In re A.S. CA2/8

Filed 11/13/15 In re A.S. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re A.S., a Person Coming Under the B260605
Juvenile Court Law.

LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK79976)
FAMILY SERVICES,

Plaintiff and Respondent,

v.

W.V.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Marilyn
Martinez, Juvenile Court Referee. Affirmed.

Denise M. Hippach, under appointment by the Court of Appeal, for Defendant and
Appellant.

Mary C. Wickham, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Jessica Paulson-Duffy, Deputy County Counsel, for Plaintiff and
Respondent.
__________________________
 W.V. (father) appeals from the October 22, 2014 order sustaining a Welfare and
Institutions Code section 300 petition as to his four-month-old daughter, A.S., and
denying father reunification services.1 He contends: (1) insufficient evidence supported
the jurisdictional finding based on father’s drug use; (2) it was an abuse of discretion to
deny father reunification services; and (3) the juvenile court did not comply with the
notice provision of the Indian Child Welfare Act (ICWA). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules of appeal from an order sustaining a
section 300 petition (In re E.B. (2010) 184 Cal.App.4th 568, 578), the evidence
established that father was not married to mother but mother was living with father when
she gave birth to A.S. at home, in a bathroom, in June 2014.2 Father dropped mother and
A.S. off at the hospital, but did not stay with them. Hospital staff observed mother
talking to herself. Although she refused to be drug-tested, mother admitted often using
marijuana, cigarettes, alcohol, and “crystal meth” while pregnant with A.S., using crystal
meth a few days before A.S. was born and smoking marijuana during the delivery to ease
the pain. Mother said father uses crystal meth and marijuana. A few days later, A.S.
tested positive for amphetamines, barbiturates and tricylic (an anti-depressant). A.S. was
detained by the Department of Children and Family Services (DCFS).
As eventually sustained, a section 300 petition alleged dependency jurisdiction
based on mother’s unresolved history of substance abuse and A.S.’s positive toxicology
for several substances (paragraph b-1) and that father “has a history of substance abuse
and is a current user of methamphetamine and marijuana which renders [him] incapable

1 All future undesignated statutory references are to the Welfare and Institutions
Code.

2 Mother told hospital staff and the social worker that she was alone in the bathroom
when she delivered A.S. into the toilet, bit off the umbilical cord and flushed the placenta
down the toilet. She asked that A.S. be examined for any possible head injury caused by
her head hitting the toilet during delivery. Mother’s parental rights to an older child had
previously been terminated.

2
of providing regular care for the child. The father’s substance abuse endangers the
child’s physical health, safety and well being and creates a detrimental home
environment for the child, placing the child at risk of physical harm.”
At the detention hearing on June 25, mother identified father as A.S.’s biological
father. That day, mother signed a Parental Notification of Indian Status form, also known
as a “form ICWA-020.” On that form, the box indicating mother may have Indian
ancestry is checked and there is the following handwritten notation: “Ute Tribe –
MGGGGF – from child.” Regarding mother’s form ICWA-020, mother’s appointed
counsel and the court engaged in the following colloquy:
“THE COURT: I have mother’s ICWA notification, and she believes that
there is some heritage with a UTE, U-T-E, tribe and that is the . . . maternal
great-great-great-grandfather.[3]

“[MOTHER’S COUNSEL:] Your Honor, with respect to the ICWA, I did
also speak to the maternal grandmother. She indicates that the baby may be
132nd [sic]. . . . You have to have a closer degree to qualify for
membership. It is a federally recognized tribe, but I believe it’s at least four
greats or three greats removed from the child.

“THE COURT: And I believe that’s at least one too many to be eligible for
ICWA. [¶] So are there any objections to finding that the Indian Child
Welfare Act does not apply?

“[MOTHER’S COUNSEL:] No, Your Honor.

“[A.S.’S COUNSEL:] No, Your Honor.

“[DCFS:]: No, Your Honor.”

The juvenile court concluded it had no “reason to know that this is an Indian Child, as
defined under ICWA, and does not order notice to any tribe or the BIA.” A.S. was
ordered detained and an August 12 jurisdictional hearing was scheduled.

3 “Maternal great-great-great-grandfather” appears to have been generally
understood by the court and counsel to be the meaning of the handwritten notation
“MGGGGF – from child.”

3
 According to the Jurisdictional Report for the August 12 hearing, father had not
returned the social worker’s telephone calls trying to schedule an interview with father.
But when father called to check on A.S.’s well-being, he told the social worker he no
longer had any relationship with mother; he was not sure whether A.S. was his child; if
A.S. was determined to be his child, he would want custody of her. Father appeared at
the August 12 hearing, was appointed counsel and his request for a paternity test was
granted; the matter was continued to October 22.
Neither mother nor father appeared at the hearing on October 22. The juvenile
court found father to be A.S.’s biological father based on the paternity test results.
Father’s counsel argued the petition’s allegations against him should be dismissed
because father “is not here today and he is not coming forward requesting custody, so I
think the court can dismiss the petition without prejudice. And should [father] come
forth requesting some type of rights to the child, then the department can file an
appropriate petition.” Alternatively, counsel argued there was no substantial evidence to
support the substance abuse allegation: “I believe that the only statement with regard to
my client being a current user of drugs comes from the mother. She’s listed on my
witness list. She’s not here for me to cross-examine, but I would question the validity of
those statements . . . .” The juvenile court found true the allegation basing section 300,
subdivision (b) jurisdiction on father’s history of substance abuse and current use of
methamphetamine and marijuana.
The court explained:
“And now why am I sustaining this as to the father? First of all, father was
ordered back and advised if he did not appear, the court could proceed in
his absence and resolve the jurisdiction/disposition issues against him. . . .
[¶] Furthermore, we don’t have information from him because he has not
cooperated with the social worker and made himself available to be
interviewed by the social worker. So he cannot profit or benefit from his
own acts of refusing to participate or be interviewed. [¶] Furthermore, I
find mother a credible reporter, she is the one who has made clear
statements that [father] is drug involved, including methamphetamines. . . .
[¶] Being a user of methamphetamines, perhaps unlike marijuana, is a
prima facie basis that a parent is drug involved to the extent that they are

4
 unable to provide care for a child and also that they pose a risk of detriment
to this child, and not only prima facie because I’ve detained the child, but
I’m finding by the preponderance of the evidence.”

A.S. was placed with DCFS for suitable placement. Father was given monitored
visits but denied reunification services. The court explained: “As a biological father, he
does not have a right to reunification. However, I will include him on a case plan.
Should he ever want to file a section 388 petition, he will know exactly what it is he was
ordered to do.” The case plan included a drug program and weekly drug tests. Father
timely appealed.

DISCUSSION

A. ICWA

Father contends the dispositional order must be conditionally reversed because the
juvenile court did not comply with the ICWA notice requirements. He argues those
requirements were triggered by mother’s assertion of Indian heritage on the form ICWA-
020 and only the tribe could decide whether A.S. met the tribe’s eligibility requirements.
We find no error.
ICWA allows an Indian tribe to intervene in dependency proceedings involving an
Indian child, “to ‘protect the best interests of Indian children and to promote the stability
and security of Indian tribes and families . . . .’ [Citation.]” (In re J.M. (2012)
206 Cal.App.4th 375, 380.) An Indian child is defined by ICWA as “any unmarried
person who is under age 18 and is either (a) a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and the biological child of a member of an Indian
tribe.” (25 U.S.C. § 1903(4).)
The court and county welfare department (in this case DCFS) have an affirmative
duty to inquire whether a child who is the subject of a section 300 petition is an Indian
child. (§ 224.3, subd. (a); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942; see In re
W.B. (2012) 55 Cal.4th 30, 53 [§ 224.3 “defines when and how the juvenile court must
inquire . . . .”].) California Rules of Court, rule 5.481(2) implements the statutory duty to

5
inquire by requiring the court to order parents, at their first appearance in a dependency
case, to complete a “Parental Notification of Indian Status (form ICWA-020).”
If the court or social worker “knows or has reason to know” that the child is an
Indian child, the social worker must give notice to the Indian child’s tribe of the
dependency proceedings and the tribe’s right to intervene in those proceedings. (§ 224.3,
subd. (d).) The statute identifies three non-inclusive circumstances that provide reason to
know the child is an Indian child, one of which is: A person having an interest in the
child provides information suggesting the child is eligible for membership in a tribe or
one or more of the child’s biological parents, grandparents, or great-grandparents are or
were a member of a tribe. (§ 224.3, subd. (b).) This circumstance can be separated into
two different situations: (1) the child’s specific familial relationships with tribe members
and (2) the more general “information suggesting the child is eligible for membership in a
tribe.” Under the more general provision, information that eligibility in the tribe at issue
may be based on a relationship to a tribe member more distant than the statutorily
specified relationships, and that the child has such a relationship, may give the social
worker and the court reason to know the child is an Indian child.
But, more than a “bare suggestion” that a child may be an Indian child is needed to
trigger the ICWA notice requirement. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514,
1520.) And “if there is insufficient reason to believe a child is an Indian child, notice
need not be given. [Citations.]” (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538-
1539.) In Shane, for example, the maternal grandmother’s statement that the child’s
great-great-great-grandmother was a Comanche did not trigger the notice requirement
where there was no information that anyone in the family “ever lived on a reservation,
attended an Indian school, participated in Indian ceremonies or received services from an
Indian health clinic. Most significantly, the evidence before the court showed the
Comanche tribe requires a minimum blood quantum for membership that excludes
Shane.” (Id. at p. 1539 [parties stipulated that a Comanche representative would testify
any member must be at least one-eighth Comanche]; see In re Z.N. (2009)

6
181 Cal.App.4th 282, 298 [information that one great grandmother was Cherokee and
another “part Apache” was not enough to trigger ICWA’s notice requirements].)
We find no error in the juvenile court’s conclusion that it had no reason to know
A.S. was an Indian child as defined in ICWA. It is undisputed that the duty to inquire
was satisfied by requiring mother to complete the Parental Notification of Indian Status at
the detention hearing, which was her first appearance in the proceedings. The
information mother supplied on that form – that A.S. may have Indian ancestry in the Ute
tribe through A.S.’s maternal great-great-great-grandfather – did not give the court or
social worker reason to know A.S. was an Indian child.
First, great-grandparent is the furthest relationship circumstance identified in
section 224.3, subdivision (b)(1). The relationship mother identifies on the form ICWA-
020 – great-great-great-grandfather – is not a “great grandparent.” Accordingly, that
information did not give the court or social worker reason to know A.S is an Indian child.
Second, under Shane, information that A.S.’s maternal great-great-great-
grandfather was member of the Ute tribe was not “information suggesting the child is
eligible for membership in a tribe.” Father argues that there was no evidence of the
minimum blood quantum requirement for Ute tribe membership. However, during a
discussion of whether ICWA applied, mother’s counsel stated: “You have to have a
closer degree to qualify for membership. . . .” We conclude this statement was an
unambiguous concession that the Ute tribe required a minimum blood quantum for
membership that excluded A.S. As such, it constituted a judicial admission. (Physicians
Committee for Responsible Medicine v. KFC Corp. (2014) 224 Cal.App.4th 166, 180
[“ ‘[A]n oral statement by counsel in the same action is a binding judicial admission if the
statement was an unambiguous concession of a matter then at issue and was not made
improvidently or unguardedly. [Citations.]’ [Citation.]”]) On appeal, father does not
dispute the veracity of counsel’s statement.
On this record, it was not error for the trial court to find it had no reason to know
A.S. may be an Indian child. Thus no ICWA notice was required.

7
B. Father’s Challenge to the Jurisdiction Order is Not Justciable

As we shall explain, father’s challenge to the sufficiency of the evidence to
support dependency jurisdiction based on his conduct does not raise a justiciable issue.
The primary concern of dependency law is protection of the children. “The court
asserts jurisdiction with respect to a child when one of the statutory prerequisites listed in
section 300 has been demonstrated. [Citation.]” (In re I.A. (2011) 201 Cal.App.4th
1484, 1491.) “For jurisdictional purposes, it is irrelevant which parent created those
circumstances. A jurisdictional finding involving the conduct of a particular parent is not
necessary for the court to enter orders binding on that parent, once dependency
jurisdiction has been established. [Citation.] As a result, it is commonly said that a
jurisdictional finding involving one parent is ‘ “good against both. More accurately, the
minor is a dependent if the actions of either parent bring [him] within one of the statutory
definitions of a dependent.” ’ [Citation.] For this reason, an appellate court may decline
to address the evidentiary support for any remaining jurisdictional findings once a single
finding has been found to be supported by the evidence. [Citations.]” (Id. at pp. 1491-
1492.) This is because any decision will not result in reversal of the jurisdictional order.
Under such circumstances, the appeal raises “ ‘ “abstract or academic questions of
law” ’ ” since we cannot render any relief that would have a practical, tangible impact on
the appellant’s position in the dependency proceeding. (Ibid.) As such, the appeal is
generally not justiciable.
But appellate courts have discretion to “address the merits of the jurisdictional
findings against one parent where ‘the finding (1) serves as the basis for dispositional
orders that are also challenged on appeal [citation]; (2) could be prejudicial to the
appellant or could potentially impact the current or future dependency proceedings
[citations]; or (3) “could have other consequences for [the appellant], beyond
jurisdiction” [citation].’ [Citation.]” (In re Briana V. (2015) 236 Cal.App.4th 297, 309.)
Here, father seeks review of the evidentiary support for the jurisdictional findings
based on his conduct, but not the evidentiary support for the findings based on mother’s

8
conduct; mother herself has not appealed. As such, even a decision in father’s favor
would not result in a reversal of the jurisdictional order. Further, father has not identified
any consequences to him beyond jurisdiction which would cause us to exercise our
discretion to consider his appeal. He does not seek presumed father status and does not
challenge the placement order. Nor has father identified any other prejudicial impact of
the finding in the current or future dependency proceedings. For these reasons, father’s
appeal from the jurisdictional order is not justiciable and we decline to exercise our
discretion to consider it.

C. Denial of Reunification Services To Father Was Not an Abuse of Discretion.

Father contends it was an abuse of discretion to deny him reunification services on
the ground that he was not a presumed father. He argues “there is no evidence in the
record the court ever considered whether ordering services would benefit [A.S.]” We
disagree.
With exceptions not relevant here, the juvenile court must order reunification
services for the mother and presumed father. (§ 361.5, subd. (a).) It “may order services
for the child and the biological father, if the court determines that the services will benefit
the child.” (Ibid., italics added.) Unlike other statutes which require the court to make a
record of the reasons for its exercise of discretion, section 361.5, subdivision (a) does not
require the court to state its reasons for refusing reunification services to a biological
father. (Cf. § 366.26, subd. (c)(1) [court must state on the record or in writing
compelling reasons for applying an exception to preference for adoption].)
The purpose of section 361.5 is to provide services that will facilitate reunification
of the family. Thus, “reunification services are not required to be provided to a parent
who will not be taking custody of the children.” (Robert L. v. Superior Court (1996)
45 Cal.App.4th 619, 628; superseded by statute on another ground as stated in In re
Adrianna P. (2008) 166 Cal.App.4th 44, 56.) In In re Elijah V. (2005) 127 Cal.App.4th
576, 628), a biological father who was not seeking custody appealed from the order
denying him reunification services. His only argument as to why it was in the child’s

9
best interests to order reunification services, was that it would give father an opportunity
to build a parent-child relationship with the child. The Court of Appeal affirmed,
reasoning that it was not an abuse of discretion to decline services because the biological
father was not seeking custody. (Id. at p. 589.)
Here, father’s counsel expressly stated that father was not seeking custody of A.S.
Under Robert L. and Elijah V., this was reason enough to deny father reunification
services and the court had no duty to explain why it believed reunification services would
not benefit A.S. Contrary to father’s assertion, the court did not make reunification
services conditional on father filing a section 388 petition. The court’s reference to a
section 388 petition can only reasonably be understood as referring to father’s ability to
file a section 388 petition seeking presumed father status which, if granted, would likely
entitle father to reunification services.

DISPOSITION

The judgment is affirmed.

RUBIN, J.
WE CONCUR:

BIGELOW, P. J.

FLIER, J.

10