Filed 4/29/20




                       CERTIFIED FOR PARTIAL PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

In re M.R. et al., Persons Coming Under the
Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY                                       F079971
SERVICES AGENCY,
                                                           (Stanislaus Super. Ct.
        Plaintiff and Respondent,                         Nos. VJDP-19-000154 &
                                                             JVDP-19-000155)
                  v.

A.M.,                                                           OPINION
        Defendant and Appellant.



        APPEAL from orders of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
        Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, Deputy County
Counsel, for Plaintiff and Respondent.
                                         -ooOoo-



        Pursuant to California Rules of Court, rules 81105(b) and 8.1110, the opinion is
certified for publication with the exception of part II. of the Discussion.
       On June 20, 2019, the Stanislaus County Community Services Agency (Agency)
received a referral indicating law enforcement had responded to a fight between Mother
and Father. Father reportedly strangled Mother until she “blacked out.” Mother had been
holding 2-year-old F.M. at the time. Three-year-old M.R. witnessed the incident. Father
was arrested.
       The next day, social workers “attempted to make unannounced contact with the
family and were unsuccessful.” On June 26, 2019, a social worker called Mother but
discovered it was “not a working number for [Mother].”
       Events of June 27, 2019
       On June 27, 2019, the Agency received a separate referral indicating law
enforcement had responded to a domestic violence dispute between Mother and paternal
uncle R.Q. R.Q. said Mother was a methamphetamine user. R.Q. was concerned about
her drug use, the “horrible” conditions of her home, and Mother leaving the children with
strangers. R.Q. attempted to “take” F.M. and M.R. because Mother had a “felony
warrant out of Sacramento.” Mother then “became violent.” Mother was then “arrested
for a felony warrant,” and the Agency was contacted because Mother’s arrest left F.M.
and M.R. without a caregiver. The Agency detained the children.
       That day, a social worker interviewed Mother. She appeared “disheveled and
incoherent as she presented in disarray, disorderly, frazzled, and repetitive.” While
Mother admitted she had previously used and sold methamphetamine, she denied any
current drug use. As for the prior domestic violence incident, Mother said Father had
choked and slapped her until she became unresponsive. Mother claimed this was the first
time Father had ever gotten physical with her. Mother acknowledged F.M. and M.R.
were present when the incident occurred.
       Mother and Father both believed F.M. and M.R. were autistic.




                                            2.
         Dependency Petition
         On July 1, 2019, the Agency filed a dependency petition. (Welf. & Inst. Code,
§ 300.)1 The petition summarized the events of June 20, and June 27, 2019. The petition
alleged that those events established the children have suffered, or were at substantial risk
of suffering serious physical harm or illness as a result of the failure or inability of the
parents to supervise or protect the children adequately, and as a result of the inability of
the parent to provide regular care for the children “due to the parent’s … mental illness,
developmental disability, or substance abuse.” (§ 300, subd. (b)(1).)
         The petition also alleged the children had been left without provision for support
(§ 300, subd. (g)) due to the incarceration of both parents.2 However, the allegation that
Father was currently incarcerated was subsequently crossed out by hand.
         On July 2, 2019, Mother filed a Parental Notification of Indian Status form
(Judicial Council Form ICWA-020). On the form, Mother indicated, “I may have Indian
ancestry.” Mother left blank the area designated for Mother to identify the name of any
tribe.
         The detention hearing was continued to July 5, 2019, to allow for Father’s
presence. At the continued detention hearing, the following exchange occurred:

               “THE COURT: And, [Mother], you indicated that you may have
         Native American ancestry.

                “THE MINORS’ MOTHER: Yes.

                “THE COURT: Do you happen to know any particular tribe?

                “THE MINORS’ MOTHER: My mom and dad are both passed
         already.



         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
         2
        The allegation that Father was incarcerated was subsequently stricken at an
August 15, 2019, hearing.

                                               3.
               “THE COURT: So you have no one with whom you could inquire?

               “THE MINORS’ MOTHER: (Shakes head.)

              “THE COURT: All right. Because if you don’t have any
       information, the Court can’t – doesn’t really have any information to
       believe the Indian Child Welfare Act applies.

               “In the event you figure out someone or you get some information,
       make sure you let us know as soon as you obtain that information so that
       inquiries can be sent out. But in the meantime, the Court will find that
       there is not sufficient information upon which to believe that the Indian
       Child Welfare Act applies.”
       Father denied Indian ancestry.
       After the detention hearing, Mother was moved from Stanislaus County Jail to
Sacramento County Jail, with a scheduled release date of October 29, 2019. The social
worker confirmed that Mother was able to engage in parenting courses, substance abuse
treatment programs and cognitive behavioral therapy while incarcerated in Sacramento
County Jail. Mother understood that she was to “contact the Agency as soon as she is
released from jail to ensure that she is set up with any additional services she is required
to participate in.”
       M.R. had previously been enrolled at a regional center for “Applied Behavioral
Analysis” services. Once M.R. turned three years old, the services became the school
district’s responsibility. Mother declined all services once M.R. turned three because she
did not approve of the school at which M.R. would have been enrolled.
       Police Report
       On July 13, 2019, the police report of the June 14, 2019, incident was released to
the Agency. The report detailed that Father admitted he had been drinking and had
pushed Mother. However, Father claimed he acted in self-defense and denied hitting
Mother. Father was upset that his ex-girlfriend (apparently referring to Mother), has her
boyfriend spend the night at the apartment.




                                              4.
       A few hours later, Mother called 911. An officer observed Mother with visible
bruises, scratches, red marks and “injuries to her neck.” Father said he did not know how
Mother received the injuries and was promptly arrested.
       Mother said Father had come to the apartment to give her a rent check. Father had
been drinking. The two began to argue over custody of the children. While Mother was
holding a child, Father placed his hand on Mother’s throat and strangled her. Father said,
“ ‘I hate you bitch, I am going to kill you.’ ” According to Mother, both of her children
were present for the incident.
       Mother’s Case Plan
       Mother’s case plan was signed by the social worker on July 29, 2019. The case
plan listed several “objectives” for Mother’s services, including staying sober, monitoring
and meeting her children’s needs, and obtaining suitable housing.
       The case plan also listed several “client responsibilities.” The “completion date”
for each of the responsibilities was about one year in the future, January 30, 2020.
       Among the responsibilities listed were the following:

               “[Mother] will attend, actively participate and successfully complete
       individual counseling services at Sierra Vista Child Family Services or
       another program approved of by the social worker and follow all
       recommendations. Individual counseling will focus on issues pertaining to:
       domestic violence victim issues and corresponding anger, healthy coping
       skills, drug abuse and effects on children, demonstrating she can protect
       from future abuse and any other issues identified by the father and/or
       clinician.” [¶] … [¶]

              “[Mother] will attend, actively participate and successfully complete
       a parenting program offered at Sierra Vista Child Family Services or
       another program approved of by the social worker and follow all
       recommendations.” [¶] … [¶]

              “[Mother] will attend and actively participate in an SUD assessment
       and follow all recommendations from the assessment, which may include a
       substance abuse treatment program as offered by Nirvana Drug and
       Alcohol Treatment Program, Stanislaus Recovery Center or First Step
       Perinatal Program, or another program approved of by the Social Worker.

                                             5.
       She will follow all recommendations of the program, including but not
       limited to, residential treatment, outpatient substance abuse services, clean
       and sober living, attending a 12-Step Program, and random drug testing as
       approved by the Social Worker.”
       The other two items listed under “CLIENT RESPONSIBILITIES” were child,
family, and team meetings every six months, and random drug testing.
       A jurisdiction/disposition hearing was held August 15, 2019. At the hearing,
Father’s counsel requested that the court strike the phrase “ ‘to follow all
recommendations’ ” from the case plan. The court ultimately “trailed” the hearing to the
next day because some of the attorneys had been working off of an old version of the
case plan. The matter was then set for a contested hearing on August 30, 2019.
       Contested Hearing
       A contested hearing was held regarding the case plan’s inclusion of the “follow all
recommendations” language. The court noted it was a “test case” for the county –
meaning it could influence how case plans are prepared in the future.
              Mary Ann Cose’s Testimony
       Mary Ann Cose, a supervisor at Sierra Vista Child and Family Services (Sierra),
testified. Prior to working as a supervisor, she had been a clinician at Sierra. Cose
testified as an expert in providing reunification services, to wit: parenting education,
clinical assessments, and individual counseling.
       In her work at Sierra, Cose had reviewed an estimated 1,000 case plans. Case
plans identify specific topics for Cose to work on with the parent. However, sometimes
Cose would identify additional “needs” the parent had that were not listed on the case
plan. She needs to ask for an additional service for a parent that was not specifically
recommended in 25 to 50 percent of her cases. If the case plan included “follow all
recommendations” language, she could immediately begin working on the issue with the
parent. However, if the “follow all recommendations” language is not in the case plan,
then she could not begin addressing the issue with the parent until a new case plan is
prepared and approved by the court.
                                             6.
       Thus, the “follow all recommendations” language is useful to Cose because it
avoids a break in time between identifying an unlisted issue and beginning to provide the
remedial service to the parent. If there is a break in time, “it can be hard and difficult to
get back on track or resume where we left off in turn almost hindering the client [i.e.
parent] where we have to start over again.”
       Sometimes, delays of more than 30 days would involve changing clinicians. In
that situation, the new clinician would need to develop rapport with the parent –
effectively having to “start over” with the service.
       At Sierra, a clinical assessment of the parent is done to determine whether there
are any other services that would be beneficial. Such additional services could include
individual counseling, anger management, domestic/violence/batterer groups, or
psychological evaluations.
              Social Worker Daisy Avila’s Testimony
       Daisy Avila testified that she is a social worker with Stanislaus County Child
Protective Services. Avila was trained in preparing case plans. Avila prepares case plans
as part of her job duties with the Agency.
       In order to have the Agency pay for a service for a parent, the social worker must
fill out an “encumbrance” form. Avila testified that it takes “about a week” to get an
encumbrance “taken care of.” If a clinician recommends an additional service to a parent
during individual counseling – such as the parent should participate in an anger
management group – that would require a separate encumbrance. In other words, the
encumbrance for individual counseling only covers individual counseling sessions; not
additional services that may be recommended through individual counseling.
       Avila includes the phrase “follow all recommendations” in her case plans to
“make sure that there’s no gap in between services” and to “make sure that those things
are addressed as soon as possible because we know that time is ticking.” In the present



                                              7.
case, since there was a child under three years old, the reunification period was limited to
six months.
       The phrase “follow all recommendations” is used with respect to individual
counseling services “because sometimes other topics that come up when the parents are
going to their sessions and also because sometimes the clinicians recommend for the
parents to do any additional anger management or coparenting, codependency, any other
programs that could be beneficial to the parent.”
       The phrase “follow all recommendations” is important for parenting education
services as well “because we do have children that are very young and high needs …
sometimes there’s a recommendation to add additional parent/child labs or other
additional parenting classes that would be beneficial to the parents.”
       The phrase “follow all recommendations” is used with respect to general
counseling because “[t]he clinician may ask for … additional sessions to address, maybe
mom is not done processing the concerns that we have, any domestic violence, any past
concerns, past trauma, or anything like that; and also because again the children are very
high needs and so also making sure that mom had that support.”
       In terms of what would fall under the phrase “follow all recommendations,” the
social worker said “ ‘everything’ ” – meaning any “other services such as anger
management, additional sessions with the clinician, additional parent/child labs, group
sessions, individual sessions, family sessions, coparenting, codependency, psych eval,
clinical assessment.”
       Argument
       After the conclusion of testimony, counsel for the Agency argued the court should
permit the case plan’s use of the phrase “follow all recommendations.” She cited to
section 16501.1, subdivision (14), arguing that the Agency has inherent power to modify
the case plan between review hearings without court approval. She argued that section



                                             8.
16501.1, subdivision (f) gives the court broad discretion to fashion dispositional orders in
accordance with what the court concludes would be in the best interests of the children.
       She also argued that the Agency relies on the contracted experts at service
providers like Sierra to determine the scope of services needed. While social workers
identify the initial needs of a parent, it is with a clinician’s purview to identify additional
needs. If the Agency did not do this, parents might argue that they were not provided
with reasonable services. The Agency is simply trying to provide “the most
comprehensive case plan that addresses the needs of a parent, and we are relying on the
clinicians, the experts in this case, to have the ability to give the services to the parents at
the earliest possible moment once it becomes known ….”
       The Agency suggested that language could be added to the case plan to the effect
that if a psychological evaluation were recommended, the Agency would notify the
parent and they would have an opportunity to object.
       The Agency also noted that a parent can always seek contest a recommended
service under section 388.
       Father’s counsel argued case plans should only have those services needed to
reunify – not every service that might benefit a parent. He also contended that case plans
must identify the services required with specificity. The phrase “follow all
recommendations” is not limited or specific.
       Father’s counsel said he would not have a problem with a social worker invoking
the “follow all recommendations” phrase under the domestic violence portion of the case
plan, so long as the recommendation was related to domestic violence. For example,
counsel would not object if the domestic violence counselor recommended anger
management classes. In other words, “as long as [the phrase] is not used to order
something unrelated to domestic violence.” Counsel argued the problem with the phrase
is that it is “wildly overbroad” such that a domestic violence counselor could say the
parent needed something unrelated, like a psychological evaluation.

                                               9.
       Mother’s counsel argued that if the court retained the “follow all
recommendations” language, it should add text to the case plan saying: “ ‘[P]arent’s
right to challenge any additional services pursuant to the same evidentiary burdens and
standards associated with the disposition hearing is preserved.’ ”
       Later, Mother’s counsel requested the court strike the phrase “follow all
recommendations” and replace it with: “ ‘In the event that additional individual
counseling sessions, group counseling, or so forth are needed, the parent will agree to that
as well.’ ”
       In rebuttal, deputy county counsel argued the phrase “follow all
recommendations” does not give the Agency “unfettered discretion” because, as the
social worker testified, “the services that would be recommended are within the purview
of what the agency can offer.” Specifically, recommendations would be limited to family
counseling, couples counseling, codependency, individual, anger management, domestic
violence, individual, parenting, substance abuse, “and so forth.”
       Ruling
       The court ruled that the phrase “except a psychological evaluation” would be
added wherever “follow all recommendations” appeared in the proposed case plan.
Otherwise, the court ruled in favor of the Agency.
       Jurisdiction
       The court struck from the dependency petition an allegation that Father had been
charged with child cruelty. The court also struck the allegation that Father was
incarcerated.
       The court found true the allegation that the minors were persons described by
subdivisions (b)(1) and (g) of section 300.
       Disposition
       The court adjudged the children dependents of the court and continued their
removal from the parents. The court granted reunification services to both parents.

                                              10.
                                       DISCUSSION

I.     The “Follow all Recommendations” Language in the Case Plan Fails to Satisfy
       Section 1650.1, Subdivision (g)(2)
       A.     Case Plans
       “[T]he central unifying tool in child welfare services” is called the “case plan.”
(§ 16501.1, subd. (a)(1).) It is a plan written by the Agency to ensure “that services are
provided to the child and parents or other caretakers … in order to improve the conditions
in the parent’s home, to facilitate the safe return of the child to a safe home or the
permanent placement of the child, and to address the needs of the child while in foster
care.” (§ 16501.1, subds. (a)(2) [goals] & (e) [written].)
       The case plan has several components, including: identifying the reasons for
dependency (§ 16501.1, subd. (g)(3); setting forth specific goals and describing why
planned services are appropriate to meet those goals (§ 16501.1, subd. (g)(2)); and
describing the services to be provided to assist in reunification (§ 16501.1,
subd. (g)(10.)).3
       The case plan is generally written within 60 days of removing the child and must
be updated as the service needs of the family dictate. (§ 16501.1, subd. (e).) The case
plan must be updated with each status review hearing. (Ibid.) Between review hearings,
the casework supervisor may modify the case plan in furtherance of its goals without
court approval. (§ 16501.1, subd. (g)(14).)




       3 Additional components include describing the child’s placement and why it was
chosen (§ 16501.1, subd. (d)(1)); scheduling contacts between the agency and the child,
the family, or other caretakers (§ 16501.1, subd. (g)(4); setting the frequency of contact
between the parents and the child when out-of-home services are used (§ 16501.1,
subd. (g)(5)(A)); establishing how sibling relationships will be maintained during out-of-
home placement (§ 16501.1, subd. (g)(6)); planning for the child’s educational stability
(§ 16501.1, subd. (g)(8).)

                                              11.
       One reason the case plan is so important is that, in cases where the child was under
three years old when removed, parents must be advised that failure “to cooperate or avail
himself or herself of services provided as part of the child welfare services case plan may
result in a termination of efforts to reunify the family after six months.” (§ 361.5,
subd. (a)(3)(C).)
       The Agency submits the case plan to the court ahead of the dispositional hearing.
(See § 358, subd. (b)(1).) The court must “consider[]” the case plan “at the initial hearing
and each review hearing.” (§ 16501.1, subd. (g)(14); see also § 358, subd. (b)(1); Cal.
Rules of Court, rules4 5.708(b)(3), 5.706(b)(2).) The court reviews the plan to determine
whether it satisfies the requirements of section 16501.1 (Rules 5.690(c)(2)(A)–(B)) and
to verify that appropriate parties were consulted in its preparation (Rules 5.690(c)(2)(C)–
(D), 5.708(e)(3)–(10).)
       When the court orders a parent to participate in a program – such as parent
education, counseling, parenting programs, etc. – the program must 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).) In other words, the court cannot
arbitrarily order services that are “not reasonably designed” to eliminate the behavior or
circumstances that led to the court taking jurisdiction of the child. (See In re Drake M.
(2012) 211 Cal.App.4th 754, 770–771.)
       For this reason, it is helpful that the case plan must identify specific goals and then
explain how the “planned services” are designed to achieve those goals. (§ 16501.1,
subd. (g)(2).) By explaining how planned services are tied to specific goals, the case plan
helps the court ensure these programs are in fact “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).)

       4   Hereafter, “Rule.”

                                             12.
       B.     Additional Background
       Here, the case plan identified the goal of returning the minors home to Mother’s
care. The case plan identified several “objectives” that services would seek to obtain:

             “1. Stay sober and show your ability to live free from alcohol
       dependency.

             “2. Stay free from illegal drugs and show your ability to live free
       from drug dependency. Comply with all required drug tests.

              “3. Meet your children’s physical, emotional, medical, and
       educational needs.

             “4. Obtain and maintain a stable and suitable residence for yourself
       and your children.

             “5. Pay attention to and monitor your children’s health, safety, and
       well-being.”
       The case plan then listed the services aimed at accomplishing these objectives.
       First, under the category of “Case Management Services” the plan provided that
the Agency would offer at least one child-family-team meeting every six months.
       Under the category of “Counseling/Mental Health Services,” the plan provided
that Mother would attend, actively participate and successfully complete an individual
counseling program at Sierra Vista Child Family Services (or another approved program).
The plan provided that individual counseling would focus on issues pertaining to:
“domestic violence victim issues and correspondent anger, healthy coping skills, drug
abuse and effects on children, demonstrating she can protect from future abuse and any
other issues identified by the father and/or clinician.” The plan also required that mother
“follow all recommendations” of the counselor.
       Under the category of “Education Services” the plan provided that Mother would
attend, actively participate in, and successfully complete a parenting program offered at
Sierra Vista Child Family Services (or another approved program). The plan also




                                            13.
required Mother to “follow all recommendations” made by the parenting program
clinicians.
       Under the category of Substance Abuse Services, the plan required Mother to
participate in an SUD assessment; “follow all recommendations from the assessment,
which may include a substance abuse treatment program as offered by Nirvana Drug and
Alcohol Treatment Program, Stanislaus Recovery Center or First Step Perinatal Program,
or another program approved of by the Social Worker”; and “follow all recommendations
of the program, including but not limited to, residential treatment, outpatient substance
abuse services, clean and sober living, attending a 12-Step Program, and random drug
testing as approved by the Social Worker.”
       Under the category of Substance Abuse Testing, the plan required Mother to
participate in random drug testing.
       C.     Analysis
       Mother raises several objections to the “follow all recommendations” language in
the case plan’s services section. We conclude the language does not satisfy section
16501.1.5




       5Mother also contends the court erroneously delegated its judicial decisionmaking
prerogative to the Agency. We do not characterize the issue here as one of improper
delegation.
       While Mother argues that it is ultimately the court’s duty to “determine and
fashion the appropriate case plan”; the statutory scheme actually indicates that the duty to
fashion an appropriate case plan is the responsibility and prerogative of the child welfare
agency, with the court playing a limited oversight role. Section 16501.1 clearly
contemplates the case plan will be created by the agency. (See, e.g., § 16501.1,
subds. (a)(3) [“The agency shall consider…”] & (g)(15)(A) [“The agency shall also
include…”].) The court’s role is more limited. The court is to read the case plan (§ 358,
subd. (b)(1), Rule 5.708(b)(3)), verify appropriate parties were consulted in its
preparation (Rules 5.690(c)(2)(C)–(D), 5.706(b)(2), 5.708(e)(3)–(10)), and ensure it
complies with section 16501.1. (Rules 5.690(c)(2)(A)–(B), 5.708(e)(1)–(2).) Here, the
court did not delegate its limited role.
                                             14.
       Section 16501.1, subdivision (g)(2) requires that case plans “identify specific
goals and the appropriateness of the planned services in meeting those goals.” In other
words, the case plan first establishes specific goals. It then must explain how the planned
services prescribed for parents are related to those goals. Here, the “planned services”
were the specific programs identified – e.g., individual counseling, a parenting program –
and any other services that might be recommended in the future by the clinicians
providing individual counseling, parenting, and substance abuse services. (Italics added.)
The case plan does not – and indeed could not – “identify” how this latter category of
unknown, potential future services were “appropriate” for meeting the case plan’s goals.
It is unknown what additional services the clinicians might recommend, which means it
was also unknown whether and how those services were appropriate for meeting the case
plan’s goals. Since the case plan did not (and could not) explain how these services were
“appropriate[]” to accomplish case plan goals, the case plan ran afoul of section 16501.1,
subdivision (g)(2).
       It is important to note the case plan itself placed no restrictions on the types of
services that could be recommended by the clinicians. The Agency points to testimony at
the contested hearing to show that the case plan’s broad language would actually only be
invoked in certain limited circumstances. For example, the Agency notes Cose testified
that any additional sessions required by a clinician under the “all recommendations”
language, would be “reasonable” in amount. The Agency also characterizes Cose’s
testimony as indicating that “recommendations are always made in light of the case plan
goals.”6 Similarly, the Agency notes that statutes and case law necessary limits the
“follow all recommendations” language. And, the juvenile court said the Agency would




       6 We do not agree with the Agency’s characterization of Cose’s testimony on this
point. In any event, such testimony would not remedy the deficiency in the case plan
itself.

                                             15.
be ill-advised to “to add things that have no relation to any issues having to do with
reunification” and, if they did, the court would be “happy to hear” a section 388 petition.
       However, none of these restrictions and qualifications are in the case plan. And it
is the case plan itself that must identify how planned services are “appropriate[]” to meet
the plan’s goals. (§ 16501.1, subd. (g)(2).)
       The Agency argues that the “follow all recommendations” language is “needed”
because previously-unknown “causes of [Mother’s] behaviors could be revealed” at a
later date. We absolutely agree that the Agency needs flexibility to modify or add
services in response to additional needs identified by expert service-providers after the
initial case plan is prepared. But the need for flexibility in such circumstances is
addressed in subdivision (g)(14), which permits casework supervisors to modify the case
plan without court approval. (§ 16501.1, subd. (g)(14).) In other words, as soon as a new
need or issue is discovered, the social worker may adjust the case plan accordingly – as
long as they identify how the new service is appropriate to accomplish specific goals.
       In order to determine the “appropriateness” of a service to accomplish a particular
goal, one must know the type of service being contemplated. A case plan cannot explain
how the broad category of “all recommend[ed]” services is appropriate to satisfy specific
goals, because the services to be recommended in the future are presently unknown.
Thus, the statutory scheme necessarily contemplates that “planned services” will be
identified after the corresponding parental need is “revealed”; not before.7 When and if
such a need is discovered, the casework supervisor may immediately modify the case
plan to include services to address the need.



       7  For example, a case plan cannot include a substance abuse component before
there is evidence the parent has a substance abuse problem. (In re Basilio T. (1992) 4
Cal.App.4th 155, 172–173.) If evidence of a substance abuse problem subsequently
arises, “the trial court can modify the reunification plan accordingly and order additional
services. (§ 366.21, subd. (e).)” (Id. at p. 173, fn. 9.) Or, the casework supervisor could
amend the case plan unilaterally. (§ 16501.1, subd. (g)(14).)
                                               16.
       We understand the Agency may prefer even more flexibility than provided by
these rules; specifically, the flexibility to forego obtaining additional encumbrances when
the need for new services arises. While we understand the Agency’s preference, we do
not believe it can be accommodated in light of section 16501.1, subdivision (g)(2).
Moreover, social worker Avila testified that it would take her about one week to “take[]
care” of an encumbrance. Such a delay, while regrettable, does not justify circumvention
of the statutory requirements for a case plan. Even if the funding delay is usually
lengthier than the timeframe offered by Avila, it would be a concern to raise with the
Legislature so that appropriate statutory changes could be made. As currently written,
the statute requires case plans to identify how services will accomplish specific goals.
That cannot be done when a catch-all category of unknown future services is included.8
       We hold that the case plan as currently drafted fails to satisfy section 16501.1,
subdivision (g)(2), but we will not direct precisely how case plans must be worded, as the
Agency has discretion in that regard.
       Certainly, avoiding language as to any clinician “recommendations” would
remedy the defect under subdivision (g)(2). Then, if any counselors or clinicians do
recommend additional services, the social worker can modify the case plan, without court
approval, to add those specific services (§ 16501.1, subd. (g)(14)) and identify how the
new services are “appropriate[]” to remedy the plan’s specific goals. (§ 16501.1,
subd. (g)(2).)
       Alternatively, we leave open the possibility that subdivision (g)(2) permits case
plans to prospectively require that parents follow all recommendations of a clinician
counselor as to a list of specific services – provided that the plan explains the
“appropriateness” (§ 16501.1, subd. (g)(2)) of these potential, future services. For

       8The Agency also contends that “follow all recommendations” language is
beneficial because it notifies parents there may be changes to their case plan. But there is
always the possibility of changes being made to a case plan, even without the “follow all
recommendations” language. (See § 16501.1, subd. (g)(14).)

                                             17.
example, a plan might identify domestic violence counseling as a planned service and
add: “and follow any recommendations of the domestic violence counselor as to any
need for family counseling, couples counseling, or anger management.” The plan could
then explain how these services would accomplish specific plan goals. Or, if appropriate,
the plan could simply note that the potential recommended services are tied to plan goals
for the same reasons as domestic violence counseling.9
       What the case plan must avoid is identifying a category of services so broad as to
include services for which there is no explanation of “appropriateness” under subdivision
(g)(2). That is where the unqualified phrase “follow all recommendations” falls short.
       D.     Harmlessness
       “In general, harmless error analysis applies in juvenile dependency
proceedings….” (In re M.S. (2019) 41 Cal.App.5th 568, 590.) Under harmless error
analysis, “we must decide whether the error caused a miscarriage of justice.” (Id. at
p. 591.)
       By using the “follow all recommendations” language, the case plan has
prospectively included services without explaining how they are appropriate to
accomplish plan goals. For this reason, it is not in compliance with section 16501.1,
subdivision (g)(2). However, this error would only cause concrete harm to Mother if a
clinician actually invokes this language and recommends a service for which the case
plan has not identified a connection to plan goals. And, as explained below, there is
reason to believe that is unlikely to occur in this case.
       We rejected the Agency’s argument that the contested language in the case plan
satisfies subdivision (g)(2) because its scope is cabined by statements extrinsic to the case
plan, such as the testimony offered at the contested hearing. That is because subdivision
(g)(2) requires the case plan itself to identify the appropriateness of each service to

       9Provided, of course, that the plan already explains how domestic violence
counseling is “appropriate[]” under subdivision (g)(2).

                                              18.
accomplish the specific goals of the plan. However, these extrinsic sources are relevant
to the issue of whether the inclusion of the overly broad language in the case plan will
actually be invoked in a way to prejudice Mother.
       Social worker Avila identified the specific additional services that could be
recommended by the various clinicians (e.g., individual counselors, parenting education
clinicians), apparently limiting the ways the Agency planned to invoke the broad
language. For example, Avila testified that the “follow all recommendations” language is
important for parental education services because “sometimes there’s a recommendation
to add additional parent/child labs or other additional parenting classes that would be
beneficial to the parent.”
       Additionally, Cose testified that Sierra – the service provider who would make
recommendations under the “follow all recommendations” language – would not make
unreasonable recommendations such as requiring 200 additional sessions. When asked
what type of services are typically recommended by Sierra, Cose identified a list of
possibilities: individual counseling, anger management, domestic violence (batterer or
victim groups), and psychological evaluations.
       Moreover, even if the Agency transgressed these self-imposed limitations, Mother
could raise the issue with the court. The court expressly invited the parents to file a
section 388 petition if the Agency “added things” that had “no relation to any issues
having to do with reunification.” Indeed, the court strongly indicated it would be inclined
to grant such a petition – saying that if the agency did require unrelated services, “then
I’ll be more than happy to hear your 388 to address it.”
       In sum, representations by Mother’s service-provider and the Agency’s social
worker indicated that there was little likelihood the broad “all recommendations”
language would be invoked in a manner prejudicial to Mother. And the record indicates
that even if the Agency attempted require unrelated services, Mother had a clear avenue
to prevent the Agency from doing so: a section 388 petition that would be viewed

                                             19.
favorably by the court. In these circumstances, we conclude the inclusion of broad
language in the case plan was harmless.
II.    We Find No ICWA Violation
       Mother contends “the [c]ourt failed to order the Agency to inquire of mother
concerning her relatives’ information and notice the Bureau of Indian Affairs …” and
that therefore the dispositional orders should be reversed.
       A.       Background
       On an ICWA-020 form, Mother checked a box indicating she “may” have Indian
ancestry.
       At a hearing on July 5, 2019, the following exchange took place:

            “THE COURT: And, [Mother], you indicated that you may have Native
       American ancestry.”

                “THE MINORS’ MOTHER: Yes.

                “THE COURT: Do you happen to know any particular tribe?

              “THE MINORS’ MOTHER: My mom and dad are both passed
       already.

                “THE COURT: So you have no one with whom you could inquire?

                “THE MINORS’ MOTHER: [Shakes head]

              “THE COURT: All right. Because if you don’t have any
       information, the Court can’t – doesn’t really have any information to
       believe the Indian Child Welfare Act applies. [¶] In the event you figure
       out someone or you get some information, make sure you let us know as
       soon as you obtain that information so that inquiries can be sent out. But in
       the meantime, the Court will find that there is not sufficient information
       upon which to believe that the Indian Child Welfare Act applies.”
       B.       Notice
       Mother argues that ICWA requires notice “where the court knows or has reason to
know that an Indian child is involved.” (25 U.S.C. § 1912(a); see also § 224.2, subd. (f);

          See footnote, ante, page 1.

                                            20.
Cal. Rules of Court, rule 5.481(b).) The Agency argues that the information Mother
provided is too vague, attenuated and speculative to constitute “reason to know that an
Indian child is involved.” As a result, the notice requirements were not triggered. We
agree with the Agency.
         The phrase “Indian children” has specific meaning in ICWA and California’s
related statutes. It refers to minors who are either “a member of an Indian tribe” or are
“eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe.” (25 U.S.C. § 1903(3); see also § 224.1, subd. (a).) As a result, telling the
court that a minor’s parent might have Native American ancestry is not equivalent to
“inform[ing] the court” [citation] that the minors were Indian children, i.e., that they were
either members of a tribe or the biological children of tribal members and eligible for
membership.” (In re O.K. (2003) 106 Cal.App.4th 152, 157.) Notifying the court that a
parent “may have Indian [ancestry]” is “insufficient to give the court reason to believe
that the minors might be Indian children.” (Ibid.)
         Put plainly, “a claim that a parent, and thus the child, ‘may’ have Native American
heritage is insufficient to trigger ICWA notice requirements if the claim is not
accompanied by other information ….” (In re Jeremiah G. (2009) 172 Cal.App.4th 1514,
1516.)
         Here, Mother offered only a claim that she “may” have Indian ancestry. This was
insufficient to trigger ICWA notice requirements. (In re Jeremiah G., supra, 172
Cal.App.4th at p. 1516; In re O.K., supra, 106 Cal.App.4th at p. 157.) Therefore, the
court did not err in failing to require ICWA notice.
         C.     Inquiry
         Mother claims the Agency failed to satisfy its duty of inquiry.
         “Section 224.3, subdivision (a) places an ‘affirmative and continuing duty’ on the
court and county welfare department in a dependency proceeding to ‘inquire whether a
child … is or may be an Indian child.…’ ” (In re Hunter W. (2011) 200 Cal.App.4th

                                              21.
1454, 1466.) Thus, if the court or social worker knows or has reason to believe that an
Indian child is involved, the social worker is required to make further inquiry. (Ibid.; see
also § 224.2, subd. (e).) Such further inquiry includes interviewing extended family
members and contacting the Bureau of Indian Affairs. (§ 224.2, subd. (e).)
        Mother indicated she may have Indian heritage, but did not identify the particular
tribe or nation, and did not know of any relative with whom she could inquire about
Native American heritage. This information does not provide a sufficient “reason to
believe” (§ 224.2, subd. (e)) the minors were Indian children so as to trigger the duty of
further inquiry. (See In re Hunter W., supra, 200 Cal.App.4th at p. 1468.)
        Additionally, while “Mother argues that [the Agency] could have questioned her
remaining relatives for more information … this does not address the issue of whether the
information mother provided was sufficient to trigger this duty.” (In re Hunter W., supra,
200 Cal.App.4th at p. 1468.)
        Mother argues Hunter W. is distinguishable because the court in that case knew
the source of the parent’s Indian ancestry claim. But Hunter W. concluded that even with
that information, the duty of further inquiry was not triggered. The fact that there is even
less information known in this case only strengthens the Agency’s argument.
        Mother also argues that the court in Hunter W. knew whether the parent “had any
living relatives with more information ….” But the court knew that information in this
case, too. Mother told the court her own parents were deceased. The court asked if there
was anyone else with whom she could inquire about the ancestry, and she shook her
head.
        Mother argues the court should have asked her whether she had any living
relatives, among other questions. But the court specifically asked Mother if she had
anyone with whom she could inquire about Native American ancestry. The court then
instructed Mother to inform the court if she received additional information. This
satisfied the court’s duty at the initial hearing. (See § 224.2, subd. (c).)

                                              22.
     We find no ICWA error.
                                   DISPOSITION
     The dispositional orders are affirmed.



                                                 POOCHIGIAN, Acting P.J.
WE CONCUR:



SMITH, J.



SNAUFFER, J.




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