In re Kaitlyn A.














Filed 4/3/17 In re Kaitlyn A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kaitlyn A., A Person Coming Under the Juvenile Court Law.


LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
SHAYLA G.,
Defendant and Appellant.





A146774

(Lake County Super. Ct. No.
JV320445)


In this dependency appeal, Shayla G. (mother)challenges the jurisdictional finding and dispositional order which led to the removal of her young daughter, Kaitlyn A. (born May 2015), from her custody.Specifically, mother arguesthatthe juvenile court’s jurisdictional finding under subdivision (b) of section 300 of the Welfare and Institutions Code must be reversed because it is not supported by substantial evidence.[1]Mother also claims that the juvenile court’s dispositional order removing Kaitlyn from parental custody was not sufficiently supported by evidenceof risk to the minor and that reasonable means existed to keep the minor safe in mother’s care. Finally, mother challenges the sufficiency of the required noticing under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., contending it was deficient. Seeing no error requiring reversal of the juvenile court’s challenged findings and orders, we affirm.
I. BACKGROUND
On July 13, 2015, the Lake County Department of Social Services (Department) filed a dependency petition pursuant to subdivisions (b) and (g) of section 300, alleging that Kaitlyn—the minor who is the subject of these proceedings—had suffered, or was at substantial risk of suffering, serious physical harm or illness due to mother’s failure to provide her with adequate food, clothing, shelter, or medical treatment. Specifically, the petition alleged that mother had failed to follow through with consistent medical care and routine care for the minor and that, as a result, the minor had “failed to gain a safe amount of weight, placing her at risk of harm or death.” When Kaitlyn was born in the end of May 2015, her weight was in the 75th percentile for her age. By July 10, 2015, however, her weight had declined, placing her in the 5th percentile for her age. According to the petition, Kaitlyn had also been diagnosed with severe acne and severe thrush. On the same day it filed the petition, the Department also filed an ex parte application for a protective custody warrant, seeking detention of the minor. The juvenile court subsequently issued the requested warrant and the minor was removed from the custody of her mother on July 14, 2015.[2]
Specifics regarding Kaitlyn’s struggle with weight gain and other medical issues were detailed in the petition. For instance, when mother brought the minor in for a well child check on June 23, 2015, she was found to be jaundiced and weighed only 7 pounds, 9 ounces, below her birth weight of 7 pounds, 13 ounces. At a follow up appointment on June 26, the minor was transferred to the hospital after mother indicated that she had observed episodes of the infant holding her breath for approximately 10 seconds at a time over the previous two weeks. According to mother, Kaitlyn would also experience changes in her color. The minor was released from the hospital on June 28, 2015. During the time she was under observation, she had no episodes of true apnea and no episodes of color change. She did have episodes of periodic breathing, which was reported to be normal. Notably, Kaitlyn gained weight during the two days of her hospitalization, bringing her weight up to 8 pounds, 1.5 ounces. Discharge instructions for the minor included a follow up clinic appointment in the next two or three days, along with weekly appointments to monitor her weight.
Unfortunately, the minor’s first follow up appointment was not even scheduled until July 6, 2015. Moreover, mother did not bring the infant to this appointment and failed to reschedule. When social workers made an unannounced visit to mother’s family business on July 9, 2015, mother stated that she did not attend the July 6 appointment because she lacked transportation. The petition noted, however, that, contrary to mother’s contention,she did have transportation assistance available to her through Lake Family Resource Center. During the unannounced visit, the social workers observed that the minor had a rash on her face, which mother indicated was a heat rash. At that point, one of the social workers asked mother to make a new medical appointment for Kaitlyn, as there were serious concerns about both her weight and the rash. Mother initially stated that her phone was broken but, when offered the use of a Department phone, she became “uncooperative and confrontational,” stating that she did not need any help raising her children and that she would call to make an appointment at another time.
One of the social workers returned later that day with a deputy sheriff. Mother again stated that she would not make a follow-up appointment for the minor, arguing that she did not need to schedule one for another two weeks. The deputy sheriff had a paramedic respond to the home to evaluate Kaitlyn, and the paramedic determined that no emergency treatment was necessary. Although the social worker stressed to mother the importance of having Kaitlyn seen by medical professionals so that her weight could be monitored, mother again stated she would make an appointment in two weeks.
Despite mother’s statements on July 9, she did bring the minor to the health clinic the next day, July 10, for evaluation. At that time, Kaitlyn weighed seven pounds, fourteen ounces, only one ounce more than her birth weight and less than she had weighed at the time of her discharge from the hospital. The minor was also diagnosed with severe acne and severe thrush. The medical provider opined that the weight loss, acne, and thrush were all “a direct result of neglect.” Given the vulnerability of the minor, and mother’s history of failing to follow through with necessary medical care to assess her weight, the Department made the decision to seek Kaitlyn’s detention.
At the initial detention hearing on July 17, 2015, mother objected to detention, arguing that she was willing to cooperate with the Department and that Kaitlyn was not at risk in her home. In this regard, she also noted that the Department had not detained her two older children, whom she was also parenting. The juvenile court was concerned about the weight issue but stated that, if mother was now willing to cooperate, there might be a way to keep Kaitlyn in the home with specific orders in place to protect the minor. Minor’s counsel indicated he would probably lean in favor of leaving the minor in the home, but felt at a loss for information, especially with regards to the condition of Kaitlyn’s two older siblings. The Department expressed reservations, stating that mother’s housing was also unstable. According to the petition, mother had been offered services in January 2015, prior to Kaitlyn’s birth, to assist her in securing stable housing. She had also received transportation support and Early Head Start services through Lake Family Resource Center. And, the Department had referred mother to Lake County Public Health to address the minor’s medical needs. Nevertheless, in the department’s opinion, the minor remained at risk. The court, however, felt that further investigation might allow it to consider not detaining the child under certain conditions. Ultimately, it temporarily detained Kaitlyn and continued the matter to July 20 for a further hearing on detention.
In advance of the continued detention hearing on July 20, the Department filed a supplemental report with the court, detailing additional evidence in support of its detention request. For example, according to the Department, when Kaitlyn was detained on July 14, she had “dirt covering her body, dirt under her finger nails and toenails, and a diaper rash.” In addition, the minor “had extreme redness on and around her vagina as well as a grimy buildup in the folds of her armpits and neck.” The Department also included information from Sherylin Taylor, the Nursing Director at Lake County Public Health (Taylor), regarding risk to the minor as follows: “[T]he first two years of life are critical for a child’s development. Sufficient nutrition is needed for brain growth. Failing to thrive, specifically in the first six months of life, can adversely affect brain growth, cause mental retardation, and impair cognitive, emotional, and behavioral development with irreversible life-long consequences.” Moreover, according to Taylor, there was no medical explanation for Kaitlyn’s decline in weight from the 75th percentile at birth to the 5th percentile.
The supplemental report additionally included a history of the Department’s involvement with mother and all three of her children, including an open investigation involving Kaitlyn’s two older siblings, 18-month-old Jayden and three-year-old Jonathon. In January 2014, at the time of Jayden’s birth, the Department opened an investigation after mother allegedly stated that father suffered from untreated schizophrenia and that she, herself, had bipolar disorder that she was not treating with medication. Mother also indicated that she had thoughts of suicide in the past. Apparently, there were also concerns regarding the family residing with the maternal grandparents, as there were 11 other people living in the home. In January 2015, the Department received a report that mother, who was pregnant at the time, admitted to feeling suicidal three to four times per month. It was further stated that mother frequently contacted the suicide hotline and had, in fact, attempted suicide by hanging at age 19. Mother was also reportedly homeless, living in a dog boarding facility. In April 2015, the Department investigated a report that mother and her two children were living in the family pet shop, which was described as filthy. It was further alleged that the children did not bathe regularly. The Department confirmed that the family lived in the shop, but concluded that the children had their basic needs met.
When the Department investigated the present allegations regarding Kaitlyn’s weight issues in July 2015, the Department was still concerned about the marginal conditions at the pet grooming shop. Although mother claimed she was living with the maternal grandparents and not at the shop, the Department observed toys, a playpen, and a bouncy seat at the grooming business. Moreover, mother did admit she brought all three children to work with her, and the social worker observed the business to be dirty and covered with dog hair. The floors appeared not to have been swept or mopped in “quite some time” and, during a visit, Jonathon was seen chewing on a pair of dog nail clippers. The social worker also evaluated the maternal grandparents’ home and found it marginal, although it met the minimum level of sufficient care for the children. In the front yard there was a large amount of accumulated debris and, inside, there was an accumulated clutter of various household items, a large amount of spider webs, and carpets which appeared worn and dirty.The Department investigated a final referral on the date of Kaitlyn’s detention, again alleging that the family was living in the pet shop in marginal conditions. Further, Kaitlyn was apparently sunburned on her face and mother reportedly stated that she intentionally left the infant unprotected in the sun in an attempt to counteract her jaundice.
At the continued detention hearing on July 20, 2015, mother maintained her objection to detention, providing photos of her living situation at the maternal grandparents’ house and reiterating her previous arguments that any risk to the minor could be mitigated. Minor’s counsel, however, was “no longer on the fence,” but was instead convinced by the additional information provided that detention was appropriate. The Department also argued for detention, noting that there were underlying issues that needed to be addressed in order to assure the safety of the child.
In the end, the court ordered Kaitlyn detained, opining as follows: “I was giving serious consideration to returning the child back to Mother’s care and custody and control subject to conditions. That’s where I was leaning when we were here on Friday, July 17, 2015. But now we have this addendum of the detention report that was filed Friday last I believe. Filed on July 17. And it’s not even a close question to the Court at this particular point about return and the conditions at this point. I’m not going to go through the detail there, but there are some significant things brought to the Court’s attention in that addendum report that I didn’t have on Friday during the course of the hearing in court” (italics added). Pending the next hearing, the court ordered parenting education, including instruction on feeding the minor. It also ordered substance abuse and behavioral health services to the extent they were found to be needed after assessment. The matter was continued to August 10, 2015, for a jurisdictional hearing. Thereafter, it was further continued to August 31, 2015, to accommodate the noticing of various Indian tribes under the ICWA.
The Department filed its jurisdictional report on August27, 2015, recommending that the allegations in the petition be sustained and that the minor remain in foster care. In addition to the information set forth in the petition and supplemental report, the jurisdictional report disclosed that, since Kaitlyn had been detained, she had consistently gained weight. Specifically, on July 14, the minor weighed 8 pounds, 4 ounces; on July 21, she weighed 9 pounds, 1 ounce; on August 5, her weight was 9 pounds, 6 ounces; and at her most recent weight check, Kaitlyn weighed 9 pounds, 11 ounces.[3]
Afterseveral more continuances, the jurisdictional hearing was finally held on September 14, 2015.At the hearing, mother submitted the matter on the jurisdictional report, with her counsel arguing that the evidence presented was insufficient to establish dependency jurisdiction over Kaitlyn and that the petition should therefore be dismissed. Both the Department and counsel for the minor argued in favor of jurisdiction. Thereafter, the juvenile court determined the allegations in the petition to be true and found the minor to be a child described by subdivisions (b) and (g) of section 300. In finding jurisdiction in the case, the court noted that the fact that the minor was assessed by paramedics on July 9 and found not to be in need of medical treatment “is basically a snapshot at a particular point in time as opposed to a snapshot looking at the large picture whichincludes starting off in the 75th percentile and then going to the 5th percentile for weight.” A dispositional hearing was set for October 5, 2015.
It its dispositional report filed September 30, 2015, the Department recommended that Kaitlyn be declared a juvenile court dependent, that she remain in foster care, and that mother be granted reunification services. Background information supplied in the report indicated that mother’s biological father had never been a part of mother’s life and that she grew up with her mother, step-father, and siblings. Mother reported dropping out of high school in her senior year after getting suspended for fighting with another student. Although never treated, mother claimed she received a concussion from this incident which has caused her to have continuing problems with her short-term memory. In addition, mother reported experiencing mood swings since she was very young. At age 14, a friend’s father, reportedly a doctor, diagnosed her with bipolar disorder. Mother was prescribed lithium at age 19, which she said helped and which she took for several years. She stopped taking it without consulting a doctor when she felt it was no longer being effective.
Mother met William A., the alleged father of her three children, when she was 18 years old. Although she described him as a “ ‘bum’ ” who drank excessively and used and sold illegal drugs, she stayed in a tent with him and remained in the relationship for seven years. According to mother, father would hit her when he was coming down from drugs, and she sustained injuries including bruising, a “ ‘smashed head,’ ” and broken fingers. She finally broke up with father in July 2014, but had sex with him in September 2014, leading to her pregnancy with Kaitlyn. Mother reported suffering from flashbacks and anxiety as a result of the physical and emotional trauma she endured with father. She stated that she has trouble sleeping and that the flashbacks causedher to become angry and blackout. During an interview on September 10, 2015, mother told the social workers that she had a plan to commit suicide, but changed her mind after she thought about her children.
The dispositional report also revealed that the Department had received another referral on September 8, 2015, stating that mother was living with her two sons in inadequate housing. After investigation, a social worker noted that the home was marginal, but did meet the minimal sufficient level of care. Mother was cooperative and open during the assessment, agreeing that she needed a dumpster and that she would begin to explore low-income housing so that she did not have to share a home. Given Kaitlyn’s prior removal, however, the Department staffed the referral to discuss possible additional services for the family.
Pending the dispositional hearing, mother was assessed by the Department and found to be at mediumrisk with respect to parental understanding and values. She was referred to parenting classes and had attended two, on September 10 and 24, 2015. Mother denied drug use other than marijuana and tested negative for all substances on July 28 and August 4, 2015. She was referred to the Seeking Safety Group and was scheduled to attended her first session on September 30, 2015. Although she had been referred for a mental health assessment on September 10, it was still pending due to certain eligibility issues. Finally, mother attended six of eight possible visits with the minor and was described as being attentive to her needs. When mother complained that it was “ ‘impossible’ ” for her to get to visits starting at 9:00 am, the Department adjusted the visitation schedule.
In the meantime, the minor’s weight continued to improve. On August 11, 2015, she weighed 9 pounds, 11 ounces. By September 3, 2015, her weight had increased to 10 pounds, 11 ounces. The Department opined that Kaitlyn would be at substantial risk of harm if returned to her mother’s home. It identified a number of problems that required intervention, including mother’s history of inconsistent mental health treatment; her history of suicidal ideation; her domestic violence history; her failure to meet the minor’s medical needs; and her inconsistent housing. It saw no reasonable means of protecting the minor if she was returned to mother’s care. Rather, the Department concluded that the circumstances that led to its initial involvement still existed and that “[r]eunification services will need to address these underlying issues before significant and sustainable change can be affected.”
The dispositional hearing was ultimately held on October 19, 2015. At the hearing, mother submitted a letter from a personal reference, stating that both of her sons seemed happy, well-mannered, and well loved and that the author believed mother would be a good mother to all of her children. Mother also put into evidence the social worker’s log covering visits on September 1 and 8, 2015, which indicated that mother was cooperative and acted appropriately with the minor. Mother’s attorney then argued that the minor should be returned to mother given that she was now cooperating with the Department and had adequate housing. Counsel for the minor opined that Kaitlyn should not be returned home until mother demonstrated a history of stable housing and addressed her mental health issues. The Department joined in the arguments of minor’s counsel and noted that Kaitlyn’s weight continued to improve in out-of-home care. Moreover, mother’s numerous unresolved issues represented a substantial risk to the minor if she was returned. The court was concerned that mother had not engaged in services for very long. It told mother to work on her case plan to the best of her abilities and indicated it would adopt the recommendations of the Department. Thus, the court declared the minor to bea juvenile court dependent, removed her from the physical custody of her mother, and ordered reunification services for mother. The court also concluded that the ICWA did not apply to Kaitlyn’s case based on the noticing that had been completed.
Mother’s timely notice of appeal now brings the matter before this court.
II. DISCUSSION
A. Jurisdictional Findings
On appeal, mother challenges the juvenile court’s jurisdictional finding under subdivision (b) of section 300. Proof by a preponderance of the evidence is necessary to support a finding under subdivision (b). (§ 355, subd. (a).) However, on appeal, “[a] dependency court’s jurisdictional findings are reviewed under the substantial evidence test. [Citation.]Under this test, we resolve all conflicts in the evidence, and indulge all reasonable inferences that may be derived from the evidence, in favor of the court’s findings.” (In re Mia Z. (2016) 246 Cal.App.4th 883, 891 (Mia Z.).)
As is relevant here, dependency jurisdiction is warranted pursuant to subdivision (b) of section 300 if“[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness . . .by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment.” (§ 300, subd. (b)(1).)“The three elements for jurisdiction under section 300, subdivision (b) are: ‘ “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the [child], or a ‘substantial risk’ of such harm or illness.” ’” (In re B.T. (2011) 193 Cal.App.4th 685, 692.) Subdivision (b) also emphasizes that a child “shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b)(1).)In this regard, “[t]he court may consider past events in deciding whether a child currently needs the court’s protection.[Citation.] A parent’s ‘ “[p]ast conduct may be probative of current conditions” if there is reason to believe that the conduct will continue.’ ” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384.)
As stated above, in the present case the Department alleged that Kaitlyn fell within the purview of subdivision (b) because mother failed to follow through with consistent medical care and routine care for the infant, leading to her diagnoses of severe acne and severe thrush as well as her failure to gain a safe amount of weight, which placed her at risk of harm or death. The juvenile court agreed. Mother, in contrast,now asserts that the juvenile court’s subdivision (b) finding was erroneous because there was notsubstantial evidence that she acted neglectfully with respect to Kaitlyn’s weight. In addition, she claims that there was no evidence of any harm or risk of harm based on either Kaitlyn’s weight fluctuation or her other “common infant ailments.” Finally, mother urges that, even if there was sufficient evidence to initially detain the minor, by the jurisdictional hearing there was no evidence of continuing risk. We reject each of these arguments in turn.[4]
First,mother suggests that the fluctuation in Katlyn’s weight was not the result of negligence, but was instead tied to differing medical advice mother received regarding how and what to feed the baby. Specifically, it appears that mother breastfeed the minor for the first month of her life, and, as of her first well child visit, the baby had lost 4 ounces from her birth weight. Mother was then instructed to supplement, which she did, and Kaitlyn gained 4 ounces in three days. Kaitlyn gained an additional 4.5 ounces during her two-day hospitalization, although it is not clear what feeding plan was followed. Mother points out that the discharge paperwork from the hospital does not specifically state that she should continue supplementing her breastfeeding of the minor.[5] Thereafter, the baby again lost weight, down 3.5 ounces in two weeks.Mother was again instructed to supplement, and the baby had gained almost 6 ounces by the time she was detained four days later. Specifically, at detention Kaitlyn weighed approximately 8 pounds, 4 ounces. Thus, mother claims, she was not negligent, but simply followed the advice that she was given, believing it would insure that Kaitlyn was well fed.
Although the juvenile court might have adopted mother’s alternate explanation of events, it was not required to do soas long as substantial evidence supports the conclusion that mother acted negligently with respect to Kaitlyn’s weight. (See Mia Z., supra, 246 Cal.App.4th at p. 891 [“we resolve all conflicts in the evidence, and indulge all reasonable inferences that may be derived from the evidence, in favor of the court’s findings”].) We believe that is does.Indeed, when mother finally brought Kaitlyn to the clinic to be seen shortly before the minor’s detention, the medical provider expressly opined that Kaitlyn’s weight loss, acne, and thrush were all the “direct result of neglect.” Further, as set forth in the petition, this was not an inconsequential variation in weight, but was instead a precipitous decline from the 75th percentile at the minor’s birth to the 5th percentile six weeks later. Thus, while the minor’s weight might be described as fluctuating, on an overarching basis no meaningful gains were being made during a time when a significant, overall increase should have been seen. Further, as stated above, there was no medical explanation for the dramatic decline in the minor’s relative weight. And, tellingly, once the minor was placed in foster care, she consistently gained weight.As of August 11, 2015, Kaitlyn weighed 9 pounds, 11.2 ounces.[6]
Moreover, there were other indications in the record of mother’s neglectful parenting. When Kaitlyn was detained, she was filthy, with dirt covering her body, dirt under her fingernails and toenails, extreme redness on and around her vagina, grimy buildup in the folds of her armpits and neck, and a serious diaper rash. Mother also failed to bring the minor to a doctor in her first month of life, despite her weight issue; failed to schedule and attend appropriate follow up appointments for Kaitlyn after her hospitalization; and was uncooperative when asked by the Department to make the necessary medical appointments for the minor. All of these facts amply support the conclusion that mother was guilty of negligence with respect to the provision of food and medical care to her infant daughter.
Mother next argues that there was no evidence that Kaitlyn’s weight fluctuation, mother’s delay in attending medical appointments,or mother’s “ineffective home treatment of Kaitlyn’s common infant ailments” were linked to any actual harm or risk of harm to the minor. In particular, she notes that there was no evidence in the record that Kaitlyn suffered any ill effects from her weight loss, as the infant was never found to be dehydrated or physically delayed. Nor was she ever formally diagnosed as failure to thrive. Mother cites a number of cases in support of her position that such evidence is necessary to support a subdivision (b) finding where the case involves a minor with low weight. (See In re A.B. (2014) 225 Cal.App.4th 1358, 1361, 1364-1365 [two year old with failure to thrive, developmental delays, and decreased muscle tone]; In re Adam D. (2010) 183 Cal.App.4th 1250, 1253-1254 [five-month-old infant diagnosed with failure to thrive and dehydration who exhibited minimal head control, pronounced ribs, and loose and wrinkled skin on legs]; In re Susan M. (1975) 53 Cal.App.3d 300, 305-306 [two-month-old infant severely anemic, very malnourished, and tremendously dehydrated; had gained only 14 ounces since birth], superceded by statute on another ground as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 227, 228, fns. 6 & 7, 229-231.)
However, while these cases all uphold subdivision (b) findings on somewhat more extreme facts than those found here, they certainly do not stand for the proposition urged by mother that such facts must be present as a baseline before jurisdiction under subdivision (b) is appropriate. Rather, all that is necessary for purposes of subdivision (b) is a specific, defined risk of harm. (See In re David M. (2005) 134 Cal.App.4th 822, 830.) In the present case, the Department opined that the minor was at risk of failing to thrive, which could result in life-long developmental delays, illness, and/or death. Moreover, Taylor, the Nursing Director at Lake County Public Health, elaborated as follows: “[T]he first two years of life are critical for a child’s development. Sufficient nutrition is needed for brain growth. Failing to thrive, specifically in the first six months of life, can adversely affect brain growth, cause mental retardation, and impair cognitive, emotional, and behavioral development with irreversible life-long consequences.” Taylor went on to emphasize that there was no medical explanation for Kaitlyn’s decline from the 75th percentile to the 5th percentile for weight. We believe this is enough to establish that Kaitlyn was at substantial risk of harm without juvenile court intervention. As one court has stated in a related context: “ ‘ “[T]he minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” ’ ” (In re A.S. (2011) 202 Cal.App.4th 237, 247 (A.S.).)
Finally, mother’s argument that the subdivision (b) finding must be reversed because, by the jurisdictional hearing, there was no evidence of continuing risk to the minor also fails.It is true, as mother points out, that once the minor was detained in foster care she gained weight, regularly attended doctor’s appointments, and her thrush resolved. However, as we discuss at length below in the context of our dispositional analysis, we believe that substantial evidence nevertheless supports a finding that Kaitlyn remained at continued and significant risk of harm, not only at the time of the jurisdictional hearing, but as of the dispositional hearing as well. Thus, the juvenile court’s jurisdictional finding under subdivision (b) was sufficiently supported by the record in this case, and we will not here disturb it.
B. Dispositional Removal Order
Mother also argues that the juvenile court’s dispositional order in this matter should be reversed because insufficient evidence supports the court’s determination that Kaitlyn would be at substantial risk of harm if returned to mother’s careand because reasonable alternatives existed to removal which the court failed to consider. In order to remove a dependent child from a parent’s home at disposition, there must be clear and convincing evidence of a substantial danger to the child’s health, safety, or physical or emotional well-being that cannot be eliminated by reasonable means. (In re J.C. (2014) 233 Cal.App.4th 1, 6 (J.C.); In re H.E. (2008) 169 Cal.App.4th 710, 718-723 (H.E.).) Put another way, “ ‘[a] removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. . . . The court may consider a parent’s past conduct as well as present circumstances.’ ” (A.S., supra, 202 Cal.App.4th at p. 247.)
With respect to a removal order, “[o]ur review on appeal follows the ordinary rules for substantial evidence, notwithstanding that the finding below had to be made by clear and convincing evidence.” (H.E., supra, 169 Cal.App.4th at pp. 723-724; J.C., supra, 233 Cal.App.4th at p. 6.) “Viewing the evidence in the light most favorable to the finding, and presuming in its support the existence of every fact the trier could reasonably deduce, we ask whether any rational trier of fact could have made the finding by the requisite standard. [Citation.] Mere support for a contrary conclusion is not enough to defeat the finding [citation]; nor is the existence of evidence from which a different trier of fact might find otherwise in an exercise of discretion [citation].”(H.E., supra, 169 Cal.App.4th at p. 724.)
In the present case, the Department opined that there would be a continuing risk of harm to Kaitlyn if she was returned to mother’s custody because mother had an untreated mental health condition; had demonstrated an inability to provide Kaitlyn with adequate medical treatment and meet her basic needs; and had a history of inconsistent housing. According to the Department, the circumstances that led to its involvement still existed and “[r]eunification services will need to address these underlying issues before significant and sustainable change can be effected.” Mother contends that the recorddid not support the removal decision becausethe evidence showed that she had been living with her mother consistently from the child’s removal in July 2015 until the October 2015 dispositional hearing; it revealed no link between her past mental instability and any harm to Kaitlyn; and there was no evidence that mother would be unable to meet the minor’s current nutritional and medical needs. We are not persuaded.
For instance, we find the evidence of mother’s mental health issues detailed above to be of significant and continuing concern. It is true that “[h]arm to the child cannot be presumed from the mere fact of mental illness of the parent.” (In re Jamie M. (1982) 134 Cal.App.3d 530, 540.) Rather, “[t]he social worker must demonstrate with specificity how the minor has been or will be harmed by the parents’ mental illness.” (Id. at p. 542; see also id. at p. 540 [proper basis for ruling includes “specific examples of the manner in which the [parent’s] behavior has and will adversely affect the child or jeopardize the child’s safety”].) Here, however, there is specific evidence that mother was unable to properly care for the minor, leading to both general neglect and to Kaitlyn’s failure to gain sufficient weight in the crucial first weeks of her life, a serious situation which could have led to life-long developmental delays and even death.Moreover, although mother refers to her “past mental instability,” there is significant evidence that shecontinued to struggle. As stated above, mother admitted to feeling suicidal three to four times a month in January 2015 and frequently contacted the suicide hotline. Further, immediately prior to the dispositional hearing, in September 2015, mother reported suffering from flashbacks and anxiety as a result of domestic violence, stating that she had trouble sleeping and that the flashbacks caused her to become angry and black out. At that same time, mother told the social workers that she had an actual plan to commit suicide, but changed her mind after she thought about her children. Under such circumstances, it is reasonable to assume that mother’s untreated mental health problems were likely negatively impacting her ability to care for Kaitlyn, and thus it was necessary to assess and treat those issues prior to considering return of the minor to mother’s care.
In addition, with respect to housing issues, while mother’s residence may have been stable during the beginning four months of this case as mother asserts, prior to this relatively short period of time the record reveals a history of housing instability. In January 2014, there were concerns that mother was living with her children in the maternal grandparents’ home along with eleven other people. In January 2015, mother was reported to be homeless and living in a dog boarding facility. At that time, the Department offered her services to assist her in securing suitable housing. Nevertheless, in April 2015, the Department confirmed that mother was still living in the family’s pet grooming shop with her two older children while pregnant with Kaitlyn. And, while mother claimed to be living with the maternal grandparents from July 2015 until the October 2015 dispositional hearing, the Department received two additional referrals—one in July 2015 and one in September 2015—reporting that mother was living with her children in inadequate housing. Finally, even if mother was no longer actually living at the family pet shop, she admitted that she brought her children to work with her there, an environment described by the Department asdirty and covered with dog hair and where Jonathon was seen chewing on a pair of dog nail clippers. Thus, ample evidence supports the conclusion that mother continued to struggle with providing a safe and sanitary environment for her children.
Motheralso argues that there was no evidence at disposition that she would be unable to care for Kaitlyn going forward because, by that point, the minor was older and thus no longer required a demanding newborn feeding schedule; she was at a healthy weight; she only required monthly medical monitoring; and, at visits, mother was attentive to the minor's needs. Being a successful visitor, however, is not the same thing as rising to the challenge of day-to-day parenting. Moreover, there was evidence in the record that mother’s parenting deficit was a general one, not solely related to newborn care. Indeed, the evidence showed that mother was struggling to meet the basic needs of all three of her children. And, in fact, mother was assessed by the Department prior to the dispositional hearing and found to be at medium risk with respect to parental understanding and values. She was referred to parenting classes, but as of the dispositional hearing had only begun the process by attending two sessions. Thus, at the time of the dispositional hearing, it was reasonable to conclude that Kaitlyn would remain at risk of harm until mother was able to strengthen her parenting skills.
In sum, mother’s arguments to the contrary notwithstanding, substantial evidence supports the juvenile court’s conclusion that Kaitlyn's health, safety, and physical and emotional well-being would have beenjeopardizedhad she been returned to mother’s custody at disposition. Mother, however, finally argues that—even if the evidence shows substantial risk to Kaitlyn—the juvenile court erred in failing to consider less drastic alternatives to removal that could have safely maintained Kaitlyn with mother. (§ 361, subd. (c)(1) [prior to removal court must find that “there are no reasonable means” short of removal that would adequately protect the child].) In fact, mother suggests a laundry list of possibilities, including: unannounced visits; strict supervision; in-home bonding services; in-home nursing services; provision of a scale and daily weight reports; provision of formula; use of a lactation consultant; and/or keeping a daily feeding log. It is far from clear that any or all of these interventions, however, even if available, would have been sufficient to protect Kaitlyn. Rather, the evidence supports the Department’s conclusion that mother’s negligent failure to provide the minor with adequate nutrition was not an isolated problem, but was instead a symptom of a number of other underlying issues that mother needed to address. Given Kaitlyn’s young age, the severity of the deprivation she endured, the additional evidence of general neglect, and the Department's justifiable concerns regarding mother’s mental stability, we will not here second guess the juvenile court’s conclusion that no reasonable means existed to protect the minor at disposition short of removal from mother.
C. ICWA Compliance
As stated above, at the October 2015 dispositional hearingin this matter, the juvenile court made a finding that the ICWA did not apply to Kaitlyn based on the results of the noticing that had been completed by the Department. On appeal, mother for the first time contends that the ICWA noticing that was done in this case was defective. In particular, she claims that the notices generated by the Department were missing statutorily required information that was necessary for the tribes to review their records and make a valid determination regarding Kaitlyn’s Indian status. Thus, mother argues, the matter should be remanded for proper noticing in accordance with ICWA requirements. Although mother did not previously object to the juvenile court’s ICWA finding on this or any basis, a parent’s failure to object to improper ICWA noticing in the court below does not forfeit the issue on appeal. (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1166.) However, where, as here, notice has been received by the relevant tribes, we review any errors or omissions in that notice using a harmless error analysis. (See In re E.W. (2009) 170 Cal.App.4th 396, 402-403.) Thus, noticing deficiencies do not require remand where, “even if proper notice had been given, the child would not have been found to be an Indian child.” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 (D.N.).)
Congress enacted the ICWA in 1978 “in an effort to protect and preserve Indian tribes and their resources.” (In re G.L. (2009) 177 Cal.App.4th 683, 690; see 25 U.S.C. § 1901.) Specifically, the ICWA codifies “the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .” (25 U.SC. § 1902.) For purposes of the ICWA, an Indian child is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); see § 224.1, subd. (a) [generally adopting federal definition of “Indian child” in California].)
When a court “ ‘knows or has reason to know that an Indian child is involved’ in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child’s tribe notice of the pending proceedings and its right to intervene.” (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538 (Shane G.); see 25 U.S.C. § 1912(a); §§ 224.3, subd. (d), 290.1, subd. (f), 290.2, subd. (e), 291, subd. (g), 292, subd. (f), 293, subd. (g), 294, subd. (i), 295, subd. (g), 297, subd. (d).) This notice must contain sufficient information to allow the tribe to determine whether the child at issue is an Indian child. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Under section 224.2, this includes: “All names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (§ 224.2, subd. (a)(5)(C); see also 25 C.F.R. § 23.111(a), (d)(1)-(4) (2016).) In contrast, “if there is insufficient reason to believe a child is an Indian child, notice need not be given.” (Shane G., supra, 166 Cal.App.4th at p. 1538.)
In addition to this notice requirement, both the juvenile court and the county welfare department have “an affirmative and continuing duty” in dependency proceedings “to inquire whether a child . . . is or may be an Indian child.” (§ 224.3, subd. (a).) Circumstances that may provide reason to know a child is an Indian child include without limitation: “(1) A person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe. [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is in a predominantly Indian community. [¶] (3) The child or the child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.” (§ 224.3, subd. (b); see also rule 5.481(a)(5).) “If these or other circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child’s possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility.” (Shane G., supra, 166 Cal.App.4th at p. 1539; see also § 224.3, subd. (c).) If the inquiry leads the court or the social worker to “know or have reason to know an Indian child is involved,” formal notice to the relevant tribes must then be provided as set forth above.[7](Shane G., supra, 166 Cal.App.4th at p. 1539; see also § 224.3, subd. (d).)
In the present case, mother initially stated on the Parental Notification of Indian Status form (ICWA-020) that she might have Indian ancestry through the Blackfeet or Cherokee tribes. She did not claim that either she or the minor were members of, or eligible for membership in, a recognized tribe. According to the ICWA Compliance Report filed in this matter by the Department prior to the dispositional hearing, “[t]he Department’s practice for ICWA noticing is to make diligent efforts to gather all available familial information and to thoroughly complete the ICWA-30: Notice of Child Custody Proceeding for Indian Child.” All four noticed tribes ultimately responded to the Department stating that, given the information provided, Kaitlyn was not considered to be an Indian child for purposes of the ICWA. Based on the compliance documentation supplied by the Department, the juvenile court concluded that notice was properly given and that the ICWA did not apply to this case.
Mother now asserts that the notices generated by the Department were incomplete because they did not contain mother’s place of birth; mother’s former address; the alleged father’s name; any information regarding the alleged father’s relatives;any identifying information regarding the maternal grandfather, other than his name; information regarding the maternal great-grandmother’s current address, maiden name, or year and place of birth; and any identifying information regarding the maternal great-grandfather. It is true, as stated above, that both state and federal law require ICWA notices to include all knownnames for these individuals as well as specific other identifying information,if known. (See § 224.2, subd. (a)(5)(C); see also 25 C.F.R. § 23.111(a), (d)(1)-(4)(2016); see also In re Francisco W. (2006) 139 Cal.App.4th 695, 703 (Francisco W.).) Moreover, ICWA notice requirements are strictly construed, and notices must contain enough information to be meaningful. (Francisco W., supra, 139 Cal.App.4th at p. 703.) However, we see no evidence here of significant error on the Department’s part, and certainly no prejudicial error.
First, the notice properly excluded information regarding the alleged father and his relatives. “An alleged father may or may not have any biological connection to the child. Until biological paternity is established, an alleged father’s claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indian heritage through the alleged father.” (In re E.G.(2009) 170 Cal.App.4th 1530, 1533.) Indeed, even mother admits this information was not “crucial”because the claimed Indian ancestry was not on the alleged father’s side. (See Francisco W., supra, 139 Cal.App.4th at p. 703.)
Next, as the record in this case indicates that mother lived variously in a tent, with her mother, and in the family grooming shop, it is reasonable to conclude that she had no former addresses to report that were not already included in the noticing. Similarly, since the record reveals that mother was estranged from her birth father—growing up with her mother and step-father—it is not unreasonable that only the maternal grandfather’s name would be known. Finally, as mother acknowledges, given the “relative thoroughness of the information for the maternal grandmother,” not to mention the fact that mother lived with her, it is reasonable to conclude that the social worker spoke with her regarding these ICWA issues. This suggests that she had no more information about the maternal great-grandparents than that which was provided. Given the Department’s assertion that it is Departmental practice to gather all available information and to thoroughly complete the required noticing, and absent any evidence to the contrary, we conclude that the notices reflected all of these required categories of information to the extent known by the Department. (See § 224.2, subd. (a)(5)(C); see also 25 C.F.R. § 23.111(a), (d)(1)-(4) (2016).)
This leaves only the absence of mother’s place of birth on the notice form. Since mother reported her birth place to the social worker when interviewed in September, presumably the social worker could have asked for this information earlier and included it in the ICWA noticing that went out in August. However, given the fact that the notices contained both mother’s name and her date of birth, we do not believe the absence of her place of birth was a meaningful omission that would have unduly hampered the noticed tribes in searching their records and making a determination as to Kaitlyn’s eligibility for tribal membership. Since, “even if proper notice had been given, the child would not have been found to be an Indian child,” we see no cause for remand. (D.N., supra, 218 Cal.App.4th at p. 1251.)
III. DISPOSITION
The judgment is affirmed.






_________________________
REARDON, J.


We concur:


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RUVOLO, P. J.


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STREETER, J.














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In re Kaitlyn A. A146774

[1] All statutory references are the Welfare and Institutions Code unless otherwise specified.
[2] According to mother, Kaitlyn’s biological father is William A. (father). Although he is also the alleged father of her two other children, father was not present at Kaitlyn’s birth, had not provided any kind of support for her, and had not been in contact with mother since before the minor was born.The petition included an allegation pursuant to subdivision (g) of section 300 that father had failed to protect Kaitlyn and had left her without support. His whereabouts remained unknown throughout theproceedings below, and he is not involved with this appeal.
[3]There was one occasion, on July 31, that the minor’s weight actually went down—from nine pounds, one ounce the previous week to eight pounds, five ounces. However, the minor was weighed on a different scale that day and medical staff opined that the drop in weight was most likely a result of the different scales.
[4] The Department argues that we should not entertain mother’s jurisdictional challenge to subdivision (b) because the juvenile court also sustained a subdivision (g) finding based on the alleged father’s absence and failure to support Kaitlyn, a finding which has not been attacked on appeal. “It is a fundamental principle of appellate practice that an appeal will not be entertained unless it presents a justiciable issue.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1489 (I.A.).) Application of the doctrine of justiciability in the dependency context leads to the conclusion that “[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nevertheless, the reviewing court does have the discretion to consider the adequacy of additional jurisdictional grounds if it so desires. (I.A., supra, 201 Cal.App.4th at p. 1493.) Here, biological paternity has not been established; the whereabouts of the alleged father have remained unknown throughout the proceedings; the only parent before the court seeking custody ofKaitlyn is mother, the parent from whom custody was taken because of the allegations sustained in the subdivision (b) finding; and the dispositional orders, which mother also challenges, are based solely on this subdivision (b) conduct. Under such circumstances, we will reach the merits of mother’s jurisdictional argument.
[5] The discharge paperwork does say, however, that Kaitlyn should “resume usual diet,” which, immediately prior to her admission, included supplementation with formula.
[6] This was the last weight reported to the juvenile court prior to its jurisdictional finding on September 14, 2015. In fact, however, on September 3, 2016, shortly before the jurisdictional hearing, the minor weighed 10 pounds, 11 ounces.
[7] Federal guidelines with respect to the ICWA contain similar inquiry suggestions. (Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act(Guidelines),81 Fed. Reg. 96476-96477 (Dec. 2016) [indicating online access to Guidelines]; Guidelines pp. 9-12, 30-35.)