Filed 1/25/21 In re Aiden R. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Aiden R. et al., Persons B303195
Coming Under the Juvenile Court
Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos.19CCJP04737A,
19CCJP04737B)
Plaintiff and Respondent,
v.
RACHELLI P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Mary E. Kelly, Judge. Affirmed.
Donna B. Kaiser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Tracey Dodds, Deputy County Counsel, for
Plaintiff and Respondent.
Caitlin Christian, under appointment by the Court of
Appeal, for Minors Aiden R. and Alexander R.
——————————
Rachelli P. (mother) appeals from the orders of the juvenile
court taking jurisdiction over her two sons and removing them
from her custody. We affirm.
BACKGROUND
The family came to Los Angeles County Department of
Children and Family Services’s (DCFS) attention after mother
and her newborn son, Alexander R., tested positive for
methamphetamine at the hospital after his birth. Alexander R.
was treated in the neonatal intensive care unit for low blood
sugar and prenatal drug exposure. Although mother initially
denied using methamphetamine, once she was confronted with
the fact that she would have had to have smoked
methamphetamine within the last three to five days for it to be in
Alexander R.’s system, she admitted to using the drug, but
refused to say for how long.
DCFS filed a Welfare and Institutions Code1 section 300
petition on behalf of Alexander R. and his 15-year-old brother,
Aiden R., under subdivision (b)(1), alleging that mother was
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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unable to supervise or provide regular care for the children due to
mother’s substance abuse.2
Count b-1 alleged that Alexander R. was born suffering
from a detrimental condition, consisting of a positive toxicology
screen for methamphetamine, and that mother’s use of
methamphetamine endangered Alexander R.’s physical health
and safety. Count b-2 alleged that mother was a current user of
methamphetamine and had a history of illicit drug use, rendering
her incapable of providing regular care for her children. Count b-
2 further alleged that remedial services and mother’s prior
participation in an outpatient drug program had failed to resolve
mother’s drug problem.
At the detention hearing, mother submitted to detention of
the children, and the juvenile court placed them with their
maternal grandmother. The juvenile court granted mother
monitored visitation for a minimum of three times per week for
three hours per visit. Mother indicated that she had no Native
American ancestry, but said that Aiden R.’s father might have
“Blackfeet” or “Blackfoot” ancestry. She also informed the
juvenile court that she intended to enter an inpatient substance
abuse treatment program, however, two weeks later, mother
opted to enroll in an outpatient program instead.
When DCFS interviewed mother for its jurisdiction and
disposition report, she denied that Alexander R. tested positive
for methamphetamine and refused to answer questions about her
drug use during her pregnancy. However, mother admitted to
using methamphetamine in the past and agreed to attend a
substance abuse program with random drug testing.
2 Aiden R. and Alexander R. have different fathers.
3
DCFS’s investigation revealed that, in 2006, there was a
prior referral to DCFS that mother used methamphetamine in
front of Aiden R. The referral was substantiated, however,
Aiden R. appeared to be safe in the home of mother due to her
strong family support and because she was enrolled in a
substance abuse program. In 2017, there was another
substantiated referral for general neglect of Aiden R. based on
mother’s use of methamphetamine, which resulted in DCFS filing
a section 300 petition, alleging that mother had a history of illicit
drug use. However, it appears that the petition was not
sustained because mother was provided with a voluntary
maintenance program. In the present matter, DCFS interviewed
Aiden R.’s paternal grandfather, who indicated that he had
witnessed mother buying drugs in the neighborhood and that he
had warned her two years prior that, if she did not stop using,
“they are going to take your kids away.”
At the adjudication hearing, the juvenile court admitted the
detention report, the jurisdiction and disposition report, and two
informations indicating mother had enrolled in an outpatient
drug treatment program. Mother’s counsel introduced no
evidence and submitted on all legally admissible evidence
concerning jurisdiction, offering argument regarding disposition
only. The juvenile court sustained the petition as alleged and
proceeded to disposition. Mother requested that the children
remain with her, or, alternatively, that she and the children be
allowed to reside with the maternal grandmother.
The juvenile court declared the children to be dependents of
the juvenile court and found by clear and convincing evidence
that there was a risk to the children’s health and safety if they
were to be returned to mother. While the juvenile court
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commended mother for her progress in her outpatient treatment,
it found that returning the children to her care created a
substantial risk of harm. The juvenile court ordered mother to
participate in a full drug and alcohol program, attend a parenting
class, participate in individual counseling, and submit to drug
testing. The juvenile court also increased mother’s visitation
from three to six hours per visit.
Mother appealed the juvenile court’s jurisdictional findings
and disposition orders. While mother’s appeal was pending,
mother made substantial progress in her programs and the
children were placed back in her care while remaining under the
juvenile court’s jurisdiction.3
DISCUSSION
Mother raises several issues on appeal. First, mother
contends the juvenile court’s jurisdiction and dispositional orders
were not supported by substantial evidence. Second, mother
asserts that the jurisdiction and dispositional orders must be
reversed because the juvenile court failed to obtain an oral or
written waiver of mother’s trial rights at the jurisdiction hearing
after her counsel submitted on the evidence. Third, mother
asserts that the matter must be reversed and remanded because
the juvenile court failed to comply with the Indian Child Welfare
Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We address each
issue in turn.
3 Mother’s request for judicial notice, filed on July 24, 2020,
is granted.
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I. Substantial evidence supported the juvenile court’s
findings.
Mother contends that there was insufficient evidence to
support the juvenile court’s jurisdiction and dispositional orders
that her substance abuse endangered the children and their
removal was necessary to protect their wellbeing. We disagree.
Section 300, subdivision (b)(1) reads, in relevant part, that
a child is subject to the jurisdiction of the juvenile court when the
child “has suffered, or there is a substantial risk that the child
will suffer, serious physical harm or illness, as a result of the
failure or inability of his or her parent . . . to adequately
supervise or protect the child . . . due to the
parent’s . . . substance abuse.” The juvenile court is not required
to find that the child was in fact harmed, but only that the child
is at “substantial risk” of harm.
DCFS bears the burden to establish the jurisdictional facts
by a preponderance of the evidence. (In re D.C. (2011) 195
Cal.App.4th 1010, 1014.) To justify removal of a child from a
parent or guardian’s custody, DCFS must prove that removal is
necessary to protect the child by clear and convincing evidence.
(§ 361, subd. (c).) We will uphold the juvenile court’s
jurisdictional findings and dispositional order unless “ ‘after
reviewing the entire record and resolving all conflicts in favor of
the respondent and drawing all reasonable inferences in support
of the judgment, we determine there is no substantial evidence to
support the findings.’ ” (In re J.N. (2010) 181 Cal.App.4th 1010,
1022.) Substantial evidence is any evidence which is reasonable,
credible, and of solid value to support the juvenile court’s finding.
(In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) We resolve all
conflicts in favor of the prevailing party and defer to the juvenile
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court on issues of credibility. (In re Albert T. (2006) 144
Cal.App.4th 207, 216.)
Here, there was substantial evidence that mother had a
history of methamphetamine use and that prior intervention by
DCFS and treatment failed to mitigate mother’s problem.
Alexander R. had a positive toxicology screen for
methamphetamine at the hospital when he was born. Mother
had a prior history with DCFS that included two substantiated
referrals that mother was using methamphetamine and was
neglecting Aiden R. While mother completed a drug treatment
program in connection with one of those prior referrals, a year
later, she tested positive for methamphetamine, leading to the
current petition. While mother generally denied that she used
methamphetamine, when confronted with Alexander R.’s positive
toxicology screen, she admitted to using the drug. In addition to
her prior history and admissions, the paternal grandfather
witnessed mother buying drugs and had warned mother over two
years that her drug abuse put her children at risk. Mother’s and
Alexander R.’s positive toxicology screen at the hospital
supported the conclusion that mother had used
methamphetamine during her pregnancy.
Mother asserts that the drug screen results were for
medical use only and “not for legal purposes.” However, the
juvenile court, not the drug screener, decides the admissibility of
evidence. The drug test results were admitted without objection.
Thus, mother waived any objection to their admissibility. (Evid.
Code, § 353.) Mother also argues that the test results do not
meet the standards for admissibility in criminal actions.
However, to convict a criminal defendant, the prosecution must
meet a higher evidentiary standard of proof beyond a reasonable
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doubt. In a juvenile dependency, DCFS must prove jurisdictional
facts by a preponderance of the evidence and that removal is
necessary by clear and convincing evidence. (In re D.C., supra,
195 Cal.App.4th at p. 1014; § 361, subd. (c).) We do not reweigh
evidence on appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212,
288.)
Mother also argues that her admissions were too vague as
to time and frequency to support the conclusion that she was
currently using methamphetamine. However, mother’s
admissions were made in the context of Alexander R.’s positive
toxicology screen at the hospital after she was told that
Alexander R. could only have tested positive if mother had
smoked methamphetamine within the previous three to five days.
With respect to Aiden R. only, mother argues that there
was no evidence that her methamphetamine use created a
substantial risk to him as he was not of a tender age and
appeared to be a well-adjusted and healthy teenager. While the
evidence supports the conclusion that Aiden R. had not yet
suffered any harm from mother’s drug abuse, we disagree with
mother’s conclusion that her drug abuse did not create a
substantial risk of future harm. Mother failed to maintain her
sobriety throughout Aiden R.’s life that resulted in two prior
referrals concerning potential harm to Aiden R. Although the
juvenile court did not assume jurisdiction after those prior
referrals, the referrals were substantiated and did not prevent
mother from using methamphetamine as evidenced by the
positive toxicology screen that showed that mother had been
using during her pregnancy with Alexander R.
Lastly, mother contends that because she tested negative
twice since the start of her outpatient treatment, there was no
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evidence that she used methamphetamine. However, those two
negative tests occurred over a period of 11 days. In the context of
mother’s failure to mitigate her substance abuse through prior
drug programs over a period of years, two clean tests in 11 days
were insufficient to show that her substance abuse problem had
been abated.
We conclude that the juvenile court’s jurisdiction and
dispositional orders were supported by substantial evidence.
II. Harmless error
Mother contends the juvenile court violated her due process
rights by failing to ensure that she knowingly and voluntarily
waived her right to trial after her submission at the jurisdiction
hearing. While we agree with mother that the juvenile court
erred, we conclude the error was harmless.
California Rules of Court, rule 5.682(d) provides that a
parent may submit to the jurisdictional determination of the
juvenile court based on the information submitted during the
hearing. After submission, the juvenile court must also find that
the parent knowingly and intelligently waived his or her right to
a trial on the issues before the court and that the submission was
voluntarily made. (Cal. Rules of Court, rule 5.682(e).)
Because the due process rights protected by these rules
implicate a parent’s fundamental right to care for and have
custody of his or her child, the juvenile court must advise the
parents of their due process rights to a hearing and must obtain
an express personal waiver of those rights if the hearing is to
proceed without further evidence. (In re Monique T. (1992) 2
Cal.App.4th 1372, 1377.) We review the juvenile court’s failure to
obtain a waiver for harmless error. (Id. at p. 1374.) We may
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affirm only if the error is harmless beyond a reasonable doubt.
(In re S.N. (2016) 2 Cal.App.5th 665, 672.)
Here, we conclude the error was harmless because the
evidence of mother’s methamphetamine use was overwhelming.
As discussed above, mother’s history of methamphetamine use
and current abuse of the drug was supported by the positive
toxicology screen for methamphetamine at the time of
Alexander R.’s birth, the prior referrals to DCFS, her own
admissions of prior use, and the statements from paternal
grandfather that he witnessed mother buy drugs and that he had
warned her over two years that her drug abuse put the children
at risk.
Mother contends that, had she known about her right to a
trial, she would have introduced evidence, cross-examined some
witnesses, or explained her inconsistent statements regarding
her methamphetamine use, which might have resulted in a
denial of the petition. However, beyond mother’s general
assertions that she would have explained her inconsistent
statements regarding her methamphetamine use, mother does
not describe her testimony or how it would have changed the
outcome. Mother was represented by counsel throughout the
proceedings and when the juvenile court asked mother’s counsel
if she had any evidence to introduce at jurisdiction, mother’s
counsel indicated she was submitting on all legally admissible
evidence. We assume the juvenile court found mother’s denials of
methamphetamine use not credible considering her own
admissions of use combined with the positive toxicology screen.
Because mother’s contention is supported only by speculation, we
find the error was harmless beyond a reasonable doubt.
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III. Mother’s ICWA claim is moot because the children have
been returned to her custody.
Lastly, mother asserts we must reverse and remand for
further ICWA inquiry and notice because DCFS failed to notify
and work with the Blackfeet tribe to verify if Aiden R. was a
member or eligible for membership and did not inquire whether
Alexander R.’s father had Indian ancestry.
ICWA establishes minimum federal standards that a state
court must follow before removing an Indian child from his or her
parents’ care. (In re Austin J. (2020) 47 Cal.App.5th 870, 881–
882.) These standards impose additional safeguards, which must
be satisfied in cases involving Indian child custody proceedings.
(Ibid.) Indian child custody proceedings are defined as hearings
that may culminate in an order for foster care placement,
adoptive placement, or the termination of parental rights.
(§ 224.1, subd. (d); 25 U.S.C. § 1903(1).) To ensure these
protections are provided in cases involving Indian children, the
juvenile court and DCFS have an “affirmative and continuing
duty” to inquire whether a child subject to a dependency petition
“is or may be an Indian child.” (§ 224.2, subd. (a).) The duty to
inquire begins with the DCFS’s “initial contact” with the family
and requires DCFS ask the children’s parents and relatives about
the children’s Indian status. (§ 224.2, subd. (a).)
However, if the child has been returned to parental
custody, any error in failing to comply with ICWA does not
necessitate reversal or remand on appeal. (In re Austin J., supra,
47 Cal.App.5th at p. 881, fn. 5.) That is the case here, and there
is no meaningful relief we can grant mother.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
EGERTON, J.
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