Filed 1/25/21 In re Aiden R. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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

Coming Under the Juvenile Court 

Law.

 B303195

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

RACHELLI P.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct.

Nos.19CCJP04737A, 

19CCJP04737B)

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.
2

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.
3

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 b2 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.
4

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 
5

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.
6

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 
7

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 
8

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 
9

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 
10

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.
11

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. 
12

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED. 

DHANIDINA, J.

We concur:

EDMON, P. J.

EGERTON, J.