Filed 6/9/22 In re Lorissa R. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEALS from orders of the Superior Court of Los Angeles County, Kristen Byrdsong, Juvenile Court Referee. Conditionally affirmed with directions.

Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant Eugene R.

Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant Bria S.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________________________________

INTRODUCTION

Eugene R. and Bria S., parents of now six-year-old Lorissa R. and five-year-old Alexandria R., appeal separately from the juvenile court’s jurisdiction findings and disposition order declaring Lorissa and Alexandria dependent children of the juvenile court under Welfare and Institutions Code section 300.[1] Bria does not contest jurisdiction, but she argues substantial evidence did not support the order removing the children from her custody. Eugene contests every basis of jurisdiction, as well as the orders removing the children from him and implementing a case plan that required monitored visitation, individual counseling, and domestic violence education. Bria and Eugene also contend the Los Angeles County Department of Children and Family Services did not comply with the inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law.

We conclude substantial evidence supported the juvenile court’s jurisdiction findings under section 300, subdivision (b)(1), and the order removing the children from their parents. We also conclude the juvenile court did not abuse its discretion in ordering monitored visitation, individual counseling, and domestic violence classes for Eugene. The Department concedes it failed to comply with the inquiry and notice requirements under ICWA and California law regarding the children’s possible Indian ancestry through their maternal relatives. The Department also concedes it failed to comply with the notification requirement concerning the children’s possible Indian ancestry through their paternal relatives. Therefore, we conditionally affirm the court’s jurisdiction findings and disposition orders and direct the juvenile court to ensure the Department complies with its duties under ICWA and California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Family Has a History of Domestic Violence

In 2017, when Alexandria was 12 days old, Eugene called law enforcement after Bria hit him on the head with a remote control, causing him to bleed. Bria and Eugene conceded that 18‑month-old Lorissa was in the room and that one of them (although they dispute who) was holding Alexandria. Bria claimed that Eugene had his hands around her neck and that she acted in self-defense. Both parents reported a history of domestic violence to the responding officers, but Eugene declined an emergency protective order. Bria moved out of the house, and a family law mediator recommended services for her.

In 2018 Bria stabbed Eugene in the arm with a kitchen knife while the children were in another room watching television. Bria claimed that she and Eugene were arguing over what television station to watch, and Eugene punched her and banged her head. Eugene called law enforcement, Bria was arrested and that Eugene accepted an emergency protective order. Bria eventually served seven months in jail. On September 24, 2018 the court issued a 10-year criminal protective order against Bria that identified Eugene (but not the children) as the protected person.[2] The protective order stated Bria could have contact with Eugene only to safely exchange the children for court-ordered visitation. In November 2019 Bria completed a 52‑week domestic violence treatment program.

Despite the protective order, Eugene allowed Bria to visit with the children in his presence and eventually allowed her to move back to the family home after she lost her job as a result of the COVID-19 pandemic. Eugene was undergoing treatment for cancer and needed help caring for the children. In July 2020, one month after Bria returned,[3] Bria and Eugene had another altercation when Eugene and Lorissa were trying to call Eugene’s adult daughter Samantha (whose mother is not Bria) on the phone. According to Eugene, Bria slapped Lorissa on the side of her head while trying to take the phone from her. According to Bria, Eugene responded by hitting her on the back of her head, which Eugene denied. Law enforcement arrested Bria for violating the protective order.

A Department social worker interviewed Lorissa, who was five years old at the time, and Lorissa said her mother slapped her on the ear. Lorissa denied Bria had ever hit her before and said her father never hit her. Lorissa stated she was scared of Bria because Bria hit her. In a later interview a social worker again asked Lorissa if her father ever hit her. Lorissa said, “‘Daddy slaps on the butt and I cried.’” When asked if Eugene hit her with his hand, Lorissa “indicated physically it was a belt.” Lorissa also told the social worker her parents “‘hit each other,’” which she demonstrated by slapping her own face.

Alexandria, who was three years old, told the Department social worker that Bria never hit her, but that Bria hit Lorissa because Lorissa hit Bria. Alexandria said that Eugene “hits ‘all of us if we touch the stuff and his glasses’” and that he is “‘mad a lot.’” Alexandria also said her father slapped her with a belt on her knee. Alexandria stated she was scared of her father, but not of Bria. When asked whether her parents ever hit each other, Alexandria yelled, “‘Oweee!’” None of the witness reported seeing marks or bruises on Lorissa or Alexandria.[4]

Eugene’s adult daughter Samantha confirmed she was on the phone with Eugene and Lorissa during the July 2020 incident. Samantha said that Lorissa was crying during the call and that Lorissa said Bria had hit her. Samantha also reported that Eugene sexually abused her when she was 14 and that she had a six-year restraining order against him. Samantha’s mother and adult sister Jamie confirmed Eugene sexually abused Samantha. Samantha asked the court to terminate the restraining order so she could have a relationship with her father and younger half-sisters.

Samantha helped Eugene care for the girls once a week or every other week and initially told the Department social worker that Eugene did not hit the girls and that neither of them appeared afraid of their father. During a later interview, however, Samantha told a Department social worker that Lorissa told her she was “scared sometimes because he gets angry with her.” Samantha also said Eugene disciplined her with a belt when she was young, leaving marks and bruises. Samantha’s adult sister Jamie said Eugene “smacked” her and Samantha on the head with his hand and hit them on the bottom “with anything he could find, like a shoe, a broom, or a wooden spoon.”

Bria told the social worker Eugene had been hitting her for several weeks leading up to the stabbing incident in 2018. According to Bria, on that day Eugene was “yelling and screaming” and he “walked up to her, started pushing her and punched her on the back of the head a few times.” Bria said she called the police. She denied slapping Lorissa in July 2020 and accused Eugene of coaching Lorissa “to say all kinds of things.” Bria said Eugene’s cancer therapy caused “bad mood swings” and erratic behavior. She said that during the month she lived in the house with Eugene he punched and pushed her twice and in the children’s presence tried to put a pillow over her face while she slept. Bria also told a Department social worker Eugene hit the children several times a week, including with a belt, to discipline them. She said that she sometimes tried to intervene to stop Eugene, but that she “was scared, too.” Bria did not contact law enforcement because she knew she was not supposed to have contact with Eugene, but she claimed she told Eugene that using a belt to spank the girls was against the “rules.” Bria also said she never saw marks or bruises on Lorissa or Alexandria after Eugene hit them with a belt.

The Department learned that in 2015, before Lorissa and Alexandria were born, police in Bakersfield responded to an incident of domestic violence between Bria and Eugene. Bria claimed that during an argument in a car Eugene squeezed her neck with his hands until she could not breathe. Bria told police officers she did not want Eugene arrested, stating she “‘probably deserved it.’” The Bakersfield police learned Eugene had a domestic violence restraining order from Los Angeles County Superior Court identifying another woman as the protected person. Police officers arrested Eugene, who conceded he pushed Bria but denied choking her.

After the July 2020 incident where Bria slapped Lorissa, Bria went to live temporarily with her grandmother, who told a Department social worker she sometimes helped Eugene care for Lorissa and Alexandria. Bria’s grandmother reported she had a confrontation with Eugene in front of the children where Eugene “‘man handled’” her by throwing her against a wall and holding up her arms. The argument began after the maternal great-grandmother told Eugene “it didn’t look good” for him to be playing in a “kiddie swimming pool” with Lorissa while Lorissa was naked.

Eugene denied he ever used a belt to strike Lorissa or Alexandria, but he admitted he threatened them with a belt and played unspecified “‘mind games.’” He said there is never “‘any reason to strike my little girls, never.’” After Bria was arrested for violating the criminal protective order, Eugene told a Department social worker he was aware of the protective order and intended to have it modified after restrictions related to the COVID-19 pandemic were lifted. He said he would not allow Bria back into the house or to care for the children.

B. The Department Files a Petition Under Section 300, and the Juvenile Court Detains the Children

On August 24, 2020 the Department filed a petition on behalf of Lorissa and Alexandria alleging jurisdiction under section 300, subdivisions (a), (b), (d), and (j). The Department alleged under section 300, subdivision (a), the children had suffered or there was a substantial risk they would suffer serious physical harm inflicted nonaccidentally because their parents had physical altercations in their presence, Bria physically abused Lorissa, and Eugene used a belt to discipline the children. The Department alleged under section 300, subdivision (b), the children had suffered or there was a substantial risk they would suffer serious physical harm or illness as a result of Bria’s and Eugene’s failure or inability to supervise or protect the children adequately because Eugene knowingly violated the criminal protective order against Bria, the parents had a history of domestic violence in the children’s presence, Bria physically abused Lorissa, Eugene used a belt to discipline the girls, and Eugene sexually abused Samantha. The Department alleged under section 300, subdivision (d), there was a substantial risk Lorissa and Alexandria would be sexually abused because Eugene sexually abused Samantha. Finally, the Department alleged under section 300, subdivision (j), Bria’s physical abuse of Lorissa created a detrimental home environment and placed Alexandria at risk of “physical harm, damage, danger, physical abuse and failure to protect.” On August 27, 2020 the juvenile court detained the children from their parents.

C. Bria and Eugene Indicate They May Have Indian Ancestry

Before the Department filed the petition, Eugene denied he had any Indian ancestry. Bria said she believed she had Indian ancestry from her father, but she had little contact with him and could not name a tribe. Bria’s Parental Notification of Indian Status form stated that she may have Indian ancestry, that the name of the tribe was unknown, and that she would try to find contact information for relatives in North Carolina who might know more. Eugene’s Parental Notification of Indian Status form also indicated he may have Indian ancestry from the Sioux tribe. At the detention hearing on August 27, 2020, however, the juvenile court stated Eugene’s form identified possible affiliation with the Seminole tribe.

On September 22, 2020 Bria reported that both her maternal and paternal great-grandmothers had Cherokee ancestry, but that she could not provide names or dates of birth for either great-grandmother. Bria also said she could not provide any contact information that would assist the Department in conducting an investigation. On September 22, 2020 Eugene reported his ancestors may have been members of the Seminole tribe, but he did not provide any additional information.

The Department sent notices under ICWA to the Cherokee and Seminole tribes. The Department did not send a notice to the Sioux tribe, nor is there any indication the Department questioned Bria’s mother or grandmother about the children’s possible Indian ancestry. The notices to the Cherokee and Seminole tribes did not include the name of Bria’s grandmother the Department had interviewed and stated the name of Bria’s mother incorrectly. The Department received responses from three Cherokee tribes, two Seminole tribes, and the Bureau of Indian Affairs indicating the children were not Indian children within the meaning of ICWA. On December 15, 2020 the juvenile court found there was no reason to believe ICWA applied.

D. The Juvenile Court Sustains the Petition, Declares the Children Dependent Children of the Court, Removes the Children from Their Parents, and Orders Services for Bria and Eugene

At the December 15, 2020 jurisdiction hearing, both parents asked the court to dismiss the allegations against them. Regarding the physical abuse allegation against Eugene, counsel for Eugene said Eugene “adamantly denie[d] that he struck his children with [a] belt.” Counsel for the children stated they supported all alleged counts except those based on Eugene’s past sexual abuse of Samantha. The juvenile court agreed with the counsel for the children, dismissed the counts alleging sexual abuse, and sustained all others.

At the January 21, 2021 disposition hearing, the juvenile court declared the children dependent children of the court under section 300 and removed the children from their parents. The court found by clear and convincing evidence that allowing the children to remain in the home of either parent would pose a substantial danger to the children’s physical health, safety, protection, physical and emotional well-being and that there were no reasonable means to prevent removal, given the unresolved issues of domestic violence, physical abuse, and Bria’s untreated mental health issues.[5] Given the long history of domestic violence between the parents and their continued “abusive behavior,” the court implemented the case plans submitted by the Department in their entirety. The case plan for Eugene included individual counseling, conjoint counseling, 52 weeks of domestic violence counseling, and monitored visitation. The court gave Bria credit for domestic violence and anger management classes she already completed. The disposition order restated the court had no reason to know Lorissa and Alexandria were Indian Children under ICWA. Bria and Eugene separately and timely appealed.

DISCUSSION

Bria argues that substantial evidence did not support the juvenile court’s order removing the children from her custody and that the court and the Department failed to comply with ICWA and California law. She does not contest the juvenile court’s jurisdiction findings. Eugene challenges all the court’s jurisdiction findings based on both his and Bria’s conduct. He also argues that substantial evidence did not support the court’s removal order and that the court abused its discretion in ordering him to participate in domestic violence and counseling programs and in requiring monitored visitation. Eugene also argues the Department failed to comply with its obligation under ICWA to notify the Sioux tribe.

A. Substantial Evidence Supported the Juvenile Court’s Jurisdiction Findings

1. Justiciability

“‘When 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 I.J. (2013) 56 Cal.4th 766, 773; accord, In re Drake M. (2012) 211 Cal.App.4th 754, 762.) Thus, we can affirm the juvenile court’s jurisdiction findings if substantial evidence supports any alleged count.

Eugene argues we should consider whether substantial evidence supported the juvenile court’s finding on every sustained count. Eugene cites the well-settled justiciability rule that a court of appeal may exercise its discretion to consider the merits of an otherwise moot challenge to a jurisdiction finding “‘when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) “could have other consequences for [the appellant], beyond jurisdiction.”’” (In re L.O. (2021) 67 Cal.App.5th 227, 237; see In re Drake M., supra, 211 Cal.App.4th at pp. 762-763.) Eugene further argues, without distinguishing among the various bases for jurisdiction, that “each of the jurisdiction findings as to Eugene served as the basis for the juvenile court’s dispositional orders” and will prejudice Eugene by “potentially impact[ing] the current or future dependency proceedings.” He argues the jurisdiction findings also could have consequences beyond jurisdiction, “particularly in his child custody arrangements” with Bria.

The sustained counts under section 300, subdivision (b)(1), provide ample support for the disposition orders (as we will discuss), and Eugene fails to explain why the findings under this subdivision of section 300 are more or less prejudicial or consequential than the findings under any other subdivision. Moreover, Eugene does not identify any pending family law case that could be impacted by the juvenile court’s findings. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1493 [court declined to review jurisdiction findings where the father did not suggest “a single specific legal or practical consequence” from the juvenile court’s jurisdiction finding]; see also In re Briana V. (2015) 236 Cal.App.4th 297, 308.) Therefore, we will not address his challenges to all the juvenile court’s jurisdiction findings; we will only determine whether substantial evidence supported the court’s jurisdiction finding under section 300, subdivision (b)(1). And conclude it does.

2. Applicable Law and Standard of Review

“At the first stage of dependency proceedings, the juvenile court determines whether [a] child is subject to juvenile court jurisdiction; [the child protective agency] has the burden to prove jurisdiction by a preponderance of the evidence.” (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Section 300, subdivision (b)(1), provides for juvenile court jurisdiction when a “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of [the] parent . . . to adequately supervise or protect the child, or . . . to provide regular care for the child due to the parent’s or guardian’s mental illness . . . .” A jurisdiction finding under section 300, subdivision (b)(1), requires the Department to prove (1) the parent’s neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness. (In re R.T. (2017) 3 Cal.5th 622, 624; In re Ma.V. (2021) 64 Cal.App.5th 11, 21-22; In re L.W. (2019) 32 Cal.App.5th 840, 848.)

“‘[T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’” (In re Ma.V., supra, 64 Cal.App.5th at p. 23; see In re Cole L. (2021) 70 Cal.App.5th 591, 601-602.) The court may consider past events in deciding whether a child presently needs the court’s protection. (In re J.N. (2021) 62 Cal.App.5th 767, 775; see In re Cole L., at p. 602; In re Ma.V., at p. 23.) “‘To establish a defined risk of harm at the time of the hearing, there “must be some reason beyond mere speculation to believe the alleged conduct will recur.”’” (In re Cole L., at p. 602; see In re Ma.V., at p. 23 [there must be some reason to believe acts creating a risk of harm to the child may continue in the future]; In re J.N., at p. 775 [there must be “a nexus between the parent’s past conduct and the current risk of harm”].)

We review challenges to the sufficiency of the evidence underlying jurisdiction findings for substantial evidence. (In re Ma.V., supra, 64 Cal.App.5th at p. 22; In re J.S. (2021) 62 Cal.App.5th 678, 685.) “‘“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.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.”’” (In re I.J., supra, 56 Cal.4th at p. 773; see In re Caden C. (2021) 11 Cal.5th 614, 641 [“In reviewing factual determinations for substantial evidence, . . . [t]he determinations should ‘be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.’”]; In re Israel T. (2018) 30 Cal.App.5th 47, 51 [“On appeal, ‘“we must uphold the court’s [jurisdiction] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.”’”].)

“‘Substantial evidence is evidence that is “reasonable, credible, and of solid value”; such that a reasonable trier of fact could make such findings.’” (In re L.W., supra, 32 Cal.App.5th at p. 848; accord, In re J.S., supra, 62 Cal.App.5th at p. 685.) “‘“Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.’”” (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; see In re Ma.V., supra, 64 Cal.App.5th at p. 22 [“Substantial evidence indicates more than a smidgeon or trace; it must be meaningful and significant and cannot be merely speculative.”].) The appellant has the burden to show there is no evidence of a sufficiently substantial nature to support the findings or order. (In re R.V. (2012) 208 Cal.App.4th 837, 843.)

3. Substantial Evidence Supported the Jurisdiction Findings Under Section 300, Subdivision (b)(1)

The juvenile court sustained four counts under section 300, subdivision (b)(1): count b-1 alleged Bria and Eugene “created a detrimental and endangering home environment for the children in that the father violated a Criminal Protective Order”; count b-2 alleged Bria and Eugene had a “history of engaging in violent verbal and physical altercations in the presence of the children”; count b-3 alleged Bria physically abused Lorissa in July 2020 by striking her on the ear with an open hand; and count b-4 alleged Eugene physically abused the children by striking them with a belt.[6] All four findings served as bases for disposition orders.

Eugene argues that at the time of the jurisdiction hearing the children were not at risk of harm because he and Bria were no longer living together; his physical altercations with Bria did not place Lorissa and Alexandria “at risk, even when they were present”; Bria struck Lorissa accidentally; and Eugene’s use of a belt to discipline the children was “reasonable.” None of these arguments undermines the substantial evidence that supported the counts sustained under section 300, subdivision (b)(1).

First, Bria and Eugene’s separation did not necessarily mitigate the risk of future harm to Lorissa and Alexandria. Eugene and Bria knowingly violated a criminal protective order so that Bria could help care for the children while Eugene received medical treatment. Although Eugene told a Department social worker he had no intention of living with Bria in the future, he violated a court order to live with Bria in the past, even after multiple episodes of domestic violence that led to Bria’s incarceration and the protective order. At the time of the jurisdiction hearing, the juvenile court reasonably could infer Eugene and Bria might live or spend time together again, especially in light of Eugene’s continuing medical treatment. Moreover, evidence showing Eugene engaged in domestic violence with other women, including Bria’s grandmother and a past partner of Eugene, also demonstrated a risk of future harm to the children. Because “‘past violent behavior in a relationship is “the best predictor of future violence,”’” Eugene very well could use physical force in a future relationship. (See In re E.B. (2010) 184 Cal.App.4th 568, 576 [“‘Even if a batterer moves on to another relationship, he will continue to use physical force as a means of controlling his new partner.’”], disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)

Second, that Lorissa and Alexandria were not injured during (all but one of) the incidents that occurred while Bria lived with Eugene did not reduce the risk of harm to them. A “juvenile court may invoke jurisdiction under section 300, subdivision (b), even if a child has emerged physically unscathed from an instance of domestic violence.” (In re L.O., supra, 67 Cal.App.5th at p. 239.)

Third, the purported “accidental” injury Bria inflicted on Lorissa during an episode of domestic violence supported jurisdiction under section 300, subdivision (b)(1). The “potential for accidental injury during parents’ physically violent fights in the presence of bystander children . . . constitutes a failure or inability to protect the child, creating the potential for dependency jurisdiction under section 300, subdivision (b)(1).” (In re Cole L., supra, 70 Cal.App.5th at p. 603; see In re V.L. (2020) 54 Cal.App.5th 147, 156 [“[e]ven if a child suffers no physical harm due to domestic violence, a ‘cycle of violence between . . . parents constitute[s] a failure to protect [a child] “from the substantial risk of encountering the violence and suffering serious physical harm or illness from it”’”].)

Finally, Eugene did not argue in the juvenile court that using a belt to discipline Lorissa and Alexandria fell within the “‘reasonable parental discipline doctrine’” under In re D.M. (2015) 242 Cal.App.4th 634. In D.M. the court held “[w]hether a parent’s use of discipline on a particular occasion falls within (or instead exceeds) the scope of [the] parental right to discipline turns on three considerations: (1) whether the parent’s conduct is genuinely disciplinary; (2) whether the punishment is ‘necess[ary]’ (that is, whether the discipline was ‘warranted by the circumstances’); and (3) ‘whether the amount of punishment was reasonable or excessive.’” (In re D.M., at p. 641.) Applying these factors, the court in D.M. concluded that a mother’s “‘rare’” use of her hand or a sandal to spank her children on the buttocks did not necessarily support jurisdiction under section 300, subdivision (b)(1). (In re D.M., at pp. 637, 643.) Because Eugene argued only that he did not use a belt to discipline Lorissa and Alexandria at all, and not that his use of a belt was reasonable, the juvenile court had no occasion to consider the factors set forth in D.M. Therefore, assuming D.M. was correctly decided, Eugene forfeited the argument his method of discipline was reasonable under the standard in that case. (See In re Daniel B. (2014) 231 Cal.App.4th 663, 672 [an objection “‘must state the ground or grounds upon which the objection is based’” to preserve an issue on appeal]; see also In re S.B. (2004) 32 Cal.4th 1287, 1293 [dependency matters are not exempt from the forfeiture rule]; In re Malick T. (2022) 73 Cal.App.5th 1109, 1127 [same].)

B. Substantial Evidence Supported the Order Removing the Children from Bria and Eugene

1. Applicable Law and Standard of Review

“[T]o support removal from parental custody, [the Department] has the burden to prove by clear and convincing evidence that there is a risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child’s safety.” (In re Yolanda L., supra, 7 Cal.App.5th at p. 992; see § 361, subd. (c); In re D.P. (2020) 44 Cal.App.5th 1058, 1068.) “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 focus of the statute is on averting harm to the child.’ [Citation.] The court may consider a parent’s past conduct as well as present circumstances.” (In re N.M. (2011) 197 Cal.App.4th 159, 170; accord, In re Alexzander C. (2017) 18 Cal.App.5th 438, 451, disapproved on another ground in Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.)

“When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011-1012; see In re V.L., supra, 54 Cal.App.5th at p. 149.)

2. Substantial Evidence Supported Removal

Bria argues her completion of services at the time of the disposition hearing, coupled with her separation from Eugene, showed that the children would be safe in her care. On December 18, 2020, after the juvenile court made its jurisdiction findings but before the disposition hearing, Bria provided the Department a certificate of completion of a 12-week parenting class in which the instructor commended Bria’s motivation to learn and develop new parenting skills.

As discussed, that Bria and Eugene did not intend to live together again did not mean they would not spend time together in the future and in the children’s presence. Bria visited and then lived with Eugene, and Eugene allowed her to move into his home, despite a protective order prohibiting Bria from having any contact with Eugene. Moreover, the year-long domestic violence program Bria completed in November 2019 did not keep her from slapping Lorissa during an argument with Eugene. Thus, the juvenile court reasonably could have found it was unlikely the parenting class Bria completed before the disposition hearing would be sufficient to keep Lorissa and Alexandria safe in her care. (See In re Nathan E. (2021) 61 Cal.App.5th 114, 124 [“evidence that completing a domestic violence training program did not stop [mother’s] domestic violence with father” supported removal]; In re T.V. (2013) 217 Cal.App.4th 126, 136 [father’s failure to address “anger issues even though he had previously participated in domestic violence treatment and therapy” supported removal].) And Bria never took responsibility for slapping Lorissa, which Eugene, Lorissa, Alexandria, and Samantha all witnessed or experienced to some degree. Bria’s failure to account for her conduct contributed to the children’s risk of harm in her custody. (See In re L.O., supra, 67 Cal.App.5th at p. 245 [parents’ dispute over who had physically abused the child supported the finding that the child was “unsafe” in either parent’s custody]; In re V.L., supra, 54 Cal.App.5th at p. 156 [“A parent’s denial of domestic violence increases the risk of it recurring.”].)

Eugene argues substantial evidence did not support removing the children (at least from him) because he met all of the children’s needs, he “never behaved inappropriately with the children,” the “children did not look beaten or abused,” and, to the extent Eugene used a belt to discipline them, his conduct was “reasonable.” Even crediting these assertions, they fail to address his lengthy history of domestic violence with multiple women that required police intervention. That history continued to place Lorissa and Alexandria at risk of harm and supported the juvenile court’s order removing them from Eugene. (See In re V.L., supra, 54 Cal.App.5th at pp. 156-157 [a reasonable factfinder could conclude it was “highly probable that placement of minors with father would pose a substantial risk of them being harmed by exposure to future domestic violence” where the father had a history of recurring domestic violence].)

C. The Juvenile Court Did Not Abuse Its Discretion in Ordering Counseling and Monitored Visitation for Eugene

Eugene argues the juvenile court abused its discretion in requiring him to participate in a 52-week domestic violence class and individual and conjoint counseling and in allowing only monitored visitation with Lorissa and Alexandria. Section 362, subdivision (a), provides that “the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of [a] child [described by section 300], including medical treatment, subject to further order of the court.” Such orders may include “a direction to participate in a counseling or education program,” so long as “[t]he program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the child is a person described by Section 300.” (§ 362, subd. (d).) Regarding visitation, section 362.1, subdivision (a)(1)(A) provides, “Visitation shall be as frequent as possible, consistent with the well-being of the child.”

Section 362 “grants the court broad discretion to determine what best serves and protects the child’s interest and to fashion any appropriate dispositional order that furthers that interest.” (In re Kayla W. (2017) 16 Cal.App.5th 409, 418; see In re K.T. (2020) 49 Cal.App.5th 20, 24 [“The juvenile court has ‘wide latitude’ in formulating reasonable disposition orders for the care, custody, support, and well-being of juvenile dependents.”].) Therefore, we review for abuse of discretion the juvenile court’s disposition order requiring Eugene to participate in counseling and education programs and requiring monitored visitation. (See In re I.R. (2021) 61 Cal.App.5th 510, 522; In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)

The juvenile court did not abuse its discretion in requiring Eugene to participate in counseling and education programs or by requiring monitored visitation. The record showed Eugene had a history of domestic violence, including in the presence of children, which supported the court’s order for a 52-week domestic violence class. Eugene argues he “did not need to participate in individual or conjoint counseling, because he had a good relationship” with his daughters. But the record showed Lorissa expressed some fear of Eugene, Alexandria said her father was mad “‘a lot,’” and both girls had internalized their parents’ domestic violence to some degree. Eugene cites to interviews where Samantha, Jamie, and the children’s great-grandmother told social workers that Lorissa and Alexandria were not scared in Eugene’s presence. But the record also included statements from Samantha that Lorissa was afraid of her father and from Lorissa that she cried after Eugene hit her. The juvenile court was entitled to credit the latter set of reports. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court.”].)

D. The Court and the Department Failed To Comply with ICWA and Related California Law

“ICWA provides: ‘“In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” [Citation.] This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.’ [Citations.] ‘ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family.’” (In re J.C. (2022) 77 Cal.App.5th 70, 76-77; see 25 U.S.C. § 1902.)

“‘“‘Federal regulations implementing ICWA . . . require that state courts “ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” [Citation.] The court must also “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.”’”’” (In re J.C., supra, 77 Cal.App.5th at p. 77; see 25 C.F.R. § 23.107(a) (2021).) “‘State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an “affirmative and continuing duty to inquire” whether a child in the dependency proceeding “is or may be an Indian child.”’” (In re J.C., at p. 77.)

Bria and Eugene argue the juvenile court and the Department failed to comply with ICWA and corresponding California law. Bria argues the Department failed to comply with the duty of inquiry under ICWA by failing to ask Bria’s mother and grandmother about the children’s possible Indian ancestry from the Cherokee tribe, even after Bria told the Department she had Indian ancestry through her maternal great-grandmother. (See § 224.2, subd. (b); In re J.C., supra, 77 Cal.App.5th at p. 77.) Bria also argues the Department failed to comply with its duty to provide adequate notice to the Cherokee tribe by failing to include any contact information for the children’s maternal great-grandmother in the Notice of Child Custody Proceeding for Indian Child, despite having that information. (See § 224.3; In re J.C., at p. 78.) Eugene argues the Department failed to comply with its duty to provide the Sioux tribe notice of the children’s possible Indian ancestry.

The Department concedes it failed to comply with the duties of inquiry and notice by failing to question Bria’s mother and grandmother about Lorissa’s and Alexandria’s possible Indian ancestry and by failing to include Bria’s grandmother’s information in the Notice of Child Custody Proceeding for Indian Child. Therefore, we direct the trial court to ensure the Department interviews Bria’s mother and grandmother and to provide complete and proper notice to the Cherokee tribe and any other tribe identified by Bria or her relatives.

The Department also concedes it failed to notify the Sioux tribe and “does not oppose remand for [Eugene] to be re-interviewed and, if he is still claiming Sioux heritage, for notice to be sent to the Sioux Tribe as well.” The Department subsequently filed a request for judicial notice of two documents: (1) a February 3, 2022 last minute information report stating that a Department social worker interviewed Eugene on January 19, 2022 about his connection with the Sioux tribe and that Eugene told the social worker he “‘never told anyone that [he] belonged to or had any connection to [the] Sioux tribe’” and reiterated he had “‘never heard of [the] Sioux [tribe] and [has] no other native Indian connections that [he was] aware of’”; and (2) February 3, 2022 orders from the juvenile court finding the court had no reason to know that Lorissa or Alexandria is an Indian Child. The Department does not argue Eugene’s appeal is moot regarding notification of the Sioux tribe, but the Department obliquely asserts this new evidence “affect[s] whether the appellate court can or should proceed to the merits.”

We grant the Department’s request for judicial notice of the filing of the last minute information (but not the truth of the facts it contains) and of the juvenile court orders. Because we are remanding the matter to the juvenile court to ensure compliance with ICWA with regard to the children’s possible Indian ancestry through their maternal relatives, we also direct the juvenile court to determine whether notification of the Sioux tribe is required under section 224.3.

DISPOSITION

The juvenile court’s jurisdiction findings and disposition orders are conditionally affirmed. The juvenile court is directed to ensure the Department complies fully with the inquiry and notice provisions of ICWA and related California law.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] Bria’s probation officer told a Department social worker that the Justice Data Interface Controller system identifies the children as “additional protected persons” under the criminal protective order.

[3] The evidence in the record suggests Bria may have been living with Eugene for up to five months.

[4] Eugene reported seeing scratches on Lorissa after an incident in 2018 where Bria allegedly forced Lorissa to take a cold shower after Lorissa ran away from Bria in a park.

[5] Bria informed the Department she had received a diagnosis of bipolar disorder, major depressive disorder, and posttraumatic stress disorder.

[6] Count b-4 alleged Eugene’s physical abuse of the children and Bria’s failure to protect them placed the children “and the children’s sibling, Tyler, at-risk of serious physical harm . . . .” So far as we are aware, the children do not have a sibling named Tyler, and the reference to this sibling appears to be a typographical error.