Filed 2/6/14 In re P.W. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


In re P.W., a Person Coming Under the                                B247824
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK93842)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

S.S. et al.,

         Defendants and Appellants.



      APPEALS from an order of the Superior Court of Los Angeles County.
Deborah Losnick, Juvenile Court Referee. Affirmed and remanded with directions.

      Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant S.S.

      Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant P.W., Sr.

      John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
David Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.

                                        _________________________
       S.S. (mother) and P.W., Sr., (father) (collectively the parents) appeal the
disposition order removing P.W. (minor) from their physical custody based on a lack of
substantial evidence that returning the minor to their custody posed a substantial danger
of harm. In the alternative, the parents argue that reversal is required because the
Department of Children and Family Services (Department) did not comply with the
notice provisions in the Indian Child Welfare Act (ICWA). We conclude that the
disposition order was sufficiently supported by evidence that the minor is a medically
fragile child and the parents are unable or unwilling to provide him with the proper care.
However, as conceded by the Department, it did not comply with the ICWA notice
provisions. Though we affirm the disposition order, we remand the case to the juvenile
court to ensure compliance with the ICWA.
                                          FACTS
Background; the Referral; the Hospital Hold
       The parents were married on October 7, 2011. Almost five months later, on
February 20, 2012, the minor was born premature and stayed in a neonatal intensive care
unit for about a month due to respiratory distress. When the minor was released, he was
placed on an apnea monitor. He suffered apneic episodes multiple times a day and
stopped breathing. When he was comforted by his parents, the minor’s breathing would
resume. He was under the care of a pediatrician, Dr. Tan.
       In May 2012, the minor was exposed to cigarette smoke from his maternal
grandmother (grandmother). The next day, his apnea monitor sounded 10 times in less
than 12 hours. The Department received a referral alleging a threat of physical and
emotional abuse by father. As reported, mother and father yelled and hit each other.
Three or four times a week, the reporting party heard banging coming from the family’s
apartment. A neighbor disclosed that father slammed the minor into the tub because he
did not want to give the minor a bath.
       A social worker visited the family and interviewed mother and father. They
denied the existence of domestic violence in the home, though mother conceded that they
did occasionally argue. She disclosed that she received therapy from Pacific Clinic, and

                                             2
that father and she also go to couple therapy. According to mother, she had postpartum
depression but was not on any kind of medication. Father reported that he was a patient
at Regional Center, but further stated that he had never been diagnosed with a mental
health disorder. He denied slamming the minor in the tub. There was no evidence that
the minor had been injured.
       On May 18, 2012, the parents took the minor to Antelope Valley Medical Center
due to “breath holding spells.” He was transferred to Miller’s Children’s Hospital for a
higher level of care.
       The minor was diagnosed with acute bronchiolitis, laryngomalcia1 and feeding
problems, which resulted in a failure to thrive. Medical personnel monitored the minor to
determine if he needed a gastronomy tube (G-tube) because of his difficulties
swallowing. He had severe respiratory distress with episodes of decreased levels of
oxygen in the body every five to 10 minutes. He required oxygen at all times, and
frequent deep suctioning. A doctor spoke to mother and father regarding the minor’s
condition and what might need to be done to provide proper care, and nurses attempted to
explain the severity of the situation. The parents appeared unable to understand the
medical issues and were resistant to treatment, saying that they did not give permission to
have the minor treated. They kept threatening to take the minor out of the hospital
against medical advice. Mother said that God did not give the minor tubes, so he should
not have them. During the next several weeks, the minor’s need for oxygen and deep
suctioning increased. He received respiratory treatment by a therapist as needed and at
varying frequency. As his stay at the hospital continued, feeding problems progressed
and he developed a rhinovirus.
       On June 4, 2010, mother informed a nurse that she did not want the minor to have
a G-tube. She said a G-tube was the “easy way out” and perhaps if the minor received
more than 10 minutes of occupational therapy a day, he would be able to eat better.
Father told a nurse, “I want AMA (against medical advice)” and “I just want to go

1
       The detention report described laryngomalcia as a condition “where [the] upper
larynx collapses inward during inhalation, causing airway obstruction.”

                                             3
home.” In a Resident Brief Progress Note, Dr. Benjamin A. McDonald wrote: “[The
minor’s] parents have been intermittently threatening to take the [minor] out of the
hospital AMA throughout the day today. I have personally spent at least 2 hours this
afternoon in direct communication with the mother and father. [Mother] stressed that she
is concerned that placement of a [G-tube] could ‘cause my child to die’ or to ‘get a lot of
infections.’ She has continued to state that she does not want a [G-tube] placed ‘for
religious reasons’ and ‘because only I know what is best for my baby.’ She also seems
upset that our social worker has been in contact with the [Department] worker who is
assigned to their case. Mother is very difficult to redirect. [Mother] asked numerous
times that I send them home with oxygen and that she would feed [the minor] at home. I
discussed with her at length why I was not comfortable sending [the minor] home while
he was on oxygen. . . . I do believe that the [minor] is not safe to leave the hospital while
requiring frequent deep suctioning and oxygen. If the mother starts insisting once again
on leaving AMA[,] I believe it would be in the [minor’s] best interest to be placed on a
hospital hold.” On the day Dr. McDonald wrote his note, Miller’s Children’s Hospital
put a hold on the minor.
The Petition; the Detention Hearing; Information About the Parents
       On June 7, 2012, the Department filed a petition pursuant to section 300,
subdivision (b) of the Welfare and Institutions Code2 alleging that the parents could not
supervise or protect the minor.
       Following a hearing, the juvenile court found a prima facie case for detaining the
minor. Mother indicated possible Indian ancestry from the Sioux, Cherokee and
Blackfoot tribes, and father indicated possible Indian ancestry from the Blackfoot and
Agua tribes. As a result, the juvenile court instructed the Department to evaluate whether
the ICWA applied.



2
      All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                              4
       The next day, the Department filed a last minute information for the court
indicating that mother and father had both been dependents of the juvenile court,3 and
noting that mother had presented a letter from Dr. Tigran Gevorkian stating: “Due to
mental illness, [mother] has limitations regarding social interaction, coping with stress,
etc. In order to help alleviate these difficulties, and to enhance her ability to live
independently[,] . . . I am prescribing an emotional support animal[.]” The Department
was unable to determine the nature of mother’s disability, and how it affected her ability
to care for the minor.
       According to father’s regional center case worker, Mia Archie, father’s current
diagnosis was mild retardation.4 However, in 2003, he had been diagnosed with
posttraumatic stress syndrome and major depression disorder with psychotic features. He
was not on any psychotropic or other medication, but he was in an independent living
program, which included parent training.



3
        Grandmother received voluntary family maintenance services in 2001 as a result
of a referral alleging that her home was unsanitary, and she had bipolar disorder and was
expressing suicidal ideation. In 2005, her family came to the attention of the Department
based on the same allegations, but it was additionally alleged that grandmother was
smoking marijuana and physically abusing mother. Grandmother told a social worker
she wanted her children removed because she was so depressed that she wanted to kill
herself. Her children were placed with their father, and then later placed in foster care.
Mother displayed “defiance and chronic [absences without leave] from placement and
she was never able to remain anywhere stable or receive mental health services.” Though
jurisdiction was terminated, it was later reinstated when grandmother attempted suicide in
her home with her children present. Mother continued to leave her placements and did
not receive mental health services. According to mother, she was in foster care from age
11 to 17, and the reason she frequently left her foster homes was because she was
mistreated by her caregivers. Father was a dependent of the juvenile court from 2001 to
2005. When interviewed, he alleged that he, too, was mistreated in foster care. Both
parents expressed a desire to protect the minor from the foster system.
4
       Father reported that mother also was diagnosed with mild retardation. The interim
review report for June 15, 2012, indicates the same. We note that in the appellate briefs,
the parties refer to father’s diagnosis of mild retardation, but not to mother’s diagnosis.


                                               5
The June 15, 2012, Interim Review Report
       A letter from Birth and Family Services, Inc. was attached to the interim review
report signed by a Department investigator named Son’a Williams (DI Williams). The
report indicated that father was authorized to receive 60 hours of monthly parenting with
living skills instruction and support, mother and father had been asking questions and
educating themselves about the minor’s needs, and a parent trainer would be present
when they visited the minor.
       The Department reported that mother and father were receiving SSI benefits due to
their mild retardation. Mother was open to receiving mental health services.
DI Williams assessed the home where the parents had lived for about a year. It consisted
of two bedrooms, one bath, a living room, and a kitchen, and the structure of the home
met the Department’s requirements.
       To explain the parents’ resistance to a G-tube, mother informed a social worker
during an interview that “all we were trying to do was make the best decision for our kid.
I read things on the internet and I saw a couple videos from [YouTube]. There was
nothing positive about the [G-tube] procedure. I saw this girl, age 14, she was
threatening to kill herself because she did not have a normal life. I want my son to be
able to eat a hamburger. I [do] not want him to kill himself because he [cannot] have a
hamburger. There was a girl on [YouTube] who stated she wished she never would have
[received a G-tube].” Per mother, a doctor said the minor could have G-tube for a day or
the rest of his life. Mother was not satisfied with his response and asked that the medical
staff contact the minor’s primary physician, Dr. Chung. As reported by mother, her
request was denied. She expressed concern that the minor would pull out a G-tube and
then would either “bleed out” or get an infection. Her preference was for the minor to be
discharged from the hospital with oxygen.
       A letter from mother was attached to the interim review report. In that letter, she
stated, inter alia, that she did not refuse necessary care for the minor. Rather, she wanted
a second opinion, and she wanted the minor transferred to Huntington Memorial Hospital
in Pasadena. She painted a picture of Miller’s Children’s Hospital as a place full of

                                             6
“foul” practices, adversarial medical staff and adversarial hospital social workers.
According to mother, the hospital social worker made false allegations against the parents
to the Department.
       Father reported that mother and he were trained on how to use a “breathing
machine.” He explained to DI Williams that the parents had purchased a video monitor,
and then stated that “we just want our son to come home. We are willing to comply with
the hospital recommendations.”
Insertion of a G-tube
       Though mother and father were concerned about the scarring that would result
from a G-tube, they eventually consented to one being placed. On June 27, 2012, a G-
tube was inserted.
The July 3, 2012, Jurisdiction/Disposition Report
       DI Williams once again interviewed the parents. Father denied threatening to the
take the minor out of Miller’s Children’s Hospital. He said the parents wanted the minor
transferred to Children’s Hospital Los Angeles because it was more accessible. It took
the parents two hours by train to get to Miller’s Children’s Hospital. In father’s
perception, the medical staff at Miller’s Children’s Hospital used the threat of contacting
the Department to control the parents’ decision making. Just thinking about the situation
made him depressed. He did not want to be hospitalized, and he did not want to
participate in therapy, but he needed an outlet. Mother said she wanted a second opinion
before consenting to a surgical procedure, and she wanted the medical staff to wait two
weeks before inserting a G-tube. She complained that the medical staff did not give her
accurate information. According to her, the minor passed the Ph poll test, swallow test
and bronchial study. Though he did not pass the “OPM” study, she stated, “[I]f he was
going to die he would have died already.” She believed that the medical staff was
mistreating the minor because the suctions were frequently filled with mucous and the
minor had a diaper rash. Frequently, she would hear the medical staff giggling in the
hallway. Her feelings would be hurt as she watched the minor turn purple from lack of
oxygen.

                                             7
       In a phone interview, DI Williams spoke to Dr. Stephanie Hertz on July 2, 2012.
She had not seen the minor in a week. In Dr. Hertz’s opinion, mother and father
appeared “very child like.” Linda Trabossi-Mathis (Trabossi-Mathis), a nurse
practitioner from Miller’s Childrens’ Hospital, was also interviewed. She stated that the
parents were learning to hook up the minor’s feeding tubes, disconnect the tubes and
flush them. They asked good questions and were able to recall information when asked
to demonstrate what they had learned. Mathis consented to the parents coming to the
hospital on Saturday, June 30, 2012, and Sunday, July 1, 2012. They were scheduled to
complete the minor’s feeding on Saturday from 11:30 a.m. to 3:30 p.m. However, they
missed the scheduled feedings and did not contact medical staff. At one point, the
parents showed up at a shift change to complete a feeding. A nurse was able to complete
a mock feeding with the parents, and they performed it well. DI Williams asked the
parents why they missed visits. Mother said they were participating in an ILP Program at
Para Los Ninos on June 30, 2012. On July 1, 2012, they arrived at a different time than
scheduled because they failed to tell the agency worker from Birth & Family Services
that they did not have transportation to and from the hospital. They missed a visit on
July 2, 2012, due to lack of transportation.
       All mother’s and father’s visits were monitored.
       The Department reported that mother was diagnosed with bipolar disorder and was
refusing medication. It stated that it “has serious concerns . . . whether or not the [minor]
can be safely maintained in the care of mother and father. Mother and father lack insight
and do not appear to have the ability to appropriately care for the [minor], as they have
frequently disregarded what is in the best interest of the [minor] (mother and father have
missed three feedings).”
       In its recommendation, the Department urged the juvenile court not to release the
minor to the parents’ custody. It opined the parents would benefit from reunification
services and further supervision.




                                               8
The Plea of No Contest to Jurisdiction
       On July 3, 2012, mother and father signed waivers of rights and pleaded no contest
to the dependency petition. The juvenile court amended the petition to allege: “The
[minor] has significant medical issues which require juvenile court intervention to assist
parents in caring for [the minor]. [This] situation[,] without court intervention[,] places
the [the minor] at risk.”
       The petition was sustained.
The Last Two Weeks of July 2012
       In mid-July 2012, DI Williams participated in a treatment meeting at the hospital.
The primary concerns were gastro esophageal reflux and laryngospasms that caused the
minor to frequently desaturate (drop in oxygen levels). The minor continued to be
identified as “high risk.” The medical staff reported that mother and father had not
demonstrated the ability to care for the minor because they often appeared frustrated and
required multiple prompts to address the minor’s medical needs. They needed more
coaching even though they had received two weeks of support and teaching services to
address medical issues, which was far more than other parents received. Medical staff
indicated that the minor had medical and physical issues, and expressed concern that the
parents would not comply with discharge orders. Because they had transportation
problems, medical staff was skeptical that mother and father would be able to transport
the minor to and from his numerous medical and occupational therapy appointments. In
the view of the medical staff, neither mother nor father showed any initiative. Rather,
they had to be prompted by medical staff when the minor had feeding or breathing
difficulty.
       When they met with medical staff to discuss their progress, mother and father
were not receptive to medical staff’s comments. Mother complained that medical staff
was not communicating with them. The parents claimed that they made mistakes when
feeding the minor because they were tired, had not been able to sleep and were being
watched by the medical staff.



                                              9
        By July 20, 2012, the minor was cleared for release. However, he required a
pulsox machine to measure his oxygen and respiration. The machine could not be
requested without a placement address. The Department opined that the minor could not
be safely placed with the parents because they had not exhibited the ability to provide
adequate care.
        On July 21, 2012, father did not know the minor’s feeding schedule. He had to be
reminded to feed the minor at 7:00 a.m. When he poured formula into a feeding bag, he
did not close the roller clamp and ports. A nurse prompted father on how to prime the
line. When he programmed the pump for 110ccs, the nurse had to tell him that the minor
gets 120ccs for day feeds. Mother and father forgot the minor’s 10:00 a.m. feeding and
had to be reminded. Then, at 1:00 p.m., mother forgot to apply bacitracin to the G-tube
site.
        At 2:00 a.m. the next day, mother once again had to be reminded to apply
bacitracin, and father needed the nurse’s instruction all throughout feeding the minor.
For the 7:00 a.m. feeding, mother attempted to pour fresh formula into the old formula.
The nurse told mother to empty the feed bag and rinse it before pouring the fresh formula
into it. Though mother competently performed the feeding, she left the rails down on the
crib. Later that morning, mother and father both asked if 24-hour care was over. When
the nurse explained that 24-hour care meant around the clock care, not care for one 24-
hour period, father raised his voice and demanded to know why the nurse had not
explained the process earlier. Mother raised her voice, saying, “[W]e have stuff to do.
We go to church and do other things on the weekends.” They both appeared frustrated,
sighing and rolling their eyes when the nurse explained that the parents needed to be
ready to take care of the minor on their own. That night, after administering the minor’s
medication at 10:00 p.m., mother once again left the rails down on the crib.
        A few days later, father changed the minor’s diaper and then, without washing his
hands, removed the minor’s feeding tube. The father walked away from the crib without
putting the rail back up.



                                            10
       On July 26, 2012, the parents closed the door to the minor’s room and nurses did
not hear an alarm. A nurse spoke to the them and explained that it was important to leave
the door open. They indicated that they had a right to privacy, closed the door and posted
a sign citing to a California law pertaining to the right to privacy. They refused to allow
a nurse to draw the minor’s blood.
       The next day, the minor’s breathing difficulties escalated. He was no longer
cleared to be discharged.
The August 1, 2012, Disposition Hearings; Intervening Developments
       At the initial disposition, the juvenile court ordered the minor detained in the
hospital or shelter care. The hearing was continued.
       On August 3, 2012, the minor’s medical case worker, social worker William
Thomas (SW Thomas) spoke by phone with Dr. Alexis Seegan who stated that the minor
was cleared for discharge. She said that the parents were too forceful during feedings,
and that they were not following instructions. An occupational therapy student reported
that father had not fed the minor in two weeks. Also, she stated that mother knew the
steps for feeding the minor but did not execute them without making errors, and without
receiving feedback from a third party.
       About a week later, the Department reported that mother still required supervision
while feeding the minor, and father had not been cleared to do the feedings by himself.
Feedings were scheduled every three hours and lasted 30 minutes each, which meant that
feedings would have to be monitored all day and all night. Father’s Regional Center
provider, Birth & Family Services, indicated that it was authorized to provide only 60
hours of parenting support and therefore could not provide 24-hour monitoring. The
juvenile court ordered the Department to find a medical placement that would allow the
parents to feed the minor on a daily basis. In addition, the Department was ordered to
prepare a report addressing how the minor was doing medically, and whether he could be
returned to the parents’ custody. The minor was placed in a facility called CASA III in
the City of Upland, which was 57 miles from the parents’ home and difficult for them to
visit. A few weeks later, the juvenile court ordered the Department to make all efforts to

                                             11
place the minor closer to the parents’ home, and to provide the parents with
transportation assistance. The Department was given the discretion to place the minor in
a facility closer to the parents, or to release the minor to the parents’ custody. The
parents were granted unmonitored visitation with a “reasonable visitation schedule.”
       The Department provided mother and father with transportation funds. However,
they did not consistently visit the minor because, they claimed, mother did not feel well
and father could not travel without her.
       As of August 15, 2012, mother completed the necessary training to feed the minor
without difficulty or supervision. Father received training on four dates in September of
2012 but still required supervision during feedings. They completed a 16-hour parenting
program.
       Both parents were assessed at Kedren Acute Psychiatric Facility. Father did not
meet agency criteria for treatment. As for mother, a last minute information for the court
indicated that she had been referred to the Coalition of Mental Health Professionals for
parenting classes but did not provide proof of following up. An interim review report
stated that medical records were silent as to whether mother was referred from mental
health services. Medical staff informed a social worker that mother did not have Axis I
symptoms and therefore did not meet their criteria. The Department obtained copies of
past medical records indicating that mother had been previously diagnosed with Bipolar
Disorder, depression and anxiety, had a history of visual and auditory hallucinations, and
was hospitalized for psychiatric reasons in 2005. The medical records regarding father
revealed that father had previously been diagnosed with chronic posttraumatic stress
disorder, impulse control disorder and mood disorder as well as having a history of mild
retardation.
       At a Team Decision Meeting on September 19, 2012, a safety plan was adopted.
In addition, the parents and the Department developed a transitional plan that consisted of
eight-hour day visits to the parents’ home on Saturdays and Sundays. The Department
recognized that “mother and father have made great efforts to address the [minor’s]
medical condition.” But Department concluded that the parents had “not demonstrated

                                             12
the capacity to provide ongoing sufficient care to the child, as required by medical
professionals.” Per the plan, grandmother would facilitate the minor’s transportation.
The September 27, 2012, Disposition Hearing
       At the continued disposition hearing DI Williams testified that though she did not
know the current plan for the minor because that was handled by a service worker, the
Department was concerned that the parents would not be able to feed and care for the
minor on a continual basis. She testified that the parents completed a CPR and first aid
class as well as a parenting class, and they had a sleep apnea monitor in their home.
Counsel informed the juvenile court that the transitional plan developed at the Team
Decision Meeting was not implemented because grandmother was not providing
assistance. The juvenile court ordered unmonitored visits with both parents together until
the next hearing.
The New Placement; Further Disposition Hearings; Intervening Developments
       On October 2, 2012, the minor was moved to a medical facility in the City of La
Puente called GE Pediatrics. The parents were given a monthly bus pass by the
Department so that they could visit the minor. Also, if they called in advance, they could
utilize the Access Paratransit program. SW Thomas spoke by phone with parent trainer
Helen Dominguez (PT Dominguez) who confirmed that she was continuing to work with
father. He asked for his services to be reassigned, but PT Dominguez said father had
made the request when he was upset. She was approved to work with father for 40 hours
per month. James Moore, father’s assigned social worker from Regional Center,
informed SW Thomas that father’s support hours could be increased when the minor
returned home.
       When the parties reconvened for the disposition hearing on October 10, 2012,
mother testified, inter alia, that the minor had been diagnosed with Charge syndrome
(which is accompanied by various symptoms) and Laryngospasms. She completed
medical training regarding feeding and administering medication. The family was
working with Para Los Ninos, a youth development service, as well as Birth and Family
Services, the Nurse Partnership Program and other programs. She did not have a cell

                                            13
phone or a landline but expected to activate a new cell phone after the hearing. The
juvenile court ordered the parents to have unsupervised weekend visits.
       During the weekend visit from October 12, 2012, to October 14, 2012, the parents
failed to give the minor his medication as directed. When he was returned to GE
Pediatrics, his heart rate was fast and his apnea monitor went off three times. He had to
be watched all night. For the weekend visit of October 19, 2012, to October 21, 2012, the
parents were supposed to return the minor at 6:00 p.m. the final night so he could receive
his 6:00 p.m. medication. The parents did not return the minor to GE Pediatrics until
8:50 p.m.
       On October 24, 2012, at a continued disposition hearing, the juvenile court
ordered that visitation to be increased to four days per visit for a trial period of two
weekends.
The Events of November 2012
       During a visit in early November, the parents took the minor to Huntington
Memorial Hospital. The medical staff told mother that minor had a cold and to bulb
suction his nose. Later, when his apnea monitor kept going off, the parents took the
minor to Children’s Hospital Los Angeles where he was admitted for what turned out to
be an extended stay.
       When SW Thomas spoke to the attending doctor, Dr. Lily, she expressed a
multitude of concerns about the parents, including the following: they were not happy
with the G-tube; mother threatened to remove the G-tube; mother had not been
forthcoming about the minor; the parents continually reported that the medical staff failed
to communicate with them regarding the minor’s care; the parents videotaped medical
personnel without their consent; mother was unwilling or unable to utilize nursing staff to
resolve care issues and instead repeatedly had the attending doctor paged to address
concerns; the parents were argumentative regarding the minor’s care; and the parents
failed to provide accurate dates for the minor’s previous treatment. At one point, the
medical staff clamped the G-tube. When Dr. Lily checked later, the clamps had been
removed. Both the parents and the medical staff denied removing the clamps. According

                                              14
to the attending doctor, the parents falsely reported that the minor had diarrhea and was
vomiting. Though mother had been told that only nurses were supposed to feed the
minor, mother fed the minor anyway. Then she falsely told nurses she fed the minor one
ounce of formula instead of six ounces. That may have resulted in overfeeding. Because
they demanded so much attention, the attending doctor had not been able to attend to
other patients. Dr. Lily viewed the parents as adversarial to the hospital, and did not want
to leave them alone with the minor.
       On November 8, 2012, the department filed an ex parte application under section
385 requesting that all visitation be monitored, and that the minor be placed in foster care
after discharge from the hospital. The juvenile court granted the ex parte application. It
appointed Michael P. Ward, Ph.D. to conduct psychological examinations of the parents.
       When a social worker from GE Pediatrics went to pick up the minor for discharge,
his apnea monitor was missing. The social worker believed that the parents took it. The
minor’s social worker inquired with the parents. They denied taking the apnea monitor.
       The parents frequently had nonworking telephone numbers. Dr. Ward was
initially unable to contact the parents to set up examinations.
The Parents’ 72-Hour Psychiatric Holds
       For reasons that are not clear, mother and father were placed on psychiatric holds
from December 17, 2012, to December 20, 2012. Due to these holds, they missed a
family preservation meeting. Father was discharged with medication. When
SW Thomas asked the parents about their psychiatric holds, they claimed that they did
not have any memory of them. Mother said she was hospitalized for anemia and asthma,
and that father was with her.
The Parents’ January 5, 2013, Psychological Examination
       Dr. Ward examined the parents and concluded that though they had “problems,
limitations and deficiencies,” they “clearly have the capacity . . . will and motivation to
adequately raise a child.” He stated that “the people I saw in my office appeared to be
fairly stable, reasonable, and quite workable. So unless there are some clear data that
they are a risk or danger to their child and/or unless the child’s medical condition and

                                             15
resulting needs are clearly beyond their capabilities to adequately care for him, then I
would suggest [that minor and parents] need and deserve a chance at reunification. Of
course, it should be done with all the care, caution and supervision necessary, and they
need support to understand that. But it is perhaps time for them and the system to work
together towards and agreed upon goal.”
The Minor’s January 24, 2013, Hospitalization
       The minor was taken to Childrens’ Hospital Los Angeles on January 24, 2013, due
to a brief period of Cynosis (blue lips). He was admitted because of respiratory distress.
To assist with breathing, the minor was placed on a Bi-Pap machine. On February 6,
2013, the Department reported that the minor continued to be medically fragile and have
medical complications. There was a possibility that he would need a tracheotomy, which
would dictate a higher level of care. The parents visited the minor only one time when he
was in the hospital.
Multiple Disposition Hearings in February 2013
       The juvenile court held a continued disposition hearing over the course of multiple
days and heard additional testimony. SW Thomas testified that at the time of the hearing,
the minor was hospitalized. His current medical conditions were “Charge association,
chronic lung disease, laryngomalacia.” He no longer needed a G-tube for feedings or to
receive medication. But once he was discharged, he would continue to need the Bi-Pap
machine. According to SW Thomas, mother and father still denied their psychiatric
hospitalizations. When SW Thomas asked them to sign medical releases, father refused,
and mother said she would “think about it.” SW Thomas did not know what the minor’s
discharge instructions would be.
       Case worker Lorena Hernandez (CW Hernandez) from Quality of Life Services
testified that her agency provided the parents with parenting skills and assisted them
during five or six visitations with the minor. According to CW Hernandez, the parents
were “hands on” during visits and they complied with the rules of the medical placement.
She described their willingness to work with her as “very compliant.” The parents
notified her of their 72-hour psychiatric holds. She knew that they did not inform SW

                                             16
Thomas, and that caused her concern. The program director of Quality of Life Services,
Lisa Fulton (Fulton) testified that the parents told her that they had been informed by SW
Thomas that they need to get “another psyche eval,” so they went to the hospital because
that was the best means for them to comply. Fulton knew that the parents were not
comfortable sharing it with SW Thomas because of trust issues. They believed that
anything they said to SW Thomas was typically twisted and manipulated. Mother told
Fulton that the parents were hospitalized because some of mother’s behaviors were
misconstrued. Fulton was asked if mother ever disclosed that she had scheduled a
psychological examination through the juvenile court system with Dr. Ward. Fulton
replied: “I don’t believe she did.” She was not aware that Dr. Ward actually did an
examination. If the juvenile court returned the minor to the parents’ custody, Fulton said
she “would do an addendum for additional parenting hours” even if that meant “around
the clock services[.]”
       Abby Arguilla, an employee at GE Pediatrics, testified that the minor was
discharged from the hospital after a three week stay. She said that the parents needed
training on the Bi-Pap machine. They also needed training on how to feed the minor by
mouth.
       Mother testified that she was placed on a psychiatric hold after she went to the
hospital because she was “stressed” and asked for a psychiatric evaluation. She told the
medical staff that she did not feel good. She did not tell SW Thomas because she did not
think it had anything to do with the minor’s care, and because she did not trust him.
According to mother, SW Thomas had changed statements in the Departments reports “to
go against me.” Mother conceded that she did not sign a medical release for the minor’s
social worker. Initially, mother said she had not been trained on a Bi-Pap machine.
Later, she said that both father and she received training for 10 or 20 minutes from
someone at GE Pediatrics, but that person and not sign a confirmation for the social
worker.
       After hearing argument, the juvenile court stated, inter alia: “The court has
considered the reports from July 3rd, 2012, through and including the September 27,

                                            17
2012, report. I reviewed Dr. Ward’s report of January 2013. What concerns me is that,
as [the Department’s attorney] indicated, the parents were not forthcoming to [SW
Thomas]. . . . The problem with that is that then the information does not filter to the
court. The court has to make . . . decisions based on all of the information that is
presented to it. If the information is flawed, the court cannot make an intelligent or
appropriate decision. [¶] Notwithstanding the parents’ perhaps valid distrust of [SW
Thomas] or all of the system, they weren’t forthcoming with Ms. Fulton either, and that’s
where is causes me greater concern. The mother indicated that she and the father were
not trained on the [Bi-Pap] machine. Then she indicated a little bit later in the testimony
today that she was. . . . [¶] The problem with the trust issue is that it caused a significant
misrepresentation. The parents went to a psychiatric hospital and were not allowed to
leave on their own accord, and I still [do] not know exactly why they were there. [¶] I
still do not know what their exact mental functioning is as a result of the hospitalization.
We are not talking about a developmentally normal child in this case. I have a very
fragile, special needs child, and the court has to take that into consideration as well. [¶]
As a result, . . . [¶] . . . I am declaring [the minor] to be a dependent child of the court
under section 300(b) only. [¶] By clear and convincing evidence, his care, custody, and
control is taken from the parents and committed to the care, custody, and control of the
[Department]. [¶] I am ordering reunification services for both parents. [¶] I am
ordering both parents to finish a parent education class. . . .” Next, the juvenile court
ordered the parents go to individual counseling to address the case issues and to be
evaluated by a psychiatrist to see if they need medication. The parents were granted
“ongoing monitored visits.” The juvenile court ordered them to sign “HIPPA medical
release forms.”
       These timely appeals followed.




                                              18
                                        DISCUSSION
I. Removal of the Minor.
         “A dependent child may not be taken from the physical custody of his . . . parents
. . . , unless the juvenile court finds clear and convincing evidence” that, inter alia,
“[t]here is or would be a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd.
(c)(1).) Express and implied findings at dispositional hearings are reviewed under the
substantial evidence test. (In re H.E. (2008) 169 Cal.App.4th 710, 723–725; In re T.V.
(2013) 217 Cal.App.4th 126, 136–137; In re Joshua R. (2002) 104 Cal.App.4th 1020,
1026.)
         According to the parents, the record lacks substantial evidence to support the
juvenile court’s order of removal.5 We disagree.
         “A removal order is proper if it is based on proof of parental inability to provide
proper care for the minor and proof of a potential detriment to the minor if he or she
remains with the parent. [Citation.] The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82
Cal.App.4th 1127, 1136 (Diamond H.), disapproved on other grounds in Renee J. v.
Superior Court (2001) 26 Cal.4th 735, 749, fn. 6; § 361, subd. (c)(1) [removal is
authorized if there is or “a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . custody”].)
         There is no dispute by the parties that the minor has chronic lung disease as well
as other medical problems, and that he needs to receive specialized care by willing, able

5
         The parents joined each other’s arguments.

                                               19
and well-informed adults. At the disposition hearing, the juvenile court did not expressly
find that there was a substantial danger to the minor’s well-being if he was not removed
from the parents’ custody. However, there was an implied finding that the parents could
not provide the minor with proper care.
       The record establishes a pattern of the parents missing feedings and visits, making
mistakes while caring for the minor, resisting medical advice, obstructing medical staff,
failing to provide medical staff with accurate information, withholding information from
social workers, and generally failing to accept or comprehend that their behaviors were
placing the minor at risk. We note that the parents had a conflict at Miller’s Children’s
Hospital as well as Children’s Hospital Los Angeles, and, among others, Dr. McDonald,
Dr. Seegan, Dr. Hertz and Dr. Lily had difficulty communicating with the parents and
thought they posed a danger to the minor. Beyond that, the parents never demonstrated
that they could adequately care for the minor by themselves for an extended period of
time. Indeed, their visits kept changing from unmonitored to monitored and back again.
Though they received training on many occasions, and though they had support services,
they never achieved a level of reliability with respect to caring for the minor that made
medical personnel comfortable. And at the time of the disposition hearings in February
2013, they still needed approved training on the Bi-Pap machine even if they had 10 or
20 minutes of unsanctioned training. Moreover, by refusing to sign medical waivers, the
parents deprived the Department and juvenile court of information necessary for them to
determine whether the parents were emotionally and mentally stable enough to properly
care for and supervise the minor.
       As a result of the foregoing, we conclude that there is sufficient evidence of a
substantial danger of harm to the minor unless the juvenile court removed him from the
parents’ custody. Furthermore, the evidence showed that the parents could not care for
the minor without supervision. Even thought Fulton testified that her agency would
provide around the clock service, she did not say that her agency would place someone in
the parents’ home 24-hours a day, seven days a week. Thus, juvenile court had no
reasonable alternative to removal.

                                            20
       We turn to the parents’ arguments.
       In large part, the parents attempt to reargue the facts and focus on evidence
favorable to their position. We remind them that when a reviewing court engages in
substantial evidence review, it will look to the entire record, and it will not limit its
appraisal to isolated bits of evidence selected by the appellants. (Bowers v. Bernards
(1984) 150 Cal.App.3d 870, 873–874.) “If . . . substantial evidence be found, it is of no
consequence that the trial court believing other evidence, or drawing other reasonable
inferences, might have reached a contrary conclusion.” (Id. at p. 874.) To the extent the
parents tacitly ask us to fill the shoes of the trier of fact, we decline because that is not
our role. Simply put, our role is review the record for error. We have therefore bypassed
any argument presented by the parents that is akin to a closing argument, and have
instead focused on their claims of error.
       The parents contend that the juvenile court could not have determined the risk to
the minor if he was returned to their custody because the minor’s discharge instructions
were unknown at the time of the disposition hearing. In other words, the parents question
how the juvenile court could impliedly find that they were incapable of providing care
when there was no evidence of what care would be necessary when the minor was
discharged from the hospital. But the minor was still diagnosed with Charge association,
chronic lung disease and laryngomalacia, and he was going to need a Bi-Pap machine
when he was released. This evidence was sufficient to establish that the minor remained
a medically fragile child, and that his caretakers would have to be well-versed in
attending to all his needs. Based on the parents’ difficulties in the case, there was a
reasonably deducible inference that they had not yet taken all the steps necessary to
provide the minor with reliable care.
       Citing In re James R. (2009) 176 Cal.App.4th 129 (James R.), the parents argue
that the risk of harm is too speculative to support removal. James R. is distinguishable
because the children in that case did not have special needs, and there was no evidence
that the mother’s mental illness or substance abuse placed her children at substantial risk
of physical harm. The children came to a social worker’s attention when the mother had

                                               21
a negative reaction to taking ibuprofen and drinking beer. Although she had a history of
mental instability, she had not abused or neglected her children, and there was no
evidence she was a danger to herself or others. The social worker merely speculated that
if the mother did not follow through with treatment, she might want to hurt herself and
expose the children to her suicide attempt. The court pointed out that “[p]erceptions of
risk, rather than actual evidence of risk, do not suffice as substantial evidence.
[Citation.]” (Id. at p. 137.) There was no evidence the mother used illegal substances
after the children were born, nor was their evidence that the mother was regularly
intoxicated, rendering her incapable of providing regular care for her children, or posing
a risk to them. Regarding this last point, the court stated that the “mere possibility of
alcohol abuse, coupled with the absence of causation, is insufficient to support a finding
the [children] are at risk of harm within the meaning of section 300, subdivision (b).”
(James R., supra, at p. 137.) On top of these observations, the court highlighted that, per
the undisputed evidence, the children’s father was able to protect and supervise them.
(Ibid.) Here, the juvenile court’s implied findings are not speculative because the
parents’ history of making mistakes while providing care, forgetting what they had been
trained to do, missing feedings and resisting medical advice was well documented.
Moreover, there was a consensus among medical staff that the parents posed a risk to the
minor.
         The parents argue that nothing they did caused the minor to suffer any ill effects
from being neglected, and therefore removal is unwarranted. They rely on In re Paul E.
(1995) 39 Cal.App.4th 996, 1005 (Paul E.), which held that “chronic messiness by itself
and apart from any unsanitary conditions or resulting illness or accident, is just not clear
and convincing evidence of a substantial risk of harm. [Citation.]” Paul E. is not on
point for several reasons. The present case is not about a messy household, it is about the
parents’ ability to care for a child with special medical needs. Beyond that, the record
reveals that the minor has suffered ill effects from the parents’ behavior. A day after they
allowed the minor to be exposed to grandmother’s smoking, his apnea monitor went off
10 times in less than 12 hours. Inferentially, the parents’ neglect caused the minor to

                                              22
suffer more respiratory distress than was his norm. On October 14, 2012, the parents
failed to give the minor his medication as directed. When he was returned to GE
Pediatrics, his apnea monitor went off three times and he had to be watched all night.
Again, the inference is that the parents’ conduct led to the minor suffering an unnecessary
bout of respiratory distress.
       As a corollary, the parents imply that the juvenile court should have concluded
that the minor was never injured or at risk due to neglect because Dr. Ward wrote:
“. . . [W]hatever concerns there may be and/or have been about [the parents’] ability to
care of [the minor] and his medical condition once he was in the hospital, I am not aware
of any data whatsoever to suggest that they ever abused or neglected him before he came
into the system.” The problem with this argument is that Dr. Ward’s statement pertains
to the time period before the minor entered the dependency system. More importantly,
the juvenile court was the trier of fact, not Dr. Ward. Even Dr. Ward acknowledged as
much, stating: “Obviously, if these parents actually threatened and/or intended to remove
their son’s [G-tube], that is a very negative factor, and it would cause great concern about
them. However, those are matters of fact and for the Court to decide after looking at all
the evidence.” As we have indicated, the record establishes instances of neglect. Beyond
that, we note that the weight of Dr. Ward’s assessment is lessened because, as he himself
acknowledged, he did not have all the pertinent medical records. Also, because of the
parents’ attitudes and characteristics, Dr. Ward found it “difficult to fully evaluate them.”
Elsewhere, he wrote that “while they both appear to have some emotional type problems,
especially the mother, a clear and precise diagnosis is not possible on the basis of the
present limited data.” Dr. Ward opined that mother should probably have a “psychiatric
consultation to see if some type of medication might be helpful[.]” Finally, it must be
iterated that Dr. Ward’s conclusion was only that the parents “deserve a chance at
reunification,” not that they should have immediate custody.
       The parents point out that a juvenile court cannot remove a child because a doctor
opines that a parent is narcissistic (In re Kimberly F. (1997) 56 Cal.App.4th 519, 527) or
because a social worker believes that a parent had not sufficiently internalized parenting

                                             23
skills (In re Jasmine G. (2000) 82 Cal.App.4th 282, 289). The suggestion is that the
evidence supporting dependency was no more than bald opinions about the sufficiency of
the parents’ parenting abilities. That is not true. The record reveals that the parents are
unable or unwilling to consistently and reliably provide minor with the care that has been
prescribed by his doctors.
       Moving on, the parents press us to conclude that mother did not lie about receiving
training on the Bi-Pap machine. This issue is a red herring. The juvenile court expressed
confusion over mother’s testimony but did not find that she lied. And, in any event,
removal was supported by evidence that the parents were not able or willing to provide
adequate care for the minor. Regarding the parents’ mental functioning, the parents
suggest that the juvenile court should have accepted Dr. Ward’s assessment. This is
flawed because the juvenile court was not provided with records from the psychiatric
hospitals where the parents stayed in December 2012, they had histories of psychiatric
problems, they had not been forthcoming about their most recent hospitalizations, and
they had not been evaluated by a psychiatrist. And even if the juvenile court had
accepted Dr. Ward’s assessment, that would not erase the plethora of concerns arising
from the parents’ difficulties providing care.
       On a purely legal plane, the parents argue that a child can be removed from his
parents’ custody only in extreme cases of parental abuse or neglect, and this case does not
involve either. But section 361, subdivision (c)(1) authorizes removal without specifying
the source of the danger. As provided in Diamond H., that danger can be a parents’
inability to provide care. We therefore decline to accept the parents’ argument that
removal is authorized only on narrow grounds specifically delineated by statute or case
law. The statutory language is broad so that dependent children will be protected when a
situation demands it. Here, whether it is classified as neglect or something else, the
removal order was supported by sufficient evidence of the parents’ inability or
unwillingness to provide reliable care.
       All other issues are moot.



                                             24
II. The ICWA.
       The parents contend that the Department failed to comply with its notice duties
under the ICWA. The Department concedes.
       We follow the rule that when there is a failure to follow the ICWA procedures
before disposition, all jurisdictional and dispositional orders remain in effect and the
matter is remanded “for the Department to comply with the notice requirements of the
ICWA, with directions to the juvenile court depending on the outcome of such notice. If,
after proper notice is given under the ICWA, [the child] is determined not to be an Indian
child and the ICWA does not apply, prior defective notice becomes harmless
error. . . . Alternatively, after proper notice under the ICWA, if [the child] is determined
to be an Indian child and the ICWA applies to these proceedings, [a party] can then
petition the juvenile court to invalidate orders” that violate the ICWA. (In re Brooke C.
(2005) 127 Cal.App.4th 377, 385; 25 U.S.C. § 1914.)




                                             25
                                      DISPOSITION
       The disposition order is affirmed. Upon remand, the juvenile court shall order the
Department to comply with the inquiry and notice provisions of the ICWA. If, after
proper notice is given, the juvenile court determines that the minor is an Indian child and
the ICWA applies, the minor or his parents may petition the juvenile court to invalidate
the orders that violated the ICWA.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                     _____________________________, Acting P. J.
                                           ASHMANN-GERST


We concur:



______________________________, J.
           CHAVEZ



______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            26
