Filed 10/8/21 In re Leigha W. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

In re LEIGHA W., a Person 

Coming Under the Juvenile 

Court Law.

 B310184

 (Los Angeles County

Super. Ct. No. 17CCJP02701)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

C.W.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Emma Castro, Judge Pro Tempore. 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, Aileen Wong, Deputy County Counsel, 

for Plaintiff and Respondent.

_______________________________

In this dependency case (Welf. & Inst. Code, § 300 et seq.),

1

C.W. (Mother) appeals from the juvenile court’s disposition order, 

challenging the sufficiency of the evidence supporting the 

removal of her infant daughter Leigha W. from her custody. She 

also contends the juvenile court and the Los Angeles County 

Department of Children and Family Services (DCFS) failed to 

comply with duties under the Indian Child Welfare Act (ICWA). 

(25 U.S.C. § 1901 et seq.) For the reasons explained below, we 

reject Mother’s contentions and affirm the order.

BACKGROUND

I. Prior Dependency Proceedings Involving Mother 

and Leigha’s Sibling and Half Sibling

As a minor, Mother was a dependent of the juvenile court. 

She was adopted by her paternal grandparents as a toddler, after 

the court terminated Mother’s parents’ rights. At the time the 

current dependency proceedings commenced in January 2020, 

Mother lived with her adoptive mother/biological paternal 

grandmother, Vivian W.

In prior dependency proceedings, Mother lost custody of her 

two older children. In May 2018, the juvenile court sustained a 

section 300 petition under subdivision (b), making the following 

jurisdictional findings: (1) Mother’s then-infant daughter A.W. 

tested positive at birth for marijuana and opiates, and Mother’s 

1

Further statutory references are to the Welfare and 

Institutions Code.
3

use of illicit drugs endangered the child’s physical health and 

safety and placed the child at risk of serious physical harm and 

damage; (2) Mother abused marijuana and opiates, and A.W.’s 

father, L.W. (Father),

2

failed to protect A.W. and half sibling 

C.W. (Mother’s two year old son from a prior relationship) from 

Mother’s substance abuse, endangering the children’s physical 

health and safety and creating a detrimental home environment 

that placed the children at risk of serious physical harm, damage, 

and failure to protect; (3) Father abused marijuana, which 

rendered him incapable of providing regular care for the children, 

and Mother failed to protect the children from Father’s substance 

abuse, endangering the children’s physical health and safety and 

creating a detrimental home environment that placed the 

children at risk of serious physical harm, damage, and failure to 

protect. 

Later in May 2018, the juvenile court sustained a section 

342 subsequent petition, making the jurisdictional finding under 

section 300, subdivision (b) that Mother was a then-current 

abuser of methamphetamine and marijuana, who on May 15, 

2018, while A.W. and C.W. were in her care and under her 

supervision, was under the influence of and tested positive for 

methamphetamine, amphetamine, and marijuana, rendering her 

incapable of providing regular care for the children and 

endangering the children’s physical health and safety and placing 

them at risk of serious physical harm and damage.

2

The child involved in the current dependency proceedings, 

Leigha W., is Mother and Father’s child. Father is not a party to 

this appeal. Accordingly, we only summarize the relevant 

evidence and proceedings as they relate to Mother.
4

In January 2019, the juvenile court terminated Father’s 

reunification services regarding A.W. In August 2019, the court 

terminated Mother’s reunification services regarding A.W. and 

C.W. The court placed C.W. in the home of his biological father 

and placed A.W. with her maternal aunt (Mother’s sister), Ebony. 

On or about December 1, 2019, the court denied Mother’s section 

388 petition regarding custody of her children. C.W.’s permanent 

placement was with his father, and A.W.’s permanent placement 

was under legal guardianship with Ebony.

II. Current Dependency Proceedings

A. Referral, section 300 petition, and nondetention of Leigha from Mother

The referral that led to the current dependency proceedings 

was made at the end of December 2019, less than a month after 

the juvenile court denied Mother’s section 388 petition in the 

dependency proceedings involving her two older children. The 

caller (presumably a hospital employee) informed DCFS that 

Mother had just given birth to a baby girl (Leigha), and Mother 

disclosed she smoked marijuana during her pregnancy. Mother 

reported she had been clean since July 2019, the month she 

began her prenatal care, but Mother’s prenatal records showed 

she tested positive for marijuana in August 2019, during her 

pregnancy.

3

 Mother also missed three prenatal appointments. 

Upon her admission to the hospital Mother tested negative for 

drugs, so neither Mother nor Leigha was drug tested at the time 

of birth. The caller reported Leigha appeared healthy, was 

3 Mother also tested positive for marijuana in September 

2019, during her pregnancy, but the caller did not report that in 

the referral.
5

breastfeeding, and had not shown symptoms of drug withdrawal. 

Mother was appropriate with Leigha, and the caller had no 

concerns. According to the caller, Father was “not involved” with 

Mother and Leigha.

On December 29, 2019, a DCFS social worker went to the 

hospital prior to Mother’s and Leigha’s discharge. A nurse told 

the social worker Leigha was doing well and bonding with 

Mother. Mother told the social worker she had not used 

marijuana since July 2019 (during her pregnancy), and the 

reason she tested positive in August 2019 was because there was 

still marijuana in her system from her use in July. Mother 

reported she tested negative for drugs in October 2019 (but did 

not mention her additional positive test for marijuana in 

September 2019, during her pregnancy). Mother stated she was 

enrolled in an outpatient drug treatment program through which 

she tested. 

As stated in DCFS’s February 3, 2020 Detention Report, 

when the social worker asked Mother about missing some 

prenatal appointments, Mother responded she had “a lot going 

on,” but was not “trying to neglect the baby.” Mother reported 

she received mental health services for depression at an agency 

where she had also received prenatal care, parenting support, 

and housing assistance. She explained she became homeless 

after losing custody of her two older children, but she was now 

living with Vivian (Leigha’s maternal great-grandmother).

As set forth in the Detention Report: “Mother stated that 

she will remain in contact with DCFS at all times and that she 

just would like to have a chance to prove that she can provide[] 

for her child” (Leigha). Mother signed a safety plan, agreeing (1) 

to continue to attend the drug treatment program; (2) to remain 
6

clean and sober; and (3) to attend all of Leigha’s medical 

appointments.4

On January 8, 2020, the social worker visited Mother and 

Leigha at Vivian’s home, in the presence of various maternal 

relatives who were supportive of Mother and stated Mother and 

Leigha were doing well. Mother said she attended a medical 

appointment for Leigha the day before. She reiterated she would 

continue to attend the drug treatment program and remain in 

contact with DCFS “at all times.” She also stated she was 

“willing to [drug] test anytime.” She said she had not heard from 

Father and planned to raise Leigha on her own.

On January 17, 2020, a social worker in the current case 

spoke with the social worker in the older sibling and half sibling’s 

dependency case, CSW Bodden. Bodden explained Mother acted 

appropriately when she had contact with her older children, but 

Mother “did not do anything the court requested for her to 

reunify with the children.” Bodden described Mother as 

uncooperative. Bodden reported dependency jurisdiction over 

A.W. was terminated in December 2019, with a legal 

guardianship with maternal aunt Ebony, but the case was going 

to be reopened to allow Ebony to access financial assistance and 

support services; and dependency jurisdiction over C.W. was 

scheduled to terminate in February 2020, with a permanent 

placement with the biological father. Bodden informed the social 

4 One of the reasons DCFS was particularly concerned 

about Mother attending all of Leigha’s medical appointments was 

because Leigha’s older sister A.W. was hospitalized and 

diagnosed with failure to thrive at one month old, and Mother 

and Father were under the influence of marijuana when they 

brought A.W. to the hospital.
7

worker in the current case that Mother’s drug treatment program 

only required her to test once a month. 

A different social worker in the current case went to 

Vivian’s home on January 17, 2020 to visit Mother and Leigha. 

Mother was not home, so the social worker left a business card 

with a maternal relative. The same day, Mother called the social 

worker. Using profanity, Mother asserted there was no cause for 

a DCFS investigation regarding Leigha and she did not want the 

social worker coming to her home. When the social worker 

requested documentation of her enrollment in a drug treatment 

program, Mother told the social worker to talk to CSW Bodden 

and access the information from the dependency case involving 

her two older children.

DCFS searched public records and discovered Father was 

listed as living at Vivian’s home with Mother and Leigha

(although Mother previously told DCFS she had not heard from 

Father and planned to raise Leigha on her own). DCFS learned 

from law enforcement that there were “chronic” family disputes 

at the home. Most recently, on December 16 and 17, 2019, law 

enforcement responded to the home regarding a dispute between 

Mother and one of her brothers. 

DCFS sought a court order to remove Leigha from Mother’s 

and Father’s custody. On January 28, 2020, the judicial officer 

who presided over the dependency case of A.W. and C.W., signed 

an order authorizing DCFS to remove Leigha from Father, but 

not from Mother. On January 29, 2020, DCFS social workers and 

a police officer went to the family home to serve the removal 

order on Father and to provide Mother with notice of the 

detention hearing in this case. The social workers reported in the 
8

Detention Report that they noticed a strong odor of marijuana 

coming from the home as they approached. 

Father was cooperative; Mother was not. Father agreed to 

leave the family home. Mother came outside and cursed at the 

social worker with whom she had had prior contact in this case

and ordered her to leave the property. Mother refused requests 

from the social worker and the police officer to check on Leigha. 

Father retrieved Leigha from inside the home and told Mother to

calm down and allow the social workers and police officer to do 

their jobs. Mother took Leigha from Father and moved toward 

the door to the house. Father stood by the door and asked 

Mother to let them see the child. Mother hesitantly allowed the 

social worker to take a photo of Leigha and then walked toward 

the door. Using profanity, Mother ordered the social worker to 

leave the porch.

In the Detention Report, DCFS recommended the juvenile 

court detain Leigha from Mother due to Mother’s unresolved 

substance abuse issues. DCFS noted Mother did not begin 

participating in the drug treatment program until after her 

reunification services were terminated in the dependency case 

involving A.W. and C.W., which commenced due to Mother’s 

substance abuse. DCFS attached to the Detention Report 

progress reports from the drug treatment program, dated 

November 5 and December 6, 2019, stating, in pertinent part: (1) 

Mother enrolled in the program on July 23, 2019; (2) she was 

required to take one random drug and alcohol test per month; (3) 

she tested positive for marijuana on August 1 and September 30, 

2019; (4) she tested negative for all substances on October 14, 

2019 and November 25, 2019; (5) she successfully completed all 

program requirements on November 26, 2019, including 10 
9

individual counseling sessions, 13 relapse prevention group 

sessions, and eight parenting group sessions; (6) she was moving 

into the recovery support services phase of the program in which 

she would attend six hours of parenting group sessions and one 

hour of individual counseling per month; and (7) she was 

expected to graduate from this phase of the program at the end of 

January 2020. There was no further progress report attached to 

the February 3, 2020 Detention Report.

On January 31, 2020, DCFS filed the current dependency 

proceeding under section 300, subdivisions (b) and (j), alleging:

“[Mother] has a history of substance abuse including 

marijuana, opiates, and methamphetamine and is a current 

abuser of marijuana, which renders the mother incapable of 

providing regular care and supervision of the child [Leigha]. The 

mother abused marijuana during the mother’s pregnancy with 

the child. On 08/01/2019 and 09/30/2019, the mother had positive 

toxicology screens for marijuana. The child is of such young age 

requiring constant care and supervision and the mother’s 

substance abuse interferes with providing regular care and 

supervision of the child. The child’s siblings C[.]W[.] . . . and 

A[.]W[.] . . . are current dependents of the Juvenile Court and the 

sibling A[.W.] is receiving Permanent Placement services due to 

the mother’s substance abuse and [Father’s] failure to protect the 

child’s sibling A[.W.] [Father] knew of the mother’s substance 

abuse and failed to take action to protect the child. The mother’s 

substance abuse and the father’s failure to take action to protect 

the child endangers the child’s physical health and safety, and 

places the child at risk of serious physical harm, damage, danger, 

and failure to protect.” (Counts b-1 & j-1.)
10

“[Father] has a history of substance abuse including 

marijuana, which renders the father incapable of providing 

regular [care] and supervision of the child [Leigha]. The child is 

of such young age requiring constant care and supervision and 

the father’s substance abuse interferes with providing regular 

care and supervision of the child. The child’s sibling A[.W.] . . . is 

a current dependent of the Juvenile Court and is receiving 

Permanent Placement services due to the father’s substance 

abuse and [Mother’s] failure to protect. [Mother] knew of the 

father’s substance abuse and failed to protect the child by 

allowing the father unlimited access to the child. The father’s 

substance abuse and the mother’s failure to protect the child 

endangers the child’s physical health and safety, and places the 

child at risk of serious physical harm, damage, danger, and 

failure to protect.” (Counts b-2 & j-2.) 

Mother and Father appeared at the detention hearing on 

February 3, 2020. The juvenile court found DCFS made a prima 

facie showing that Leigha was a person described by section 300. 

The court ordered Leigha detained from Father. Over DCFS’s 

objection, the court ordered Leigha to remain released to Mother. 

Mother’s counsel supported Leigha’s release to Mother if the 

court imposed a safety plan. The court imposed the following 

conditions on the release: (1) Mother must submit to weekly drug 

testing; (2) Mother must make Leigha available for unannounced 

home visits by DCFS; (3) Father may not live in the family home; 

and (4) DCFS must provide Mother with family preservation 

referrals and Mother must comply with family preservation 

services. 
11

On February 13, 2020, DCFS referred Mother for weekly 

drug testing and informed her that a missed test would be 

considered a positive test. 

A dependency investigator met with Mother on February 

25, 2020. Mother presented well and welcomed the investigator 

into the family home. The investigator provided Mother with a 

list of referrals for family preservation services, and Mother 

signed a letter confirming receipt of the referrals. Mother denied 

current drug use but stated she did not believe her or Father’s 

drug use interfered with their ability to parent. She stated she 

was still enrolled in the drug treatment program, was 

participating in parenting classes, and attended therapy once a 

month for her depression. The investigator observed Leigha, who 

appeared to be doing well. Leigha missed a medical appointment 

on February 20, 2020 because Mother brought Leigha to the 

appointment more than an hour late and then refused to wait for 

Leigha to be seen. But Mother took Leigha to an appointment on 

March 5, 2020, and Leigha was deemed healthy. On March 6, 

2020, a new social worker met with Mother to again complete a 

safety plan to address DCFS’s concerns and to ensure Mother 

was abiding by the juvenile court’s conditions for Leigha’s release 

to Mother. 

Mother failed to show for drug tests on February 20 and 26

and March 6 and 26, 2020. Mother blamed the missed tests on 

her bad memory. Mother tested negative for drugs on March 5, 

13, 18, and 27 and April 1, 2020. 

At the end of March 2020, although DCFS deemed Mother’s 

compliance with family preservation services to be “inconsistent,” 

DCFS recommended Leigha remain in Mother’s home and 

participate in family maintenance services, including weekly 
12

drug testing, substance abuse counseling, parenting classes, a 

mental health assessment, and individual therapy. DCFS also 

deemed Mother’s compliance with Leigha’s routine health care to 

be inconsistent and in need of improvement. 

On April 8, 2020, Mother’s family preservation services 

caseworker informed the social worker that she had only had one 

session with Mother due to the COVID-19 pandemic. During the 

virtual session, Mother “was actively engaged, receptive to 

information, and open to services.” 

B. Leigha’s detention from Mother and DCFS’s ex 

parte application under section 385

On May 31, 2020, DCFS sought a court order to remove 

Leigha from Mother’s custody. In the application, DCFS 

explained on May 15, 2020, it received a referral alleging Mother, 

Leigha, and Leigha’s sibling A.W. and half sibling C.W. were 

“involved in a gang related shooting at the [family] home.” The 

reporting party stated the police searched the family home and 

were “looking to arrest [M]other,” who had left the home with two 

of her brothers who were associated with a gang. 

The day DCFS received the referral, May 15, 2020, the 

social worker called Mother to assess her and Leigha’s safety. 

Mother did not answer, so the social worker left a voice mail 

message for Mother. 

Also on May 15, 2020, the social worker called Mother’s 

sister Ebony, who stated she was at the family home with the 

children (Leigha, A.W. and C.W.) in early May 2020, when she 
13

heard gunshots outside the home.5 According to Ebony, after the 

gunshots, Mother and some of their brothers ran into the home. 

Soon thereafter, Mother and one their brothers left the home. 

The children were taken to McDonald’s to meet another aunt, 

Am.W. (another of Mother’s sisters).

6

The social worker contacted Am.W., who stated Leigha

(now four and a half months old) was with family friend, Z.S. On 

May 15, 2020, the same day as the referral, the social worker 

visited Leigha at Z.S.’s home, with Ebony and Am.W. present. 

The social worker noted no safety concerns at that time and left 

Leigha with Z.S. Z.S. agreed to inform the social worker if 

Mother arrived to pick up Leigha. 

The social worker got in touch with Mother by phone on 

May 15, 2020 and asked her for an in-person meeting with her 

and Leigha to discuss the shooting and to assess Leigha’s safety 

and well-being. Mother refused to meet in person or provide the 

address where she was staying. Mother confirmed there was a 

shooting near the family home but denied she or her family was

involved. When the social worker asked who was present at the 

time of the shooting, Mother refused to answer. Mother told the 

social worker Leigha was staying with Ebony. The social worker 

expressed concern that Mother did not know the whereabouts of 

her infant daughter, who had been passed around to family 

5

Apparently, Mother had arranged for Ebony to care for 

Leigha while Mother and Vivian (Leigha’s maternal greatgrandmother) recovered from COVID-19.

6

It is not clear from the way DCFS’s reports are written 

whether it was Mother or Ebony who brought the children to 

Am.W. 
14

members and a family friend. Mother responded that they could 

do whatever they wanted with her child because she trusted 

them with Leigha. 

In a subsequent text message, Mother informed the social 

worker that the police searched the family home after the 

shooting because her brothers had “mandatory” search conditions

(apparently because they were on parole), and not because 

anyone in the family was involved in the shooting. In a follow-up 

telephone call regarding the shooting on May 18, 2020, Mother 

cursed at the social worker and stated she wanted a different 

social worker to handle the investigation. 

On May 26, 2020, the social worker learned Mother had 

been arrested for carrying a loaded firearm in public. On May 29, 

2020, Mother was released from jail on her own recognizance. 

The next hearing in her criminal case was scheduled for June 18, 

2020. 

On May 31, 2020, the juvenile court issued an order 

authorizing DCFS to remove Leigha from Mother’s custody. On 

June 1, 2020, DCFS placed Leigha in foster care due to family 

friend Z.S.’s “DCFS history for physical abuse,” requiring DCFS 

to conduct further investigation before formally placing Leigha 

with Z.S.

On June 4, 2020, DCFS filed an ex parte application under 

section 385 for an order terminating the home of parent order 

and requesting the juvenile court issue a new order for suitable 

placement of Leigha, based on the information set forth above 

regarding the shooting and Mother’s arrest. At a June 8, 2020 

detention hearing on the ex parte application, at which Mother 

appeared, DCFS and Leigha’s counsel asked the juvenile court to 

detain Leigha from Mother based on Mother’s failure to abide by 
15

the court’s conditions for releasing Leigha to Mother, namely 

Mother’s refusal to make Leigha available to DCFS and 

participate in family preservation services. The court detained 

Leigha from Mother, ordered monitored visitation for Mother, 

and ordered DCFS to assess family friend Z.S. for possible 

placement. 

C. Jurisdiction/disposition

1. DCFS’s reports

In an Interim Review Report for the October 20, 2020 

adjudication/disposition hearing, DCFS stated that it had placed 

Leigha with Ebony (Mother’s sister), and Leigha was doing well 

in her care. Ebony reported that visits between Mother and 

Leigha were going well. 

The dependency investigator attempted to contact Mother 

to interview her for the report, but neither of the telephone 

numbers Mother had provided DCFS was in service. Based on 

Mother’s most recent contact with the social worker, Mother was 

refusing to re-enroll in drug treatment because she believed she 

had already completed what she was asked to do and Leigha was 

detained from her “ ‘for no reason.’ ” Mother also was refusing to 

drug test or participate in a Child and Family Team (CFT) 

meeting. Mother failed to show for drug tests on 10 occasions 

between June 10 and September 22, 2020.

DCFS recommended the juvenile court sustain the 

allegations in the dependency petition, remove Leigha from 

Mother and Father, and order reunification services for Mother 

(but not Father, whose whereabouts were unknown to DCFS). 

2. Hearings

At the adjudication hearing, which began October 20, 2020

and at which Mother appeared, the juvenile court admitted into 
16

evidence DCFS’s reports (which include the information 

summarized above). The court did not admit into evidence an 

exhibit from Mother—which she represented were criminal court 

minute orders from her case, stating the criminal court placed 

her on informal diversion and dismissed her case in the interests 

of justice—because the minute orders did not have her name (or 

any defendant’s name) on them. DCFS represented to the court

it had verified that Mother’s criminal case had been dismissed, 

and the juvenile court accepted DCFS’s statement.

DCFS urged the juvenile court to sustain the allegations in 

the section 300 petition and remove Leigha from Mother and 

Father, arguing Mother’s and Father’s substance abuse placed 

Leigha at risk of harm. DCFS’s counsel noted Mother had a 

“significant history of substance abuse,” as revealed in the 

dependency case involving her two older children, and now 

Mother was refusing to test or participate in services or attend a 

CFT meeting. Counsel further stated DCFS was concerned about 

law enforcement’s response to family disturbance calls at the 

home, the May 2020 shooting near the home, and Mother’s arrest 

for carrying a loaded firearm in public (notwithstanding the 

dismissal of the criminal case). Counsel also stated that when 

DCFS filed the ex parte application to remove Leigha from 

Mother’s custody, DCFS was not only concerned about the 

shooting, “it was that Mother was passing the child around to 

various family members, wouldn’t tell the worker where she was 

staying, [and] refused to meet with the social worker.” 

Leigha’s counsel joined in DCFS’s recommendations, 

arguing, with Mother’s history of drug use, counsel could not 

advocate for placing Leigha with Mother in the absence of any 
17

recent drug test results.7 Leigha’s counsel suggested the court 

consider ordering unmonitored visitation for Mother if she tested 

clean on a certain number of consecutive tests.

Mother’s counsel urged the juvenile court to dismiss the 

petition and return Leigha to Mother’s custody, arguing DCFS 

had “not alleged any facts that support a finding that the mother 

has current substance abuse issues.” Mother’s counsel added: 

“On paper, the only real reason the child was removed [from 

Mother] was due to the mother’s arrest, which did get resolved, 

and the mother did get her charge dismissed.” Counsel suggested 

if the court did not immediately release Leigha to Mother, the 

court should grant DCFS discretion to release to Mother after 

three consecutive clean drug tests. 

The juvenile court took judicial notice of its February 3, 

2020 minute order from the detention hearing, stating for the 

record that the court conditioned Leigha’s release to Mother at 

that hearing on the condition that Mother drug test weekly. The 

court noted it released Leigha to Mother at that time over 

DCFS’s objection. Mother failed to abide by that condition of 

Leigha’s release to her. The court continued the 

adjudication/disposition hearing to November 17, 2020 to allow 

Mother to submit to a few weekly drug tests. The court 

admonished Mother that the court would consider a missed drug 

test to be a positive test. 

Mother did not submit to any drug tests between October 

20 and November 17, 2020.

7

According to DCFS’s records, Mother last tested on April 

1, 2020, more than six months before the hearing. That test was 

negative for drugs.
18

At the November 17, 2020 continued 

adjudication/disposition hearing, at which Mother appeared, the 

juvenile court took judicial notice of the sustained dependency 

petitions, case plans, and minute orders in the dependency case 

involving Mother’s two older children (A.W. and C.W.), as well as 

the section 364 report concerning C.W. The court noted both 

A.W. and C.W. were in permanent plans, not in Mother’s custody. 

The juvenile court dismissed the counts alleged in the 

section 300 petition under subdivision (b), and sustained the 

identical allegations pleaded in the petition under subdivision (j), 

as quoted above. In explaining why it found by a preponderance 

of the evidence there was a substantial risk of harm to Leigha

based on the allegations, the court reviewed on the record the 

history of the siblings’ case and this case. The court noted 

Mother had not completed the programs she was asked to do; nor 

did Mother submit to weekly drug tests after the court continued 

the adjudication/disposition hearing to give her an opportunity to 

do so; and Mother failed to communicate with DCFS. For these 

reasons, the court decided to remove Leigha from Mother’s 

custody. 

The juvenile court declared Leigha a dependent of the court 

and removed her from Mother and Father, stating clear and 

convincing evidence supported the removal order in that “there is 

substantial danger if the child [is] returned home to the child’s 

physical heath, safety, protection and physical wellbeing, and 

there are no reasonable means by which to protect without 

removing custody from the mother and father.” The court 

granted reunification services for Mother and denied them for 

Father (who was not present and was not participating in the 

case). The court ordered Mother to complete a case plan, 
19

including parenting, individual counseling, and a drug treatment 

program with random and on demand every other week testing. 

The court also ordered monitored visitation for Mother, granting 

DCFS discretion to liberalize Mother’s visits to unmonitored and 

overnight visits, “consistent with Mother’s progress in her case 

plan.” 

DISCUSSION

Mother challenges the sufficiency of the evidence 

supporting the juvenile court’s removal of Leigha from her

custody. She also contends the juvenile court and DCFS failed to 

comply with duties under ICWA. The facts related to the ICWA 

inquiry are set forth below.

I. Removal of Leigha from Mother’s Custody

A juvenile court may take a dependent child from the 

physical custody of her parent where “[t]here is or would be a 

substantial danger to the physical health, safety, protection, or 

physical or emotional well-being of the minor if the minor were 

returned home, and there are no reasonable means by which the 

minor’s physical health can be protected without removing the 

minor from the minor’s parent’s or guardian’s . . . physical 

custody.” (§ 361, subd. (c)(1).)

“A removal order is proper if based on proof of parental 

inability to provide proper care for the child and proof of a 

potential detriment to the child if he or she remains with the 

parent. [Citation.] ‘The parent need not be dangerous and the 

minor need not have been actually harmed before removal is 

appropriate. The focus of the statute is on averting harm to the 

child.’ [Citation.] The court may consider a parent’s past conduct 

as well as present circumstances. [Citation.] [¶] Before the 

court issues a removal order, it must find the child’s welfare 
20

requires removal because of a substantial danger, or risk of 

danger, to the child’s physical health if he or she is returned 

home, and there are no reasonable alternatives to protect the 

child. [Citations.] There must be clear and convincing evidence 

that removal is the only way to protect the child.” (In re N.M.

(2011) 197 Cal.App.4th 159, 169-170.)

“Whether the conditions in the home present a risk of harm 

to the child is a factual issue” to which “we apply the substantial 

evidence test.” (In re N.M., supra, 197 Cal.App.4th at p. 170.) 

“[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. In a matter such 

as the one before us, when reviewing a finding that a fact has 

been proved by clear and convincing evidence, 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. Consistent 

with well-established principles governing review for sufficiency 

of the evidence, in making this assessment the appellate court 

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.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-

996.)

We note Mother does not challenge the juvenile court’s 

jurisdictional finding that her history of substance abuse and 

current abuse of marijuana placed Leigha at risk of serious 

physical harm, damage, danger, and failure to protect. Nor does 

Mother challenge any aspect of the case plan the court imposed.
21

The record before us contains substantial evidence from 

which the juvenile court could have found it highly probable that 

Leigha’s welfare required removal from Mother because of

Mother’s history of substance abuse. The court expressed serious 

concern about Mother’s refusal to participate in services, 

including drug testing, in light of her history of substance abuse, 

which had resulted in her recent loss of custody of two other 

children.8 Leigha was an infant, who required constant care and 

supervision, when DCFS removed her from Mother’s custody.

Mother agues the juvenile court and DCFS failed to explore 

reasonable means to protect Leigha other than removal. In her 

reply brief on appeal, Mother asserts: “Drug testing and 

treatment[] could have been ordered by the juvenile court as a 

reasonable means to prevent removal. [Citation.] [DCFS] failed 

to demonstrate that if [M]other was ordered to drug test and 

participate in substance abuse treatment as a condition of having 

custody of her daughter, [M]other would not comply or that the 

child would still be at risk.” The court continued the 

adjudication/disposition hearing to allow Mother an opportunity 

to submit to a few drug tests, but Mother refused to test. Mother 

had not tested for seven and a half months before the continued 

hearing. As Leigha’s counsel stated at the first session of the 

8 Mother asserts we must reverse the disposition order 

because the juvenile court did not state its reasons for removing 

Leigha from Mother’s custody, as required under section 361, 

subdivision (e). We disagree. The court clearly indicated it was 

removing Leigha from Mother’s custody because Mother’s refusal 

to participate in services, including drug testing, was seriously 

concerning to the court in light of Mother’s history of substance 

abuse. 
22

adjudication/disposition hearing, Leigha’s safety with Mother 

could not be assessed in the absence of drug test results, given 

Mother’s history of substance abuse.

Mother also refused to communicate with DCFS so that 

DCFS could assess Leigha’s safety in Mother’s custody. Before 

DCFS lost touch with Mother, Mother refused to schedule an inperson meeting with DCFS after the shooting and refused to 

provide DCFS with her address. She also refused to make Leigha 

available to DCFS and refused to participate in a CFT meeting. 

Then DCFS lost touch with Mother altogether when Mother’s 

phone numbers stopped working, and Mother failed to provide 

DCFS with a new phone number. 

The juvenile court and DCFS could not explore reasonable 

means to protect Leigha without removing her from Mother’s 

custody if Mother refused to participate in services, refused to 

drug test, and refused to have any communication with DCFS. 

Substantial evidence supports the juvenile court’s decision to 

remove Leigha from Mother’s custody.

II. ICWA Inquiry

A. Proceedings below

As set forth in the Detention Report in this case, in the

prior dependency proceeding involving Mother and Leigha’s 

sibling and half sibling, the juvenile court found ICWA did not 

apply. 

When the social worker visited Mother in the hospital at 

the end of December 2019, after Leigha’s birth, Mother reported 

her family had Cherokee, Blackfoot and Chippewa Native 

American ancestry. 

On an attachment (form ICWA-010(A)) to the dependency 

petition in this case, filed on January 31, 2020, DCFS checked a 
23

box indicating the “child may have Indian ancestry,” based on 

Mother’s recent report. DCFS also noted a minute order from the 

dependency case involving Leigha’s sibling and half sibling stated 

ICWA did not apply.

On February 3, 2020, the day of the detention hearing, 

Mother filled out and signed form ICWA-020, “Parental 

Notification of Indian Status.” She checked the box stating, “One 

or more of my parents, grandparents, or other lineal ancestors is 

or was a member of a federally recognized tribe,” listed the tribe 

as Cherokee, and wrote maternal great-aunt, Diane W. Father 

also filled out form ICWA-020, indicating he did not believe he 

had any Indian ancestry. 

At the February 3, 2020 detention hearing, the juvenile 

court stated Mother “believes there is Cherokee on her side of the 

family through the maternal great aunt,” so the court ordered 

DCFS to send ICWA notices to the Cherokee Nation, Bureau of 

Indian Affairs (BIA), and the Secretary of the Interior. The 

court’s minute order from the detention hearing states DCFS was 

ordered to investigate Mother’s claim of Indian ancestry. The 

court found it had no reason to know ICWA applies to Father. 

On February 26, 2020, DCFS mailed ICWA notices (form 

ICWA-030) to all appropriate Cherokee, Blackfoot, and Chippewa 

tribes, and the BIA. On the form notice, DCFS listed Mother’s 

and Father’s names, addresses, and dates of birth; the names of 

Mother’s parents and paternal grandparents; the address for 

Mother’s paternal grandmother, Vivian (with whom Mother 

lived); and the possible tribal affiliation for all persons listed. In 

a Last Minute Information for the Court, dated March 27, 2020, 

DCFS reported it had received return receipts from the tribes and 

the BIA and attached them to the report. In addition, eight 
24

tribes sent letters to DCFS indicating Leigha is not an Indian 

child. 

On October 19, 2020, DCFS received a letter from the 

Cherokee Nation, indicating Vivian is an enrolled member of the 

tribe, and listing Vivian’s enrollment number. The letter also 

states, in pertinent part: “At this time, the child is NOT an 

‘Indian child’ in relation to the Cherokee Nation as defined in 

[ICWA]. Therefore, the Cherokee Nation does not have legal 

standing to intervene or participate in this matter until the 

child/children or eligible parent/s receive membership. Any 

incorrect or omitted information could invalidate this 

determination.” The Cherokee Nation enclosed with the letter “a 

courtesy membership application” for Leigha, with information 

pre-filled, including names and dates of birth for Leigha, Mother, 

Mother’s father, and Vivian. The application also lists Vivian’s 

roll number. In the space for the roll numbers of Mother and her 

father, the application states, “application pending.” As set forth 

in the Last Minute Information for the Court, the social worker 

attempted to contact Mother by telephone regarding the letter 

and application from the Cherokee Nation, but the telephone 

numbers Mother had provided to DCFS were not in service. 

At the adjudication/disposition hearing on October 20, 

2020, Mother’s counsel informed the juvenile court that Mother 

“did not know of any pending Cherokee Tribe application,” 

Mother “will not be bringing up any ICWA issues,” and Mother 

wanted to proceed with the adjudication/disposition on October 

20. The court stated the ICWA inquiry was “still ongoing” and 

asked DCFS to provide an update for the continued November 17, 
25

2020 adjudication/disposition hearing, so the court could make an 

ICWA finding.

9

At the November 17, 2020 continued 

adjudication/disposition hearing, the juvenile court made a 

finding that ICWA does not apply based on the letter from the 

Cherokee Nation. The court encouraged Mother to proceed with 

an application for membership. 

B. Analysis

Under ICWA, an “Indian child” is an unmarried person 

under 18 years of age who is (1) a member of a federally 

recognized Indian tribe or (2) is eligible for membership in a 

federally recognized tribe and is the biological child of a member 

of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see 

§ 224.1, subd. (a) [adopting federal definitions].) 

DCFS and the juvenile court “have an affirmative and 

continuing duty to inquire whether a child” involved in 

dependency proceedings “is or may be an Indian child.” (§ 224.2, 

subd. (a).) When DCFS detains a child and places that child in 

foster care, its duty to inquire “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.” (§ 224.2, subd. (b).) 

“At the first appearance in court of each party, the court shall ask 

9

As set forth above, the juvenile court continued the 

adjudication/disposition hearing from October 20 to November 

17, 2020 to provide Mother an opportunity to submit to a few 

drug tests.
26

each participant present in the hearing whether the participant 

knows or has reason to know that the child is an Indian child” 

(§ 224.2, subd. (c)) and order the parents to complete form ICWA020 (Parental Notification of Indian Status). (Cal. Rules of Court, 

rule 5.481(a)(2)(C).) If the juvenile court or social worker “has 

reason to believe that an Indian child is involved in a 

proceeding,” the court or social worker “shall make further 

inquiry regarding the possible Indian status of the child,” 

including, but not limited to: (1) interviewing the parents and 

extended family members; (2) contacting the Bureau of Indian 

Affairs and the State Department of Social Services for 

assistance in identifying and contacting tribes; and (3) contacting 

tribes and others “that may reasonably be expected to have 

information regarding the child’s membership, citizenship status, 

or eligibility.” (§ 224.2, subd. (e).)

ICWA notice is required if DCFS or the juvenile court 

knows or has reason to know a child is an Indian child. (25 

U.S.C. § 1912(a); § 224, subd. (a); Cal. Rules of Court, rule 

5.481(b)(1).) 

We review the juvenile court’s ICWA findings under the 

substantial evidence standard. (In re Austin J. (2020) 47 

Cal.App.5th 870, 885.) “A notice violation under ICWA is subject 

to harmless error analysis. [Citation.] ‘An appellant seeking 

reversal for lack of proper ICWA notice must show a reasonable 

probability that he or she would have obtained a more favorable 

result in the absence of the error.’ ” (In re Autumn K. (2013) 221 

Cal.App.4th 674, 715.)

Mother contends DCFS failed to make “further inquiry” 

regarding Leigha’s possible Indian status, specifically 

interviewing family members and having informal contact with 
27

the Cherokee Nation, prior to sending ICWA notice to the 

Cherokee Nation. She further contends the juvenile court’s 

finding that ICWA did not apply was premature until DCFS 

made such further inquiry. She also asserts the error was not 

harmless because further inquiry by DCFS would have resulted 

in complete information about Vivian being listed on the ICWA 

notice to the Cherokee Nation, and could have revealed the 

identities of other family members who were enrolled in the tribe.

To the extent DCFS and the juvenile court failed to fulfill 

the duty of inquiry, any error was clearly harmless. The 

Cherokee Nation was able to locate Vivian’s tribal enrollment 

information even though the notice DCFS sent omitted Vivian’s 

date of birth and failed to indicate whether she was alive or 

deceased. 

The juvenile court did not err in finding ICWA did not 

apply. The Cherokee Nation explained the fact Vivian was an 

enrolled member did not mean Leigha was an Indian child. 

Mother was apprised of the steps she needed to take to pursue 

possible tribal membership for herself and Leigha, and Mother 

expressed no inclination to pursue the matter further. The 

court’s ICWA finding was not premature, as the Cherokee Nation

determined Leigha was not an Indian child and Mother declined 

to take any further action that might alter that determination.
28

DISPOSITION

The disposition order is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.