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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re LEIGHA W.

, a Person Coming Under the Juven ile Court Law. B3 10184 (Los Angeles County Super. Ct. No. 1 7 CCJP0 2701 )

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, K im Nemoy

, As sistant County Counsel, Aileen Wong , Deputy County Counsel, for Plaintiff and Respondent.

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

, 1

C.W . ( Mo ther ) appeal s from the juvenile court’s disposition order, challenging the sufficiency of the evidence supporting the
removal of h er infant daughter Leigha W. from h er custody

. Sh e also contends the juvenile court and the Los Angeles County Department of Children and Family Services ( DCFS ) fail ed 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 Mo ther’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, a fter
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 cour t sustained a section 300 petition under subdivision (b), ma king 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 phy sical health and safety and placed the child at risk of serious physical harm and damage; (2) Mother abused m arijuana and opiates

, and A.W.’s
father, L.W. (Father)

, 2 failed to protect A.W. and half sibling
C .W. (Mothe r’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 mari juana , 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 pos itive 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 pro ceedings 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 plac ed 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 un der legal guardianship with Ebony.
II. Current Dependency Proceedings
A. Referral, s ection 300 petition , and non

detention 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 (p resumably a hospital employee) informed DCFS that
Mother had just given birth to a baby girl (Leigha)

, and Mother
disclosed she smoke d marijuana during her pregnancy. Mother reported she had been clean since July 2019, the month she began her prenatal car e, 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 L eigha 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 soc ial 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
M other. 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 D CFS’s February 3, 2020 Detention Report,

w hen 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 a t 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 remain6

clean and sober; and (3) to attend all of Leigha’s med ical
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 s aid she attended a me dical 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 J anuary 17, 20 20, 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 Moth er 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. wa s 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 t o 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 r emove 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 the8

Detention Report that th ey 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

s ocial 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 a sked
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 L eigha from Mother due to Mother’s unre solved
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 c ommenced due to Mother’s
substance abuse

. DCFS attached to the Detention Report progress report s 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 109

individual counseling sessions, 13 relapse prevention group sessions, and eight parenting group sessions ; (6) she was moving into the recovery sup port services phase of the program in which
she w ould attend six hours of parenting group sessions and one
hour of individual counsel ing per month; and (7) she was expected to graduate from this phase of the program at the end of January 2020

. There was n o 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
mari juana, 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 th e 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 c hild [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 th e 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.)
Mot her 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 c ourt 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) Mot her 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, 2 020, 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 depress ion. 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 Mo ther 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 c onditions 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 a nd participate in family maintenance services, including weekly12

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 i nconsistent 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 act ively engaged, receptive to information, and open to services.”
B. Leigha’s detention from Mother and DCFS’s ex parte application under section 385
On Ma y 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 t he [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, th e 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 hom e with the children (Leigha, A.W. and C.W.) in early May 2020

, when she13

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 M o ther’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 w as 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 aroun d to family

5 Apparently, Mother had arranged for Ebony to care for Leigha while Mother and Vivian (Leigha’s maternal great

grandmother) 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 ho me 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 rel eased 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 befor e 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 Mo ther’s failure to abide by15

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 s tated 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 r eport, 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 w as 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 f or 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 into16

evidence DCFS’s reports ( which include the informat ion 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 p laced
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 petitio n and remove Leigha from Mother and
Father , arguing Mothe r’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 partic ipate 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 r ecommendations, arguing, with Mother’s history of drug use, counsel could not advocate for placing Leigha with Mother in the absence of any17

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 custo dy, arguing DCFS
ha d “ 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 c ourt 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
th at hearing on the condition that Mother drug test weekly. The
court noted it relea sed 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 cons ider 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 judic ial 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 perm anent 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 explainin g why it found by a preponderance
of the evidence there was a substantial risk of harm to Leigha based on the allegations, t he 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 adju dication/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

gra nted 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
Mo ther challenges the sufficiency of the evidence supporting the juvenile court’s removal of Leigha from h er custody. Sh e 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 Mo ther’s Custody A juvenile court may take a dependent child from the physical custody of h er 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.” (§ 3 61, 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 dangerou s 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 welfare20

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 protec t 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 fact ual 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 o f 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
whic h t he 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
heari ng. As Leigha’s coun sel 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, in cluding 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 in

person 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 t o 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 juveni le 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 sup ports 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 foun d ICWA did not apply.
When the social work er 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 a23

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 Leigh a ’s sibling and half sibling stated ICWA did not apply. On February 3 , 2020, t he day of the detention hearing, Mother filled out and signed form ICWA

- 020, “Parental
Notificati on 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 reco g nized 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 Moth er “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 f rom 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 2 6 , 20 20 , DCFS mailed ICWA notices (form
ICWA

- 030) to all appropriate Cherokee, Bla c kfoot, 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 gra ndparents; 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 2 7 , 20 20
, DCFS reported it had received return r eceipts from the tribes and
the BIA and attached them to the report

. In addition, eight24

tribes sent letters to DCFS indicating Leigha is not an Indian
child.
On October 1 9 , 2020, DCFS received a letter from the
Cherokee Nation , indicating Vivian is an e nrolled 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 numbe r. 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,”
Mot her “will not be bringing up any ICWA issues,” and Mother wanted to proceed with the adjudication/dispos ition 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 adju dication/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 definit ions].) 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
k nows or has reason to know that the child is an Indian child” (§ 224.2, subd. (c)) and order the parents to complete form ICWA

020 (Parental Notification of Indian Status). (Cal. Rules of Court, rule 5.481(a)(2)(C).) If the juvenile court or social work er “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
extende d 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 regardi ng the child’s membership, citizen ship 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 Cour t, 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. 5 th 870, 885.) “A notice violation under ICWA is subject to harmless error analysis. [Citation.] ‘An appell ant 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 faile d to make “further inquiry” regarding Leigha’s possible Indian status , specifically interviewing family members and having informal contact with27

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 V ivian 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 clea rly harmless. The
Cherokee Nation was able to locate Vivian’s trib a l 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 fin ding 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 Mo ther expressed no inclination to pursue the matter further. The court’s ICWA finding was not premature , as the Cherokee Nat ion determined Leigha was not an Indian child and Mother declined to take any further action that might alter that determination.28 D ISPOSITION 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.