Filed 10/17/23 In re Benjamin R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 BENJAMIN R. et al., B318296 c/w B325091
Persons Coming Under the
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 21CCJP04424A-B
Plaintiff and Respondent,
v.
ROSA R.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County, Stephen C. Marpet, Judge. Affirmed, and
remanded with directions.
Vincent Uberti, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
In this consolidated appeal, mother challenges the
adequacy of the sustained petition allegation to support the
juvenile court’s jurisdiction under Welfare and Institutions Code
section 300, subdivision (b)(1).1 Mother also contends that the
court’s October 4, 2022 finding of reasonable services at a
contested review hearing under section 366.21, subdivisions (e)
and (f), was not supported by substantial evidence because the
Los Angeles County Department of Children and Family Services
(Department) did not implement conjoint counseling or propose
therapeutic visits when her children refused visits. Finally,
mother contends it was error for the court to find that the
Department had complied with its obligations under the Indian
Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and
related California statutes (Welf. & Inst. Code, § 224 et seq.). We
affirm the jurisdiction order and the reasonable services finding,
but remand the matter for the juvenile court to ensure that the
Department carries out its inquiry obligations under ICWA and
related statutes.
BACKGROUND2
The parties are familiar with the facts and our opinion does
not meet the criteria for publication. (Cal. Rules of Court, rule
8.1105(c).) We accordingly resolve the cause before us, consistent
1 Further statutory references are to the Welfare and
Institutions Code.
2 We “review the record in the light most favorable to the
court’s determinations.” (In re M.R. (2017) 8 Cal.App.5th 101,
108.)
2
with constitutional requirements, via a written opinion with
reasons stated. (Cal. Const., art. VI, § 14; Lewis v. Superior
Court (1999) 19 Cal.4th 1232, 1261–1264 [discussion of issue on
appeal need not discuss every fact or legal authority raised by
parties].)
As relevant here, mother and father3 have two children: the
older child was born in January 2008 and the younger child was
born in October 2010. At an adjudication hearing on December 1,
2021, the court sustained the following amended language for a
count under section 300, subdivision (b)(1), based on mother’s
mental health: “[Mother] has mental and emotional problems
including a diagnosis of depression, which renders the mother
incapable of providing the children with regular care and
supervision. The mother has a history of [] a diagnosis of
Depression. In 2018, [Mother] felt depressed and anxious. On
one occasion, [mother] seeked [sic] medical care . . . and the
doctor prescribed her Ativan medication. The mother continually
displays behavior that would indicate unresolved mental health
instability.” Mother appealed.
At a contested combined six and twelve-month review
hearing on October 6, 2022, the court found that the Department
had provided reasonable services, and ordered the Department to
continue providing reunification services until the eighteen-
month review hearing. Mother appealed.
On January 30, 2023, this court ordered mother’s two
appeals consolidated.
3 Father is not a party to this appeal.
3
DISCUSSION
A. Sufficiency of the Petition Allegation
Rather than challenging the sufficiency of the evidence
supporting the court’s assertion of jurisdiction, mother contends
the language of the sustained count is insufficient to support
jurisdiction under section 300, subdivision (b)(1), because the
count does not allege mother’s mental health problems placed the
children at risk of serious harm. The Department responds
mother has forfeited this argument because she did not raise her
challenge through a demurrer in the juvenile court proceedings.
Mother argues in her reply brief that she adequately challenged
the sufficiency of the allegations when she argued that the
Department had not met its burden to show a nexus between her
mental and emotional problems and the children’s well-being.
As the Department points out, the courts of appeal are
divided on whether a parent waives the right to challenge the
sufficiency of a dependency petition’s allegations on appeal after
failing to raise the issue by demurrer. (See In re James C. (2002)
104 Cal.App.4th 470, 480.) Courts in the Second Appellate
District, however, have consistently held that where a parent
fails to challenge a petition’s sufficiency by filing a demurrer or
otherwise raising a proper objection in juvenile court, the issue is
forfeited on appeal. (See, e.g., id. at p. 481; In re David H. (2008)
165 Cal.App.4th 1626, 1640; In re Christopher C. (2010) 182
Cal.App.4th 73, 82–83 (Christopher C.).) We follow these cases.
During the adjudication hearing, mother’s counsel argued
the Department failed to prove the allegations were true, as the
Department’s evidence did not establish there was a nexus
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between mother’s mental health issues and a risk of harm to the
children. However, this argument is not the equivalent of filing a
demurrer disputing the sufficiency of the petition allegation, or
even arguing that the count was deficient as alleged.
Accordingly, mother has forfeited her argument challenging the
sufficiency of the sustained petition allegation. (See Christopher
C., supra, 182 Cal.App.4th at p. 83.)
B. The Reasonable Services Finding
Mother contends there was insufficient evidence to support
the juvenile court’s October 6, 2022 determination that the
Department provided reasonable reunification services, because
the children were never enrolled in conjoint therapy, and the
social worker did not propose therapeutic visits. The Department
challenges mother’s standing and whether the issue mother
raises is justiciable. Alternatively, the Department argues there
is substantial evidence to support the court’s reasonable services
determination.
Applicable Law
When minors have been detained or removed from parental
custody, the juvenile court ordinarily must, at the disposition
hearing, “order child welfare services for the minor and the
parent for the purpose of facilitating reunification of the family.
(§ 361.5, subd. (a).)” (Tonya M. v. Superior Court (2007) 42
Cal.4th 836, 843.) “Such services may, depending on the case,
include evaluations and assessments, counseling, parent
education, substance abuse treatment and testing, and other
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forms of assistance.” (Michael G. v. Superior Court (2023) 14
Cal.5th 609, 624 (Michael G.) “Reunification services are
typically understood as a benefit provided to parents, because
services enable them to demonstrate parental fitness and so
regain custody of their dependent children.” (In re Nolan W.
(2009) 45 Cal.4th 1217, 1228.) Although the court “should be
mindful of the burdens their disposition orders impose on parents
already grappling with difficult conditions and circumstances,”
the “paramount concern always must be the child’s best
interest . . . no matter how burdensome its requirements may
seem from the parent’s perspective.” (In re D.P. (2020) 44
Cal.App.5th 1058, 1071–1072.)
Under the statutory scheme governing juvenile dependency
proceedings, the juvenile court conducts review hearings at six
month intervals to evaluate, “among other things, the adequacy
of the reunification services offered or provided and the extent of
the parent’s progress.” (Michael G., supra, 14 Cal.5th at p. 625.)
“[A]t the six- and 12-month status hearings, the court must find
that the parent has been provided or offered reasonable
reunification services before the court can proceed to set a
hearing to decide whether to terminate parental rights and select
a permanent plan for the [dependent minors].” (Id. at 625.) If
the court finds “that reasonable services were not provided to the
parent, the court extends reunification services for an additional
six months rather than proceed to the final stage of dependency
proceedings, permanency planning.” (Ibid., italics added.)
“Services will be found reasonable if the Department has
‘identified the problems leading to the loss of custody, offered
services designed to remedy those problems, maintained
reasonable contact with the parents during the course of the
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service plan, and made reasonable efforts to assist the parents in
areas where compliance proved difficult . . . .’ [Citation.]” (In re
Alvin R. (2003) 108 Cal.App.4th 962, 972–973 (Alvin R.).)
The Department must show by clear and convincing
evidence that reasonable reunification services have been
provided. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) We
review a finding that reasonable services were provided for
substantial evidence, considering the record in the light most
favorable to the Department. (Patricia W. v. Superior Court
(2016) 244 Cal.App.4th 397, 419.) “ ‘ “If there is substantial
evidence supporting the judgment, our duty ends and the
judgment must not be disturbed.” ’ [Citation.]” (Amanda H. v.
Superior Court (2008) 166 Cal.App.4th 1340, 1346 (Amanda H.).)
However, when the burden of proof at the trial court level is clear
and convincing, the substantial evidence standard of review
should account for the higher level of certainty demanded by that
burden of proof, as compared to facts proven by preponderance of
the evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998–
1006.)
Standing and Justiciability
We disagree with the Department that a parent who
receives an additional six months of reunification services at a
review hearing lacks standing to challenge the court’s reasonable
services finding, or that the matter is not justiciable. If we were
to conclude that the court’s finding lacked evidentiary support,
our holding could impact how much additional time mother
would be able to receive reunification services before the court
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could set a permanency planning hearing under section 366.26.
(See Michael G., supra, 14 Cal.5th at p. 625.)
Substantial Evidence Supports the Determination
Mother contends the court’s reasonable services finding
should be reversed because the Department did not implement
conjoint therapy, nor did it attempt to facilitate visitation in a
therapeutic setting.
Mother’s argument relies on Alvin R., supra, 108
Cal.App.4th 962, where the court found insufficient evidence to
support a finding of reasonable services, when the social services
agency was responsible for significant delays in starting conjoint
counseling between father and his child. The father had
complied with his case plan, but there were delays in starting
individual counseling for the child, initially ordered as a
prerequisite to conjoint counseling. Although the juvenile court
later lifted the individual counseling requirement, the agency
mistakenly believed the child needed eight sessions of individual
counseling before starting conjoint sessions with father. (Id. at
pp. 965–969.)
The circumstances of the current case are fully
distinguishable from Alvin R. The children started individual
therapy sessions in December 2021, even before the February
2022 disposition hearing. The Department provided mother with
referrals for services, including a mental health evaluation, but
mother’s words and actions demonstrated her unwillingness to
engage in reunification services. While her children were in
individual counseling, mother was not only missing drug tests
and denying any need for mental health counseling, but she
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directed accusations of lying and abuse to the social workers and
the children’s caregiver, a maternal aunt. At the disposition
hearing, even after her children testified they would feel safer if
visits were monitored, mother spoke over the court and the
attorneys, and said she would rather have the kids sent to foster
care than stay with maternal aunt, causing her younger child to
cry in court. Then, on the same day that the court ordered
monitored visits and conjoint counseling as part of its February
2022 disposition order, mother took actions that caused the
children to be even more fearful of mother, physically blocking
the children’s car from leaving the parking lot, and later chasing
them in her car on the freeway. Mother’s actions resulted in a
suspension of any visits until April of 2022, when mother finally
underwent a mental health evaluation. Still, mother only
attended therapy appointments once a month, with the exception
of July and August of 2022, when she went twice a month.
The adequacy of a reunification plan and the
reasonableness of the Department’s efforts “are judged according
to the circumstances of each case.” (Amanda H., supra, 166
Cal.App.4th at p. 1345 [social services agency must make good
faith effort to create and effectuate reunification plan].) “The
standard is not whether the services provided were the best that
might be provided in an ideal world, but whether the services
were reasonable under the circumstances.” (In re Misako R.
(1991) 2 Cal.App.4th 538, 547.) Considering the Department’s
ongoing efforts to encourage the children to discuss matters with
their therapist, and the fact that mother’s own words and actions
played a significant role in delaying the start of either conjoint
counseling or therapeutic visits, we conclude there was
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substantial evidence to support the court’s reasonable services
determination.
C. ICWA
ICWA Facts
Both mother and father filed Judicial Council ICWA-020
forms denying any knowledge of possible Indian ancestry, and
the court found no reason to know that minors were Indian
children. However, neither the court nor the Department asked
the minors’ two identified maternal aunts (one of whom was the
children’s caregiver and was present at multiple court hearings)
about possible Indian ancestry. In addition, the Department
spoke with one paternal aunt, but never asked her or any other
available paternal relatives about possible Indian ancestry.
ICWA Analysis
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California
law define an “ ‘Indian child’ ” as a child who is either a member
of an Indian tribe or is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.
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(25 U.S.C. § 1903(4); § 224.1, subds. (a) & (b); see In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)
California statutory law incorporates the requirements of
ICWA, and imposes some additional requirements as well. (In re
Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021)
70 Cal.App.5th 735, 741–742 (Benjamin M.).) State and federal
law require the court to ask parties and participants at the outset
of an involuntary child custody proceeding whether they have
reason to know a minor is an Indian child, and to “instruct the
parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian
child.” (25 C.F.R. § 23.107(a); § 224.2, subd. (c); see Benjamin M.,
at p. 741.) Initial inquiry also includes requiring each party to
complete the parental notification of Indian status (ICWA-020)
form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
State law imposes on the Department a first-step inquiry
duty to “interview, among others, extended family members and
others who had an interest in the child.” (In re H.V. (2022)
75 Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal
regulations explain that the term “[e]xtended family member is
defined by the law or custom of the Indian child’s Tribe or, in the
absence of such law or custom, is a person who has reached
age 18 and who is the Indian child’s grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew,
first or second cousin, or stepparent.” (25 C.F.R. § 23.2 (2017).)
When there is “reason to believe that an Indian child is involved
in a proceeding,” further inquiry is also required. (§ 224.2,
subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) “We
review claims of inadequate inquiry into a child’s Indian ancestry
for substantial evidence.” (In re H.V., at p. 438.)
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The Department concedes on appeal that the juvenile
court’s ICWA determination must be reversed because the initial
inquiry requirements of ICWA and related state law were not
met in this case. Because the dependency case is ongoing, and
mother’s appeal is not from an order terminating parental rights,
the Department asks us to remand with directions for the court
and the Department to comply with ICWA. (In re H.V., supra, 75
Cal.App.5th at p. 438.)
We agree that the court erred in finding ICWA
inapplicable. The court did not ask the maternal aunt, who was
the children’s caregiver and appeared at several dependency
hearings, whether she knew of any Indian ancestry. (Benjamin
M., supra, 70 Cal.App.5th at p. 741 [court must ask each
participant in child custody proceeding].) In addition, there is no
evidence that the Department asked other available extended
family members about the possibility that minors have Indian
ancestry. (See, e.g., In re H.V., supra, 75 Cal.App.5th at p. 438
[prejudicial error when Department fails to discharge its first
step duty of inquiry].)
DISPOSITION
The December 1, 2021 jurisdiction order and the October 4,
2022 reasonable services finding are affirmed. On remand, the
court shall order the Department to make reasonable efforts to
interview available extended relatives, including minors’
maternal aunts and a paternal aunt, about the possibility of
minors’ Indian ancestry and to report on the results of the
Department’s investigation. Nothing in this disposition
precludes the court from ordering additional inquiry of others
12
having an interest in the children. Based on the information
reported, the court shall determine whether additional inquiry or
notice to tribes is necessary. If additional inquiry or notice is
warranted, the court shall make all necessary orders to ensure
compliance with ICWA and related California law.
NOT TO BE PUBLISHED.
MOOR, J.
I concur:
KIM, J.
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In re Benjamin R.
B318296
BAKER, Acting P. J., Concurring in Part and Dissenting in Part
I join the majority’s holdings resolving Rosa R.’s challenges
to the juvenile court’s jurisdiction and reasonable services
findings. I respectfully dissent, however, from the majority’s
decision to reverse (or is it a remand without reversal?) the
juvenile court’s Indian Child Welfare Act (ICWA) “determination”
and to remand the cause. Insofar as the ICWA issue is not moot
(see In re Baby Girl M. (2022) 83 Cal.App.5th 635), the court’s
determination in the proceedings thus far is supported by
substantial evidence (In re A.C. (2022) 86 Cal.App.5th 130, 132
(dis. opn. of Baker, J.); In re Ezequiel G. (2022) 81 Cal.App.5th
984; In re H.V. (2022) 75 Cal.App.5th 433, 439 (dis. opn. of Baker,
J.)).
BAKER, Acting P. J.