Filed 6/1/22 In re B.G. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

In re B.G. et al., Persons

Coming Under the Juvenile 

Court Law.

 B312174

 (Los Angeles County

 Super. Ct.

 No. 20CCJP04488A-D)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CANDACE V.,

Defendant and Appellant.

APPEAL from a judgment and order of the Superior Court 

of Los Angeles County, Marguerite Downing, Judge. Affirmed.

Megan Turkat Schirn, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Navid Nakhjavani, Deputy 

County Counsel, for Plaintiff and Respondent.

* * * * * *

Candace V. (mother) appeals from a judgment of the 

juvenile court asserting jurisdiction over her four children, 

Aubrey V. (born May 2008); B.G. (born October 2009); M-S.G. 

(born June 2012); and M.G. (born December 2014). Mother 

challenges the juvenile court’s order removing the children from 

her custody. Mother further argues that the Los Angeles County 

Department of Children and Family Services (DCFS) failed to 

comply with the inquiry provisions of the Indian Child Welfare 

Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).

We affirm the judgment and removal order.

FACTUAL AND PROCEDURAL BACKGROUND

Aubrey’s presumed father is Louis V. DeShawn G. (father) 

is the father of B.G., M-S.G., and M.G. Neither Louis V. nor 

father is a party to this appeal. At the time the dependency 

proceedings were initiated, all four children were living with 

mother and father in Chino, California.1 The family was in Los 

Angeles visiting B.G., M-S.G., and M.G.’s paternal grandmother 

1 There was conflicting evidence in the record as to whether 

father was living with the family at the time the dependency 

proceedings commenced. Mother reported that she lived alone 

with the four children. However, M-S.G. reported during 

separate interviews that he and M.G. lived with mother, father, 

and their two sisters.
3

when the events that triggered the dependency petition

occurred.

2

Referral, petition, and detention—M-S.G. and M.G.

On August 25, 2020, DCFS received a referral alleging 

M-S.G. and M.G. were victims of severe neglect by mother. Los 

Angeles County Sheriff’s Department (LASD) deputies observed a 

car driving on the wrong side of the road, run a red light, drive on 

the sidewalk, and almost run into a brick wall. The deputies 

found mother driving the car with M-S.G. and M.G. also inside. 

The deputies observed that mother was under the influence of 

“something.” Mother refused to submit to a sobriety test. When 

it was determined the vehicle mother was driving was stolen, 

mother was arrested for the stolen vehicle, reckless driving, and 

child endangerment. M-S.G. and M.G. were taken into protective 

custody.

A DCFS social worker responded but was unable to speak 

with mother until after the booking process. M.G. told the social 

worker that he and his brother, M-S.G., were with their mother 

in the car, that they did not live in Los Angeles, but were visiting 

paternal grandmother so that she could buy them clothes. M.G. 

said they were supposed to go home, but mother had an accident, 

of which M.G. could not recall details because he was “mostly 

asleep and did not see anything.”

M-S.G. said the family lives in Chino but had come to Los 

Angeles to do some shopping with his grandmother. M-S.G. 

2 We hereby grant DCFS’s motion for judicial notice of 

postjudgment evidence, including minute orders reflecting that 

the matter was transferred to San Bernardino County, soon after 

the disposition hearing. The juvenile court in San Bernardino 

County now has jurisdiction of this matter.
4

provided the social worker with an address in Chino where the 

family lived. M-S.G. stated that he lived with mother, father, 

M.G., and two sisters B.G. and Aubrey. At first, M-S.G. denied 

that they had been in a car accident. M-S.G. later said they had 

a small accident because mother must have stepped on the gas by 

mistake. When asked about mother’s drug use, M-S.G. reported 

that mother “smokes one blunt a month” but would smoke it 

outside the home.

During the interview, M.G. interrupted M-S.G. and said

mother was “drunk.” M-S.G. immediately snapped at his brother

in disagreement. M.G. told the social worker that it was M-S.G. 

who earlier said mother was drunk, which M-S.G. denied. The 

social worker asked M-S.G. if mother had been smoking a blunt 

or drank alcohol during this trip. M-S.G. denied mother ever 

smoked a blunt or drinking alcohol. When the social worker 

informed M-S.G. that the social worker would try to contact 

father, M-S.G. said he would rather go back with his mother and 

informed the social worker that his father was probably not 

home.

The social worker attempted to locate the address in Chino 

provided by M-S.G., but the address did not exist. The social 

worker also tried to contact father at his last known telephone 

number but was unable to reach him.

On August 27, 2020, DCFS filed a petition on behalf of 

M-S.G. and M.G. pursuant to Welfare and Institutions Code 

section 300,3 alleging in count b-1 that mother had placed the 

children in a detrimental and endangering situation by driving 

3 All further unspecified statutory references are to the 

Welfare and Institutions Code.
5

recklessly while under the influence of a controlled substance 

with the children in the car.

At the September 2, 2020 detention hearing, mother 

provided a form ICWA-020 indicating she had no Indian 

ancestry. Under the heading, “Indian Status,” mother checked 

the box indicating “None of the above apply.” Father also 

provided a form ICWA-020, indicating “None of the above apply.” 

Upon inquiry from the court, mother said father had no Indian 

ancestry. Based upon the mother’s response, the court found no 

reason to know that ICWA applied or that the children were 

Indian children. The court found father to be the presumed 

father of M-S.G. and M.G.

The juvenile court found that DCFS had established a 

prima facie case that the children were described by section 300. 

The court detained the children from the mother and ordered 

them released to father.

On October 15, 2020, DCFS filed a first amended petition 

(FAP), which amended count b-1 to add that during the 

August 25, 2020 incident, the children were not secured in the 

car with seat belts. Count b-1 was further amended to add that 

mother had been arrested for grand theft of an auto.

The FAP further alleged in count b-2 that M-S.G. and 

M.G.’s father had an extensive criminal history including felony 

convictions for burglary, felon in possession of a firearm, 

possession of phencyclidine for sale, possession of marijuana for 

sale, and was a registered controlled substance offender. The 

FAP asserted that father’s criminal history endangered the 

children’s physical and emotional health, safety, and well-being.

On October 20, 2020, the juvenile court received the FAP

and dismissed the original section 300 petition.
6

Jurisdiction/disposition report

In its November 5, 2020 jurisdiction/disposition report, 

DCFS reported that the children were residing with the maternal 

grandmother in San Bernardino, along with their siblings 

Aubrey V. and B.G. Father left the children with maternal 

grandmother and was no longer willing to cooperate with DCFS’s 

investigation.4

DCFS provided father’s criminal history, which began in

1991 and included numerous arrests and convictions. Father’s 

criminal history included several convictions for possession of 

drugs for sale. While father acknowledged his criminal history, 

he refused to talk about it further. Father did not know anything 

about the August 25, 2020 incident involving mother. He was not 

enrolled in any programs.

DCFS also provided the LASD report regarding mother’s 

August 25, 2020 arrest, including that the deputies observed 

M-S.G. and M.G. disoriented and crying on the floorboard of the 

car mother was driving. The children were not wearing seat

belts, nor did they have appropriate child seats. At the scene the 

deputies were approached by a woman, Tamika S., who identified 

herself as the owner of the car mother was driving. Tamika S. 

reported that she observed mother and the children walking on 

Wilmington Avenue and stopped to offer them a ride. While she 

was out of the vehicle assisting mother who was getting the 

children in the car, mother got in the car and drove off at a high 

rate of speed on El Segundo Boulevard.

4 There was an open child welfare investigation regarding 

Aubrey and B.G. as well.
7

M-S.G. reported having no recollection of what happened 

on the day of the accident. He only remembered falling asleep in 

the car and waking up at the LASD office.

Mother provided the DCFS investigator with a detailed 

story surrounding the car accident. She explained that she was 

visiting father’s mother in Compton, after she agreed to give a 

ride to a friend, Eugene, who wanted to go to the Compton area. 

Once in Compton, mother went to Eugene’s family home where 

she had one drink. She speculated her drink was spiked or laced 

with something because she started to lose her motor skills and 

had a vague recollection of things thereafter. Mother explained 

that she was followed by gang members after leaving Eugene’s 

home. At a gas station they were followed by the same 

individuals, who began provoking Eugene. After she and the 

children got out, one of the men arguing with Eugene got in 

mother’s car and drove off. Eugene ran after the car. Mother 

never saw him again. Then, some women started trouble with 

mother. They jumped mother, but one of the women had left her 

vehicle door open, so feeling threatened, mother got into the car 

and drove off. Mother stated she then began “blacking out,” and 

had no recollection after that. Mother insisted that she never 

drove on a sidewalk and that the deputies contradicted 

themselves and never read her Miranda5 rights after arresting 

her. Mother suggested it did not make sense for her to steal a car 

when she owned a brand new car.

Mother reported that since the accident, she had enrolled 

in a parenting program and was on a wait list for a substance 

abuse program and individual counseling at the same facility.

5 Miranda v. Arizona (1966) 384 U.S. 436.
8

Second amended petition—M-S.G. and M.G.

On November 19, 2020, DCFS filed a second amended 

petition (SAP), alleging in count b-3 that father left the children 

with the maternal grandmother without making a plan for the 

children’s ongoing care and supervision.

Maternal grandmother informed DCFS that she had 

attempted to contact father since he dropped off the children at 

her home, to no avail. Father’s whereabouts were unknown to 

DCFS.

Section 300 petition and detention—Aubrey and B.G.

On December 7, 2020 a section 300 petition was filed on 

behalf of Aubrey and B.G. The petition set forth the same 

allegations as the SAP filed on behalf of M-S.G. and M.G. B.G. 

and Aubrey were distraught about having to leave home. Mother 

expressed concern that the maternal grandmother was abusing 

the children. B.G. disclosed that maternal grandmother hit her 

with a belt about a month before, and Aubrey confirmed that it 

happened. The social worker agreed not to take B.G. and Aubrey 

to maternal grandmother’s home. Aubrey and B.G. were placed 

together in a foster home, while M-S.G. and M.G. remained with 

maternal grandmother.

The accompanying detention report provided details 

regarding the family’s prior child welfare history, including a 

case in San Bernardino in 2016. On August 6, 2016, the juvenile 

court sustained a petition that alleged father physically abused 

Aubrey by hitting her with a belt, leaving marks and bruises, and 

sexually abused her by making her place her tongue in his mouth 

while he touched her vagina. The petition further alleged that 

both mother’s and father’s marijuana use impaired their ability 

to safely parent and care for their children. The case was closed 
9

in February 2017 with the children remaining in mother’s 

custody. The family’s child welfare history also included a 2010 

unfounded referral of caretaker absence and neglect by mother, 

and a 2015 referral with no disposition for Aubrey, stating that 

she showed her private parts to a group of students at school, at 

which time one student allegedly touched her vaginal area.

At the detention hearing for B.G. and Aubrey, mother filed 

a second ICWA-020 form claiming she did not have Indian 

ancestry. Mother also confirmed that father did not have any 

Indian ancestry. The juvenile court again found that ICWA did 

not apply to the case. The court found a prima facie case that 

B.G. and Aubrey were children described by section 300 and 

detained them from the parents.

DCFS noted that the whereabouts of Aubrey’s alleged 

father, Louis V., were unknown.

When DCFS attempted to interview mother and father 

about the allegations regarding Aubrey, mother refused to 

provide a statement and referred the social worker to her 

attorney. Maternal grandmother reported that father had left 

the children in her custody, and she had been forced to take a 

leave of absence from work in order to care for the children.

The social worker interviewed Aubrey and B.G. about the 

allegations in the petition. Aubrey related what she had heard 

from mother—that someone put something in mother’s drink and 

mother’s friend got into a fight. Aubrey stated that mother did 

not drink alcohol “that much,” but that she began drinking more 

when the COVID-19 pandemic began. Aubrey also said mother 

used to smoke marijuana but no longer did so.

B.G. similarly reported that someone put something in 

mother’s drink the day of the accident and that mother’s friend 
10

“got jumped.” B.G. stated that mother drank alcohol “once in a

while because it makes her sick afterwards.” B.G. informed the 

social worker that mother was “addicted to weed.” Mother 

“would get frustrated with my brothers and it would make her 

feel calmer when she smoked. She would smoke outside or in her 

bedroom or her bathroom.” B.G. did not know where mother kept 

the weed.

Regarding services, mother had completed a “Parenting 

Skills Book Study Class” dated November 8, 2020, from 

LifeMatters.com. She also completed an eight-hour drug and 

alcohol awareness class on December 10, 2020. Mother had 

enrolled in therapy on November 24, 2020, and as of 

December 14, 2020, had participated in three sessions. Mother 

tested positive for marijuana on September 9, 2020, and was a 

no-show on September 25, 2020, October 14, 2020, October 26, 

2020, and November 23, 2020. Mother tested negative on 

December 10, 2020.

February 2021 last minute information for the court

On February 4, 2021, DCFS provided last minute 

information for the court indicating that a heated argument took 

place between mother and maternal grandmother in the presence 

of the children. Due to the dispute, M-S.G. attempted to leave 

the home. Maternal grandmother had a history of domestic 

violence investigations with DCFS. Due to the argument, M-S.G. 

and M.G. were removed from maternal grandmother’s home and 

placed with Ramona R.

Jurisdiction/disposition hearing

At the February 4, 2021 jurisdictional hearing, the juvenile 

court found Louis V. to be Aubrey’s presumed father, based on 

similar findings made in San Bernardino County. The court 
11

received the various reports and exhibits into evidence. Mother 

argued that this was a one-time incident and there was a lack of 

evidence of current risk of harm to the children. Mother argued 

that her missed tests were due to the fact that she lived out of the 

county and lack of communication with the social worker. 

Mother pointed out that she submitted three consecutive 

negative tests.

The children’s counsel asked the court to sustain the counts 

related to mother’s reckless driving and father’s failure to make a 

proper plan for the children’s care. Counsel argued for dismissal 

of the count related to father’s criminal history. The court agreed 

with children’s counsel and sustained counts b-1 (related to 

mother’s reckless driving) and count b-3 (related to father’s 

failure to make a proper plan for the children’s care). The court 

continued the matter for disposition.

First notice of appeal

On March 10, 2021, mother filed a notice of appeal from the 

juvenile court’s February 4, 2021 order.

March 2021 and April 2021 last minute information for the 

court

DCFS filed two subsequent updates for the court. On 

March 22, 2021, DCFS reported that in February 2021 Aubrey’s 

presumed father, Louis V., contacted the DCFS investigator and 

provided additional information about the family’s previous 

dependency case in San Bernardino County. According to 

Louis V., he attempted to keep his daughter safe when father was 

abusing her. However, during visitation, mother convinced 

Aubrey to retract what she had alleged regarding the sexual 

abuse by father. Louis V. stated that mother convinced Aubrey to 

say that Louis V. had hit her, so that mother could regain 
12

custody. Louis V. expressed disappointment that mother chose to 

protect father instead of Aubrey.

Mother missed a drug test appointment in January 2021 

but tested negative in February and March. Father’s 

whereabouts remained unknown.

In a last minute information for the court filed April 6, 

2021, DCFS reported that mother’s criminal case was dismissed 

due to mother’s compliance with an informal court-ordered 

diversion. Mother completed an eight-hour drug and alcohol

awareness class, which was not an approved DCFS program. 

Mother failed to show for her drug test on March 18, 2021, but 

tested negative on March 19, 2021. Mother rescinded release of 

information from her therapist, so there was no confirmation of 

her treatment plan, nor could DCFS confirm mother’s progress in

demonstrating insight into child safety issues. On January 7, 

2021, mother’s therapist reported that mother had attended three

sessions, but no progress could be reported due to lack of 

attendance. Mother cancelled her appointment on December 16, 

2020, and did not attend on December 21 and 28, 2020. The 

therapist was unable to contact mother, as her voice mail box was 

full.

Father was arrested in San Bernardino on November 6, 

2021, for being a felon in possession of a firearm. Father was 

incarcerated.

All four children had been placed together in the home of 

foster parent Ramona R. DCFS recommended that the matter be 

transferred to San Bernardino County after disposition.

April 6, 2021 disposition hearing

At the April 6, 2021 dispositional hearing the children’s 

counsel noted that the children wanted to be home with mother. 
13

The children’s counsel pointed out that mother was attending a 

parenting class and had enrolled in Alcoholics Anonymous. 

Counsel acknowledged that mother’s parenting and substance 

abuse treatment programs were not approved by DCFS but 

argued that mother understood that she needed to enroll in 

additional programs.

Mother’s counsel argued that mother was being proactive,

that there were measures in place to ensure the children’s safety 

in mother’s custody, and that it had been seven months since the 

accident.

DCFS argued that the children should be removed from 

mother, noting that the objectives of the dependency court and 

the criminal court were different, and the family’s dependency 

history in San Bernardino was serious. Counsel observed that 

mother never acknowledged the safety risk she created for the 

children or provided explanations for the accident that did not 

show accountability for her actions. Mother also had tested 

positive for marijuana after dependency proceedings were begun 

and had missed many drug testing appointments.

The juvenile court declared the children dependents of the 

court, noted that mother had not yet accepted responsibility for 

her behavior and was not enrolled in any programs addressing 

child safety issues. The court found mother’s limited 

participation in counseling was insufficient, removed the children 

from mother’s custody and ordered family reunification services 

with monitored visitation.

Second notice of appeal

On April 13, 2021, mother filed a notice of appeal from the 

April 6, 2021 dispositional orders of the juvenile court.
14

DISCUSSION

Mother challenges the court’s order removing the children 

from her custody. She also argues that a remand is necessary 

because DCFS and the juvenile court failed to properly discharge 

the duty of inquiry under ICWA. We address each contention 

separately below and conclude that mother has failed to show 

reversible error.

I. Removal order

A. Applicable law and standard of review

Once jurisdiction is established, the juvenile court must 

determine the appropriate disposition for the child. The court is 

not limited to the content of the sustained petition when it 

considers what disposition would be best for the child. (In re 

Rodger H. (1991) 228 Cal.App.3d 1174, 1183.) Additional social 

study reports, special evaluations, and “other relevant and 

material evidence” may be considered. (§ 358, subd. (b).) In 

determining whether a child may remain in the custody of a 

parent, the juvenile court may also consider “the parent’s past 

conduct and current circumstances, and the parent’s response to 

the conditions that gave rise to juvenile court intervention.” (In 

re D.B. (2018) 26 Cal.App.5th 320, 332.)

To remove a child from parental custody under section 361, 

subdivision (c)(1), DCFS must prove by clear and convincing 

evidence that there is or would be a substantial danger to the 

child’s physical health, safety, protection, or physical or 

emotional well-being, and no reasonable way to protect the child 

from these dangers in the parent’s home. “This is a heightened 

standard of proof from the required preponderance of evidence 

standard for taking jurisdiction over a child.” (In re Hailey T. 

(2012) 212 Cal.App.4th 139, 146 (Hailey T.).) “Clear and 
15

convincing evidence” has been defined as evidence requiring “a 

high probability, such that the evidence is so clear as to leave no 

substantial doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 

695.) The heightened burden of proof is “‘premised on the notion 

that keeping children with their parents while proceedings are 

pending, whenever safely possible, serves not only to protect 

parents’ rights but also children’s and society’s best interests.’” 

(In re D.P. (2020) 44 Cal.App.5th 1058, 1066-1067.)

“The standard of review of a dispositional order on appeal 

is the substantial evidence test.” (Hailey T., supra, 212 

Cal.App.4th at p. 146.) In assessing juvenile court error 

concerning removal of a child from a parent, we must apply the 

substantial evidence test “‘bearing in mind the heightened 

burden of proof.’” (Ibid.) In other words, we must determine 

“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.” (Conservatorship of O.B. (2020) 

9 Cal.5th 989, 995-996.) At the same time, we still must “view 

the record in the light most favorable to the prevailing party 

below 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.” 

(Id. at p. 996.)

B. Substantial evidence supports the juvenile 

court’s order removing the children from mother

Mother argues that substantial evidence did not support 

the juvenile court’s determination that removal of the children 

from mother’s custody was required. Specifically, mother 

contends that the evidence did not show a current, substantial 

danger to the physical health and safety of the children in 
16

mother’s care or that there were no reasonable means to protect 

the children without removal.

We disagree. The juvenile court set forth in detail its 

rationale for removing the children from mother’s care. While 

acknowledging that the criminal court assigned mother some 

“programming,” the court noted that the criminal court was not 

concerned with the children’s safety.6 The court expressed its 

concern that mother did not attend any programs regarding 

drinking and driving or smoking and driving. In addition, 

mother did not have the children in seat belts at the time of the 

incident. Because the programs mother had completed for the 

criminal court did not address child safety or the actions of 

mother that endangered the children, the court found “the little 

bit of programs she has done is not sufficient.”

The court further noted that mother did not take 

responsibility for her actions. Instead, mother insisted that 

someone put something in her drink. The juvenile court was not 

required to believe mother’s version of the events leading up to 

mother’s reckless driving and serious endangerment of her 

children. The juvenile court had before it ample evidence that 

mother had problems with substance abuse. Mother had a prior 

dependency case in 2016 originating in part due to substance 

abuse that interfered with mother’s ability to parent her children. 

M.G. reported that mother was drunk at the time of the accident. 

Mother admitted to drinking but insisted that her drink was 

laced with an unknown substance. M-S.G. disclosed that mother 

used to smoke “blunts,” and B.G. indicated that mother was 

6 The record shows that following her accident and arrest, 

mother completed a one-day, eight-hour drug and alcohol 

awareness class.
17

addicted to marijuana. Aubrey further noted that mother had 

started consuming more alcohol than usual during the pandemic. 

There was evidence that mother’s substance use persisted during 

the pendency of the case, as mother tested positive for marijuana 

in September 2020 and missed several subsequent drug tests.7 

This evidence supported the juvenile court’s determination that 

the brief class that mother attended was insufficient to ensure 

that mother would refrain from use of substances that could 

cause harm to her children. As the juvenile court noted, “[s]he 

could have killed these kids.”

In addition, the court noted that mother never 

acknowledged her criminal behavior in stealing a car. Again, the 

court was not required to believe mother’s story regarding the 

events leading up to the accident. Mother’s failure to take 

responsibility for her reckless behavior presented a substantial 

danger to the children’s safety and well-being. Mother’s failure to 

acknowledge or address her behavior constituted evidence that 

the danger to the children’s safety is ongoing.

Finally, not only had mother failed to complete any 

programs that addressed the children’s safety, mother revoked 

her release of therapeutic information to the social worker. Thus, 

the social worker had no way of knowing how mother’s treatment 

was progressing. Mother’s unwillingness to cooperate with the 

social worker and DCFS, or keep them apprised of her progress, 

prevented the court from being able to declare that there was no 

present danger to the children. Instead, the evidence and 

circumstances supported the juvenile court’s decision that there 

7 The juvenile court may properly consider missed drug tests 

as positive tests. (In re Christopher R. (2014) 225 Cal.App.4th 

1210, 1217.)
18

remained a substantial danger to the children if they remained in 

mother’s care and that no reasonable alternatives to removal 

existed.

Mother argues that the juvenile court’s emphasis on 

mother’s acceptance of responsibility was wrong, as the juvenile 

court intervenes to protect a child, not punish a parent. (Citing

In re Malinda S. (1990) 51 Cal.3d 368, 384, superseded by statute 

as stated in People v. Otto (2001) 26 Cal.4th 200, 207, and quoted 

in In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) While it is true 

that the court’s intervention is to protect the child, the parent’s 

acknowledgement of her behavior is a significant step towards 

the safety of the child. “One cannot correct a problem one fails to 

acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) 

The court did not err in considering mother’s “response to the 

conditions that gave rise to juvenile court intervention.” (In re 

D.B., supra, 26 Cal.App.5th at p. 332.)

Mother further argues that there was no past physical 

harm to the children, thus any risk of future harm to the children 

was merely speculative. Mother relies on case law concerning the 

assertion of jurisdiction over a child, not the removal from 

custody. (See, e.g., In re J.M. (2019) 40 Cal.App.5th 913, 921 [“a 

juvenile court must find the risk of harm exists at [the] time of the 

jurisdiction hearing to take jurisdiction over the minor”]; In re 

J.N. (2010) 181 Cal.App.4th 1010, 1023 [dependency jurisdiction 

is not authorized based on a single incident resulting in physical 

harm absent current risk]; In re David M. (2005) 134 Cal.App.4th 

822, 830 [finding dependency jurisdiction unwarranted where 

harms to children were “merely speculative”], abrogated on other 
19

grounds by In re R.T. (2017) 3 Cal.5th 622, 628.)

8 Mother has not 

challenged the juvenile court’s assertion of jurisdiction over her 

children, therefore the cases are irrelevant.9

Mother also relies on In re Steve W. (1990) 217 Cal.App.3d 

10, 22, for the proposition that “speculation about the mother’s 

possible future conduct is not even sufficient to support a finding 

of dependency much less removal of the physical custody of the 

child from the parent.” Steve W. is distinguishable. In that case, 

the juvenile court removed a child from the custody of his mother 

after the father killed the child’s half brother. The mother had 

begun counseling, was living in an adequate apartment and was 

self-supporting. In addition, she had taken appropriate steps to 

prosecute the father, who was incarcerated, and expressed a clear 

desire not to have anything to do with him. The Steve W. court 

found that the court’s speculation that she would resume her 

relationship with the father, or enter a new relationship with yet 

8 To the extent that mother argues that dependency 

jurisdiction in this matter is based on a single incident, we 

disagree. The juvenile court was permitted to consider the 

family’s dependency history, the children’s allegations regarding 

mother’s drinking and drug use, mother’s failure to address these 

concerns, and mother’s failure to cooperate with DCFS in 

determining that jurisdiction was appropriate here.

9 Mother also cites Nahid H. v. Superior Court (1997) 53 

Cal.App.4th 1051, 1070, discussing the denial of reunification 

services to a parent due to her political beliefs and activities, and 

concluding that such reasoning was based “on the minors’ 

perceptions of risk rather than actual evidence of risk.” (Ibid.) 

The court concluded that such speculative risk was insufficient. 

The case is irrelevant, as this matter does not involve a denial of 

reunification services.
20

another abusive type of person, was “little more than speculation” 

and did not suffice to support removal. (Ibid.)

Here, in contrast, it was mother’s own behavior that 

endangered her children. Mother failed to acknowledge or 

address her actions or the substance abuse problems that led to 

her reckless behavior and car accident. The juvenile court was 

not merely speculating when it found that there remained a 

substantial danger to the children’s safety and well-being if left 

in her care.

Mother’s reliance on In re Drake M. (2012) 211 Cal.App.4th

754 is also misplaced. Preliminarily, we note that Drake M. 

involved a challenge to a jurisdictional finding, and the juvenile 

court’s jurisdictional findings are uncontested in this matter. 

Mother argues that the record does not support a finding that 

mother suffered from substance abuse issues. She cites Drake M. 

for the proposition that lawful use of marijuana does not support 

a finding of substance abuse absent a medical opinion or a 

diagnosis meeting the criteria set forth in the American 

Psychiatric Association’s Diagnostic and Statistical Manual of 

Mental Disorders (DSM). (Drake M., at p. 766.) Mother argues 

that DCFS did not present either type of evidence in this matter. 

We note that subsequent case law has confirmed that a parent 

does not need to meet the criteria for substance abuse set forth in 

the DSM in order for a juvenile court to properly find the parent’s 

substance abuse renders the parent unfit to care for a young 

child. (See In re Rebecca C. (2014) 228 Cal.App.4th 720, 725; In 

re Christopher R., supra, 225 Cal.App.4th at pp. 1218-1220.)

Contrary to mother’s position, there is evidence in the 

record that mother suffered from substance abuse issues. Mother 

had a prior dependency case that was initiated in part due to her 
21

substance abuse issues. Mother’s children all attested to 

mother’s use of marijuana and alcohol. B.G. reported that 

mother was addicted to marijuana, and Aubrey reported that 

mother’s drinking had increased during the pandemic. Mother’s 

reckless acts of stealing a car and driving while under the 

influence of a substance—with her children in the car without 

seat belts —is further evidence that mother’s substance use was 

interfering with her ability to safely parent her children. 

Further, the juvenile court did not assume jurisdiction solely 

because of the mother’s substance use.

Mother failed to acknowledge responsibility for her actions 

and failed to cooperate with DCFS. She did not consistently drug 

test and was unwilling to complete programs approved by DCFS 

and necessary to help ensure the safety of her children. She 

refused to speak with a social worker and rescinded her 

permission for release of information about her treatment. The 

juvenile court justifiably considered mother’s actions and attitude 

during the pendency of the matter in declining to place the 

children in mother’s care.

Mother attempts to distinguish this case from In re M.R. 

(2017) 8 Cal.App.5th 101. In M.R., DCFS filed a dependency 

petition after learning that the mother had been arrested for 

driving under the influence of alcohol with her two children in 

her car, not properly restrained by seat belts. The parents 

contended that the one-time incident was insufficient to support 

jurisdiction, and the M.R. court disagreed. The court noted that 

the mother minimized her actions, and the parents’ acceptance of 

responsibility seemed to worsen, rather than improve, as the 

dependency proceedings progressed. (Id. at p. 109.) Mother 

argues that this case differs from hers because here mother had 
22

her criminal case successfully dismissed, had provided negative 

tests, and had completed programs approved by the criminal 

court. However, like in M.R., there was also evidence that 

mother seriously minimized her actions. In addition, as in M.R., 

mother became less cooperative as the matter progressed in the 

dependency court. The juvenile court was entitled to consider 

these factors in determining that there was a substantial danger 

to the children’s well-being in mother’s care.

Finally, mother argues that the record showed there were 

reasonable means to protect the children short of removal from 

mother’s care. Mother points out that she had consistently 

visited her children up until the time of the disposition hearing 

without incident or concern. The children wanted to return to 

her care. Mother argues that reasonable means to protect the 

children existed, such as family preservation services, 

unannounced visits, and drug tests. Mother argues that the 

children were old enough to voice any concerns.

We find that the evidence supported the juvenile court’s 

decision that no reasonable means existed short of removal to 

protect the children. Mother was not compliant with DCFS. 

Mother told DCFS an implausible story to explain the car 

accident involving her children. She tested positive for 

marijuana and missed many drug tests. When DCFS attempted 

to interview mother and father about the allegations in the 

petition regarding Aubrey, mother refused to provide a statement 

and referred the social worker to her attorney. Mother rescinded 

her release of information from her therapist, so mother’s 

treatment plan could not be confirmed nor could DCFS confirm 

mother’s progress demonstrating insight into child safety issues. 

Mother’s therapist reported that after three sessions, no progress 
23

could be reported due to lack of attendance. Given mother’s lack 

of cooperation with DCFS, the juvenile court was justified in 

determining that no reasonable means existed short of removal to 

protect the children.

In sum, there existed clear and convincing evidence that 

there was a substantial danger to the children’s physical health, 

safety, protection, or physical or emotional well-being, and no 

reasonable way to protect the children short of removal from 

mother’s home.

II. Duty of Inquiry under ICWA

Mother contends that if the court does not reverse the order 

of removal, a remand is still necessary because the juvenile 

court’s finding that ICWA did not apply was not supported by 

substantial evidence. Specifically, mother contends that DCFS 

and the court failed to make inquiry of mother’s relatives and 

father’s relatives. Mother argues that the error was a continuing 

violation under federal and state ICWA law because the juvenile 

court and DCFS both have a continuing duty to inquire whether 

the children may be Indian children. DCFS concedes that the 

record does not demonstrate that DCFS interviewed maternal or 

paternal relatives regarding the children’s possible status as 

Indian children.

DCFS failed to fulfill its statutory duty of initial inquiry by 

not asking these extended family members about the children’s 

possible Indian status. The failure to do so was error. We 

conclude, however, that the error was not prejudicial, given the 

parents’ disclaimer of any knowledge of Indian ancestry and the 

absence of any indication in the record that there was readily 

obtainable information likely to bear meaningfully upon whether 
24

the children are Indian children. (In re Benjamin M. (2021) 70 

Cal.App.5th 735, 744 (Benjamin M.).)

A. Applicable law and standard of review

ICWA and related California statutes reflect the 

Legislature’s intent “to protect the best interests of Indian 

children and to promote the stability and security of Indian tribes 

and families by the establishment of minimum Federal standards 

for the removal of Indian children from their families.” (25 

U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706, 

fn. 3.) An “Indian child” is defined as any unmarried person 

under the age of 18 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. (25 U.S.C. § 1903(4); Welf. 

& Inst. Code, § 224.1, subds. (a), (b).)

“Because it typically is not self-evident whether a child is 

an Indian child, both federal and state law mandate certain 

inquiries to be made in each case. These requirements are 

sometimes collectively referred to as the duty of initial inquiry.” 

(Benjamin M., supra, 70 Cal.App.5th at p. 741.) “The duty to 

inquire begins with the initial contact, including, but not limited 

to, asking the party reporting child abuse or neglect whether the 

party has any information that the child may be an Indian child.” 

(§ 224.2, subd. (a).) The court and child welfare department 

“have an affirmative and continuing duty” to inquire whether a 

child for whom a petition under section 300 may be or has been 

filed may be an Indian child. (Ibid.)

Under California law, the child welfare department’s initial 

duty of 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 
25

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.” (§ 224.2, subd. (b).) Under ICWA, the 

term “extended family member” is “defined by the law or custom 

of the Indian child’s tribe or, in the absence of such law or 

custom, shall be a person who has reached the age of eighteen 

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 U.S.C. § 1903(2).)

The juvenile court must also inquire at each participant’s 

first appearance in court whether the participant knows or has 

reason to know that the child is an Indian child. (§ 224.2, subd. 

(c).) In addition, the juvenile court must instruct the parties to 

inform the court if they subsequently receive information that 

provides reason to know the child is an Indian child. (§ 224.2, 

subd. (c).)

If the “initial inquiry creates a ‘reason to believe’ the child 

is an Indian child, then the Agency ‘shall make further inquiry

regarding the possible Indian status of the child, and shall make 

that inquiry as soon as practicable.’ ([§ 224.2], subd. (e), italics 

added.) [I]f that further inquiry results in a reason to know the 

child is an Indian child, then the formal notice requirements of 

section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to 

inquire at the first appearance whether anyone ‘knows or has 

reason to know that the child is an Indian child’]; id., subd. (d) 

[defining circumstances that establish a ‘reason to know’ a child 

is an Indian child]; § 224.3 [ICWA notice is required if there is a 

‘reason to know’ a child is an Indian child as defined under 

§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1052.)
26

Neither the duty of further inquiry nor the ICWA notice 

provisions are at issue here because no one contends there is 

reason to know the children are Indian children. We review the 

juvenile court’s ICWA findings for substantial evidence. (In re 

D.N. (2013) 218 Cal.App.4th 1246, 1251.) Deficiencies in ICWA 

inquiry may be deemed harmless error. (Ibid.)

B. No prejudicial error

Mother’s ICWA challenge is based on DCFS’s failure to ask 

extended family members (both maternal relatives and father’s 

relatives), about potential tribal membership.10 The statutory 

duty to ask extended family members about a child’s possible 

Indian heritage is imposed by California law on child welfare 

agencies only. (§ 224.2, subd. (b).) Federal law imposes no such 

duty. (In re S.S. (2022) 75 Cal.App.5th 575, 581; In re A.C. (2021) 

65 Cal.App.5th 1060, 1069.) The failure to inquire of extended 

family members accordingly is an error under state law only. 

Under California law, we may not reverse unless we find that 

error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M., 

supra, 70 Cal.App.5th at p. 742.)

In determining whether the failure to conduct a proper 

ICWA inquiry was prejudicial, several appellate courts have held 

that reversal is warranted only when the record indicates there 

was readily obtainable information that was likely to bear 

meaningfully upon whether the child is an Indian child. 

(Benjamin M., supra, 70 Cal.App.5th at p. 744; In re A.C. (2022)

10 Mother initially contended that DCFS failed to inquire of 

father. However, the record shows that DCFS did inquire of 

father, who filed an ICWA-020 form denying Indian ancestry, and 

was present and represented by counsel at the September 2, 2020 

hearing when the juvenile court noted that ICWA did not apply.
27

75 Cal.App.5th 1009, 1017 [applying Benjamin M. court’s 

standard for prejudice]; In re Darian R. (2022) 75 Cal.App.5th

502, 509 [same]; In re S.S., supra, 75 Cal.App.5th at p. 581 

[same].)

The courts in In re Antonio R. (2022) 76 Cal.App.5th 421, 

435-436 (Antonio R.), and In re H.V. (2022) 75 Cal.App.5th 433, 

438 (H.V.), adopted different standards, holding that the DCFS’s 

failure to interview extended family members during its initial 

ICWA inquiry was prejudicial error and therefore either (1) 

reversible per se (H.V.) or (2) above such a low bar for prejudice 

that it was reversible (Antonio R.). In Antonio R., the parents 

both denied knowledge of any Indian ancestry. DCFS spoke with 

a paternal great-grandmother, who also denied knowledge of any 

Indian ancestry. The Department did not inquire about possible 

Indian ancestry with any maternal extended family members, 

including the maternal grandparents who were designated as the 

prospective adoptive parents, and maternal aunts and a maternal 

uncle who were present at the disposition hearing. The court in 

Antonio R. concluded that the failure to do so was prejudicial 

error.

In H.V., the only person asked about possible Indian 

ancestry was the minor’s mother, who filed an ICWA-020 form 

denying knowledge of any Indian ancestry and informed the 

juvenile court that the minor’s alleged father (who did not 

appear) had no Indian ancestry. Although DCFS interviewed the 

minor’s maternal great-grandmother and maternal greatgrandfather, the record did not indicate whether the social 

worker asked any of these relatives about the minor’s possible 

Indian ancestry. The court in H.V. concluded that the failure to 

do so was prejudicial and reversible error.
28

We decline to adopt the standard applied by the courts in 

Antonio R. and H.V. We apply instead the standard for 

prejudicial error articulated by the court in Benjamin M., supra,

70 Cal.App.5th 735.

The record in this case reveals no readily obtainable 

information that was likely to bear meaningfully on whether the 

children were Indian children, and mother does not assert that 

such information exists. Both mother and father told the social 

worker that they had no knowledge of any Indian ancestry. Both 

mother and father filed ICWA-020 forms stating they had no 

Indian ancestry to their knowledge. Both mother and father

appeared at the detention hearing at which the juvenile court 

found, based on the parents’ representations, that it had no 

reason to know that ICWA applied. There is no reason to believe 

that the parents’ extended families, with whom the parents were 

in close contact, were withholding any relevant information. 

There is no other information in the record suggesting that 

further inquiry would have revealed potential Indian ancestry. 

In short, the deficiencies in inquiry are harmless error in this 

case.

Benjamin M., supra, 70 Cal.App.5th 735 and In re Y.W. 

(2021) 70 Cal.App.5th 542 (Y.W.), on which mother relies, are 

factually distinguishable. The father in Benjamin M. never 

appeared in court and was never asked whether he had reason to 

believe the subject minor was an Indian child. (Benjamin M., at

p. 744.) The child welfare agency never asked the father’s 

brother and sister-in-law, whom the agency contacted in an effort 

to locate the father, about the minor’s possible Indian ancestry. 

The court in Benjamin M. noted that the father’s brother’s 

knowledge of his own Indian heritage was likely to bear 
29

meaningfully on the father’s status. (Id. at p. 745.) Here, in 

contrast, both mother and father appeared in the juvenile court, 

both filed ICWA-020 forms denying any knowledge of Indian 

ancestry, and both denied knowledge of any Indian ancestry.

In Y.W., supra, 70 Cal.App.5th 542, the mother, who was 

adopted, filed an ICWA-020 form stating she had no knowledge of 

Indian ancestry. The social services agency interviewed the 

adoptive maternal grandmother, who did not know whether 

mother’s biological family had any Indian ancestry. The adoptive 

maternal grandmother told the social worker that she knew the 

name of mother’s biological father but had no additional 

information about him or his relatives. The adoptive maternal 

grandmother further stated she could obtain contact information 

for the mother’s biological maternal aunt. The agency never 

followed up or sought to obtain further information about the 

mother’s biological parents. (Id. at p. 549.) The court in Y.W. 

held that the agency’s failure to do so was prejudicial error. (Id. 

at pp. 552-553.) In this case, in contrast, neither mother nor 

father was adopted, thus there was no reason to believe they 

were unaware of their biological ancestry.

11

On the record presented here, we cannot conclude that the 

DCFS’s failure to ask mother’s relatives and father’s relatives

11 In In re A.C., supra, 75 Cal.App.5th at page 1017 the court 

found DCFS’s failure to interview extended family prejudicial 

because the mother, as a former foster child, may not have known 

her cultural heritage, and because a detention report indicated 

that A.C. may have been an Indian child with no followup on that 

representation. Under those circumstances, the parents’ denial 

of Indian ancestry was insufficient to dispel prejudice from 

DCFS’s failure to inquire of extended family. No such 

circumstances exist in this case.
30

about the children’s Indian ancestry was prejudicial error. This 

is particularly true in this case because the matter has been 

transferred to San Bernardino County for further proceedings. 

As set forth above, the duty under ICWA is a continuing one. 

The parties are instructed to inform the court of any additional 

information bearing on the children’s status under ICWA. (25 

C.F.R. § 23.107(a); Welf. & Inst. Code, § 224.2, subd. (c).) Thus, 

the parties remain under a continuing obligation to inquire into 

the children’s Indian status throughout the pendency of the 

matter and comply with the notification provisions if necessary. 

(In re Isaiah W. (2016) 1 Cal.5th 1, 12 [“the juvenile court’s 

[initial] determination of ICWA’s inapplicability . . . had no effect 

on its ongoing inquiry and notice obligations under sections 224.2 

and 224.3(a)”].)

DISPOSITION

The judgment and removal order are affirmed.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.