Filed 10/27/21 In re Matthew S. CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re MATTHEW S. et al., 

Persons Coming Under the 

Juvenile Court Law.

 B309692

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.P.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct.

 Nos. 20LJJP00137A,

 20LJJP00137B

 20LJJP00137C)

APPEAL from findings and orders of the Superior Court of 

Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore. 

Affirmed in part, reversed in part, and remanded with directions.

Benjamin Ekenes, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

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

Assistant County Counsel, and Jessica S. Mitchell, Deputy 

County Counsel, for Plaintiff and Respondent.

——————————

K.P. (mother) appeals from the juvenile court’s

jurisdictional findings as to her three children, four-year-old 

M.S., three-year-old J.M., and one-year-old K.M., and from the 

dispositional orders removing the children from mother’s custody. 

Mother also challenges the juvenile court’s dispositional orders 

regarding her visitation with the children and assessment of 

relatives for placement of the two younger children. 

We are asked to determine whether substantial evidence 

supports the juvenile court’s jurisdictional findings and whether 

clear and convincing evidence supports the court’s dispositional 

orders. We are also asked to determine whether the Los Angeles 

County Department of Children and Family Services (the 

Department) and the juvenile court complied with the 

requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. 

§ 1901 et seq.) (ICWA).

We conclude that, while the evidence is sufficient to 

support the jurisdictional findings, the juvenile court’s 

dispositional orders must be reversed because the juvenile court 

did not, as required by Welfare and Institutions Code,1 section 

361, subdivisions (c) and (e), determine whether there was clear 

and convincing evidence that there were no reasonable means to 

prevent or to eliminate the need for removal of the children from 

mother’s home, and did not state the facts on which the decision 

to remove was based, and these errors were prejudicial. For 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
3

these reasons, and to ensure compliance with ICWA, we reverse 

the disposition orders and conditionally affirm the ICWA finding, 

and remand for a new dispositional hearing and further 

proceedings under ICWA.

BACKGROUND

I. Family history.

Mother first came to the attention of the Department in 

September 2017, due to a report that she was neglecting M.S. 

The report was closed as inconclusive because M.S. was observed 

to be healthy and bonded to mother, and mother agreed to a drug 

test, which was positive only for marijuana.

The Department received another report in November 

2017, due to a domestic violence incident in which D.M., the 

father of the two younger children, hit mother while she was 

holding M.S. in her arms and while she was pregnant with J.M. 

D.M. was arrested and convicted of a misdemeanor, placed on 

probation, and ordered to complete a 52-week domestic violence 

program. A criminal protective order was issued, prohibiting 

D.M. from having contact with mother. 

This incident led the Department to offer voluntary 

services to mother and D.M., including family preservation 

services, parenting classes, and counseling. Mother and D.M. did 

not participate in these services, mother moved to San 

Bernardino County, and so the Department closed the voluntary 

services case in February 2018 due to loss of contact with the 

family.

Mother and D.M. remained in a relationship “on and off” 

after this incident and had another child together, K.M., who was 

born in late 2019. In June 2019, maternal aunt V. called the 

police two times because D.M. was outside refusing to leave or 
4

banging on the door. In October 2019, maternal aunt V. called 

the police a third time because D.M. knocked on a window and 

broke it. D.M. left before the police came; the police issued a 

warrant for violation of the criminal protective order.

In early February 2020, mother became upset because 

someone informed her that D.M. was “cheating on her,” so she 

called the police and informed them of D.M.’s whereabouts, at his 

parents’ home. The police arrested D.M. on the outstanding 

warrant for the window-breaking incident. 

When D.M. was released from jail, he and mother went to 

the criminal court together and obtained a modification of the 

criminal protective order to allow for peaceful contact for 

purposes of visitation exchanges. After leaving the criminal 

court, mother and D.M. got into an argument in mother’s car. 

Mother became despondent and threatened to commit suicide by 

taking pills. According to mother, D.M. said he did not care and 

encouraged her to take the pills. He then left mother’s car 

without making any attempt to get help, and stole money and 

other items from the car. Mother was later found unresponsive 

in her car, having taken an overdose of prescription medications 

and methamphetamine. Mother was in a coma for two days, and 

then was transferred to a psychiatric hospital. She was released 

on February 19. In the hospital, mother refused to attend 

therapy or a drug program, said she did not have any mental 

health or substance abuse problems, and said she did not 

remember what happened on February 13.

During the days preceding and following February 13, 

2020, the children J.M. and K.M. were cared for by various 

relatives. M.S. stayed with his father, pursuant to a family law 

order giving mother and M.S.’s father joint custody. A few days 
5

before February 13, D.M. had taken J.M. and K.M. from mother’s 

home to his parents’ home. There were indications that this was 

not a safe situation for the children; mother and maternal 

aunt V., when later interviewed by the Department, said 

paternal grandmother and her boyfriend drank heavily; paternal 

grandmother previously had her children removed; and the 

boyfriend was on parole. 

After D.M. was arrested, paternal grandmother called 

maternal aunt R. and asked her to pick up the children. 

Maternal aunt R. kept the children until February 15, but was 

unable to continue caring for them. She was also living with 

maternal grandfather, who has a criminal record for sex offenses. 

Maternal aunt R. brought the children to maternal aunt V. 

Maternal aunt V., although willing to care for J.M. and K.M., had 

three small children and was pregnant with a fourth. She told a 

Department social worker she could not afford to take in mother’s 

children as well. Also, maternal aunt V. told the social worker 

that K.M. had been sick but she was unable to take her to the 

doctor due to lack of authorization by mother. When the social 

worker asked mother to make a “safety plan” of allowing the 

children to stay with maternal aunt V., and signing an affidavit 

authorizing maternal aunt V. to obtain medical care for the 

children, mother refused, saying she would be released the next 

day and the children would be fine with her.

The Department obtained a removal warrant and detained

the children in a foster home.

II. Dependency proceedings

The Department filed a dependency petition. The petition 

alleged four counts concerning mother under section 300, 

subdivisions (a) and (b). Counts a-1 and b-4 alleged that the 
6

children were at risk of harm due to domestic violence between 

mother and D.M., violations of the criminal protective order, and 

mother’s failure to protect the children; count b-1 alleged that the 

children were at risk of harm due to mother’s mental and 

emotional problems and suicide attempt; and count b-2 alleged 

that the children were at risk of harm due to mother’s abuse of 

methamphetamines, prescription medications and marijuana.2 

The petition was later amended to add a b-5 count regarding 

M.S.’s father’s use of alcohol and marijuana.3 

When interviewed by social workers on February 27 and 

March 12, 2020, mother denied any incidents of physical violence 

with D.M. since November 2017, but stated that she had been in 

a “mentally and emotionally abusive” relationship with him for 

many years and that he had driven away her friends and family 

members, so she was “left with nothing and nobody but him.” 

Mother admitted a history of drug use years ago, but 

denied any current drug use. Mother had no explanation as to 

why she tested positive for methamphetamine after the February 

2 The petition also included a b-3 count regarding D.M.’s 

drug use. The juvenile court found the evidence insufficient to 

sustain this count and dismissed it, but it was mistakenly 

included in the sustained petition. The Department’s July 19, 

2021 request for judicial notice as to the juvenile court’s June 25, 

2021 minute order correcting the October 16, 2020 minute order,

nunc pro tunc, is granted. The Department’s July 19, 2021 

motion to dismiss is granted in part, as to mother’s challenge to 

the b-3 count, since this claim is moot.

3 Mother also challenges the sufficiency of the evidence as 

to the b-5 count. Mother is not named in that count, and her 

counsel made no objection to the juvenile court sustaining it at 

trial, so we decline to consider this claim.
7

2020 overdose incident, or why methamphetamine was found in 

her possession. When asked about prescription medications, 

mother said she was employed by an elderly man, Mr. D., who 

allowed her to live in his home rent-free in exchange for 

providing care to him, and to keep his medications safe, she 

stored them in her purse. Mother also said this man would “try 

to buy Norco” from mother and her friends, and they all shared 

prescription medications. When interviewed by a social worker, 

Mr. D. said he was trying to get mother out of his home because 

she was stealing his medications, and had also stolen money from 

him and taken his car without permission. 

When interviewed by a social worker, maternal aunt V.

said mother was using drugs during her pregnancy with K.M., 

and that she had received text messages from mother admitting 

drug use. Maternal aunt V. gave copies of these text messages to 

the social worker, and they were included as attachments to the 

detention report. D.M. also said he suspected mother was using 

drugs because she told him she had used methamphetamines

with M.S.’s father in the past, and she had recently lost weight. 

Mother denied having any mental health issues. She said 

she had been hospitalized once before at age 13, and had been 

forced to participate in therapy as a teenager, but did not think 

she currently needed therapy or medication. Nonetheless, 

mother contacted a provider of mental health services in 

February 2020, was diagnosed with anxiety and depression, and 

got a prescription for an antidepressant medication and a referral 

for therapy. 

At the detention hearing, mother did not appear. The 

juvenile court ordered all three children detained from mother 

and D.M., released M.S. to his father, and ordered that mother 
8

was not to have visits until she made herself available to the 

Department.

Between the detention hearing and her arraignment in 

July 2020, mother was not in consistent contact with the 

Department. Mother had one in-person visit with the children on 

March 4, 2020. In mid-March 2020 the Department suspended 

in-person visitation in response to the COVID-19 pandemic. 

Mother was offered video visits, but was only present for two 

such visits, one in May and one in June. On May 5, 2020, mother 

responded to an email from the social worker and provided a new 

telephone number and address. On June 29, 2020 mother told 

the social worker she was speaking with attorneys and planned 

to appear for arraignment. Mother was referred for drug testing, 

but did not submit to any tests. 

Mother made her first appearance in the juvenile court on 

July 8, 2020 and counsel was appointed for her. Mother’s counsel 

stated that mother was attending Alcoholics Anonymous and 

Narcotics Anonymous meetings, parenting classes, and was 

“getting into counseling.” 

The Department submitted a supplemental report to the 

court in September 2020, stating that mother had missed “more 

than 75%” of her scheduled video chat visits, had not provided 

any documentation showing she was enrolled in any classes or 

programs, and had not submitted to any drug tests. 

At the jurisdictional hearing in October 2020, the juvenile 

court admitted the Department’s evidence and heard argument. 

The court sustained counts a-1,4 b-1, and b-2, stating,

“Although the domestic violence occurred in 2017, the

court, after reviewing all of the reports and hearing counsel, does 

4 The juvenile court dismissed count b-4 as redundant.
9

feel that the children still are at risk with regard to this 

allegation because I don’t see that the parents have really 

addressed this issue in a way that wouldn’t pose the children to 

be at risk in the future.

“With regard to (b)(1), mother’s mental health issue, I also 

agree with [minors’ counsel and county counsel] that the mother’s 

mental health issues are so significant. She overdosed in 

February of this year. She was involuntarily hospitalized; that 

she needs to demonstrate to court that she is—her mental health 

is stabilized. And certainly that would impact the child’s wellbeing if untreated. [¶] . . . [¶]

“With regard to the (b)(2) count, the court is going to 

sustain it. I think that mother’s drug use—as we know that she 

had a recent test in February for methamphetamine, I do think 

she is in denial about that drug use and she needs to properly 

address it through services so that the child can be safely 

returned home to her. And that is a particularly dangerous drug 

if it goes untreated.” 

Prior to the disposition hearing, the Department submitted 

a last minute information for the court, stating that the 

Department had, after over 6 months of restricting mother to 

virtual visits, set up in-person visits for mother once a week, but 

mother had failed to show up for one visit in October, had 

confirmed too late and therefore missed another visit in 

November, and two other visits had been cancelled by the 

Department, one due to political unrest and another due to K.M.

being ill. The Department noted, however, that mother was now 

attending approximately 85 percent of her thrice-weekly video 

visits; she was scheduled to have a mental health assessment;
10

and she had submitted to one drug test in October 2020, which 

was negative for all substances. 

At the dispositional hearing on December 3, 2020, the court 

admitted the Department’s reports into evidence, and county 

counsel rested. Mother’s counsel argued that the children should 

be released to mother under court supervision, because the

Department had not shown by clear and convincing evidence that 

removal was necessary. Mother’s counsel pointed out that 

mother’s overdose/suicide attempt was an isolated incident 

almost a year ago; since then mother had received a prescription 

for antidepressant medication and was engaged in counseling, 

referring to an exhibit showing that mother had a therapy 

session in October 2020; mother had a recent negative drug test; 

and the Department had visited mother’s new residence and not 

found any safety hazards other than cigarette smoke odor. The 

minors’ counsel joined with the Department in requesting 

removal from mother, stating that “[w]hat’s disturbing 

is . . . mother not consistently testing and really no evidence of 

any ongoing mental health services.” The court then made 

dispositional findings and orders as follows:

“ . . . I’m inclined to follow the Department’s 

recommendation in this case.

“These children are extremely young: three, two and one. 

They need their parents to be sober. [¶] . . . [¶]

“With regard to . . . mother for all three 

children . . . pursuant to dependency court order 415, the court is 

removing the children from the mother . . . pursuant to 

dependency court disposition findings and orders, the terms of 

which are contained in this minute order.”
11

III. ICWA

When interviewed by social workers in February and 

March 2020, mother stated she did not have any Native 

American heritage. However, at her first appearance in juvenile

court in July 2020, mother filled out a form indicating that 

maternal grandfather may have Indian ancestry. In response to 

questions from the court, mother said she did not have a 

telephone number for maternal grandfather, but he lived in the 

area and she could probably reach him through Facebook. 

Mother said she was “not 100 percent sure,” but thought he had 

told her “we’re some type of something like Indian” when she was 

a teenager. Mother said maternal grandfather was the most 

knowledgeable family member about Indian ancestry. 

The court ordered the Department to investigate this claim, 

“including but not limited to speaking further with mother and 

any relatives that she can identify who may have knowledge 

regarding potential Indian ancestry” and “to provide . . . notice to 

any Indian Tribes or government agencies that are revealed 

through the Department’s investigation as requiring notice.”

In August 2020, the Department contacted mother, who did 

not provide any additional information, and tried to call maternal 

grandfather, but did not have a working telephone number for 

him. The Department then sent notices to the Bureau of Indian 

Affairs listing mother’s name; maternal grandfather’s name and 

date of birth; and some maternal great-grandparents’ names, but 

no information about possible tribal affiliation. The Bureau of 

Indian Affairs responded in September 2020 that the notices 

contained insufficient information to determine tribal affiliation. 

At the jurisdictional hearing on October 16, 2020, the court 

again asked mother about Indian ancestry. She did not provide 
12

any additional information. The court concluded “[t]hat’s kind of 

a dead end. There’s just some rumor that her father may have 

had Indian ancestry, but that’s not enough for the Department to 

go on.” At the dispositional hearing on December 3, 2020, county 

counsel requested a finding that there is no reason to know that 

ICWA applies, and the court made this finding.

During the pendency of this appeal, the Department 

interviewed maternal aunts R. and V. about possible Indian 

heritage, and obtained contact information from them for 

maternal grandfather.5 Maternal aunts did not have any 

additional information. Maternal grandfather stated that his 

mother “said something like there is a portion, but I don’t know if 

that passes down to my children.” When asked what tribe, 

maternal grandfather replied, “I don’t know it might have had a 

foot at the end of it.”

DISCUSSION

I. The jurisdictional findings are supported by substantial 

evidence.

In reviewing the sufficiency of the evidence to support the 

juvenile court’s jurisdictional findings, we determine whether the 

record as a whole contains substantial evidence supporting these 

findings, and draw all reasonable inferences in support of the 

court’s findings. (In re Savannah M. (2005) 131 Cal.App.4th 

1387, 1393–1394; In re James R. (2009) 176 Cal.App.4th 129, 

135.)

5 The Department’s July 19, 2021 request for judicial 

notice, as to the Department’s post-appeal ICWA inquiries, is 

granted. The Department’s July 19, 2021 motion to dismiss is 

denied in part, as to mother’s challenge to the juvenile court’s 

ICWA findings.
13

We conclude that substantial evidence supports the counts 

regarding domestic violence (a-1) and mother’s substance abuse

(b-2), so we need not consider whether the count regarding 

mother’s mental health issues (b-1), by itself, would support 

jurisdiction. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

Mother points out that the most recent incident of physical 

violence between mother and D.M. occurred almost four years 

before the jurisdictional hearing in this case. She relies on In re 

Ma.V. (2021) 64 Cal.App.5th 11, In re Jesus M. (2015) 235 

Cal.App.4th 104, and In re Daisy H. (2011) 192 Cal.App.4th 713, 

in which the appellate courts concluded that incidents of 

domestic violence occurring many months or years prior to the 

filing of a dependency petition were insufficient to support 

dependency jurisdiction.

These cases are distinguishable. Unlike the parents in In 

re Ma.V., In re Jesus M., and In re Daisy H., who had all 

separated prior to the filing of the dependency case, mother and 

D.M. did not either separate permanently after the 2017 incident, 

or take any steps to address the issue of domestic violence, but 

remained in a volatile “on and off” relationship at least until 

February 2020. Also, two of the children were directly ‘in the 

crossfire’ and at risk of serious physical harm during the 

November 2017 incident—mother was holding M.S. and was 

pregnant with J.M.—and there was a more recent incident in 

October 2019 that placed the children at risk of physical harm

when D.M. broke a window in the home. 

In In re John M. (2013) 217 Cal.App.4th 410, this court 

concluded that a single incident of domestic violence almost a 

year prior to the jurisdictional hearing, during which the child 

was not present, was a sufficient basis for jurisdiction. The court 
14

stated that, “ ‘[i]n evaluating risk based on a single episode of 

endangering conduct, a juvenile court should consider the nature 

of the conduct and all surrounding circumstances. It should also 

consider the present circumstances, which might 

include . . . evidence of the parent’s current understanding of and 

attitude toward the past conduct that endangered a child, or 

participation in educational programs, or other steps taken[ ] by 

the parent to address the problematic conduct in the 

interim . . . . The nature and circumstances of a single incident of 

harmful or potentially harmful conduct may be sufficient, in a 

particular case, to establish current risk.’ ” (Id. at pp. 418–419,

disapproved on another ground in In re R.T. (2017) 3 Cal.5th 622, 

628.)

Domestic violence is a pattern of conduct that includes, but 

is not limited to, physical assault. (See In re John M., supra, 217 

Cal.App.4th at p. 419 [finding “parents’ history of domestic 

violence evidences an ongoing pattern,” including not only the 

parents hitting each other, but also frequent verbal altercations, 

and father engaging in reckless driving with mother in the car, so 

there was a risk that father would in the future “engage in angry 

and violent behavior toward” the child].) 

Although the jurisdictional finding at issue in In re 

John M., supra, 217 Cal.App.4th 410 was pled as a section 300, 

subdivision (b) count, the court’s reasoning applies equally to the 

subdivision (a) count at issue in this case. (See In re Nathan E.

(2021) 61 Cal.App.5th 114, 119 [many cases based on exposure to 

domestic violence are filed under subdivision (b), but subdivision 

(a) may also apply where a child is at risk of suffering serious 

physical harm due to a parent’s “nonaccidental conduct” of 

engaging in domestic violence].)
15

In this case, at least once in the past D.M. had physically 

assaulted mother without regard to the fact that she was holding 

a baby in her arms and was pregnant. Mother admitted that her 

ongoing relationship with D.M. was “mentally and emotionally 

abusive,” and that he had isolated her from friends and family so 

that she had “nothing and nobody but him” to rely on, rendering 

her less able to protect herself and her children from future 

physical harm. Moreover, the juvenile court could reasonably 

infer from the evidence that D.M. had either encouraged mother 

to commit suicide in February 2020, or at least took no action in 

the face of a life-threatening drug overdose, and that mother’s 

vulnerability and D.M.’s callous disregard for her life and safety 

increased the likelihood that the children would be harmed in the 

future by D.M.’s violent conduct. 

Since we conclude the evidence was sufficient to support 

the a-1 count regarding domestic violence between mother and 

D.M., it is not necessary to consider the sufficiency of the 

evidence as to the b-1 count regarding mother’s mental health 

problems. 

We will, however, briefly discuss the evidence supporting 

the b-2 count concerning drug abuse, as it is also pertinent to the 

juvenile court’s dispositional orders. Mother’s counsel 

characterizes mother’s February 2020 overdose as an “isolated 

incident,” but there was substantial evidence that she had an 

ongoing drug problem. Mother did not have any plausible 

explanation for having methamphetamine in her possession, and 

testing positive for methamphetamine, in February 2020. 

Mother had also taken prescription drugs that did not belong to 

her, and admitted that she and “her friends” would share 

prescription drugs including Norco, an opioid medication. Two 
16

close family members who had ongoing contact with mother, 

maternal aunt V. and D.M., gave specific, concrete reasons for 

their belief that mother was using drugs. Mother was 

responsible for the care of an elderly man, who stated that she 

had stolen prescription medications and money from him, a clear 

indication of “ ‘failure to fulfill major role obligations at work’ ” 

which may support an inference of substance abuse. (In re 

Drake M. (2012) 211 Cal.App.4th 754, 766; In re Christopher R. 

(2014) 225 Cal.App.4th 1210, 1219.)6

There is a clear nexus between mother’s substance abuse 

and risk of harm to her children, in light of their young age and 

mother’s failure to make safe and stable childcare arrangements 

for them either before or after the February 13, 2020 incident. 

6 The Department relies on In re Christopher R., supra, 225 

Cal.App.4th at p. 1217, to argue that mother’s failure to submit 

to drug testing between detention and the jurisdictional hearing 

is evidence of her ongoing drug use. A parent’s failure to comply 

with a court-ordered drug test “ ‘is rightfully looked upon as a 

positive test.’ ” (In re Lana S. (2012) 207 Cal.App.4th 94, 104,

fn. 5; In re N.M. (2003) 108 Cal.App.4th 845, 857 [if a parent fails 

to test as required by a court-ordered case plan, “ ‘the test will be 

considered positive for controlled substances’ ”].) But we do not 

believe this inference is appropriate when a parent has not been 

court-ordered to test, and merely declines to submit to voluntary 

drug testing. The Department cannot rely solely on a parent’s 

failure to submit to voluntary testing, to prove a drug abuse 

allegation. The trial court may, however, take the fact that a 

parent denies drug use but avoids testing into account, along 

with all the other evidence, in determining whether the 

Department has met its burden of proof. In this case, even 

without drawing any inferences from mother’s missed tests, the 

b-2 count concerning mother’s drug abuse is supported by 

substantial evidence. 
17

(See In re Christopher R., supra, 225 Cal.App.4th at pp. 1217,

1219 [parent’s “cavalier attitude toward childcare,” and “tender 

years” of children, supported finding of substance abuse and 

inability to provide regular care resulting in risk of harm].) 

Therefore, the b-2 count is also supported by substantial 

evidence.

II. The dispositional orders must be reversed

Our conclusion that substantial evidence supports the 

juvenile court’s jurisdictional findings does not end the inquiry. 

The governing statutes require a different focus, and a 

heightened burden of proof, at the dispositional stage of a 

dependency case. (See, e.g., § 361, subd. (c)(1).) 

Section 361, subdivision (c)(1) provides that a “dependent 

child shall not be taken from the physical custody of his or her 

parents . . . unless the juvenile court finds clear and convincing 

evidence” of one of several enumerated grounds for removal, 

including “[t]here is or would be a substantial danger to the 

physical health, safety, protection, or physical or emotional wellbeing 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 

parents.” Subdivision (e) further provides that the juvenile court 

“shall make a determination as to whether reasonable efforts 

were made to prevent or eliminate the need for removal” and 

“ ‘shall state the facts on which the decision to remove the minor 

is based.’ ” (See In re D.P. (2020) 44 Cal.App.5th 1058, 1065.)

This additional inquiry and heightened burden of proof are 

“ ‘premised on the notion that’ ” even after parents have been 

found to have abused or neglected their children, “ ‘keeping 

children with their parents while proceedings are pending, 
18

whenever safely possible, serves not only to protect parents’ 

rights but also children’s and society’s best interests.’ ” (In re 

D.P., supra, 44 Cal.App.5th at pp. 1066–1067; In re I.R. (2021) 61 

Cal.App.5th 510, 520 [“ ‘[b]ecause we so abhor the involuntary 

separation of parent and child, the state may disturb an existing 

parent-child relationship only for strong reasons and subject to 

careful procedures’ ”].)

Although this court must still draw all reasonable 

inferences in support of the juvenile court’s orders, we also keep 

in mind that dispositional orders must be based on the higher 

standard of clear and convincing evidence. (In re Nathan E.,

supra, 61 Cal.App.5th at pp. 122–123; In re I.R., supra, 61 

Cal.App.5th at p. 520.) It is not necessarily true, as the 

Department asserts, that “the same evidence that supports the 

jurisdictional findings also supports the removal order.” Instead, 

when we are “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.” (Conservatorship of O.B.

(2020) 9 Cal.5th 989, 995–996, 1011.)

The Department was required to discuss, in its reports to 

the court, reasonable efforts to prevent or eliminate the need for 

removal. (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) This 

requirement, and the corresponding section 361, subdivision (e) 

requirement that the juvenile court explicitly state the facts

supporting removal, play important roles in the statutory

scheme. (In re D.P., supra, 44 Cal.App.5th at p. 1067; In re Ashly 

(2014) 225 Cal.App.4th 803, 810.) Without these requirements, 
19

“ ‘reasonable efforts’ ” can become a hollow formula. (Ashly F., at 

p. 810.) 

The Department’s jurisdiction/disposition report, submitted 

in April 2020, contains no substantive consideration of any 

reasonable means by which the children could be protected 

without removing them from mother. Under the heading 

“Child(ren)’s Safety In Home,” the report contains only a 

conclusory recitation that “the risk level for future abuse and 

neglect is very high based off current substance abuse, domestic 

violence, prior child welfare history, prior criminal history, the 

young ages of the children and [mother]’s unmet mental health 

needs.” Under the heading “Reasonable Efforts,” the report 

contains only a list of routine actions the Department social 

workers had taken, including “regular in person and telephonic 

contact” with the children, mother, and the fathers; “case 

management services (including service referrals and linkages”;

“crisis intervention, as needed”; interviews; notices of hearings; 

contact with services providers; referrals for drug testing; and 

referral of mother to drug court. The Department’s various 

supplemental reports and last minute information forms contain 

no further discussion of reasonable means to avoid the need for 

removal from mother. 

The juvenile court did not, as required by section 361, 

subdivision (e), explicitly state the facts supporting its removal 

order. The court’s brief comment on the ages of the children and 

their need for sober parents, and reliance on the generic language 

of “Dependency Court Order 415,” are not an adequate substitute 

for a case-specific discussion of the facts as of the time of 

disposition, the current risks to the children, and the means 

available, if any, to address these risks without removing the 
20

children from mother. (In re D.P., supra, 44 Cal.App.5th at 

p. 1067.) 

The section 361, subdivision (e) requirement is not a mere 

technicality. The process of articulating what evidence meets the 

clear and convincing standard, and why there are no reasonable 

means to protect the children without removing them from a 

parent, can materially affect the juvenile court’s decisionmaking 

process. (See In re J.S. (2011) 196 Cal.App.4th 1069, 1078 

[requirement to make express finding on contested issue or 

statement of reasons for judicial decision “can directly influence 

the trial court’s actual reasoning process by compelling it to 

consciously consider and resolve specified issues”].)

Given the specific facts of this case, we cannot find that this 

omission was harmless error. There is at least a reasonable 

probability that the court would have reached a different result if 

the Department had complied with California Rules of Court, 

rule 5.690(a)(1)(B)(i), and if the juvenile court had consciously 

considered and explicitly stated whether the need for removal 

was proven by clear and convincing evidence. 

At the time of the dispositional hearing, almost 10 months 

had passed since the detention hearing (due to court closures and 

delays caused by the COVID pandemic). Mother had appeared at 

each court hearing after her arraignment in July 2020. Mother 

had started therapy, submitted to a drug test which was negative 

for all substances, had a new residence which the Department 

had visited and assessed for safety hazards, and was consistently 

attending “video chat” visits with her children. There was no 

evidence of any further domestic violence incidents—or even any 

ongoing contact—between mother and D.M. (See In re D.P.,

supra, 44 Cal.App.5th at p. 1068 [finding “reasonable chance” 
21

that juvenile court would have reached different conclusion if it 

had complied with § 361, subd. (e), in light of changed 

circumstances between the time the dependency petition was 

filed and the time of the dispositional hearing]; In re Ashly F.,

supra, 225 Cal.App.4th at p. 811 [same]; In re Ma.V., supra, 64 

Cal.App.5th at p. 25 [dispositional orders removing children from 

parent must be based on proof of current risk and lack of 

reasonable means to prevent removal; noting that over 10 months 

had passed between detention and dispositional hearing, no 

further domestic violence incidents had occurred, and “mother 

managed to improve her situation during a year that was 

stressful and difficult under the best of circumstances”]; In re 

I.R., supra, 61 Cal.App.5th at pp. 521–522 [reversing 

dispositional order removing child where there was no evidence of 

continuing domestic violence or contact between mother and 

father since the time of detention].)

To address the juvenile court’s concern that these young 

children needed sober parents, the court could order mother to 

participate in a drug program and submit to testing. To address 

the domestic violence issue, the court could order mother to 

participate in a domestic violence counseling program, and to 

enforce the criminal protective order and ensure that the children 

had no contact with D.M. other than during his court-ordered 

visitation. To address concerns about mother’s mental health, 

the court could order her to continue participating in therapy, 

and to consistently take any prescribed medications. (See In re 

Basilio T. (1992) 4 Cal.App.4th 155, 171–172 [reversing order 

removing child where trial court “failed to consider less drastic 

measures than removal” such as return to parents “under strict 

supervision”].) The record is devoid of any indication that any of 
22

these alternatives to removal were considered, either by the 

Department or the court. 

It may be that the evidence before the juvenile court on 

remand—including evidence of events occurring after December 

2020—will be sufficient to show that these children cannot be 

protected from harm by any reasonable means other than 

continued removal from mother’s custody.7 But parents in 

dependency cases are entitled to the safeguards provided by 

section 361, subdivisions (c) and (e) against hasty or needless 

removal of their children, even if later events bolster the 

Department’s case for removal. For this reason, we remand for a 

new dispositional hearing.8

III. The ICWA finding is conditionally affirmed

Remand is also necessary to ensure compliance with ICWA. 

The Department, after this appeal was filed, took some actions to 

address mother’s claims that it had not complied with the inquiry 

and notice provisions of ICWA, including the obvious step of 

asking maternal aunts V. and R. for information about Indian 

heritage and for maternal grandfather’s telephone number. Once 

the Department contacted maternal grandfather, he confirmed 

7 Mother’s August 11, 2021 request for judicial notice, as to 

further findings and orders made by the juvenile court while this 

appeal was pending, is denied, as it was not necessary to consider 

to these later findings and orders.

8 Mother also challenges the juvenile court’s dispositional 

orders regarding her visits with the children, and placement of 

the two younger children. Given our conclusion that the 

dispositional order removing the children from mother’s 

placement must be reversed and the matter remanded for a new 

dispositional hearing, we need not reach these issues. 
23

that his mother claimed Indian heritage through affiliation with 

a tribe with “a foot at the end of it”—likely referring to the 

Blackfoot tribe. Having obtained this information, the 

Department should send updated notices to the Blackfoot tribe as

well as the Bureau of Indian Affairs including additional 

information such as mother’s date and place of birth (which were 

omitted in the original notices), maternal grandfather’s current 

and former addresses and place of birth, and maternal greatgrandmother’s date and place of birth, date of death, and any 

other information that maternal grandfather may be able to 

provide. (§§ 224.2, subd. (e) & 224.3.)
24

DISPOSITION

The jurisdictional findings are affirmed. The dispositional 

orders are reversed, and the matter is remanded to the juvenile 

court with directions to (1) hold another disposition hearing, and 

(2) order the Department of Children and Family Services to 

comply with ICWA and with Welfare and Institutions Code 

sections 224.2 and 224.3 for inquiry and subsequent notice if 

Indian heritage is indicated. 

NOT TO BE PUBLISHED.

MATTHEWS, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.