In re V.C. CA2/5

Filed 9/30/20 In re V.C. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE

In re V.C., a Person Coming Under B303433
the Juvenile Court Law.

LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 19CCJP06307A)

Plaintiff and Respondent,

v.

J.C.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed.
Anne E. Fragasso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham, County
Counsel, Kristine P. Miles, Assistant County Counsel, and David
Michael Miller, Deputy County Counsel, for Plaintiff and
Respondent.
 The Los Angeles County Department of Children and
Family Services (Department) petitioned for juvenile court
dependency jurisdiction over two-year-old V.C. (Minor) after
learning of domestic violence between his parents J.C. (Mother)
and V.C. (Father). The juvenile court sustained the petition,
assumed jurisdiction over Minor, and removed him from his
parents’ custody. We consider whether Mother’s challenge to
only one of multiple alleged grounds for dependency jurisdiction
is justiciable notwithstanding other uncontested bases for
jurisdiction. We also decide whether the juvenile court’s order
removing Minor from his parents’ custody is supported by
substantial evidence and whether reversal is required because
the Department and the juvenile court did not comply with notice
provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.) and related California law.

I. BACKGROUND
A. September 2019 Domestic Violence Incident and
Initial Department Investigation
The Department began investigating Minor’s welfare in
September 2019, after learning of a domestic violence incident
between Mother and Father. They were drinking in a hotel bar—
with Minor (asleep) at the bar with them—and began arguing.
The argument continued when the parents and Minor went back
to their hotel room and, when Father tried to leave, the argument
escalated into a physical conflict. The police were called, and
when officers arrived, they observed an injury to Father’s lip and
arrested Mother.
A Department social worker went to the hotel that same
day and interviewed Father. He said his relationship with

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Mother ended over a year earlier and Mother now had primary
custody of Minor, with visitation for Father. Mother brought
Minor to the hotel for a visit, and when Father and Mother were
in hotel lobby they both consumed about two beers. According to
Father, Mother thought he was flirting with another woman and
they began to argue. Father said he took Minor to his hotel suite
located upstairs, put him in the bedroom, and then continued
arguing with Mother in the living room. Father claimed he
attempted to leave and Mother punched him in the face because
she did not want him to go. Mother then called the police, and
they arrested her because Father was the only one with a visible
injury to his lip. Father claimed Minor slept through the fight
between him and Mother.1
A few days later, a Department social worker interviewed
Mother at her home. Mother said that on the day of the domestic
violence episode, she and Father drank at the hotel bar (with
Minor present) and began arguing because he thought she was
flirting with someone else. They continued arguing after they
went up to the hotel suite and put Minor in the bedroom. Father
then moved to go to the bedroom to collect his things and leave,
and Mother tried to stop him by holding the bedroom door closed
while Father tried to open it. Mother claimed Father then
punched her in the face, which caused her to let go of the door,

1
Father admitted he had a criminal record, including an
arrest for domestic violence against his ex-wife in 2008, but he
claimed he doesn’t hit women. The Department later obtained a
criminal history printout for Father that revealed prior
convictions for spousal battery, violation of a domestic violence
protective order, willful cruelty to a child, and driving under the
influence.

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and the door then hit Father in the face. She called the police
and was arrested because there was a mark on Father’s lip,
although the charges were later dropped.
Mother also told the social worker that, in the past, Father
had been “very violent and aggressive” and “pushed her and
grabbed her many times.” She said Father was prone to getting
particularly aggressive when he drinks. According to Mother, she
had called the police on numerous occasions in the past when
Father showed up at her home drunk and harassed her. Mother
also unsuccessfully attempted to obtain restraining orders
against Father three times in prior years. Because of his
substance abuse and aggression, she felt uncomfortable with him
having unmonitored visitation with Minor, so she had been
monitoring the visits herself.
The Department also interviewed the maternal
grandparents. The maternal grandmother stated Father several
times had showed up to her home drunk and harassed Mother.
She believed Mother placed herself in a bad situation by
monitoring Minor’s visits with Father and wanted Mother to stop
exposing Minor to domestic violence. The maternal grandfather
said he had called the police several times because of Father’s
violent behavior.
Both parents submitted to drug tests. Father tested
positive for marijuana and cocaine, while Mother’s drug test was
negative but with diluted results.

B. The Dependency Petition and Further Department
Investigation
The Department filed a dependency petition alleging Minor
was a dependent child under Welfare and Institutions Code

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section 300,2 subdivision (a) (authorizing jurisdiction where there
is a substantial risk a child will suffer serious physical harm
inflicted nonaccidentally by the child’s parent) and subdivision (b)
(failure or inability to protect a child from a substantial risk of
serious physical harm) based on Mother and Father’s history of
engaging in violent altercations. The petition specifically
referenced the domestic violence incident at the hotel, where
“[M]other and [F]ather struck one another, resulting in the
[F]ather sustaining a swollen lip.” In a separate count, the
petition additionally alleged Father had a history of substance
abuse, and was a current abuser of alcohol, marijuana, and
cocaine, and Mother failed to protect Minor from Father’s
substance abuse.
At a detention hearing following filing of the petition, the
juvenile court ordered Minor detained from his parents and
released to the maternal grandparents, with the parents
permitted monitored visitation, separately.
In advance of an upcoming jurisdiction hearing, the
Department prepared an additional report summarizing
interviews with the family. Mother told the Department that
Father verbally abused her from the time Minor was six months
old and physically assaulted her on five occasions by pushing and
grabbing at her. Although Mother said domestic violence never
occurred in Minor’s immediate presence, she conceded Minor was
either in the home or at the same location during the violent
altercations. Father denied ever engaging in domestic violence
with Mother, although he acknowledged they would have heated

2
Undesignated statutory references that follow are to the
Welfare and Institutions Code.

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arguments when Minor was not present. As for the hotel
incident, Father conceded that he had “embellished” when he told
the police Mother hit him; Father said, in fact, the bedroom door
had hit him accidentally while they were arguing.

C. Facts Pertaining to ICWA
Both Mother and Father filed ICWA-020 Parental
Notification of Indian Status forms. On her form, Mother
indicated she had no Indian ancestry. Father, on the other hand,
checked a box to indicate he “may have Indian ancestry” with the
Yaqui tribe through Minors paternal grandfather, who was
deceased. Father listed the paternal grandfather’s name and
date of birth. Neither parent checked boxes on the form
indicating that Minor, Mother, Father, a grandparent, a great-
grandparent, or “other lineal ancestors” is, was, or may be a
member of a federally recognized Indian tribe.
At the initial detention hearing, the juvenile court informed
the Department it needed to “follow up” regarding Father’s claim
of Indian heritage. The Department later reported it re-
interviewed Father and he refused to provide any additional
information about his ancestors and stated it was “only ‘hearsay’
that there [wa]s Yaqui Indian ancestry in his family.”

D. The Combined Jurisdiction and Disposition Hearing
At the combined jurisdiction and disposition hearing, the
Department and Minor’s counsel argued the dependency petition
should be sustained in full. Mother asked to be dismissed from
the allegations and be named a “non-offending” parent, arguing
she had previously attempted to get restraining orders against
Father and was monitoring Father’s visits with Minor.

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Alternatively, Mother argued the juvenile court should dismiss
the domestic violence allegation because she was the one who had
called the police and Minor was not present during the domestic
violence because he was asleep in the bedroom.
The juvenile court sustained the petition as pled, finding
true the domestic violence counts alleged against both parents
under section 300, subdivisions (a) and (b) and the substance
abuse count alleged against Father. Moving to disposition, the
court asked if the parents were participating in any programs.
Mother said she had enrolled in a parenting class and had
attended one session; Father had not enrolled in any programs.
The court ordered Minor removed from the parents, noting that it
would be “premature” to return him to their custody because the
parents were not enrolled in programs addressing the problems
that gave rise to jurisdiction and Minor was quite young. Mother
was ordered to participate in a domestic violence program
support group for victims, a parenting program, and individual
counseling to address all case issues. The juvenile court did not
make any ICWA findings during the hearing.

II. DISCUSSION
Mother does not contest the section 300, subdivision (b)(1)
finding against her and the jurisdiction findings against Father
are uncontested on appeal. There is accordingly no disputing
dependency jurisdiction over Minor is proper regardless of the
merits of Mother’s challenge to the juvenile court’s decision to
sustain the dependency petition’s allegation under section 300,
subdivision (a). Under these circumstances, we decline to
address Mother’s challenge to the subdivision (a) finding. We do
address the merits of Mother’s challenge to the juvenile court’s

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order removing Minor from her custody, and we hold it is
adequately supported by the evidence. Finally, as to ICWA, we
are unpersuaded by Mother’s contention that Father’s statements
concerning his possible Indian heritage triggered the need to give
ICWA notice.

A. We Decline to Address the Merits of Mother’s
Challenge to the Section 300, Subdivision (a) Finding
“‘When a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’”
(In re I.J. (2013) 56 Cal.4th 766, 773, quoting In re Alexis E.
(2009) 171 Cal.App.4th 438, 451; see also In re I.A. (2011) 201
Cal.App.4th 1484, 1491-1492.)
Mother challenges only the juvenile court’s section 300,
subdivision (a) finding. The juvenile court’s findings that Minor
is a child described by section 300, subdivision (b)—because of the
domestic violence between the parents and because of Mother’s
failure or inability to protect Minor from Father’s substance
abuse—are uncontested. We therefore need not, and do not,
consider the sufficiency of the evidence to support the juvenile
court’s jurisdiction finding under section 300, subdivision (a).3

3
Mother argues we have discretion to resolve her challenge
to the section 300, subdivision (a) finding on the merits. That is

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 B. Substantial Evidence Supports the Juvenile Court’s
Order Removing Minor from Mother’s Custody
Under section 361, subdivision (c)(1), a dependent child
may not be removed from a parent unless the dependency court
finds “[t]here is or would be 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 removing the minor from the minor’s
parent’s . . . physical custody.” (§ 361, subd. (c)(1).) Section 361
thus allows removal of the child from the parent’s custody at the
disposition hearing where “‘return of the child would create a
substantial risk of detriment to the child’s physical or emotional
well-being’ [Citations.]” (In re H.E. (2008) 169 Cal.App.4th 710,
720.) “‘The parent need not be dangerous and the minor need not
have been actually harmed before removal is appropriate. The
focus of the statute is on averting harm to the child. [Citation.]
The court may consider a parent’s past conduct as well as present
circumstances.’” (In re N.M. (2011) 197 Cal.App.4th 159, 169-
170.) We review a removal order for substantial evidence. (In re

correct, but Mother’s arguments for why we should exercise that
discretion in this case are unpersuasive. Resolution of Mother’s
challenge to the section 300, subdivision (a) finding does not
affect whether she is an “offending” parent versus a “non-
offending” parent (contra In re Drake M. (2012) 211 Cal.App.4th
754, 763) and the subdivision (a) finding does not serve as the
sole basis for the juvenile court’s order removing Minor from her
custody—there are other findings that equally support that
aspect of the disposition order.

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Christopher R. (2014) 225 Cal.App.4th 1210, 1216; see also
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.).)
Mother, by her own account, has a long history of domestic
violence with Father, with some of the prior episodes she
described having occurred while Minor was nearby. Despite this
history, Mother took it upon herself to monitor Minor’s visits with
Father, and despite her awareness of Father’s volatility when
drinking, Mother decided to have drinks with Father at the hotel
bar—with Minor in tow—on the day of the domestic violence
episode specifically alleged in the dependency petition. Mother
had made previous efforts to obtain a restraining order against
Father, but that is not a point in her favor under these
circumstances: she never followed through and she continued to
have contact with Father. These facts in the record constitute
substantial evidence supporting the juvenile court’s conclusion
that there was a substantial danger to Minor’s health, safety, and
well-being if he were left in Mother’s care—particularly when
Mother had not yet enrolled in domestic violence counseling by
the time of the disposition hearing. (See, e.g., In re J.S. (2014)
228 Cal.App.4th 1483, 1494 [“Ongoing domestic violence,
committed by both parents, in the presence of the children, from
2008 through 2012, is substantial evidence of a substantial
danger to the children’s emotional well-being, if not their physical
well-being”], disapproved on another ground in O.B., supra, 9
Cal.5th at 1010, fn. 7.)

C. Father’s Statements Concerning His Possible Indian
Heritage Did Not Trigger ICWA Notice Requirements
ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of

10
Indian tribes and families by establishing minimum federal
standards a state court 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 re Elizabeth M. (2018) 19
Cal.App.5th 768, 784.) To comply with ICWA, the juvenile court
and the Department “have an affirmative and continuing duty to
inquire whether” a child who is the subject of a section 300
petition “is or may be an Indian child . . . .” (§ 224.2, subd. (a);
see also Cal. Rules of Court, rule 5.481(a).)
Section 224.2, which helps give effect to ICWA in this state,
states an appropriate inquiry “includes, but is not limited to,
asking the child, parents, legal guardian, Indian custodian,
extended family members, others who have an interest in the
child, and the party reporting child abuse or neglect, whether the
child is, or may be, an Indian child . . . .” (§ 224.2, subd. (b).) The
same statute mandates that, after inquiry, notice must be
provided to the pertinent Indian tribe(s), the Secretary of
Interior, and the Bureau of Indian Affairs if there is “reason to
know” a child for whom a dependency foster care placement is
sought is an Indian child. (§ 224.2, subd. (f); see also § 224.3.)
There is “reason to know” a child is an Indian child if “(1) A
person having an interest in the child . . . informs the court that
the child is an Indian child[;] [¶] (2) The residence or domicile of
the child, the child’s parents, or Indian custodian is on a
reservation or in an Alaska Native village[;] [¶] (3) Any
participant in the proceeding, officer of the court, Indian tribe,
Indian organization, or agency informs the court that it has
discovered information indicating that the child is an Indian
child[;] [¶] (4) The child who is the subject of the proceeding gives
the court reason to know that the child is an Indian child[;] [¶] (5)

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The court is informed that the child is or has been a ward of a
tribal court[;] [¶] (6) The court is informed that either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe.” (§ 224.2, subd. (d).)
Father’s opening brief challenges only the Department’s
decision not to give notice of the proceedings to the Yaqui tribe,
Secretary of Interior, and Bureau of Indian Affairs; the opening
brief does not contest the adequacy of the Department’s ICWA
inquiry that was limited to interviewing Father.4 Father’s
statements to the Department and on his standardized ICWA
form do not meet the threshold of any of the six reason to know
factors in section 224.2, subdivision (d). Notice, therefore, was
not required.5

4
Mother challenges the adequacy of the Department’s
inquiry in her reply brief, but that is too late. The point is
waived. (In re J.N. (2006) 138 Cal.App.4th 450, 459, fn. 5.)
5
The juvenile court never made an ICWA finding on the
record and, as we have already highlighted, we do not decide
whether the Department’s ICWA inquiry was adequate. Nothing
in this opinion therefore forecloses a later challenge to a juvenile
court ICWA finding predicated solely on the adequacy of that
inquiry.

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 DISPOSITION
The juvenile court’s jurisdiction finding and disposition
order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.

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