Filed 8/31/16 In re Joshua N. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

In re JOSHUA N., et al., Persons Coming                              B265797
Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK61398)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

PAMELA B.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County.
Marguerite D. Downing, Judge. Affirmed and remanded with instructions.


         Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Aileen Wong, Deputy County Counsel for Plaintiff and Respondent.


         Merrill Lee Tool, under appointment by the Court of Appeal, for Minors.
       Pamela B. (mother) appeals from a judgment of the juvenile court assuming
jurisdiction over her children Joshua N. (born Mar. 2002) and Nylah N. (born June 2003).
Mother challenges the juvenile court’s decision that jurisdiction was warranted under
Welfare & Institutions Code section 300.1 Mother also challenges the juvenile court’s
finding that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) is
inapplicable.
       The parties agree that the notice requirements of ICWA were not met in this case.
Therefore, we remand the matter to the juvenile court for the limited purpose of
compliance with the ICWA notice requirements. We otherwise affirm the juvenile
court’s judgment.
                                     BACKGROUND
       The family consists of mother, Timothy N. (father), and the children, Joshua and
Nylah.2
Petition and detention report
       On January 6, 2015, the Department of Children and Family Services (DCFS)
filed a petition and detention report regarding Joshua and Nylah. The petition alleged,
under section 300, subdivisions (a) and (b), that mother had a history of violent and
assaultive behavior, and that she had engaged in a violent altercation with a non-related
adult female in the presence of the children. Mother had instructed Joshua to intervene in
the altercation. The petition alleged that mother’s violent and assaultive behaviors
endangered the children’s physical health and safety and placed them at risk of harm.
       The events leading up to the filing of the petition began on November 26, 2014.
DCFS received a referral alleging that mother had been arrested after a fight between
mother and an non-related adult, Alicia. Alicia sustained marks to her shoulder,


1     All further statutory references are to the Welfare & Institutions Code unless
otherwise noted.

2       Father is not a party to this appeal. At the time of the relevant events, father was
living separately from mother and the children.

                                              2
forehead, and back, although mother did not receive any marks as a result of the conflict.
The children were left in the care of mother’s adult daughter, Natasha B.
       When a social worker appeared at mother’s home on December 4, 2014, mother
refused to allow the social worker inside the home. Mother claimed the problem was
with Alicia and not her, and told the social worker never to return to her home. When
Nylah came to the door, mother introduced Nylah to the social worker. Mother went on
to express that Nylah was on the honor roll and had perfect attendance at school. Mother
claimed to take good care of her children, that her son Joshua was autistic, but doing so
well that he was being mainstreamed in school. Mother suggested that the social worker
call the school to inquire about mother’s parenting, and added that she and her children
were victims in the situation with Alicia.
       Mother explained that the incident occurred at the home of mother’s godmother,
Teresa.3 Mother’s adult daughter, Natasha, lived with Teresa. Alicia is Teresa’s
daughter and had recently moved in with Teresa as well. Mother telephoned Teresa and
informed her that the social worker was at her home. Teresa requested that the social
worker come to her home to discuss the incident.
       Mother then told the social worker about the events of November 26, 2014. It was
the day before Thanksgiving and mother and Teresa had returned to Teresa’s home after
getting some groceries. At that time, Teresa’s home had not had running water for over a
month. When they returned from getting groceries, mother went inside Teresa’s home
where she found feces piled up in Natasha’s bathroom because they could not flush the
toilet. Mother wanted to help Natasha find something to use to flush the toilet. Mother
said Alicia assumed mother was coming to Teresa’s house to say something about the
situation, and they began to argue. Mother reported that Alicia is a 300 lb. woman who
just jumped on her out of nowhere. Though Alicia blocked her in, she freed herself,
grabbed her children and left. The police later came to mother’s door and arrested her.



3      Teresa is sometimes referred to in the record as Leomise or Teresa Leomise. For
consistency, she will be referred to as Teresa throughout this opinion.

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They also handcuffed her children and put them in the police car. Mother said the social
worker should be investigating Alicia and her children.
       Mother stated she was incarcerated as a result of the incident and had to post
$3,000 bail. Mother also does not want DCFS around because she never had a good
relationship with them. DCFS falsely accused her children’s father of sexual assault and
it took her six months before she got a letter of apology from the regional director.
       While mother was talking, the social worker was able to observe both children,
despite the fact that mother would not allow the social worker to speak with the children.
Mother said she had asked the school about counseling for her children because of the
experience of being handcuffed and put in a police car. The children appeared neat
without any marks or bruises. Both children appeared concerned for their mother, as she
was crying at times and expressing her frustration. Both children appeared healthy and
well nourished.
       The social worker interviewed Teresa, who stated that on the day of the incident
she and mother had gone to a food bank. They returned to Teresa’s house with the
groceries. By the time she made her way to the porch, Teresa already heard arguing. She
saw mother and Alicia arguing in the hallway of her home and attempted to separate
them. She had mother go to Natasha’s room and had Alicia go into her bedroom. Alicia
then came out of her room, rushed to Natasha’s room, and jumped on mother. Alicia
broke down the door to Natasha’s room trying to get to mother. Mother left the house
and was later arrested. Teresa confirmed that mother’s children and Alicia’s children
were present during the altercation.
       The social worker inquired if Alicia was available to speak with her. Teresa said
the social worker could not come in the residence because she could not “put the dogs
up” at that time. Instead, Alicia came outside. She was very upset and reported that she
was not the one who started the fight. She said that she and her children were victims in
the incident. The social worker wanted to interview Alicia and her children about the
incident and told Alicia that she would return to the home on a specific date.



                                             4
       On December 9, 2014, when the social worker returned to Teresa’s residence,
Alicia allowed the social worker to enter the home. Alicia explained that on the date of
the incident, mother had entered the home “saying things about the home and she was
using inappropriate words” towards Alicia. Alicia and mother began to argue. Mother
then picked up a cane and hit Alicia on the back and shoulders. All the children were
present during the altercation. Alicia’s three children tried to break up the fight, but
mother asked her children to fight Alicia’s children. The fight then broke up and mother
left. Alicia called the police, and the officers took her statement and pictures of her
injuries.
       Alicia admitted to past altercations with mother. When Alicia was 13 or 14 years
old, she and mother had a fight which resulted in Alicia being sent to juvenile hall. When
she was released she was placed in protective custody and lived in various foster homes
until the age of 17. In January 2014, she moved in with Teresa to rebuild their
relationship. Alicia consented to the social worker interviewing her children.
       Alicia’s seven-year-old child, Amari, informed the social worker that he was
present during the fight between mother and Alicia. He had been in his bedroom
watching television when he heard Alicia and another woman talking. Teresa told
mother and Alicia to “break it up.” Amari came out of his room and saw mother pick up
Teresa’s cane and hit Alicia with it on the back. Mother then told Joshua to grab a knife,
which he did, from the kitchen. He later put it back. Amari was scared and said no one
fought in the home before this incident.
       Alicia’s 10-year-old daughter, Amelya, also witnessed the fight. Initially, mother
and Alicia were arguing, though Amelya did not remember what they were arguing
about. Amelya saw mother pulling Alicia’s hair, and mother hit Alicia with a cane.
Mother told Joshua to get a knife. Amari’s and Amelya’s sibling, Amaya, told Joshua to
stop, so Joshua put the knife back. Amelya and her siblings were crying during the
altercation. Amelya denied any previous violence in the home.
       Alicia’s other daughter, 10-year-old Amaya, also witnessed the fight. She did not
know what mother and Alicia were arguing about, but saw mother pulling Alicia’s hair


                                              5
and beating her with a cane. Amaya tried to break up the fight but Joshua started
“socking” her and her sister. Mother told Joshua to get a knife, but he did not. Amaya
had never before seen mother and Alicia fight.
       On December 10, 2014, the social worker obtained a police report of the incident,
which disclosed that deputy sheriffs Perez and Hoyos came to Teresa’s home after a call
regarding an assault with a deadly weapon. Alicia informed the deputies that she was in
her room when mother confronted her about paying bills in Teresa’s home. As the
argument escalated, mother grabbed a wooden cane and struck Alicia several times on
her upper body. After the cane broke into several pieces, mother ran out and went home.
Alicia identified mother as the person who struck her with a wooden cane. Mother
refused to provide a statement.
       Alicia had several bruises, cuts, and a red swollen area on her forehead. Alicia
refused medical attention. Alicia’s injuries appeared to be consistent with use of a
wooden cane. The deputies arrested mother for assault with a deadly weapon and made a
referral to DCFS.
       On December 16, 2014, the social worker contacted Detective Bell at the Sheriff’s
station in Compton. He informed the social worker that mother had a hearing on
December 19, 2104, at which time the district attorney would decide whether charges
would be filed against mother.
Prior child welfare history
       The detention report included the following information regarding prior DCFS
referrals.
       On December 29, 1999, DCFS received a referral alleging caretaker absence/
incapacity by mother. A relative reported that mother left Natasha with someone unable
to care for the child while mother was in jail. Instead, mother had left Natasha in the care
of maternal grandmother, who was able to provide care for her. The referral was closed
as unfounded.
       A January 8, 2002 referral alleged physical abuse of Natasha by mother. The
mandated reporter said mother hit Natasha on the face with a shoe. Mother admitted to


                                             6
accidentally hitting Natasha with a slipper. There were no marks or bruises on Natasha.
The referral was closed as inconclusive.
       A November 14, 2002 referral alleged general neglect of the children by mother.
The mandated reporter said that father was arrested for narcotics charges and the home
was “deplorable.” The charges against father were dropped. Mother’s home was found
to be safe and clean. The referral was closed as inconclusive.
       A January 9, 2003 referral alleged physical abuse by mother of a relative who was
a minor and substantial risk to the children. The mandated reporter said mother’s then
minor sister claimed that mother became angry with her and hit her with a broom. The
referral was closed as inconclusive.
       A January 6, 2004 referral alleged general neglect and emotional abuse of the
children by the parents. The reporting party stated that the parents left the children home
without any supervision. The referral was closed as unfounded.
       A March 10, 2004 referral alleged general neglect and emotional abuse of the
children by mother. Father reported mother’s room was filthy and she left the children
with a babysitter so she could go out at night. DCFS concluded the referral was
unfounded as it appeared father trashed mother’s home as a set up, and mother’s behavior
was appropriate.
       A May 7, 2004 referral alleged general neglect as to Natasha, Joshua and Nylah by
mother. The reporting party was conducting a fraud investigation of father. The property
owner informed the reporting party that the children were left unsupervised by mother.
Natasha had been seen pushing Nylah in a stroller with Joshua on her side without any
supervision. The referral was closed as unfounded.
       A February 1, 2005 referral alleged sexual abuse of then three-year-old Joshua and
his sisters, then two-year-old Nylah and 10-year-old Natasha, by father. The sexual
abuse allegation was closed as unfounded. However, the allegation for emotional abuse
of the children was substantiated as to both parents. The referral resulted in a voluntary
maintenance plan from May 5, 2005 through August 11, 2005.



                                             7
       A June 14, 2012 referral alleged severe neglect, which was downgraded to general
neglect. Joshua had been injured after climbing on to the back of a truck. The parties
interviewed stated that the incident was an accident. Law enforcement found no crime.
Mother followed up with all the necessary medical appointments for Joshua, who
disclosed that he was told to stop climbing on the back of the truck. The referral was
closed as inconclusive.
       On November 13, 2012, there was a referral alleging physical abuse of Natasha by
mother. The physical abuse referral was closed as inconclusive, as Natasha turned 18
years old, no longer resided in the home, and her whereabouts were unknown. The initial
allegation was that there was an argument between mother and then 17-year-old Natasha.
Natasha sustained injuries from the argument and had to be treated at the hospital.
Natasha reported that mother hit her with a stick because of Natasha’s poor grades and
career path. Mother said she was defending herself against Natasha, who sprung on her
after mother confronted her about her grades.
The parents’ criminal history
       The parents’ criminal history was also set forth in the detention report. Mother
had the following criminal history: (1) an April 18, 1985 misdemeanor conviction for
battery on a police officer/emergency person; (2) a January 7, 1987 misdemeanor
conviction for battery; (3) a May 13, 1988 misdemeanor conviction for false
identification to a peace officer; (4) an April 9, 1999 misdemeanor conviction for fraud to
obtain aid; (5) July 14, 2000 felony convictions for burglary, forgery, and possessing a
bad check; and (6) a June 21, 2011 misdemeanor conviction for force/assault with a
deadly weapon not a firearm, great bodily injury likely.
       Father had arrests for use of a controlled substance in 1987; two DUI convictions
from 2005 and 2006; and an arrest for inflicting corporal injury on a spouse in 2002.
Removal order
       On December 19, 2014, DCFS requested an order of removal of the children,
which was granted on December 22, 2014.



                                             8
         The social worker made several attempts to execute the warrant, but mother did
not make herself available to DCFS. The social worker went to mother’s home on
December 30, 2014, at 11:00 a.m. and 7:00 p.m., but mother did not answer the door.
Deputy Hoyos accompanied the social worker at 7:00 p.m. to mother’s residence where
they saw lights and the television on, but no one would answer the door.
         The social worker went to mother’s home again on December 31, 2014, at 8:00
a.m. The social worker observed a truck leaving the residence. The social worker noted
that mother appeared to be avoiding her. DCFS filed a protective custody warrant
request for the children.
Detention hearing
         At the January 6, 2015 detention hearing, the juvenile court noted that mother
claimed American Indian heritage in the Choctaw and Cherokee tribes. The juvenile
court ordered DCFS to serve ICWA notices to the Choctaw and Cherokee tribes, the
Bureau of Indian Affairs, and the Secretary of the Interior.
         The juvenile court found a prima facie case for detaining the children and ordered
them released to the parents’ custody over DCFS’s objection. The juvenile court ordered
mother to enroll in an anger management program. Alicia was ordered not to have
contact with the children. The court set a contested jurisdictional hearing.
Jurisdiction/disposition report
         On February 17, 2015, DCFS filed a jurisdiction/disposition report in which it was
reported that on February 12, 2015, mother went to the DCFS office to provide
information regarding her Native American heritage, noting that Joshua and Nylah might
be eligible for membership in the Cherokee, Choctaw, and Seminole tribes.
         Joshua and Nylah were interviewed on February 12, 2015, at the DCFS office.
Joshua stated that he was outside and thus not present when his mother and Alicia had the
fight.
         Nylah stated that on the date of the incident, she saw mother and Alicia arguing
and took a baby that was present to the kitchen area of the home. Nylah denied
witnessing any kind of physical altercation.


                                               9
       The DCFS investigator made several attempts to contact mother, but mother
refused to make herself available to DCFS. The investigator called mother on February 5
and 6, 2015, and went to the home on February 12, 2015, but was unable to interview
mother.
       On February 5, 2015, mother went to the DCFS office and provided the
investigator with copies of the detention report, police report, Teresa’s written statement,
the jury verdict from mother’s criminal case, a letter from the district attorney, an anger
management completion letter, a letter from a previous 2005 DCFS case, and mother’s
statements regarding the allegations in the detention report. When the investigator
attempted to interview mother, mother replied “‘Everything you need to know is in this
letter. Read it and if you have any questions, call me.’” Mother said she was going on
vacation for a month. The investigator reported that mother smelled of alcohol and
marijuana when she dropped off the documents.
       On February 12, 2015, mother was interviewed at the DCFS office. Mother
denied the allegations in the section 300 petition, stating that when she came into
Teresa’s home on November 26, 2014, Alicia jumped on her. Mother denied telling
Joshua to strike anyone, and denied attacking Alicia. After the incident, mother gathered
her children and walked home, leaving her vehicle at Teresa’s home. Mother denied
using objects to defend herself in the altercation. Mother disclosed that she and father
had an incident of domestic violence in 2002.
       Teresa was interviewed on February 13, 2015. She denied that mother did
anything to provoke the altercation. Teresa said Alicia was angry and started beating
mother.
       Father was also interviewed and admitted to incidents of domestic violence
between mother and him. He and mother would get into verbal altercations and mother
would assault him. Although father had a family law order, mother would choose when
he got to visit the children. The last time he saw Joshua and Nylah was at the January 6,
2015 hearing. He had not seen them since.



                                             10
       A criminal court docket was attached to the report, indicating that a jury found
mother not guilty of the November 13, 2012 charge of assault with a deadly weapon.
Also attached was a progress report for an anger management program dated June 1,
2011. Mother further provided a letter from the district attorney’s office dated December
19, 2014, stating that the office declined to file charges against mother for assault and
battery in the November 2014 incident.
Supplemental and last minute reports
       DCFS submitted a document entitled “County of Los Angeles-Sheriff’s
Department-Supplementary Report” dated December 10, 2014. The report was
completed by Detective Bell. On November 30, 2014, he contacted Alicia about the
incident with mother. Alicia stated that when mother arrived at Teresa’s residence,
mother told Alicia, “‘We need to talk.’” Alicia responded, “‘We have nothing to talk
about.’” Mother got upset and stated “‘You don’t know who you are talking to.’”
During this time, Teresa had put down her wooden walking cane in an attempt to get
between mother and Alicia.
       After Teresa got between mother and Alicia, mother picked up the walking cane
and hit Alicia with the cane on her upper body and struck her once on the head. Mother
hit Alicia several times on her upper body before the cane broke. Mother held on to the
broken cane that had a sharp tip and threatened Alicia with it, stating she was going to
stab Alicia. Mother did not carry through with the threat but turned around and left.
       On December 10, 2014, Detective Bell spoke to Teresa. Teresa stated she lived
with Alicia and mother’s adult daughter. By the time Teresa walked into the home on
November 26, 2014, mother and Alicia were already arguing. Teresa stepped in between
them and told Alicia to go to her room and shut the door. Teresa then told mother to go
in her daughter’s room and shut the door. Mother and Alicia continued to yell at each
other behind the closed bedroom doors. As Teresa was walking down the hallway, Alicia
came from her bedroom and kicked in the door of the room where mother was waiting.
They physically fought and struggled with each other. At some point, mother grabbed
Teresa’s cane and swung the cane at Alicia. Teresa did not see if the cane struck Alicia.


                                             11
         Detective Bell made several unsuccessful attempts to contact mother.
         Attached to the supplemental report were photographs of Alicia’s injuries and the
broken cane.
         In a last minute information for the court, DCFS provided the information
collected regarding Indian heritage. The Choctaw Nation of Oklahoma said the tribe was
unable to establish Indian heritage for Joshua. The Mississippi Band of Choctaw Indians
stated Joshua and the relatives listed were not enrolled members or eligible for
enrollment in the tribe. On May 12, 2015, the Cherokee Nation sent a letter requesting
more information regarding mother and the children. The investigator stated that she
provided the requested information to the Cherokee Nation. The investigator provided
the return receipts for the Jena Band of Choctaw Indians, Cherokee Nation of Oklahoma,
Bureau of Indian Affairs, Choctaw Nation of Oklahoma, Mississippi Band of Choctaw
Indians, and Secretary of the Interior.
         In a June 15, 2015 last minute information for the court, the investigator attached a
police report dated November 13, 2012, relating to the altercation between mother and
Natasha. When the police arrived, Natasha was being treated for lacerations on both
forearms. Natasha’s arms were bandaged, and her left arm was immobilized and in a
sling.
         Natasha explained that she and mother were having an argument about her
schooling. Mother started to yell and stormed out of the room. Mother returned several
seconds later holding a piece of wood approximately three feet long and one half inch
thick with a pointed edge. Natasha got up and attempted to leave the room, but mother
swung the piece of wood towards Natasha’s head. Natasha blocked mother’s attack by
placing her forearms above her head. Natasha said mother struck her approximately
seven to ten times on her wrists and forearms, causing multiple lacerations. The deputies
noted that Natasha was crying when she related the incident, and she was transported to
Harbor General Hospital.
         When the deputies knocked on her door, mother did not answer. However, the
door was ajar so the deputies entered to determine if there were any other victims. They


                                              12
found mother in a bedroom which smelled of marijuana. The entire room was filled with
haze and smoke as if mother had just finished smoking marijuana. The deputies found a
substance resembling marijuana as well as marijuana stems in the closet.
       Mother acknowledged that she and Natasha were arguing, but said it was Natasha
who picked up the wooden stick which she used to try and strike mother. Mother took
control of the stick and swung it at Natasha. Mother claimed she acted in self-defense.
The deputies arrested mother for assaulting a child causing great bodily injury and
possession of marijuana. Mother said she was a medical marijuana patient in legal
possession of the drug. Mother admitted to smoking marijuana prior to the deputies’
arrival.
       When the deputies visited Natasha in the hospital, they found her injuries were
consistent with placing her arms above her head in a defensive position.
       Attached to the last minute report were more responses from the tribes, the return
receipts from the Mississippi Band of Choctaw Indians, Jena Band of Choctaw Indians,
Secretary of the Interior, Bureau of Indian Affairs, Choctaw Nation of Oklahoma, and
Cherokee Nation of Oklahoma for Nylah, and the ICWA notices prepared for Joshua.
The May 27, 2015 letter from the Cherokee Nation stated that Joshua did not meet the
definition of an Indian child. On May 28, 2015, the Choctaw Nation of Oklahoma
indicated it was unable to establish Indian Heritage for Nylah. The ICWA notices
contained the case name Nylah N. and the name Joshua N. with his date of birth.
Joshua’s ICWA notices were mailed to the Bureau of Indian Affairs, the Secretary of the
Interior, the Cherokee Nation of Oklahoma, the Choctaw Nation of Oklahoma, the Jena
Band of Choctaw Indians, and the Mississippi Band of Choctaw Indians.
Jurisdiction/disposition hearing
       The jurisdiction/disposition hearing took place on June 15, 2015. The juvenile
court found that ICWA did not apply.
       Eighty-one-year-old Teresa testified that she is mother’s godmother, and explained
that she was not present when the altercation began. Rather, she was in the car waiting
for mother to unload her groceries. When she went into the house, she saw mother and


                                            13
Alicia arguing. Teresa was in the living room hallway and mother was in Natasha’s
room. Alicia was in her bedroom. The children were in Teresa’s grandchildren’s room.
       After Teresa tried to calm mother and Alicia, Alicia rushed down the hall, pushing
Teresa and knocking the cane out of her hand. Alicia kicked Natasha’s door and knocked
it off the hinge. Teresa saw mother and Alicia fighting. Teresa thought mother picked up
the cane to defend herself. Teresa noted that the cane was broken at the end of the fight,
though she did not know who had broken the cane. Teresa denied the children were
involved in the fight, and denied that mother was the aggressor. She had never seen
mother act violently, except when she had to defend herself. Teresa did not have any
concerns regarding mother’s ability to parent her children.
       During cross-examination, Teresa admitted that mother asked Joshua to get a
knife. Teresa told Joshua not to get the knife and he obeyed.
       Teresa admitted that there was a DCFS investigation due to a fight Alicia had with
mother when Alicia was a minor.
       The DCFS investigator testified that she interviewed mother, the children, and
Teresa, but was unable to interview Alicia. During the investigation, the investigator did
not have any concerns about the care mother provided her children. Mother was well
versed on Joshua’s Individualized Education Plan and the children were doing well in
school. It was the investigator’s belief that mother’s history of violent assaults on other
parties, including the incident leading to the detention and the 2012 incident with
Natasha, placed the children at risk of harm. The investigator was unaware of any
incidents between mother and the children. However, the investigator noted that the
social worker had difficulty reaching mother and seeing the children.
       The children, through their counsel, requested that the section 300 petition be
sustained under section 300, subdivision (b). The children’s counsel argued that DCFS
met its burden and this was not an isolated incident. The children’s counsel noted that
the children felt safe with mother and wanted the case closed.
       The juvenile court sustained the allegation under section 300, subdivision (b)
because mother had a history of assault and battery. While the court found that mother


                                             14
did not initiate the altercation, mother escalated it by telling Joshua to get a knife. This
was indicative of issues of anger management. In addition, the court noted that mother
did not become cooperative with DCFS until the last minute. The juvenile court found
that mother’s anger management issues and history of violence placed the children at
risk.
        The juvenile court declared the children dependents of the court under section 300,
subdivision (b), and made a home of parents order. The court ordered family
maintenance services for the parents, and set the matter for a section 364 review hearing.
        On June 16, 2015, mother filed her notice of appeal.
                                        DISCUSSION
I. Substantial evidence supports the juvenile court’s jurisdictional findings
        A. Applicable law and standard of review
        On appeal from an order making jurisdictional findings, the court’s findings must
be upheld unless, after reviewing the entire record, resolving all conflicts in favor of the
respondent, and drawing all reasonable inferences in support of the judgment, there is no
substantial evidence to support the findings. Substantial evidence is evidence that is
reasonable, credible, and of solid value. (In re Veronica G. (2007) 157 Cal.App.4th 179,
185.)
        “A reviewing court may not ‘consider whether there is evidence from which the
dependency court could have drawn a different conclusion,’ but is limited to determining
whether ‘there is substantial evidence to support the conclusion that the court did draw.’
[Citation.]” (In re Jesus M. (2015) 235 Cal.App.4th 104, 113.)
        On the other hand, a decision supported by a mere scintilla of evidence need not
be affirmed on appeal. The ultimate test is whether a reasonable trier of fact would make
the challenged ruling considering the whole record. (In re James R. (2009) 176
Cal.App.4th 129, 134-135.)
        Section 300, subdivision (b) is applicable if: “The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent or guardian to adequately supervise or protect


                                               15
the child, or the willful or negligent failure of the child’s parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with whom the child has
been left.”
       In enacting section 300, subdivision (b), the Legislature intended to protect
children who are currently being abused and “to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.)
The court need not wait until a child is seriously abused or injured to assume jurisdiction
and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th
183, 194-196 (Heather A.).)
       A jurisdictional finding under section 300, subdivision (b) requires substantial
evidence of: (1) neglectful conduct by the parent in one of the specified forms; (2)
causation; and (3) serious physical harm or illness to the child or a substantial risk of such
harm or illness. (In re James R., supra, 176 Cal.App.4th at p. 135.) The third element
effectively requires a showing that at the time of the jurisdictional hearing the child is at
substantial risk of serious physical harm in the future. (In re Savannah M. (2005) 131
Cal.App.4th 1387, 1396.)
       A determination of whether a child is at substantial risk of harm should be made
by looking at the totality of the circumstances, including the severity of the incidents,
whether there was a substantial lapse of time between the instances of abuse and the
filing of the section 300 petition, the amount of contact between the child and the parent,
and whether the parent has adequately addressed the issues that led to the harmful
conduct. (In re J.K. (2009) 174 Cal.App.4th 1426, 1440.)
       B. The evidence supports the court’s finding of a substantial risk of harm
       Mother argues there was no evidence of a substantial risk of harm to the children
arising from her actions. Additionally, mother argues that DCFS based its assessment of
current risk on two incidents in which mother was accused of criminal assault. The first
was the incident that took place between mother and Alicia in November 2014. Mother
points out that the criminal charges against her were dropped.



                                              16
       The other was the 2012 matter involving an altercation between mother and her
now adult daughter, Natasha. Mother points out that a jury acquitted her of charges in the
2012 matter. In addition, DCFS investigated the incident and found the allegation of
child abuse inconclusive.
       DCFS admitted that there was no evidence that mother had ever displayed
uncontrolled anger towards Joshua or Nylah. In fact, the evidence showed that mother
took good care of her children and was a strong educational advocate for both of them.
       Mother points out that in the November 2014 incident involving an altercation
with Alicia, Alicia was the only person who claimed that mother was the aggressor.
Mother argues that all other witnesses agreed that mother was the victim.
       Even if mother had been the aggressor, mother argues, this fact alone would not
necessarily mean that the children were at risk of harm. Mother cites In re Drake M.
(2012) 211 Cal.App.4th 754, 758-759 (Drake M.), for the proposition that the agency
must produce evidence that, at the time of the jurisdictional hearing, there is a substantial
risk that a child will suffer serious physical harm or illness. (See also In re David M.
(2005) 134 Cal.App.4th 822, 830 (David M.) [Where mother suffered from drug
problems and father had history of mental illness, court concluded “The record on appeal
lacks any evidence of a specific, defined risk of harm to either David or A. resulting from
mother’s or father’s mental illness, or mother’s substance abuse”].) Mother argues that
here, as in Drake M. and David M., there is no evidence that mother posed any risk of
harm to Joshua or Nylah.
       We find Drake M. and David M. to be distinguishable. Drake M. involved a
parent’s use of medical marijuana. David M. involved the mental illness of both parents
and substance abuse of one parent. Here, in contrast, mother’s conduct arises from issues
of anger management, exposing her children to violence, and attempting to involve her
children in the violence.
       Unlike the situations in Drake M. and David M., the evidence in the present matter
was sufficient to support a finding that Joshua and Nylah were at substantial risk of harm
at the time of the jurisdictional hearing. The record showed an extensive history of


                                             17
violence on the part of mother towards both family members and others. In addition to
the November 2014 altercation with Alicia and the 2012 altercation with Natasha, there
was an allegation of physical abuse by mother against Natasha in 2002 as well as a 2003
referral alleging that mother hit her minor sister with a broom. Also, father reported that
there was violence between him and mother in which mother was the aggressor.
       Mother had an extensive criminal history involving aggressive conduct. In 1985
she was convicted of misdemeanor battery of a peace officer/emergency person. In 1987
she was convicted of misdemeanor battery, and in 2011 she was convicted of
misdemeanor assault with a deadly weapon (not a firearm) with great bodily injury likely.
The juvenile court was entitled to consider this past history. Further, we note that the
juvenile court appeared particularly troubled by mother’s instruction to Joshua to get a
knife. The juvenile court was entitled to believe the testimony that mother had attempted
to involve Joshua in the altercation in this way. Mother’s instruction to Joshua to get a
knife, with the apparent purpose of having him assist and become involved in the violent
altercation, certainly placed him at risk of physical harm. Looking at the record as a
whole, the evidence supports the juvenile court’s determination that Joshua and Nylah
were at substantial risk of harm due to mother’s tendency to engage in physical violence
with others. The children were at substantial risk of harm from being exposed to
mother’s violent conduct. They were also at risk of becoming victims of her violent
conduct, or becoming involved in mother’s fights with other people.
       The juvenile court need not wait until Joshua or Nylah is harmed before taking
action to protect them from mother’s aggressive conduct. (Heather A., supra, 52
Cal.App.4th at pp. 194-196.) The record as a whole supported the juvenile court’s
determination that the children were at substantial risk of harm.
II. Limited remand on ICWA compliance is warranted
       A. Applicable law
       ICWA accords Indian tribes the right to intervene at any point in a state court
dependency proceeding involving an Indian child. (In re Karla C. (2003) 113
Cal.App.4th 166, 173-174.) To ensure the tribe will be afforded the opportunity to


                                             18
intervene and assert its rights in the action, the statute requires that notice be given to the
appropriate tribe in any dependency proceeding involving an Indian child.4
       In California, section 224.2 governs ICWA notice in dependency proceedings.
Subdivision (a) of that statute provides in relevant part: “If the court, a social worker, or
probation officer knows or has reason to know that an Indian child is involved, any notice
sent in an Indian child custody proceeding under this code shall . . . comply with all of
the following requirements: [¶] (1) Notice shall be sent by registered or certified mail
with return receipt requested. Additional notice by first-class mail is recommended, but
not required. [¶] (2) Notice to the tribe shall be to the tribal chairperson, unless the tribe
has designated another agent for service. [¶] (3) Notice shall be sent to all tribes of which
the child may be a member or eligible for membership, until the court makes a
determination as to which tribe is the child’s tribe in accordance with subdivision (d) of
Section 224.1, after which notice need only be sent to the tribe determined to be the
Indian child’s tribe.”
       California law also imposes an “affirmative and continuing duty” on the court and
the Department “to inquire whether a child for whom a petition . . . is to be, or has been,
filed is or may be an Indian child in all dependency proceedings.” (§ 224.3, subd. (a).)
Subdivision (c) of section 224.3 sets forth the steps to be taken when making further
inquiry regarding a child’s Indian status:

4      The ICWA notice provision states: “In any involuntary proceeding in a State
court, where the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered
mail with return receipt requested, of the pending proceedings and of their right of
intervention. If the identity or location of the parent or Indian custodian and the tribe
cannot be determined, such notice shall be given to the Secretary in like manner, who
shall have fifteen days after receipt to provide the requisite notice to the parent or Indian
custodian and the tribe. No foster care placement or termination of parental rights
proceeding shall be held until at least ten days after receipt of notice by the parent or
Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian
custodian or the tribe shall, upon request, be granted up to twenty additional days to
prepare for such proceeding.” (25 U.S.C. § 1912(a).)


                                              19
               “If the court, social worker, or probation officer knows or has reason
       to know that an Indian child is involved, the social worker or probation
       officer is required to make further inquiry regarding the possible Indian
       status of the child, and to do so as soon as practicable, by interviewing the
       parents, Indian custodian, and extended family members to gather the
       information required in paragraph (5) of subdivision (a) of Section 224.2,
       contacting the Bureau of Indian Affairs and the State Department of Social
       Services for assistance in identifying the names and contact information of
       the tribes in which the child may be a member or eligible for membership
       in and contacting the tribes and any other person that reasonably can be
       expected to have information regarding the child’s membership status or
       eligibility.”5

       B. Failure to comply with ICWA notice requirements
       Mother argues that there were several problems with the ICWA notices in this
matter. First, while the court acknowledged its duty to inquire and ordered DCFS to
investigate the children’s possible affiliation with the Cherokee and Choctaw tribes, it
was unclear whether the tribes were given notice regarding both children. While Nylah’s
name was on the top of the notice form, only Joshua and his birth date were included in
the section requiring the child’s name. No separate form appears to have been sent to the
tribes specifically regarding Nylah. Only one tribe responded with respect to Nylah. At
the time of the juvenile court’s decision, responses were still pending for all other tribes
regarding Nylah.
       As to Joshua, no responses had been received from the Bureau of Indian Affairs,
the Secretary of the Interior, or the Jena Band of Choctaw Indians. All other noticed
tribes indicated that Joshua did not meet their respective criteria to be an Indian child.




5      The statutory inquiry requirements are implemented by rule 5.481(a) of the
California Rules of Court. Subdivision (a)(4)(A) of rule 5.481 provides that inquiry
regarding a child’s Indian heritage shall include “[i]nterviewing the parents, Indian
custodian, and ‘extended family members’ as defined in 25 United States Code section
1901 and 1903(2), to gather the information listed in Welfare and Institutions Code
section 224.2(a)(5) . . . which is required to complete the Notice of Child Custody
Proceeding for Indian Child (form ICWA-030).”

                                             20
       With respect to both Joshua and Nylah, the court never acknowledged mother’s
claim of Seminole heritage and DCFS never sent notice to the Seminole tribe or to the
Bureau of Indian Affairs or the Secretary of the Interior regarding this claim.
       Thus, mother argues, the court’s ICWA ruling on June 15, 2015, was premature.
Responses were still pending from various tribes, and notice was never given to the
Seminoles. In addition, the attempt by DCFS and the court to apply responses from
various tribes concerning Joshua to Nylah was a notice violation. (In re Robert A. (2007)
147 Cal.App.4th 982, 989-990 [improper to bootstrap child’s case to his half-sibling’s
case for ICWA purposes].)
       DCFS concedes that the notice requirements of ICWA may not have been met in
this case. DCFS requests a remand to the juvenile court with directions for the sole
purpose of providing proper notice to the federally recognized Cherokee and Choctaw
tribes for Nylah, and proper notice to the federally recognized Seminole tribes for both
children. (In re Francisco W. (2006) 139 Cal.App.4th 695, 706 [“The limited reversal
disposition in defective notice ICWA appeals is in keeping with the public policy of our
child dependency scheme, which favors prompt resolution of cases”].) Failure to comply
with the inquiry and notice requirements of ICWA does not require reversal of the
juvenile court’s dispositional order. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384-
385.) As we noted in Brooke C., “the only order which would be subject to reversal for
failure to give notice would be an order terminating parental rights” (id. at p. 385), and
such an order is not at issue in these proceedings.
                                      DISPOSITION
       The matter is remanded to the juvenile court for compliance with ICWA and
applicable related California law. If, after proper inquiry and notice, a tribe claims that
Joshua or Nylah is an Indian child, or if other information is presented to the juvenile
court that suggests Joshua or Nylah is an Indian child, the juvenile court is ordered to
conduct a new hearing in conformity with the provisions of ICWA relating to child
custody proceedings involving Indian children, and the children, the tribe, and mother



                                             21
may petition the juvenile court to invalidate any orders that violate ICWA. In all other
respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 ____________________________, J.
                                                 CHAVEZ
We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




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