Filed 6/26/24 In re H.M. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

In re H.M., a Person Coming 

Under the Juvenile Court Law.

 B331520

 (Los Angeles County

 Super. Ct. No. 23CCJP01394)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

JAVIER D.,

Defendant and Appellant.

APPEAL from the jurisdictional and dispositional orders

of the Superior Court of Los Angeles County, Lisa A. 

Brackelmanns, Judge Pro Tempore. Affirmed.

Carol A. Koenig, under appointment by the 

Court of Appeal, for Defendant and Appellant.
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Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Brian Mahler, Deputy County 

Counsel, for Plaintiff and Respondent.

____________________

H.M.’s presumed father, Javier D. (father), appeals from 

the juvenile court’s jurisdictional and dispositional orders by

challenging the sufficiency of the evidence to support some of 

those orders. H.M. is father’s fourth child. In previous 

dependency cases, father lost custody of his other three children 

in part because of his history of substance abuse and refusal to 

complete court ordered substance abuse programs during the 

reunification periods in those cases.

In this case, father does not contend the juvenile court 

erred in exercising dependency jurisdiction based on mother’s 

prior acts of violence in the presence of another of her children 

but nevertheless requests review for substantial evidence of the 

juvenile court’s findings that he has a history of substance abuse 

and failed to protect H.M. from mother’s substance abuse. He 

further argues that absent these findings, he would have been 

“non-offending.” Father asserts these findings also influenced the 

juvenile court’s dispositional orders insofar as the court removed 

H.M. from his custody and ordered him to attend a substance 

abuse program. We decline to exercise our discretion to consider 

the jurisdictional findings father does challenge when it is 

undisputed the juvenile court properly assumed jurisdiction over 

H.M. based on mother’s conduct, and because even absent the 

challenged findings, the record supports the dispositional orders. 

We reject father’s challenge to the dispositional order 

removing H.M. from his custody; substantial evidence supports 
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that disposition. Finally, we conclude father’s request we remand 

this matter to the juvenile court for further inquiry into H.M.’s 

potential Indian ancestry is moot because the juvenile court has 

already issued an order requiring that inquiry. 

We affirm the juvenile court’s jurisdictional and 

dispositional orders. 

BACKGROUND

H.M., mother’s third child and father’s fourth child, was 

detained at birth and placed in a foster home. We first describe 

the proceedings involving H.M.’s half sibling and siblings. We 

then turn to the current case. 

1. The juvenile court terminated father’s parental 

rights over H.M.’s half sibling, Daniel D.

In 2016, the Los Angeles County Department of Children 

and Family Services (DCFS) filed a petition alleging, among 

other conduct, that father had a current and past history of 

substance abuse that put Daniel D. at risk of harm. (In re Daniel 

D. (Aug. 3, 2017, B280440) [nonpub. opn.].) Father pleaded no 

contest to allegations he had a then-current and history of 

substance abuse, including marijuana and methamphetamine, 

and father’s substance abuse placed Daniel at risk of serious 

physical harm. (Ibid.) The juvenile court ordered father to 

participate in drug and alcohol services, parenting classes, and 

individual counseling. (Ibid.) Father did not reunify with 

Daniel. The juvenile court terminated reunification services after 

father failed to participate in court ordered programs. In 2018, 

the juvenile court terminated father’s parental rights over 

Daniel D.
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2. The juvenile court terminated mother’s and father’s 

parental rights over H.M.’s siblings, K.M. and J.D. 

In 2020 and 2021, DCFS filed separate cases, one involving 

K.M. and the other J.D. In both cases, the juvenile court 

sustained the following allegation with respect to father: Father 

“has a history of substance abuse, including marijuana and 

methamphetamines, and . . . is a current abuser of marijuana, 

which renders the father incapable of providing regular 

care . . . .” 

In addition to these, the court sustained allegations 

involving mother. The court sustained the allegation mother 

exposed K.M. to violent altercations with maternal grandmother 

on “numerous” occasions. Further, mother threatened to kill 

maternal grandmother’s male companion in the presence of K.M. 

The court also sustained the allegation that mother’s violence 

placed J.D. and K.M. at risk of serious physical harm. The 

juvenile court also found mother has mental and emotional 

problems, including homicidal ideation, suicidal ideation, 

adjustment disorder, a moderate intellectual disability, and 

epileptic seizures, which endanger J.D.’s and K.M.’s physical 

health and safety. Finally, the court sustained allegations 

mother had a history of illegal drug use and currently abused 

marijuana and benzodiazepine rendering her incapable of 

providing care to J.D. and K.M.

The court declared K.M. and J.D. dependents of the court.

Father missed numerous drug tests during the reunification 

period. On November 7, 2022, the court terminated mother’s and 

father’s parental rights over the children. 
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3. The current proceedings

a. Petition

In a petition filed April 25, 2023, DCFS alleged the 

following under Welfare and Institutions Code section 300, 

subdivisions (b)(1) and (j). Mother has a history of substance 

abuse rendering her incapable of providing H.M. with regular 

care. Father knew of mother’s substance abuse and failed to 

protect H.M. H.M.’s siblings were dependents of the juvenile 

court due to mother’s substance abuse and father’s failure to 

protect them. Mother has mental and emotional problems,

including homicidal ideation, suicidal ideation, moderate 

intellectual disability, and epileptic seizures. Mother threatened 

to kill an unidentified male in the presence of H.M.’s sibling and 

mother threatened to kill herself in the presence of H.M.’s sibling. 

Mother’s moderate intellectual disability prevents mother from 

providing regular care to H.M. Father has a history of abusing 

marijuana and methamphetamine and currently abused 

marijuana rendering him incapable of providing regular care for 

the children. Father was convicted of possession of a controlled 

substance and his substance abuse places the children at risk of 

harm. DCFS also alleged under section 300, subdivision (j) that 

mother exposed K.M. to violent altercations with K.M.’s maternal 

grandmother and threatened to kill maternal grandmother’s 

male companion in K.M.’s presence. Mother’s violent conduct 

would endanger H.M.’s safety.

b. Information in DCFS’s reports

Mother and father were homeless. Although mother was 

eligible to live at the Regional Center, she chose to live on the 

streets with father. Mother suffered from epilepsy and a 
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moderate intellectual disability. Mother could not manage her 

daily needs without assistance. Mother’s verbal comprehension 

and perceptual reasoning were “extremely” low and her cognitive 

ability was moderately deficient. During an interview with a 

social worker, mother was unable to remember her name. A 

representative of the Regional Center indicated the Regional 

Center had been working with mother and father for several 

years, but both consistently failed to follow through with 

referrals.

Father was convicted of attempted murder in 1997 and 

possession of a controlled substance in 2018. Father described 

the attempted murder as follows: He “was walking and some 

individuals were giving him trouble. He stated they approached 

him aggressively and stated, ‘Fuck Mexicans!’ Father claimed he 

needed to respond and began to shoot them.” (Boldface omitted.) 

When interviewed by a social worker (on an unspecified 

date), father admitted smoking marijuana, but indicated he 

had not done so in two weeks because he was seeking 

employment. Father admitted to a history of smoking 

methamphetamine “several years ago” and possession of 

methamphetamine at the time of H.M.’s detention. (Boldface 

omitted.) In a subsequent interview, father denied ever using 

methamphetamine.

Father admitted another child (Daniel) was removed from 

his custody, but he believed it was “the mother’s fault.” (Boldface 

omitted.) Father admitted he served 14 years in prison for 

attempted murder. Father refused to test for controlled 

substances unless the court ordered testing.

The court had ordered mother and father to have nine

hours visitation per week. Father stated that he “ ‘barely has 
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time’ ” for the visits. Mother and father refused to sign a 

visitation schedule prepared by the social worker. Mother and 

father visited two hours a week and declined additional visiting 

time. They reported they wanted to secure housing prior to 

having additional visits.

Mother tested for controlled substances three times during 

her pregnancy with H.M.; these tests were negative. Mother’s 

obstetrician reported mother attended her scheduled 

appointments and mother and father showed “devotion to turn 

things around in their lives, for themselves and ultimately for 

their newborn daughter [H.M.].” There is no indication that 

mother’s obstetrician was aware of mother’s and father’s prior 

dependency cases or the allegations in the current case. 

After the jurisdictional hearing and in advance of the 

dispositional hearing, father tested one time for controlled 

substances. That test was negative.

c. The juvenile court sustains the petition and orders 

H.M. removed from mother’s and father’s custody

The juvenile court sustained the petition “as plead” [sic],

finding H.M. a dependent of the juvenile court.

Neither mother nor father appeared at the dispositional 

hearing. The court asked father’s counsel why father was not 

present to which counsel responded, “I personally do not know.” 

Father’s counsel requested a case plan that included “parenting 

classes, Narcotics Anonymous, a drug program, and random drug 

testing.” Counsel later requested, “I would just ask that it just be 

the drug program, 12-step, parenting and the random weekly 

testing and nothing else.” Father’s counsel stated father was 

seeking employment.
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The court ordered no reunification services for mother. The 

court ordered reunification services for father and explained, “It 

is going to be very challenging for him to demonstrate to the 

court in six months that the child can be returned to him, but at 

least he’s making some efforts now. He has tested negative, and 

he’s trying to get housing and a job.” The court ordered father to 

participate in counseling, a full drug and alcohol treatment, ondemand drug testing, and a 12-step program. 

The court found by clear and convincing evidence that it 

was necessary to remove H.M. from mother’s and father’s care, 

and there were no reasonable means to protect H.M. if she 

remained in mother’s and father’s custody. The court described 

mother and father’s relationship as “codependency.” Father 

appealed from the jurisdictional and dispositional orders. Mother 

did not appeal. 

DISCUSSION

A. Father Does Not Challenge the Juvenile Court’s 

Assumption of Jurisdiction Over H.M. Based on 

Mother’s Conduct and We Decline To Consider 

Father’s Challenge Only to the Findings Against Him

Father does not argue the juvenile court erred in exercising 

dependency jurisdiction over H.M. He does not challenge

jurisdictional findings that mother’s mental and emotional 

problems, “moderate” intellectual disability, and past violent 

conduct toward maternal grandmother and maternal 

grandmother’s male companion in the presence of H.M.’s older 

sibling, K.M., placed H.M. at substantial risk of suffering serious 

physical harm. He challenges only the jurisdictional findings he 

abused substances and failed to protect H.M. from mother’s 
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substance abuse. Father also argues his past substance abuse 

does not present a current risk to H.M. More specifically, he 

contends, “If a substance abuse history alone was a sufficient 

basis for dependency jurisdiction, there would be no point in 

rehabilitation or reunification services as one’s children could be 

later removed solely on the basis of the history of previous 

substance abuse.” Father, however, identifies no evidence he was 

rehabilitated after the juvenile court sustained substance abuse 

findings dating back to 2016, and the record shows he did not 

successfully complete ordered reunification services in his prior 

cases, including participation in substance abuse programs. 

To repeat, father does not dispute that the juvenile court 

properly assumed jurisdiction over H.M. based on mother’s 

conduct. “As a result of this focus on the child, it is necessary 

only for the [juvenile] court to find that one parent’s conduct has 

created circumstances triggering [Welfare and Institutions Code] 

section 300 for the court to assert jurisdiction over the child. 

[Citations.] . . . 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. . . . ” ’ [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. (In re I.A. (2011) 

201 Cal.App.4th 1484, 1491–1492; see also In re Briana V. (2015) 

236 Cal.App.4th 297, 308.) 
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Father argues we should nonetheless review the 

jurisdictional findings regarding his substance abuse and failure 

to protect against mother’s substance abuse because those 

findings affected the juvenile court’s disposition. He reasons that 

absent the jurisdictional findings regarding his substance abuse 

and failure to protect H.M. as to mother’s substance abuse, (1) he 

would be “non-offending” and “it is likely that at disposition the 

court would not have removed H.M. from father”; and (2) the 

court would not have required him to attend a substance abuse 

program. Father cites no evidentiary support for his contention 

that absent the challenged jurisdictional findings, the court 

would have changed its dispositional orders. 

In crafting a disposition, a juvenile court considers the best 

interests of the child, and thus may determine custody and 

include programs to serve those interests and remedy the 

problems that led to the court’s exercise of dependency 

jurisdiction in the first place. (In re Rodger H. (1991) 

228 Cal.App.3d 1174, 1182 [“Thus, whether the parents could 

understand Rodger’s medical needs tended to explain why they 

were unable to properly meet those needs. Similarly, the 

transportation problems affected Rodger’s medical needs because 

his parents were unable to get him to medical appointments. The 

housing situation had a similar effect, because the family’s 

frequent moves without a forwarding address made it difficult for 

the social service agencies to follow up on Rodger’s needs.”]; see 

also In re D.M. (2015) 242 Cal.App.4th 634, 647 [“At disposition 

the juvenile court has broad discretion to make ‘all reasonable 

orders for the care, supervision, custody, conduct, maintenance, 

and support of the child.’ ”].) 
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Substantial evidence supported removing H.M. from 

mother’s and father’s care when father lived with mother in the 

past and was unable to protect H.M.’s sibling from mother’s 

violent conduct. (See Background, part 2, ante.) With respect to 

father’s challenge to the order requiring him to participate in a 

substance abuse program, father ignores that at the dispositional 

hearing, his own counsel requested father be ordered to 

participate in such a program and submit to drug testing. He 

also ignores that the juvenile court could reasonably find it was 

in H.M.’s best interests he attend such a program given his 

extended history of substance abuse causing him to lose parental 

rights over his three other children and suffer a criminal 

possession conviction. 

B. Substantial Evidence Supports the Juvenile Court’s 

Removal Order

Father argues there was no substantial evidence to support 

removing H.M. from his care. Father also argues the juvenile 

court could have returned H.M. to father’s custody with an order 

that father not leave H.M. alone with mother. 

“We review a dispositional order removing a child from a 

parent for substantial evidence, ‘ “keeping in mind that the trial 

court was required to make its order based on the higher 

standard of clear and convincing evidence.” ’ [Citation.]

‘[A]ppellate review of the sufficiency of the evidence in support of 

a finding requiring clear and convincing proof must account for 

the level of confidence this standard demands.’ [Citation.] In 

applying this standard of review, ‘the question before the 

appellate court is whether the record as a whole contains 

substantial evidence from which a reasonable fact finder could 

have found it highly probable that the fact was true.’ [Citation.]
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We view the record in the light most favorable to the prevailing 

party and give due deference to how the trier of fact may have 

evaluated the credibility of witnesses, resolved conflicts in the 

evidence, and drawn reasonable inferences from the evidence.” 

(In re M.V. (2022) 78 Cal.App.5th 944, 960.) 

Substantial evidence supported H.M.’s removal from 

mother’s and father’s care when father continued to live with 

mother notwithstanding mother’s past violent conduct, including 

threatening in K.M.’s presence to kill herself and maternal 

grandmother’s male companion. Mother also engaged in violent 

altercations with maternal grandmother in K.M.’s presence. 

Father did not testify at the dispositional hearing and the record 

contains no evidence that father could protect H.M. from mother’s 

violent behavior. The fact that father failed in the past to protect 

K.M. from mother’s violent conduct supports the inference he also 

could not protect H.M., as well as the juvenile court’s finding that 

removal from both parents was necessary. 

On appeal, and for the first time, father argues the juvenile 

court could have ordered he never leave H.M. alone with mother. 

Father offers no evidence to support this argument. There is no 

evidence father would have agreed to an order that prevented 

him from leaving H.M. alone with mother because such an order 

would have seriously impeded his ability to work outside the 

home, and he does not contend he was seeking remote 

employment. Additionally, there was no evidence social workers 

could have monitored mother’s and father’s compliance with such 

an order. Further, as a newborn, H.M. would have been unable 

to provide information as to compliance with an order not to leave 

her alone with mother thus leaving H.M. all the more at risk. 
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Finally, although father claims he no longer abuses 

marijuana or drugs, he does not dispute his history of substance 

abuse causing him to lose parental rights over Daniel D., K.M.,

and J.D. He similarly fails to address the many missed tests 

during the reunification period with K.M. and J.D.

The record before the juvenile court thus supports the 

juvenile court’s finding that H.M. would not be safe in his care. 

Father relies only on evidence favorable to him, which is 

inconsistent with our standard of review. Additionally, father 

claimed he “ ‘barely ha[d] time’ ” to visit H.M., raising concerns 

that he also would not have had time to care for both mother’s 

substantial needs and H.M. if H.M. were in his custody. 

C. Father’s Assertion of Violation of the Indian Child 

Welfare Act Is Moot1

ICWA “protects the interests of Indian children and 

promotes the stability and security of Indian tribes by 

establishing minimum standards for removal of Indian children 

from their families, and by permitting tribal participation in 

dependency proceedings.” (In re A.W. (2019) 38 Cal.App.5th 655, 

662.) Under state law implementing federal ICWA requirements, 

the juvenile court and DCFS “have an affirmative and continuing 

duty to inquire whether a child for whom a petition under 

[Welfare and Institutions Code] Section 300 . . . has been filed, is 

or may be an Indian child.” (Welf. & Inst. Code, § 224.2, 

1 We grant respondent’s unopposed request to take judicial 

notice of the juvenile court’s order dated April 25, 2024. (See 

Evid. Code, § 452, subd. (d).) We decline DCFS’s request to take 

judicial notice of an order dated January 23, 2024 because DCFS 

does not demonstrate its relevance to this appeal.
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subd. (a).) An “ ‘Indian child’ ” is defined as an “unmarried 

person who is under age eighteen and is either (a) a member of 

an Indian tribe or (b) is eligible for membership in an Indian 

tribe and is the biological child of a member of an Indian tribe.” 

(25 U.S.C. § 1903(4); Welf. & Inst. Code, § 224.1, subd. (a) 

[adopting federal definition]). 

“If a child is removed from parental custody, the county 

welfare department ‘has a duty to inquire whether that child is 

an Indian child. 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 and where the child, the parents, or 

Indian custodian is domiciled.’ ([Welf. & Inst. Code,] § 224.2, 

subd. (b).)” (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 998.)

Here, mother and father denied having Indian ancestry.

Father represented that no one in his family has Indian ancestry 

because they are Mexican. Mother also reported no one in her 

family has Indian ancestry. When the juvenile court inquired 

further, father repeated he has no Indian ancestry. When asked 

by the court, mother’s counsel indicated mother has no Indian 

ancestry. In 2016 and 2021, the juvenile court found it had no 

reason to know H.M.’s siblings and half sibling were Indian 

children. In June 2023 in the current case, the court found ICWA 

did not apply.

Subsequently, on April 25, 2024, while this appeal was 

pending, the juvenile court issued an order requiring mother and 

father to provide DCFS with contact information for all known 

and available extended family members and ordering DCFS to 

interview those family members about whether H.M. is an Indian 
15

child. Because we no longer can provide effective relief, father’s 

ICWA challenge is moot. (In re Baby Girl M. (2022) 

83 Cal.App.5th 635, 639.) 

In his opening brief, father argues DCFS did not fulfill its 

statutorily mandated duty to inquire of extended family members 

about ICWA and the case should “be remanded for a proper 

ICWA inquiry.” In his reply brief, father concedes the juvenile 

court ordered the appropriate ICWA inquiry. Father still 

requests we vacate the juvenile court’s June 2023 finding that 

ICWA does not apply. “We see no need to order any ICWA 

findings vacated because ICWA-related obligations are 

continuing duties; that means earlier ICWA-related findings are 

subject to change and no order vacating an earlier finding is 

necessary here.” (In re Baby Girl M., supra, 83 Cal.App.5th at 

p. 639, fn. 2.) 

DISPOSITION

The jurisdictional and dispositional orders are affirmed. 

NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J. WEINGART, J.