Filed 10/8/26 In re R.R. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re R.R., a Person Coming Under
the Juvenile Court Law. A174002
__________________________________
(Alameda County
ALAMEDA COUNTY SOCIAL Super. Ct. No. JD03864601)
SERVICES AGENCY,
Plaintiff and Respondent,
v.
R.R.,
Defendant and Appellant.
R.R. (father) appeals from an order adjudicating his daughter (minor) a
dependent child of the juvenile court pursuant to Welfare and Institutions
Code section 300.1 He also challenges the court’s earlier detention order.
Father argues that the findings against him at each stage were not supported
by sufficient evidence and that the court erred by not releasing minor to him
as a “nonoffending” parent. Father also contends that the juvenile court
erred in finding the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et
1 All further undesignated statutory references are to the Welfare and
Institutions Code.
seq.) did not apply to minor.2 We agree that substantial evidence does not
support the court’s jurisdictional or ICWA findings, and we reverse and
remand.
BACKGROUND
I. The Initial Petition and Detention
At 1 a.m. on December 12, 2024, police officers found 11-year-old minor
wandering alone on the streets of Oakland. The minor reported that she and
her mother had become homeless two days earlier and had been living in
their car. That night, mother had left minor unattended in the car, saying
she would return, but after waiting about ten minutes, minor left to search
for mother. Mother could not be immediately located, and minor reported
that she had no contact with her father. Minor was placed in protective
custody and treated for asthmatic symptoms.
Mother was located later in the day and interviewed by a child welfare
worker (CWW). Mother relayed that she had been evicted five months
earlier, and after living in a hotel for a while, ran out of money. Mother “then
sent [minor] to live with her father, where she remained until about a week
[prior].” However, mother did not have father’s contact information or know
his address because he would pick up and drop off minor. Mother told the
CWW that she did not have any known American Indian ancestry.
When asked why minor had been alone, mother stated that she left
minor sleeping in the car “around 9 pm . . . to look for cardboard to cover the
car” because the “current tarps and blankets she had over the car for privacy,
2 The language of the ICWA and related state laws use the term
“Indian.” California courts have used alternative terms, such as “American
Indian” or “Native American”; we keep the terminology used by statutes and
case law when quoting them, and otherwise we use the term “American
Indian” for clarity. No disrespect is intended.
2
were wearing out and it was cold and raining.” Mother said that she
returned to the car at 11 p.m. and minor was gone. Mother stated that she
looked for minor all night, but could not explain why she did not call the
police for help. “Mother also stated that she thinks she had a seizure
sometime while looking for [minor]” and that she woke up disoriented at 6
a.m., though mother “denied having a seizure disorder” or “any substance
abuse or mental health concerns.”
On December 13, 2024, the Agency filed a section 300 dependency
petition. The petition alleged a failure to supervise or protect by mother
under subdivision (b)(1) of section 300. The petition further alleged father’s
whereabouts were unknown and therefore, his ability to provide care,
support, and supervision to the minor was also unknown under
subdivision (g) of section 300.
The same day, the Agency held an emergency removal Children and
Family Team (CFT) meeting with mother. During the CFT meeting, the
Agency received father’s contact information, called him, and he joined the
meeting by phone. Mother stated that both parents have taken care of minor
at different points, and she did “not have concerns about [father’s] ability to
care for [minor].” However, mother did not want minor to stay with father
“because he does not let [minor] see her,” and mother preferred that minor be
placed with her boyfriend. Father told the Agency that “[minor] was in his
care from June of 2024 until about two weeks prior” when mother came to his
house “when he was not there and told [minor] to run out with her.” He
further stated that he allowed mother to see minor “a few times over the last
five or six months” during visits at his house, but he “did not allow [minor] to
spend the night with [mother] because she and her partner [use] fentanyl.”
Father informed the Agency that minor had healthcare, but stated that
3
mother was “a barrier” to minor getting the therapeutic and medication
support she needs.3 Father wanted minor released to his care and agreed to
have the Agency assess his home. Father averred that he did not need
financial or parenting support to take care of minor, noting he has three
adult-aged children and a teenage son. Finally, father told the Agency that
he did not have any known American Indian ancestry.
A CWW interviewed minor separately. Minor informed the CWW that
she did not go to school every day, explaining that “it is hard for her mother
to get her to school because her car does not work anymore.” Minor also
claimed that she had not seen her father since she was eight years old and
did not know his address or phone number. She stated that if she could not
live with her mother, then she wanted to live with her maternal aunt or her
mother’s boyfriend, whom she referred to as her stepfather (though minor
knew he was not married to mother). “[Minor] denied any abuse by her
mother,” “reported feeling safe and happy with [mother],” and “reported that
she always has food to eat.”
The CWW described minor as “very parentified” and as wanting to
protect mother from getting in trouble. The CWW also noted that minor was
on her phone throughout the interview and refused to put it down. Minor also
called various people, asking them to pick her up.
The Agency filed a detention report detailing the circumstances giving
rise to the dependency petition, as well as its interviews with the parents and
minor. The report noted “mother declined to allow either of her known
relatives, her mother and aunt, to be contacted or assessed for placement.”
The report also stated that the “parents have a contentious relationship” and
3 Prior to the detention hearing on December 16, 2024, father provided
documentation showing minor had a health care provider.
4
“have extensive family law history . . . regarding [minor].” The Agency
attached a 2022 court order documenting that “[t]he issues of child custody
and visitation [were] highly contested,” that each parent had accused the
other of drug and alcohol abuse, and that the parents were granted joint legal
and physical custody of the minor. The report also informed the juvenile
court that there had been several prior unsubstantiated referrals involving
allegations of neglect, alcohol abuse, and substance abuse by the parents.
The Agency recommended that the court detain the minor and grant
discretion to release her to father’s care upon development of a safety plan
and completion of an assessment of his home.
The juvenile court held a detention hearing on December 16, 2024.
Father appeared and was elevated to presumed father status. Mother did not
personally appear. Father stated that there was no American Indian
ancestry in his family and he had never heard of such ancestry on mother’s
side of the family.
The juvenile court found that “[a] prima facie showing [had] been made
that the minor [was] described by section 300. . . .” and that “no reasonable
services available . . . would prevent the need for further detention.”
Accordingly, the court adopted the Agency’s recommendation, detaining
minor and granting the Agency discretion to place minor with father once a
safety plan was arranged. The court also ordered that father be given
unsupervised visits “2 times per week at least 2 hours each visit” and that
mother be given “[s]upervised” visits of the same frequency and length.
Father filed a notice of appeal, challenging the findings from the detention
hearing.
5
II. Jurisdiction / Disposition Report and Hearing
The Agency filed a jurisdiction / disposition report about two weeks
later, stating that minor was “adjusting to her current placement” and
reported feeling “safe and comfortable there.” Minor was “in regular phone
contact with both her mother and father and had an in-person visit with her
mother on December 31, 2024.” Minor had vacillated on whether she wanted
in-person visits with her father, but by December 31, 2024, she wanted
“supervised visits with her father.”
The report stated that father was informed on December 19, 2024, that
minor was refusing visits with him. Father opined that “it should not be up
to [minor] to make the decision,” and expressed concern that mother was
telling minor that he was going to prevent mother and minor from seeing
each other. Father “shared that the mother was always telling the minor
that she was coming to see her but she did not show up.” Father “reported
that the mother only saw [minor] about six times in the six months that he
had her living with him.” Father stated that he had “been saying the same
thing all along,” specifically, that mother was abusing drugs and neglecting
minor.4 Father contended that he “want[ed] the mother to have the help she
need[ed]” so that she could be involved in the minor’s life.
The report also stated that mother was living at her boyfriend’s
apartment. Mother provided additional details about the night minor was
found alone, stating that she and minor were sleeping in her car that night
because she had “needed space” from her boyfriend. Mother claimed that
father “has a drinking problem” and had “tried to put his hands on her in the
past.” She also reported that minor’s school filed a restraining order against
4 The report separately listed four “unfounded” reports of general neglect
of minor by mother that had been documented in 2015, 2018, 2019, and 2021.
6
father “because he would take [minor] and run” and had “kidnapped [minor]
three times in the past from the mother.”
The report also described two phone calls the CWW had with minor
that took place in December 2024. During the first call, minor reported that
father had hit her since she was seven years old, including striking her with
a phone charger, shoving her into his car, and telling her to “ ‘shut up.’ ”
Minor stated she never told anyone else about this. She stated that she did
not feel safe visiting him unless another person was present and she did not
want to live with him. During the call, minor stated that she wanted her
parents to have 50/50 custody so they would stop fighting. Minor later stated
that she did not want to have any contact with her father. She reported that
she “wanted to live at her current placement unless she is able to live with
her mother.”
During the second call, minor again stated that she was willing to visit
with father if someone else was present. She then added that “it would not
be fair if her mother had supervised visits and her father had unsupervised
visits.”
Minor’s foster mother reported that minor did not want to go to court
because she was worried about what father would say to her, given that she
did not want to live with him at that time. According to the foster mother,
father told minor that “she will be with him after the next hearing.” The
foster mother opined that “[minor] appears to speak with her father on the
phone because she is worried he will stop paying for her phone and that the
father forces her to speak with him daily.” The foster mother further
reported that minor “want[ed] the Court to know that her father does not
even have his own place and lives with an auntie.” The minor also told the
foster mother that “father forces food down her throat when she does not eat.”
7
The foster mother also stated that minor “sometimes lies” and appeared to
have experienced “significant trauma.” The foster mother shared, for
example, that the minor urinated and defecated on herself and often lacked
an appetite yet hoarded food.
The report concluded that minor could not safely remain in the care of
either parent because she was uncomfortable living with her father and her
mother lacked stable housing and was unable to meet her needs. The Agency
proposed a case plan for the parents. As to father, the plan required weekly
parenting classes, maintaining regular visits with minor, and twice-weekly
substance abuse testing “to rule out alcohol abuse.”
At the jurisdiction / disposition hearing on January 6, 2025, the
juvenile court modified the visitation order from unsupervised to supervised
visitation for father, based on minor’s stated preference, and gave the Agency
discretion to transition visitation back to unsupervised if circumstances
changed. The court set the matter for contest, at father’s request.5
The same day as the hearing, mother signed and submitted a Parental
Notification of Indian Status, declaring that neither she nor her parents or
grandparents were affiliated with an American Indian tribe. Father
submitted the same form two weeks later, in which he, too, denied any
connection to an American Indian tribe.
III. Amended Dependency Petition and Continuance
In February 2025, the Agency filed an amended dependency petition.
The amended petition lodged four allegations under section 300,
subdivision (b)(1) as follows: (1) allegation B-1 against mother described
5 Father also filed a motion for substitution of counsel under People v.
Marsden (1970) 2 Cal.3d 118, which the court denied. Father claimed that
mother and the caregiver had a prior relationship. Mother’s counsel and the
caregiver denied the allegation.
8
minor being left unattended on December 12, 2024; (2) allegation B-2 against
mother alleged that mother had untreated mental health and substance
abuse issues; (3) allegation B-3 against father alleged father abused alcohol;
and (4) allegation B-4 alleged both parents engaged in incident of physical
domestic violence in minor’s presence “resulting in her feeling scared and
fearful of the father.” The amended petition also included allegation G-1
under section 300, subdivision (g) stating that father’s “ability to provide
adequate care, support, and supervision to the minor . . . [was]
unknown . . . .”
At the contested hearing in February 2025, both parents denied the
allegations and father’s counsel requested a continuance to contest the
amended petition. The juvenile court granted the continuance and ordered
that “[t]he Agency has discretion to move to unsupervised visits and/or
placement to the father with the best interest of the child.” At the same time,
the court ordered that father was “permitted to bring lunch to the child’s
school,” after minor stated that she wanted father to do this, while clarifying
that “[h]e is not visiting, he is bringing her lunch.”
IV. The Addendum Report
The Agency filed an addendum report in April 2025 recommending that
minor remain in out-of-home care and that the parents receive reunification
services. The report also laid out developments regarding minor’s placement
and parents’ progress with the case plan over the preceding three months.
The morning of the hearing on January 6, 2025, minor told a CWW
that she did not want to see her father at court and “was worried that she
would need to go and live with him . . . .” Minor “mentioned her father being
drunk and hurting her mother when she was younger.” Minor “liked her
placement and her current school” and expressed a desire to live with her
9
maternal aunts. In a subsequent interview later that month, minor denied
that father hit her but answered in the affirmative when asked if father
“touched her too much.”
A week after the hearing on January 6, 2025, father refused to
participate in substance abuse services and asserted that such services were
not court ordered. He was also admonished by the Agency to stop delivering
lunch to minor at school.6
Mother missed several supervised visits, and in February she was
notified that her visits would be placed on hold. After one of mother’s missed
visits, minor said that she “wanted to be with her father and asked whether
he could drop lunch off for her at school.” She denied being scared of father
and said that “she had previously made a false statement about her father
because she wanted to be with her mother at that time.”
On February 18, 2025, father filed an issue statement and witness list,
stating that he intended to testify, his whereabouts were known, he was able
to provide care, support, and supervision of the minor, and denying
allegations of abuse of minor.
The next day, a CWW conducted a home assessment of father’s
residence. Father was renting a room in his cousin’s two-bedroom
apartment. The apartment appeared safe and in good condition, and father
had an extra mattress in his room that he said was for minor. A few days
later, a CWW asked father if he was available for a supervised visit. He
declined, asserting that minor “only wanted unsupervised visits.” Father
continued: “ ‘[minor] explained to her counsel in front of me that she only
wants unsupervised. Didn’t you notice her body language every time you
6 For clarity, this exchange predated the juvenile court’s February order
allowing father to deliver lunch to minor.
10
came in. She went mute she doesn’t want to talk to me around y’all. [Minor]
knows you all are making up bad lies on me and blaming her.” (Italics
omitted.) Father sent another email several days later, stating that minor’s
caregiver told him that she no longer wanted to care for minor. Father also
reported that minor told him that the caregiver hit her.
A CFT meeting was held later in February 2025. Both parents stated
that the minor had never urinated or defecated on herself before and
questioned the caregiver’s reports about such behavior. Father again alleged
that minor was being abused. He reiterated that he would not participate in
supervised visits because minor had told him that she wanted unsupervised
visits. He also stated that Child Protective Services “frame Black fathers”
and “make false allegations against them.” Minor, however, stated that she
had been urinating on herself for about the past two years and denied having
any problems with her current placements.
Minor also requested a court-appointed special advocate (CASA).
Father suggested that the Agency coached minor to make that request. He
repeatedly spoke over the facilitator during the call, asked minor “to tell the
Agency what she was telling him,” and he became sufficiently disruptive that
the facilitator dropped him from the call. The CWW noted that [minor] had
been “parenting him, telling him to ‘just stop talking.’ ” Mother agreed that
appointing a CASA was appropriate, while also asserting that she was doing
everything required of her yet “her rights [were] being stripped away.”
Mother also denied the caregiver’s reports that she had threatened the
caregiver.
In March, minor’s school contacted the Agency with concerns about
minor’s phone use and contact with father. School officials believed that
father’s delivery of lunches at school violated an existing restraining order.
11
Minor had also reported that father was telling her to accuse her foster
parent of hitting her, even though this was untrue. The minor cried to her
principal about the situation.
On March 27 and April 1, the Agency reached out to father and mother,
respectively, to arrange visits with minor. After receiving no response from
either parent, Agency reached out to their respective counsel.
V. Contested Jurisdiction / Disposition Hearing
At the contested jurisdiction and disposition hearing on April 10, 2025,
the juvenile court admitted into evidence the December 2024 detention
report, the January 2025 jurisdiction and disposition report, and the April
2025 addendum report. The Agency rested its case based on the filed reports.
Father called the CWW who authored all three reports as a witness.
The CWW testified that she lacked information regarding any specific
incidents of domestic violence by father or any instance in which father forced
food down minor’s throat. The CWW acknowledged, however, that minor had
reported that her parents had engaged in physical violence in her presence.
The CWW also admitted that the allegations of father’s alcohol abuse raised
in the family court proceedings, and mentioned in the reports, were not
verified. The CWW explained that both mother and minor had directly
reported to her that father abused alcohol.7 Later, the CWW testified that
minor sometimes makes untrue statements and that minor’s caregiver had
stated that minor sometimes “lies.”
The CWW also testified that the Agency had concerns about father’s
ability to care for minor because “to date the father has not engaged in
7 In response to the trial court’s questioning, the CWW could not
establish when the alleged alcohol abuse occurred or whether father was
currently abusing alcohol.
12
services,” including “substance abuse testing and an assessment” and
supervised visitation. She stated that “based on those two things I’m not able
to assess his ability to safely parent [minor].” The CWW also stated that
father had “violated the court order by showing up at [minor’s] school and
handing lunch directly to her.” The CWW testified that father’s home was
appropriate, but for the Agency to change its recommendation to
unsupervised visitation, father needed to engage in services and have
“appropriate conversations” with minor and stop telling minor to lie about
her care providers. The CWW also testified that father had identified a
potential family member placement for minor, but minor did not feel
comfortable staying with them. Minor had mentioned a maternal aunt, but
the CWW had just received the aunt’s contact information that day.
Following the CWW’s testimony, the juvenile court ordered supervised
visitation for both parents, while granting the Agency discretion to move to
unsupervised visitation. The court strongly encouraged father to talk with
the CWW to arrange for supervised visitation. The court told father that it
understood his frustration, but not to “let that frustration [keep him] from
actually seeing his daughter because I want that to happen.” Finally, the
court changed its former order and directed father not to bring minor lunch
at school “for now,” as it was creating “too much drama.”
The hearing was continued to June 3, 2025. Minor’s paternal aunt and
cousin appeared at the continued hearing, and both denied any known
American Indian ancestry in their families. The court then heard closing
arguments. As to allegation B-3, the Agency acknowledged that the only
information about father’s alcohol abuse came from minor because father had
not cooperated with any testing. Regarding allegation G-1, the Agency’s
counsel stated that she did not “believe” a home assessment was completed
13
and concluded that “the Agency has been unable to really assess father’s
ability to take care of his daughter.” Minor’s counsel joined the Agency’s
argument that the amended petition’s allegations were true and agreed with
the Agency’s recommendation.
Father contended that the lack of information regarding any specific
incident of alcohol abuse or domestic violence precluded the court from
finding the allegations under section 300, subdivision (b) true by the clear
and convincing evidence. Father further asserted that the court should not
find the allegation under subdivision (g) true because his whereabouts were
known and his home assessment was positive. After the court noted that
mother had missed visits and father refused to attend supervised visits,
counsel for both parents stated that mother and father distrusted the Agency
and “the process.”
The juvenile court sustained allegation B-1 against mother regarding
the December 12, 2024 incident and allegation B-2 concerning mother’s
mental health and substance abuse. The court did not sustain allegations B-
3 or B-4 against father because it lacked “direct evidence” establishing “a
nexus” between the alleged domestic violence and alcohol abuse and a
substantial risk to minor due to father’s inability to supervise and protect
her. The court explained that the parents’ mistrust of the government,
whether founded or not, interfered with its ability to assess whether they
could provide a safe and supportive home for minor. The court then
sustained allegation G-1 against father, stating that “there is a wealth of
information to support that the Court is in a position where it is problematic
as to whether or not there is a demonstration as to the ability to provide care,
support, supervision to the minor.” The court also made a finding that ICWA
did not apply.
14
Accordingly, the juvenile court ruled there was clear and convincing
evidence that minor must be removed from the parents’ physical custody.
The court ordered the Agency to provide both parents with reunification
services and to arrange for visitations between minor and each parent “as
frequently as possible consistent with the child’s well-being.” The court
further ordered the parents “to cooperate with the [CWW] . . . and to
participate in all aspects of the case plan.” The court then explained to father
that services inconsistent with its ruling—e.g., substance abuse treatment—
would not be required. Father appealed.
DISCUSSION
Father challenges the juvenile court’s detention order on the initial
petition and its jurisdictional findings and dispositional order on the
amended petition. He also argues that the Agency did not comply with the
ICWA. We address each argument in turn.
I. The Juvenile Court Did Not Err in Detaining Minor
Father contends that the juvenile court’s detention order, which was
based on the finding that his ability to care for minor was unknown, was not
supported by substantial evidence. We disagree.
At the threshold, we are not persuaded by the Agency’s contention that
father forfeited his right to challenge the detention orders on appeal. “ ‘An
order entered prior to disposition . . . is “interlocutory and not appealable,
and thus any issue pertaining to it must be raised in a timely appeal of the
dispositional order.” ’ ” (In re M.C. (2023) 88 Cal.App.5th 137, 148 (In re
M.C.).) However, it is established that on appeal from a disposition order, the
appellate court can review arguments raised regarding the juvenile court’s
detention findings and orders. (See, e.g., In re Matthew C. (2017)
9 Cal.App.5th 1090, 1103 [reviewing juvenile court’s detention and
15
dispositional orders temporarily denying mother visitation]; see also In re
Brittany S. (1993) 17 Cal.App.4th 1399, 1404 [“ ‘the reviewing court may
review the verdict or decision and any intermediate ruling, proceeding, order
or decision which involves the merits or necessarily affects the judgment or
order appealed from or which substantially affects the rights of a party’ ”],
abrogated by statute on another point as stated in In re Meranda P. (1997) 56
Cal.App.4th 1143, 1159.)
Moreover, “[t]he California Rules of Court require that a notice of
appeal be liberally construed ‘ “so as to protect the right of appeal if it is
reasonably clear what [the] appellant was trying to appeal from, and where
the respondent could not possibly have been misled or prejudiced.” ’ ” (In re
M.C., supra, at p. 148 [construing the notice of appeal to include an appeal of
detention findings and orders]; see also In re Tracy Z. (1987) 195 Cal.App.3d
107, 112 [construing notice of appeal “ ‘from the Jurisdictional findings and
decision’ ” liberally in favor of their sufficiency as properly noticing appeals
from the judgment incorporating the jurisdictional findings].)
Here, the Agency does not contend that it was prejudiced by the
purported scope of father’s appeal. Nor would such a contention be plausible,
given that father filed a notice of appeal from the December 2024 detention
order just one week after it was issued. We therefore construe father’s notice
of appeal identifying the June 3, 2025 dispositional order to include a
challenge to the December 2024 detention findings and orders.
Nonetheless, father’s contention that substantial evidence did not
support the order detaining the minor from his home fails on the merits. A
minor’s detention must be supported by “a prima facie showing . . . that the
child comes within Section 300,” a finding that “continuance in the parent’s
or guardian’s home is contrary to the child’s welfare,” and a finding that
16
“[t]here is a substantial danger to the physical health of the child . . .” and no
“reasonable means” of protecting the child’s physical or emotional health
short of removal from the parent’s physical custody. (§ 319, subd. (c)(1).) A
child comes within section 300, subdivision (b)(1), when “there is a
substantial risk that the child will suffer, serious physical harm or illness, as
a result of the failure or inability of his or her parent . . . to adequately
supervise or protect the child.” The Agency’s evidentiary burden at the
detention hearing is “light.” (Johnny W. v. Superior Court (2017) 9
Cal.App.5th 559, 567.)
Here, the record at the detention hearing contained substantial
evidence that placing minor back in father’s home presented a substantial
risk to minor’s physical and emotional health, more than satisfying the
Agency’s prima facie burden. Although the precipitating event of the
dependency proceedings was mother leaving minor unattended, there was
also evidence that father was unable or unwilling to protect minor’s physical
and emotional health. For example, father told the Agency that minor had
been living with him because mother had been evicted and used fentanyl, but
that two weeks earlier mother came to his home unannounced and took
minor. Yet father never contacted police, nor did he describe any efforts he
had made to find minor and return her to his home. Courts have found
similar circumstances support removing a child from both parents’ custody.
(E.g., In re M.C., supra, 88 Cal.App.5th at p. 149 [holding that the court did
not err in finding the minor in danger where father left minor with mother,
despite her history of substance abuse].) While father stated that mother had
seen minor “a few times over the last five or six months,” mother told the
Agency that father “[did] not let [minor] to see her.” Minor, for her part,
reported that she had not seen father in years and expressed reluctance to
17
have contact with him. Accordingly, the juvenile court did not err in finding
that the Agency made the required prima facie showing at the detention
stage that minor was in substantial danger unless removed from both
parents’ physical custody.
II. The Juvenile Court’s Jurisdictional Findings and Order Are
Not Supported by Substantial Evidence
Father challenges the sufficiency of the evidence supporting the
juvenile court’s jurisdictional finding and its dispositional order. We agree
that no substantial evidence supports the court’s jurisdictional finding,
requiring reversal of it and the dispositional order.
“ ‘ “A dependency proceeding under section 300 is essentially a
bifurcated proceeding.” ’ ” (In re E.E. (2020) 49 Cal.App.5th 195, 205 (In re
E.E.).) The juvenile court’s first task is to determine whether the minor is
within any of the descriptions set out in section 300 and therefore subject to
its jurisdiction. (Ibid.) “ ‘At the jurisdictional hearing, the dependency
court’s finding that a child is a person described in section 300 must be
supported by a preponderance of the evidence.’ ” (In re Christopher M. (2014)
228 Cal.App.4th 1310, 1318 (In re Christopher M.).)
If the court concludes it has jurisdiction over the child, then it must
decide the appropriate disposition. (In re E.E., supra, 49 Cal.App.5th at
p. 205.) The child’s removal from physical custody of the parent “with whom
the child resides at the time the petition was initiated” may be ordered where
a return home would pose “a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor” and
where there are no reasonable alternatives to removal. (§ 361, subd. (c)(1).)
If there is a parent “with whom the child was not residing at the time that
the events or conditions arose that brought the child within the provisions of
Section 300” and who requests custody, then “the court shall place the child
18
with the parent unless it finds that placement with that parent would be
detrimental to the safety, protection, or physical or emotional well-being of
the child.” (§ 361.2.) The burden of proof for dispositional findings is clear
and convincing evidence. (In re E.E., supra, 49 Cal.App.5th at p. 206.)
We review the jurisdictional findings and dispositional order for
substantial evidence, asking whether the record contains evidence sufficient
to support findings made under the clear-and-convincing standard. (In re
Henry V. (2004) 119 Cal.App.4th 522, 529; see also Conservatorship of O.B.
(2020) 9 Cal.5th 989, 995–996 [appellate review of finding under clear and
convincing standard requires appellate court to determine “whether the
record as a whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true”].) “ ‘ “In
making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we
review the record in the light most favorable to the court’s determinations;
and we note that issues of fact and credibility are the province of the trial
court.” ’ [Citation.] The appellant has the burden of showing there is no
evidence of a sufficiently substantial nature to support the findings or
orders.” (In re E.E., supra, 49 Cal.App.5th at p. 206.)
Here, the Agency contends that any error in the jurisdictional finding
was not prejudicial because the juvenile court properly exercised jurisdiction
based on the unchallenged findings against mother. Ordinarily, when one
jurisdictional finding is unchallenged or supported by substantial evidence,
we need not consider the sufficiency of the evidence supporting additional
findings. (See In re Christopher M., supra, 228 Cal.App.4th at p. 1316.) That
is because dependency jurisdiction is over the child, not a particular parent,
and thus may rest on the conduct of only one parent. (In re A.R. (2014) 228
19
Cal.App.4th 1146, 1150; see § 361, subd. (a)(1) [“In all cases in which a minor
is adjudged . . . a person described by Section 300, the court may limit the
control to be exercised over the dependent child by any parent”].)
That does not, however, end our inquiry into the findings regarding
father. The California Supreme Court has explained that “where a
jurisdictional finding ‘serves as the basis for dispositional orders that are also
challenged on appeal’ [citation], the appeal is not moot.” (In re D.P. (2023) 14
Cal.5th 266, 283.) The juvenile court did not expressly state the factual basis
for its disposition order. It did, however, explain to father that it was
“concerned about [certain] things” in the Agency’s jurisdiction and disposition
report other than the unsubstantiated allegations about alcohol abuse and
domestic violence. The only concerns regarding father that the court
identified were those underlying allegation G-1. The record therefore
indicates that the dispositional order rested, at least in part, on the
challenged jurisdictional finding.
Even if it did not, we exercise our discretion to review the finding
because it designated father as an offending parent and thus had
consequences beyond the juvenile court’s assumption of jurisdiction over
minor. (In re Christopher M., supra, 228 Cal.App.4th at p. 1316.) That
designation was relevant to the court’s dispositional assessment and may
affect placement, services, and future dependency proceedings. (In re Andrew
S. (2016) 2 Cal.App.5th 536, 542, fn. 2.)
We conclude that the jurisdictional finding against father under section
300, subdivision (g) is not supported by substantial evidence. Section 300,
subdivision (g) provides four independent bases for establishing jurisdiction:
“[(1)] [t]he child has been left without provision for his or her support;
[(2)] physical custody of the child has been voluntarily surrendered . . . ;
20
[(3)] the child’s parent has been incarcerated or institutionalized and cannot
arrange for the care of the child; or [(4)] a relative or other adult custodian
with whom the child resides or has been left is unwilling or unable to provide
care or support for the child, the whereabouts of the parent are unknown,
and reasonable efforts to locate the parent have been unsuccessful.” (See In
re E.A. (2018) 24 Cal.App.5th 648, 661.) The Agency acknowledges that
“Father’s whereabouts were known, he was not incarcerated or
institutionalized, and he did not surrender his child.” That concession
effectively eliminates the second, third, and fourth statutory bases. We
therefore consider only whether substantial evidence demonstrated that
father had left minor without provision for support.8
It did not. The Agency does not identify, nor does our review of the
record reveal, evidence that father failed to or was unable to provide for
minor. Instead, the Agency relies on evidence that “Father made it virtually
impossible to assess his parenting ability” and “created chaos, confusion, and
drama in the case” and that “minor was unwilling to be alone with him.”
Those circumstances may well bear on other issues in the dependency
proceedings, including father’s parenting, his cooperation with the Agency, or
minor’s willingness to live with him. They do not, however, establish that
father left minor without provision for support. They therefore do not supply
substantial evidence for jurisdiction under section 300, subdivision (g).9
8 The Agency also maintains that it was unable to assess father’s
parenting ability because among other things, “he refused to engage in
substance abuse services.” But the court did not order father to participate in
such services and his failure to do so does not bear on the jurisdictional
analysis under section 300, subdivision (g).
9 We express no opinion whether the record was sufficient to support
jurisdiction on grounds not alleged in the amended petition.
21
Moreover, the first independent basis for jurisdiction under “[s]ection
300, subdivision (g) applies only when the parent is unable to provide or
arrange for care at the time of the hearing.” (In re Christopher M., supra, 228
Cal.App.4th at p. 1320, and cases cited.) Thus, even assuming father’s
earlier failure to protect minor contributed to circumstances in which she
lacked adequate care while living with mother, that would not establish
jurisdiction under subdivision (g) unless father was unable to provide or
arrange for minor’s care when the jurisdictional hearing occurred.
The record contains no such evidence. On the contrary, the Agency
gave a positive assessment of father’s home. Father was aware of minor’s
food allergies and sought to bring her lunch (at minor’s request); and minor
acknowledged that father had taken care of her and stated that she wanted
him to remain part of her life. Whatever other concerns the record may have
raised, they did not establish that father was unable to provide or arrange for
minor’s care at the time of the hearing.
We emphasize that the jurisdictional findings and the disposition are
analytically distinct steps in what “ ‘ “is essentially a bifurcated
proceeding.” ’ ” (In re E.E., supra, 49 Cal.App.5th at p. 205.) Given the
amended petition’s allegations, the only issue in determining jurisdiction
under section 300, subdivision (g) is whether father was able to arrange for
minor’s care at the time of the hearing. Whether minor should be placed with
father was a separate dispositional question. (See In re Christopher M.,
supra, 228 Cal.App.4th at p. 1320 [“That placing Christopher with father
might not yet (or ever) be in Christopher’s best interests is not relevant to the
only issue under section 300, subdivision (g)—whether father was able to
arrange for Christopher’s care at the time of the jurisdiction/disposition
hearing”].) Because substantial evidence does not support any basis for
22
allegation G-1, the jurisdictional finding and order sustaining allegation G-1
against father is reversed.
As discussed, ante, the record indicates that the dispositional order
concerning father was based, at least in part, on the jurisdictional finding.
The juvenile court expressly disclaimed reliance on the unsubstantiated
allegations concerning alcohol abuse and domestic violence and identified its
concern as “it is problematic as to whether or not there is a demonstration as
to the ability to provide care, support, supervision to the minor.”10 The court
also stated that the Agency’s report, which was in evidence, “speaks volumes
for itself.” That remark suggests that the court may have relied more broadly
on information contained in the report. But the court made no express
finding identifying any other factual basis for the dispositional orders against
father, and no other sustained allegation concerned him. Thus, once the G-1
finding is reversed, the stated basis for the dispositional order as to father no
longer stands.
Moreover, the erroneous jurisdictional finding rendered father an
“offending” parent and this error carried over into the dispositional analysis.
(Cf. In re A.A. (2012) 203 Cal.App.4th 597, 606 (In re A.A.) [“mother was the
subject of a jurisdictional finding under section 300, subdivision (b) in the
current dependency proceeding, which meant she was not a nonoffending
10 The trial court’s equivocal statement regarding whether father could
provide care and support for minor is problematic for an additional reason: it
does not amount to the findings required for removal under section 361,
subdivision (c)(1). Removal requires clear and convincing evidence that
(1) there is or would be substantial danger to the physical health, safety,
protection, or emotional well-being of the child if returned home, and (2) that
there are no reasonable means by which the child’s safety can be protected
short of removal. (§ 361, subd. (c)(1); In re M.V. (2022) 78 Cal.App.5th 944,
959.)
23
parent within the meaning of section 361, subdivision (c)”].) At disposition,
the juvenile court relied on section 361, subdivision (c)(1) for removal, finding
that there was clear and convincing evidence that minor had to be removed
from her parents’ physical custody because returning her home would pose a
substantial danger to her physical or emotional well-being and there were no
reasonable alternative means to protect her.
Section 361, subdivision (c)(1) expressly mandates that the juvenile
court “consider, as a reasonable means to protect the minor . . .
[¶] (B) Allowing a nonoffending parent . . . to retain physical custody as long
as that parent . . . presents a plan acceptable to the court demonstrating that
will be able to protect the child from future harm.” (Italics added.) By
sustaining allegation G-1 against father, however, the juvenile court
necessarily treated father as an offending parent and therefore foreclosed
consideration of that statutory alternative. Accordingly, the erroneous
jurisdictional finding directly affected the framework governing the court’s
dispositional decision and prejudiced father.
Father contends he is a nonoffending parent, while the Agency
characterizes his argument as “the [juvenile] court should have released the
minor to him as a non-custodial, non-offending parent.” The Agency’s
description is inaccurate in an important respect. Father does not assert in
his briefs that he was a “noncustodial” parent, nor does he expressly claim
that he was a custodial parent. The record, however, strongly suggests that
the juvenile court treated him as custodial. In 2022, mother and father were
awarded joint legal custody and physical custody.11 Although mother initially
11 (See Prob. Code, § 1419.5 [“ ‘Custodial parent’ means the parent who
either (a) has been awarded sole legal and physical custody of the child in
another proceeding . . . . If the child resides with both parents, then they are
jointly the custodial parent”].)
24
claimed that she had “primary custody” and father had weekend visitation,
the Agency later learned that minor had lived with father from June 2024,
after mother was evicted, until December 2024, when mother took minor
from his home. And when mother’s counsel asserted at the detention hearing
that mother was the custodial parent, the juvenile court rejected that
characterization, noting the parents’ joint custody and that minor had been
living with father until a couple weeks before the initial petition was filed.
But even assuming that father was not the custodial parent for
purposes of section 361.2 because minor was residing in mother’s car when
the petition was initiated, then the juvenile court should have applied section
361.2, which mandates placement with a noncustodial parent absent a
finding of detriment. (See In re Abram L. (2013) 219 Cal.App.4th 452, 462 (In
re Abram L.) [holding section 361.2 applied because “[incarcerated] father’s
children were not residing with him when the petition was initiated”].) If
section 361.2 applies here, the juvenile court did not mention the statute or
make the express detriment finding it requires. (See id, at p. 463 [“it is
inappropriate to make implied findings when the juvenile court fails to make
express findings as required by section 361.2, subdivision (c)”].)
Moreover, there is also a split of authority as to whether section 361.2
contains an implicit requirement that the noncustodial parent be
nonoffending. (Compare In re John M. (2013) 217 Cal.App.4th 410, 424
[recognizing an implicit nonoffending requirement in section 361.2]; In re
A.A., supra, 203 Cal.App.4th at p. 608 [same] with In re Nickolas T. (2013)
217 Cal.App.4th 1492, 1504 (In re Nickolas T.) [rejecting the In re A.A. court’s
analysis] and In re D’Anthony D. (2014) 230 Cal.App.4th 292, 301 [agreeing
with In re Nickolas T. court’s analysis and “reject[ing] the contention that an
implicit ‘nonoffending’ requirement can be invoked to preemptively deny a
25
noncustodial parent consideration for custody without assessing whether the
placement would pose a detriment to the child under section 361.2,
subdivision (a)”].)
We need not resolve that issue here. “[E]ven assuming that section
361.2, subdivision (a) does not include an implicit ‘nonoffending’ requirement,
a jurisdictional finding based on conduct of a noncustodial parent would
unquestionably be a consideration in assessing detriment under section
361.2, subdivision (a).” (In re Christopher M., supra, 228 Cal.App.4th at
p. 1317, citing In re Nickolas T., supra, 217 Cal.App.4th at p. 1506, fn. 10; see
also In re C.M. (2014) 232 Cal.App.4th 1394, 1402 [“The nonoffending parent
does not have to prove lack of detriment. Rather, the party opposing
placement with a nonoffending parent has the burden to show by clear and
convincing evidence that the child will be harmed if the nonoffending parent
is given custody”]; In re Abram L., supra, 219 Cal.App.4th at p. 461 [“ ‘[T]o
comport with the requirements of the due process clause, a finding of
detriment pursuant to section 361.2, subdivision (a) must be made by clear
and convincing evidence’ ”].)
Thus, under either possible characterization of father’s custodial
status, the erroneous G-1 finding infected the dispositional analysis. If father
was a custodial parent, the finding deprived him of consideration as a
nonoffending parent under section 361, subdivision (c)(1)(B). If he was a
noncustodial parent, the finding would be relevant to the detriment
determination required by section 361.2. And the juvenile court did not
expressly find detriment under that statute. The dispositional order as to
father must therefore be reversed.
26
III. The Agency Did Not Comply With The ICWA
Father also contends that the Agency failed to make an adequate
inquiry of minor’s maternal aunt, mother’s boyfriend, and “relatives as yet
not identified” about minor’s possible American Indian heritage under the
ICWA and related California law (see Cal-ICWA; Welf. & Inst. Code, § 224 et
seq.) We disagree that the Agency had a duty to interview unidentified
relatives or, on this record, mother’s boyfriend. We do agree that the
Agency’s inquiry of the maternal aunt was inadequate. Accordingly,
substantial evidence does not support the juvenile court’s finding that ICWA
did not apply.
By enacting ICWA, Congress sought to redress “ ‘abusive child welfare
practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement,
usually in non-Indian homes,’ ” in part, by “establish[ing] minimum
standards for state courts to follow before removing Indian children from
their families and placing them in foster care or adoptive homes.” (In re Dezi
C. (2024) 16 Cal.5th 1112, 1128–1129 (Dezi C.).) California subsequently
enacted Cal-ICWA, which imposes on courts and child welfare agencies an
“affirmative and continuing duty to inquire whether a child . . . is or may be
an Indian child in all dependency proceedings . . . .” (Stats. 2006, ch. 838,
§ 32; § 224.2, subd. (a); Dezi C., supra, 16 Cal.5th at pp. 1131–1132; see also
Cal. Rules of Court, rule 5.481(a)(5) [requiring petitioner to “include in its
filings a detailed description of all inquiries, and further inquiries it has
undertaken, and all information received pertaining to the child’s Indian
status”].)
The duty to inquire begins when the Agency is first contacted regarding
a child and extends to the Agency’s first contact with the child or the child’s
27
family, including “extended family members,” (§ 224.2, subds. (a), (b)(1)),
such as an aunt. (25 U.S.C. § 1903(2); § 224.1, subd. (c)(1) [adopting ICWA
definition of “extended family member”].)12 Once a child is placed into the
temporary custody of a county welfare department, the inquiry “ ‘includes,
but is not limited to, asking the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest in the
child, and the party reporting child abuse or neglect, whether the child is, or
may be, an Indian child.’ ” (Dezi C., supra, 16 Cal.5th at p. 1132, quoting
§ 224.2, subd. (b)(2).) Depending on what the inquiry reveals, the court and
the agency may then be required to conduct further inquiry or provide formal
notice.13
The juvenile court may make a finding that ICWA does not apply to the
proceedings if it determines that the Agency conducted a “proper and
adequate” inquiry with “due diligence,” and the resulting record provides no
reason to know the child is an American Indian child. (§ 224.2, subd. (i)(2);
Dezi C., supra, 16 Cal.5th at p. 1134.) “The juvenile court’s factual finding
that ICWA does not apply is ‘subject to reversal based on sufficiency of the
evidence.’ (§ 224.2, subd. (i)(2).)” (Dezi C., supra, 16 Cal.5th at p. 1134.)
Courts review for substantial evidence the finding that there is reason to
know a minor is an American Indian child, but it remains unsettled whether
12 “Extended family members” is defined as “a person who has reached
the age of eighteen and who is the Indian child’s grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c)(1).)
13 If the agency develops “reason to believe” the minor is an Indian child,
then “further inquiry” is required. (§ 224.2, subd. (e).) If that further inquiry
results in a “reason to know” the minor is an Indian child, the formal notice
requirements of section 224.3 apply. (See § 224.2, subds. (d), (f); see also H.A.
v. Superior Court (2024) 101 Cal.App.5th 956, 961.)
28
the substantial evidence or abuse of discretion standard applies to the
juvenile court’s finding of due diligence and proper inquiry. (Ibid.) Here, the
result is the same under either standard.
Throughout the dependency proceedings, mother and father each
repeatedly denied having American Indian ancestry. A paternal aunt and
cousin who appeared at the June 2025 hearing also denied having any
knowledge about American Indian ancestry in their families.14
The Agency was also aware of a maternal aunt and grandmother.
Mother initially declined to permit either relative to be contacted or assessed
for placement. By the April 10, 2025 hearing, however, the Agency had
received the maternal aunt’s contact information. Yet at the continued
hearing on June 3, 2025, the juvenile court did not inquire into the Agency’s
efforts to interview maternal aunt and there is no evidence in the record that
the Agency made any effort to contact the maternal aunt or interview her
about minor’s possible Indian ancestry. On this record, the Agency did not
conduct a proper or adequate inquiry.
The fact that the Agency had the maternal aunt’s contact information
distinguishes the authorities on which it relies in which the investigating
agency lacked sufficient information to contact relatives. (E.g., In re C.L.
(2025) 116 Cal.App.5th 53, 69 [“the record [did] not clearly demonstrate that
the maternal uncle was ‘reasonably available to help the agency with its
investigation’ ”]; In re H.B. (2023) 92 Cal.App.5th 711, 720 (In re H.B.)
14 In the absence of contrary information, the inquiries of father and these
paternal relatives provide substantial evidence of due diligence and proper
inquiry as to minor’s paternal ancestry. (See In re C.R. (2025) 112
Cal.App.5th 793, 802 (In re C.R.) [“there was no reason to duplicate inquiry
efforts as to mother’s side of the family” where no other maternal relatives
were identified “who would have information about the family’s possible
Indian ancestry superior to maternal grandmother's knowledge”].)
29
[“ ‘Where . . . a parent largely fails . . . to provide names and contact
information for extended family members, [the Department’s] ability to
conduct an exhaustive ICWA inquiry necessarily is constrained’ ”].)
Nor are we persuaded by the Agency’s contention that “the juvenile
court could reasonably conclude that Mother’s sister would not have more
information on the family’s Indian heritage than Mother herself.” The
Agency offers no basis to support this assumption. It is plausible that one
sibling may know information regarding family ancestry that another does
not. This situation is unlike that in In re C.R., supra, 112 Cal.App.5th at
page 802 where the juvenile court “reasonably could find mother’s sister
(maternal aunt) would not have had any more information about the family’s
potential Indian ancestry than their own mother (maternal grandmother)
had.” Here, there is no indication that the Agency interviewed either the
maternal grandmother or aunt.
The Agency’s reliance on In re K.G. (2025) 117 Cal.App.5th 379 (In re
K.G.) is also misplaced. There, twelve family members—seven maternal
family members and five paternal family members—denied, or said they had
no information about whether, the child had Indian heritage. (Id. at p. 382.)
The court of appeal held that “[t]he juvenile court was fully justified in
deciding that, on [that] record, the Department had done enough without
consulting [four additional known family members].” (Id. at p. 385; see also
In re H.B., supra, 92 Cal.App.5th at p. 721 [finding inquiry adequate where
“the Department inquired about Indian ancestry with representatives from
both sides of two generational levels of H.B.’s family”].) By contrast, the only
maternal family member the Agency interviewed in the present case was
mother even though it had her sibling’s contact information. (See Dezi C.,
supra, 16 Cal.5th at p. 1151 [“ ‘[t]he required inquiry here could have been
30
conducted in significantly less time than it took to defend this appeal’ ”].)
That is not comparable to the inquiry found sufficient in K.G. and H.B.
These same authorities do, however, defeat father’s contention that the
ICWA finding was invalid because the Agency failed to interview an
unspecified number of unidentified relatives. “[S]ection 224.2 ‘does not
require the agency to “find” unknown relatives and others who have an
interest in the child, merely to make reasonable inquiries. The operative
concept is those people who are reasonably available to help the agency with
its investigation into whether the child has any potential Indian ancestry
should be asked.’ ” (Dezi C., supra, 16 Cal.5th at p. 1140; see In re H.B.,
supra, 92 Cal.App.5th at p. 720 [“Requiring the Department to track down
information about extended family members beyond that offered by
participants in the proceedings would impose an undue burden on the
Department and necessarily reduce the resources it has to otherwise protect
the welfare of dependent children”].)
We are also not persuaded that the Agency had a duty to inquire
whether mother’s boyfriend had any information regarding minor’s potential
American Indian ancestry. Section 224.2 expressly extends the inquiry to
“others who have an interest in the child.” (See also In re K.G., supra, 117
Cal.App.5th at p. 382 [ “Mother’s friend Mike” denied knowledge of child’s
ancestry].) Although minor sometimes stayed at the mother’s boyfriend’s
house and referred to him as her “stepfather,” he did not participate in
dependency proceedings, attend a CFT hearing, or seek placement of minor.
On this record, we cannot say that the Agency’s failure to interview him
rendered its inquiry inadequate. Because the duty of inquiry is continuing,
we express no opinion whether later-developed facts may require inquiry of
mother’s boyfriend.
31
DISPOSITION
The jurisdictional order as to minor based on father’s alleged conduct is
reversed, as is the dispositional order.
On remand, the juvenile court shall order the Agency to complete the
initial and further ICWA inquiry, including the specific inquiry of the
maternal aunt identified; to document its inquiry pursuant to the
requirements of Rule 5.841(a)(5); and to provide notice if and as required by
section 224.3. If the inquiry reveals information giving reason to know that
minor is an Indian child, the court shall proceed in conformity with ICWA
and related California law.
The matter is further remanded to the juvenile court for a new
dispositional hearing. At that hearing, the court shall make a finding as to
whether father is a custodial parent and apply the appropriate statutory
framework. We express no opinion as to the proper dispositional order.
______________________
Gordon, J. *
WE CONCUR:
____________________________
Streeter, Acting P. J.
____________________________
Goldman, J.
* Associate Justice of the Court of Appeal, First Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
32