting them to remain in their mother’s care. The effect of the court’s
disposition was to continue the arrangement that had been in place since the detention
hearing, with Father barred from the family home, but with permission for Father to have
controlled visitation privileges and telephone contact with Y.S. and I.S.8 While
announcing its findings, the court explained it saw the case as “troubling on...many
levels.” This was not a case, the court said, in which “the only evidence that...the abuse
7
There was, in addition, a colloquy with the court at the disposition hearing during
which counsel for Y.S. and I.S. mentioned a batch of unidentified medical records that
the Bureau apparently produced in discovery shortly before the disposition hearing.
Counsel for Y.S. and I.S. made an offer of proof that these records would show the
following—(1) Father had taken Y.S., then three years old, to the doctor on January 9,
2013, because she had fallen on her finger and bent it backward to where it looked
dislocated. Father reportedly had popped the finger back into place. And (2) when Y.S.
was seven months old she had suffered a contusion to the head, face and neck because
she had fallen from a bed onto a wooden floor . Father objected to the court’s
consideration of the medical records concerning Y.S. and to the information in the
Disposition Report about J.M’s 2013 visit to the hospital emergency room, but the
objection was overruled. The court explained, “[We] have Ms. Sanner [the social
worker] here and these come directly off Ms. Sanner’s case notes. This is a disposition.
Hearsay is admissible. And certainly a social worker’s notes of what a medical
practitioner or school official reported to her is permissible in these proceedings.” As to
the summary of J.M’s 2013 hospital visit, the ruling was correct. (Cal. Rule of Court
5.690(b).) The facts reported by Y.S.’s counsel concerning Y.S.’s 2013 doctor visit and
other past injuries to her, however, are not in the Disposition Report, and the medical
records to which she referred were never marked for identification or admitted into
evidence. Since there is no indication of any stipulation to the offer of proof that counsel
made, the facts she reported appear to be without evidentiary foundation in the record.
Counsel’s representations about past injuries to Y.S. may be true, but they involve extra-
record matters and thus we will not consider them.
8
Contra Costa County Superior Court records in Case No. MSD14-04865, of
which we take judicial notice (Evid. Code, §§ 452, subd. (d), 459), show that Mother
filed for a domestic violence restraining order against Father on October 31, 2014. It was
dropped by the court on December 16, 2014.

8
took place [came from] the child—quite frankly, there’s no reason for this child to have
lied. If anything, he was terrified for reporting what occurred to him. But you have
medical evidence which corroborated his reports. You have school officials who
note...how inappropriate [Father] has been in school. In fact, [they are] afraid for [J.M.].”
Unwittingly confirming his problem with self-control, Father’s reaction upon
hearing the court’s description of his conduct and its impact on his children was an open
show of disrespect in the courtroom. “[Y]ou shake your head and smirk at me,” the court
stated, directing its comments at Father, “[b]ut...that’s exactly what’s reported here.”
“And we’re no further along on [your] understanding what [you] did and how
inappropriate it was today than we were when this case first presented itself.” Repeating
concerns that it had expressed in earlier proceedings concerning D.S. (see fn. 6, ante), the
court stated “grave concerns” that despite J.M.’s statements to numerous professionals
regarding how he was injured and the corroborating evidence, Father continued to deny it
had occurred. Calling Father’s behavior “troubling, abusive, [and] sneaky,” the court
once again expressed the view that it did not believe “any child” would be safe in
Father’s care.9
Father filed a timely notice of appeal from the dispositional orders with respect to
Y.S. and I.S., challenging the jurisdictional findings as well. (Blanca P. v. Superior
Court (1996) 45 Cal.App.4th 1738, 1754 (Blanca P.).) The dispositional orders and
jurisdictional findings as to J.M. and D.S. are not challenged in this appeal.
II. DISCUSSION
A. Substantial Evidence Supports the Jurisdictional Findings
Father contends there was insufficient evidence to support the juvenile court’s
jurisdictional findings for Y.S. and I.S. In the trial court, the Bureau bore the burden of
proving its case at that stage by a preponderance of the evidence. (§ 355, subd. (a).) The

9
The court held a jurisdictional hearing for D.S. and declared her to be a
dependent on June 9, 2014, immediately following the disposition hearing for Y.S. and
I.S. at which the above findings were made. The record here does not reflect the ultimate
disposition as to D.S.

9
substantial evidence standard of review applies on appeal. (In re Christopher C. (2010)
182 Cal.App.4th 73, 84.)
Section 300, subdivision (j), subjects a child to the jurisdiction of the juvenile
court if he or she meets following statutory criteria: “The 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. The court
shall consider the circumstances surrounding the abuse or neglect of the sibling, the age
and gender of each child, the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian and any other factors the court considers probative in
determining whether there is a substantial risk to the child.”
1. In re Rocco M. and In re Steve W.
Father does not seriously argue that the evidence was insufficient to show his
abuse of J.M. Rather, he concentrates on whether the evidence of J.M.’s abuse alone
was enough to show that Y.S. and I.S. were also at risk. In urging this point he first relies
on two cases for the proposition that a single instance of past abuse will not support a
finding of future risk: In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.) and In
re Steve W. (1990) 217 Cal.App.3d 10, 22 (Steve W.).
Rocco M., supra, 1 Cal.App.4th 814 does not aid Father’s cause. That case
involved a boy who had been neglected as a young child and placed in foster care
between the ages of five and nine. (Id. at p. 817.) His mother had severe substance abuse
problems and, as a result, Rocco was frequently in an environment where he saw and was
in close proximity to his mother’s consumption of drugs and alcohol. (Ibid.) The Court
of Appeal upheld the jurisdictional finding in Rocco M., finding “ample evidence of
neglect” (id. at p. 820) because the mother had “created [a] danger that Rocco would
ingest hazardous drugs” (id. at p. 825).
Although the holding in Rocco M. cuts against him, Father relies on the Court of
Appeal’s observation in dicta there that “past infliction of physical harm by a caretaker,
standing alone, does not establish a substantial risk of physical harm; ‘[t]here must be
some reason to believe the acts may continue in the future.’ ” (Rocco M., supra, 1

10
Cal.App.4th at p. 824.) This statement had to do with an isolated instance of abuse
inflicted by a caretaker, a friend of the mother, who had kicked Rocco in the stomach
when the boy was in his care on one occasion. It did not refer to abuse by a parent or
stepparent, and there was nothing to suggest any kind of pattern of similar physical abuse.
In fact, Rocco M. expressly distinguished cases involving abuse by a parent on grounds
that they presented “an identified, specific hazard in the child’s environment.” (Ibid.)
On this record, Y.S. and I.S. did have an “identified, specific hazard” in their
environment, and it came from Father. Their vulnerability to him cannot be fairly
compared to a neglect case or abuse involving a one-time baby-sitter.
Steve W., supra, 217 Cal.App.3d 10, 12 involved the removal of a baby from his
mother’s care because the baby’s father had killed his five-year-old half-brother. The
mother was not present when the older boy was fatally injured; Steve’s father gave false
explanations for the boy’s injuries; and the mother broke off relations with Steve’s father
after the older boy’s death. She assisted in his prosecution, was self-supporting through
full-time employment, and had suitable living arrangements for herself and the baby. (Id.
at pp. 14, 16.) Steve’s mother conceded the jurisdictional finding was warranted, but she
appealed the disposition. (Id. at p. 16.) Steve’s father was serving a six-year prison term,
and therefore was unlikely to have access to the baby. (Id. at p. 22 & fn. 2.) Importantly,
Steve himself also appealed the dispositional order, favoring placement with his mother.
(Id. at pp. 15-16.) In these circumstances, the Court of Appeal found insufficient
evidence to remove Steve from his mother. (Id. at p. 23.) The specific holding of Steve
W. highlights an important distinction setting that case apart from this one. There, it was
the nonoffending parent from whom Steve had been removed and who was appealing the
removal order, whereas here only the abusing parent has had custody suspended; the
nonoffending parent (Mother) has been allowed to retain custody. Thus, Father is not
similarly situated to the appellant in Steve W.
2. Blanca P.
Throughout his briefs, Father complains repeatedly that the juvenile court was
improperly “fixated” on his refusal to acknowledge and admit abusing J.M., an error he

11
claims “permeated the proceedings.” He cites Blanca P., supra, 45 Cal.App.4th at page
1741, for the proposition that “a parent’s refusal to confess to the allegations of the
petition are not substantial evidence of a risk of detriment to the minors.”
We do not find Blanca P. to be of much relevance here. The narrow legal issue
“at the very heart” of Blanca P., supra, 45 Cal.App.4th at page 1754, centered on a
finding of sexual molestation by a father of his three-year-old daughter. The issue was
whether that finding, made at a jurisdictional hearing early in the case, had binding effect
later, post-disposition, at the 18-month review stage. (Ibid.) The record showed that the
trial judge who made the finding did not understand the procedural setting in which he
was operating (he mistakenly said he was ruling at a six-month review) and did not
appreciate that the truth of the molestation charge needed to be scrutinized carefully (he
had not read the subsequent petition in which the allegation was made and mistakenly
said that because the case was at six-month review the allegation had already been
established as true and could no longer be questioned). (Id. at pp. 1743–1745.) After
acknowledging this confusion and withdrawing his incorrect statements just before taking
the matter under submission, the judge proceeded to make a molestation finding anyway,
relying on nothing more than a social worker’s interview of the three-year-old in which
the child at first denied her father had touched her genitals but eventually said he did in
response to suggestive questioning. (Id. at pp. 1742, 1744–1745.)
Blanca P. arrived in the appellate court not on appeal, but on writ review of a
second trial judge’s finding at an 18-month review hearing that it would be detrimental to
permit family reunification at that stage, despite months in which the father had
participated diligently and cooperatively in services. The second judge’s order was
unexplained, but appeared to be based on concerns about the earlier molestation finding.
(Blanca P., supra, 45 Cal.App.4th at pp. 1742, 1747.) Describing a phenomenon it called
the “confession dilemma” in dependency cases (id. at pp. 1752–1754) , where a parent
faced with unfounded molestation allegations must decide whether to falsely confess, lest
“denial itself....end up preventing reunification” (id. at p. 1752), the Court of Appeal
refused to give the prior molestation finding collateral estoppel effect in light of later

12
developed evidence, a psychologist’s expert opinion, casting serious doubt on whether
the molestation ever happened (id. at pp. 1745–1747). The writ was granted, and a new
18-month review hearing was ordered at which the underlying molestation charge could
be fully litigated. (Id. at pp. 1759–1760.) As pertinent here, that was the issue decided
and the relief granted in Blanca P. Its holding has no applicability in this case.
A prominent theme in Blanca P., to be sure, was the heightened need for careful
fact-finding when sexual molestation charges surface in dependency cases. The Court of
Appeal was troubled by the haphazard way in which the molestation charge there had
been handled in the trial court, with a key finding made under rushed and confused
circumstances and then passed along from one judge to another, and no one bothering to
examine closely whether the evidence actually supported the charge in the first place.
The court explained, “[t]he hearing on a contested petition alleging child sexual abuse
is...extraordinarily important. It is not the sort of thing to be rushed, or taken routinely.
Allegations of child molestation are serious; they merit more than a rubber stamp. With
the exception of death penalty cases, it is hard to imagine an area of the law where there
is a greater need for reliable findings by the trier of fact.” (Blanca P., supra, 45
Cal.App.4th at p. 1754.)
All of this is no doubt just as true today as it was when Blanca P. was decided in
1996,10 but what happened in that case bears no resemblance to the case before us.
Obviously, there is no issue of sexual molestation here. And on this record, unlike in
Blanca P., we have a corroborated finding of abuse; that finding is fully supported by the
record; there was evidence the abuse is part of a pattern; there is no independent evidence
supporting Father’s denial of responsibility; and there is much to lend specific credence
to J.M.’s version of how the abuse took place, including Father’s manipulative efforts to

10
“[W]e. . .know that jurisdictional findings are made under extreme time
pressures, and with a certain degree of urgency necessary to protect children. The hard
truth is that all too often. . .juvenile courts and counsel do not have enough time to fully
explore molestation issues in jurisdictional hearings, and psychological evidence about a
parent’s propensity to commit molestation is likely to be unavailable, inadmissible or
nonexistent.” (Blanca P., supra, 45 Cal.App.4th at pp. 1758-1759.)

13
cover it up. It is also quite clear that the court here did not rely on Father’s persistent
denials of responsibility as a substitute for evidence that the abuse in fact occurred, but
rather as a consideration to be taken into account in fashioning appropriate relief. The
court’s handling of Father’s denials of responsibility was not the product of some sort of
moral belief that confession is a prerequisite to redemption. Rather, we read the court’s
comments on the issue as nothing more than a commonplace observation that a problem
cannot be fixed until it has been acknowledged.
In re Jessica B. (1989) 207 Cal.App.3d 504, cited in Blanca P., is instructive here.
In that case, a father brought his infant daughter to the hospital with a skull fracture and
gave an unconvincing story about how the injury had occurred. (Id. at p. 508.) The fact
that he subsequently entered therapy was not enough to convince the Court of Appeal he
did not present a danger to his child. The appellate court explained that traditional
treatment such as therapy “is of limited value until the abuse is admitted.” (Id. at p. 516.)
The juvenile court in this case properly invoked the same logic in rejecting Father’s
attempt to show his readiness to resume parenting simply because he had recently begun
participating in counseling of various kinds. Father urged the court to find that
circumstances were different because of his commitment to these counseling programs—
and perhaps if he continues with them, at some point he will be in a position to show he is
a changed man—but at disposition the court was amply justified in rejecting his claims as
insincere, especially since he refused to acknowledge the seriousness of his acts.
3. Consideration of the Totality of the Circumstances
Finally, Father contends the juvenile court placed too much weight on a single
instance of abuse and failed to consider the “totality of the circumstances.” (Cf. In re I.J.
(2013) 56 Cal.4th 766, 773.) We disagree. It is Father who fails to take into account the
totality of the circumstances here. First of all, one of the factors a court may properly
consider, listed expressly on the face of the statute, is the age of the child involved.
(§ 300, subd. (j).) J.M., who was nine when the Bureau intervened, reluctantly managed
to speak up about the abuse that he suffered, but whether five-year-old Y.S. and nineteen-

14
month-old I.S. were capable of doing so was legitimately a matter of concern. That
consideration is basic to the situation here, and it was taken into account.
Second, there was clear evidence that Father has anger management problems.
The court’s repeatedly expressed concerns about Father’s temper were fully justified by
the evidence. School personnel expressed concern about Father’s volatility; he “los[t] his
cool” with the social worker ; and then he confirmed the many reports about his volatile
nature by openly displaying his displeasure when the judge announced her findings in the
courtroom.
Third, there was more evidence of past abuse than the single incident that led to
the Bureau’s involvement. J.M. described to the authorities past spankings with a belt, a
shoe, and a clothes hanger. He described being slapped across the face and having a
piece of pizza smeared in his face. He showed up at school with two suspicious black
eyes a week after a minor head injury at school, and there was evidence of an
unexplained past nose fracture. And he had been taken to the hospital for a similar finger
injury little more than a month prior to present injury that triggered the initial report to
the Bureau. There is a clear pattern here. Given the overall circumstances—two very
young children, in the hands of a caretaker with a volatile temper—we have little
difficulty concluding, as did the juvenile court, that Y.S. and I.S. were in an environment
where there was “an adult with a proven record of abusiveness” (Rocco M., supra, 1
Cal.App.4th at p. 824).
B. Substantial Evidence Supports the Dispositional Orders
A dependent child may not be taken from the physical custody of his or her parent
unless the juvenile court finds by clear and convincing evidence that there is a
“substantial danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected” without removal. (§ 361,
subd. (c)(1).) We review the court’s disposition order for substantial evidence (In re T.V.
(2013) 217 Cal.App.4th 126, 135-136; In re Jason L.(1990) 222 Cal.App.3d 1206, 1214),
bearing in mind the juvenile court’s heightened requirement of clear and convincing

15
evidence (In re Ashly F. (2014) 225 Cal.App.4th 803, 811), and considering the facts as
they stood at the time of the disposition hearing (In re Isayah C. (2004) 118 Cal.App.4th
684, 701).
Father again claims the evidence was insufficient to meet the statutory standard,
resting his argument largely on In re Hailey T. (2012) 212 Cal.App.4th 139 (Hailey T.).
There, the court of appeal reversed a trial court’s order removing a three-year-old girl
from parental custody. (Id. at pp. 145. 149.) The parents in that case had taken the girl’s
four-month-old brother to the hospital with petechiae (hemorrhage in the eye), which an
emergency room doctor concluded had been inflicted nonaccidentally. (Id. at p. 142.)
Neither parent could explain how the injury occurred, but they suggested three-year-old
Hailey may have injured her little brother. (Ibid.) An expert testified it was unlikely that
Hailey could have inflicted the injury, and it appeared likely the injury was caused by the
baby being struck in the face or struck and strangled. (Id. at p. 144.)
The juvenile court sustained a petition under section 300, subdivisions (b) and (j),
and both children were removed from the home. (Hailey T., supra, 212 Cal.App.4th at
pp. 143, 145.) There was no evidence Hailey herself had been abused. (Id. at p. 147.)
She was verbal and able to articulate any abuse, and she attended school where there
were mandated reporters, which was seen as providing some degree of monitoring.
(Ibid.) There was also no evidence the parents had abused the infant son, except for the
petechiae and the expert’s suspicions as to its cause. (Id. at p. 148.) While the infant was
to be left in an out-of-home placement (id. at p. 141, fn. 2), Hailey could be protected
through less drastic means, such as return to the parents with unannounced visits and
services through a public health nurse. (Id. at p. 148.)
The physical abuse Father inflicted in this case was not an isolated instance,
explained by momentary loss of control or unlikely to be repeated. The act of bending a
child’s finger backwards to the point where it became sprained, bruised and badly
swollen was an intentional act of cruelty, and Father’s awareness of his wrongdoing was
demonstrated by his threat to J.M. about disclosing the truth. In addition to the finger
injury, as catalogued above, J.M. had suffered numerous suspicious injuries which could

16
lead a reasonable trier of fact to conclude Father had been guilty of a pattern of excessive
corporal discipline. Thus, there was good reason to fear for all of the younger children’s
safety. Unlike Hailey, who had access to mandated reporters and was old enough to
articulate to others any abuse she may have suffered, Y.S. and I.S. are each in a
particularly vulnerable position. There is no indication in the record that Y.S. had regular
contact with mandated reporters, as was the case with Hailey. And obviously I.S. is still
too young (19 months at disposition) to be expected to report any abuse he might
experience. Finding Hailey T. to be inapposite, we conclude that the court’s dispositional
order as to each child is supported by substantial evidence.
C. ICWA Notice Was Not Required Because the Bureau Did Not Seek to Place
the Children in Foster Care.

1. ICWA inquiry and notice requirements
Title 25 of the United States Code section 1912 provides: “In any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian
child is involved, the party seeking the foster care placement of, or termination of
parental rights to, an Indian child shall notify the parent or Indian custodian and the
Indian child’s tribe, by registered mail with return receipt requested, of the pending
proceedings and of their right of intervention.” An “Indian child” is defined as “any
unmarried person who is under age eighteen and is either (a) a member of an Indian tribe
or (b) is eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe.” (25 U.S.C. § 1903(4); see § 224.1, subd. (a).)
“The purpose of the ICWA is, of course, to ‘protect the best interests of Indian
children and to promote the stability and security of Indian tribes and families.’ (25
U.S.C. § 1902; see In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) ‘The ICWA
presumes it is in the best interests of the child to retain tribal ties and cultural heritage and
in the interest of the tribe to preserve its future generations, a most important resource.
[Citation.]’ ([In re] Desiree F. [(2000)] 83 Cal.App.4th [460,] 469.).” (Guardianship of
D.W. (2013) 221 Cal.App.4th 242, 249.) The ICWA itself does not expressly impose any
duty to inquire as to Indian ancestry. Neither do the controlling federal regulations. (See

17
25 C.F.R. § 23.11(a) (2014).) ICWA, however, does provide that states may establish “a
higher standard of protection to the rights of the parent . . . of an Indian child than the
rights provided under [ICWA].” (25 U.S.C.A. § 1921.)
Consistent with that provision, California law imposes on county welfare
departments and the juvenile court “an affirmative and continuing duty to inquire whether
a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or
may be an Indian child in all dependency proceedings and in any juvenile wardship
proceedings if the child is at risk of entering foster care or is in foster care.” (§ 224.3,
subd. (a).) A California court must order the parents to fill out a Parental Notification of
Indian Status form (ICWA-020) at the first appearance by the parent in a section 300
proceeding. (§ 224.3, subd. (a); Cal. Rules of Court, rules 5.480, 5.481(a)(2).) To the
extent the California statutes provide greater protection for the parents or the tribe of an
Indian child, the California provisions control. (§ 224, subd. (d).)
Under section 224.2, subdivision (a), “If the court, a social worker, or probation
officer knows or has reason to know that an Indian child is involved, any notice sent in an
Indian child custody proceeding under this code shall be sent to the minor’s parents or
legal guardian, Indian custodian, if any, and the minor’s tribe . . . .” An “ ‘Indian child
custody proceeding’ means a ‘child custody proceeding’ within the meaning of Section
1903 of the Indian Child Welfare Act, including a proceeding for temporary or long-term
foster care or guardianship placement, termination of parental rights, preadoptive
placement after termination of parental rights, or adoptive placement.”11 (§ 224.1, subd.

11
ICWA itself defines “child custody proceedings” as follows: “For the purposes
of this Act [25 USCS §§ 1901 et seq.], except as may be specifically provided otherwise,
the term—[¶] (1) ‘child custody proceeding’ shall mean and include—[¶] (i) ‘foster care
placement’ which shall mean any action removing an Indian child from its parent or
Indian custodian for temporary placement in a foster home or institution or the home of a
guardian or conservator where the parent or Indian custodian cannot have the child
returned upon demand, but where parental rights have not been terminated; [¶] (ii)
‘termination of parental rights’ which shall mean any action resulting in the termination
of the parent-child relationship; [¶] (iii) ‘preadoptive placement’ which shall mean the
temporary placement of an Indian child in a foster home or institution after the

18
(d).) Hence, tribal notice is required only if the proceeding qualifies as an “Indian child
custody proceeding,” (§ 224.1) which in turn depends upon whether the party filing the
“involuntary proceeding” “seek[s]. . .foster care” (25 U.S.C. 1912 (a)) or one of the other
out-of-home placements identified in the statute.
2. Conflicting evidence of remote Indian ancestry
In this case, both parents were ordered to fill out a form ICWA-020 at the
detention hearing on January 28, 2014. Even before the first court appearance, on the day
J.M. first came to the Bureau’s attention, the social worker inquired about Indian
ancestry, and Mother said she had none. Mother reportedly filled out a form ICWA-020
making this same representation under oath. Yet, on January 28, at the detention hearing,
she told the court that her great grandfather was an Apache. The court made no findings
relating to whether the children were Indian children subject to ICWA., but did tell
Mother to give the social worker any information she had about her Native American
history before the next hearing.
The Bureau’s report prepared for the disposition hearing indicated yet again that
Mother had filled out a form on February 25, 2014, saying she did not have Native
American ancestry. Neither of the ICWA forms signed by Mother appears in the record.
Father signed forms on two occasions stating he had no Indian ancestry. Against this
backdrop of conflicting information, Father claims the court erred in failing to ensure that
the Bureau sent notices to the Apache tribes in accordance with ICWA. (Cf. In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1167-1168 [where department had conflicting
information that infant may have had Native American paternal grandfather, court’s
failure to inquire further was a violation of § 224.3].)
Because the alleged Indian relationship was so distant, there was no statutory duty
imposed upon the court or the Bureau to send notice to the children’s potential Indian

termination of parental rights, but prior to or in lieu of adoptive placement; and [¶] (iv)
‘adoptive placement’ which shall mean the permanent placement of an Indian child for
adoption, including any action resulting in a final decree of adoption.” (25 U.S.C.
§ 1903(1).)

19
tribe. (§ 224.3, subd. (b)(1) [duty of sending notice attaches when a family member
“provides information suggesting... one or more of the child’s biological parents,
grandparents, or great-grandparents are or were a member of a tribe”]. ) According to the
information provided to the court, the children here had at most a great-great-grandfather
who was an Apache. The implication of the statute is that notice was not required because
the children were four generations removed from their only alleged Indian ancestor. But
we need not rest our decision solely on whether the court “knew or had reason to know”
the children were Indian children within the meaning of ICWA, for there is another
reason why the failure to send notice to the Apache tribes was not a violation of ICWA.
3. ICWA notice was not required where the Bureau did not recommend foster care
The Bureau argues that no notice was required in the present case because the
children were placed with their mother and not in foster care. We conclude it is not the
actual placement of the child that governs the question of notice; whenever a party is
“seeking . . . foster care placement” of an Indian child through an involuntary proceeding,
that party must give notice to the tribe.12 (25 U.S.C. § 1912.) We agree with the Bureau,
however, that notice was not required in this case because it never sought foster care
placement, but rather recommended from the outset that Mother retain custody of the
three children. In fact, the petition had a box to check stating, “It is probable the child
will be entering foster care,” and that box was not checked.
Father cites In re Jennifer A. (2002) 103 Cal.App.4th 692 (Jennifer A.), a section
300 proceeding, for the proposition that notice under ICWA must be given if the child is
to be removed from the custody of even one parent because the child cannot be returned
to that parent “upon demand.” (25 U.S.C. § 1903(1)(i).) But in Jennifer A., the child was
detained from her mother’s home due to neglect and her mother’s methamphetamine use.

12
“Foster care placement” is defined as “any action removing an Indian child from
its parent or Indian custodian for temporary placement in a foster home or institution or
the home of a guardian or conservator where the parent or Indian custodian cannot have
the child returned upon demand.” (25 U.S.C. § 1903(1)(i).) It does not include
placement with one of the parents. (In re J.B. (2009) 178 Cal.App.4th 751, 758 (J.B.).)

20
(103 Cal.App.4th at pp. 697-698.) At the detention hearing, both parents claimed Native
American ancestry. (Id. at p. 698.) Though ultimately placed with her father, who had
been a noncustodial parent, Jennifer was initially placed in a temporary emergency
shelter and later in foster care for approximately six weeks between detention and
disposition. (Ibid.) In its report filed for the disposition hearing, the child welfare agency
recommended that she remain in foster care because she did not want to live with her
father. (Ibid.) Because the ultimate outcome was unknown at the outset of the
hearing―and foster care remained a distinct possibility―the appellate court held ICWA
notice should have been given. (Id. at pp. 700-701.) Jennifer A. is distinguishable in that
Y.S. and I.S. were never placed in foster care and the Bureau never sought to have them
placed in foster care.
Notice to Indian tribes is not required in every situation where it comes to light in
a juvenile dependency case that a dependent child may have some degree of Native
American heritage. “By its own terms, [ICWA] requires notice only when child welfare
authorities seek permanent foster care or termination of parental rights; it does not require
notice anytime a child of possible or actual Native American descent is involved in a
dependency proceeding.”13 (In re Alexis H. (2005) 132 Cal.App.4th 11, 14 (Alexis H.).)
The court of appeal in Alexis H., another section 300 case, proceeded cautiously:
“Because the Department sought neither foster care nor adoption, the [ICWA] seemingly
does not apply.” (Id. at p. 15, italics added.) Its actual holding, however, was that any
error in the notices was harmless. (Id. at p. 16.) The case is also distinguishable from the
one before us because the welfare agency in Alexis H. did send notices to the Indian
tribes; thus, the issue was defective notice, not complete lack of notice. (Id. at p. 14.)
More recently, J.B., supra, 178 Cal.App.4th 751, again in a dependency context,
held that “ICWA does not apply to a proceeding to place an Indian child with a parent”
(id. at p. 758); rather, “the legislative intent behind ICWA expressly focuses on the

13
We question this statement insofar as it refers to “permanent” foster care.
ICWA itself defines “foster care placement” as including temporary foster care. (25
U.S.C. § 1903(1)(i).)

21
removal of Indian children from their homes and parents, and placement in foster or
adoptive homes” (id. at p. 759). In J.B. the child was unquestionably an Indian child.
(Id. at p. 755.) The issue on appeal was whether the court was required to make special
findings under section 361, subdivision (c)(6), which turned on whether the hearing in
which the child was removed from the mother and placed with the noncustodial father
was “an Indian child custody proceeding” within the meaning of section 361, subdivision
(c)(6).14 In an “Indian child custody proceeding” the court must find by clear and
convincing evidence that “continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child . . . .”
(J.B., supra, at p. 755.) Furthermore, “that finding [must be] supported by testimony of a
‘qualified expert witness’ as described in Section 224.6.” (Ibid.) In the end, J.B. held
supplemental findings under section 361, subdivision (c)(6) were not required when
custody of an Indian child was transferred from one parent to the other. (Id. at p. 758.)
We think it is key to the decision that the child welfare agency was apparently not
seeking foster care placement for J.B.
We discern a common thread running through the interpretation and application of
the ICWA in Jennifer A , Alexis H. and J.B.—all of these cases place importance on
whether foster care was being sought, an issue which we too think is key based on the
plain terms of the statute—and thus we now hold that the ICWA tribal notice requirement
only applies, assuming all other statutory requisites are met, when the child welfare
agency seeks foster care placement of an Indian child, even if the judge ultimately orders
the child placed with the child’s parent or current custodian. Where, as here, the agency
never seeks foster care placement, the ICWA does not require tribal notice.

14
An “Indian child custody proceeding” is “a ‘child custody proceeding’ within
the meaning of Section 1903 of the Indian Child Welfare Act, including a proceeding for
temporary or long-term foster care or guardianship placement, termination of parental
rights, preadoptive placement after termination of parental rights, or adoptive placement.”
(§ 224.1, subd. (d).)

22
 III. DISPOSITION
The orders adjudicating Y.S. and I.S. as dependent children and ordering them
removed from their father’s custody are affirmed.

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 _________________________
Streeter, J.

We concur:

_________________________
Ruvolo, P.J.

_________________________
Reardon, J.

24