Filed 10/28/15 In re Harmony D. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

In re HARMONY D., et al., Persons                                    B261170
Coming Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK63065)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

D.D.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. Margaret
S. Henry, Judge. Affirmed and remanded with instructions.


         Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
       Appellant D.D. (father) appeals from the juvenile court’s December 4, 2014 order
establishing dependency jurisdiction over his children, C.D. (born Jan. 2013), and
Harmony (born Oct. 2011), and removing them from his custody.1 Father contends the
order must be reversed for failure to comply with the inquiry and notice requirements of
the Indian Child Welfare Act (ICWA) and because insufficient evidence supports the
juvenile court’s findings under Welfare and Institutions Code section 300, subdivision
(b),2 that the children were at risk of harm because of domestic violence and an
unsanitary and hazardous home environment.
       The Los Angeles Department of Children and Family Services (the Department)
concedes that the matter should be remanded to the juvenile court for compliance with
the ICWA inquiry and notice requirements.
       We conclude that substantial evidence supports the juvenile court’s jurisdictional
and dispositional findings and order, and affirm the order with directions to ensure
compliance with the applicable inquiry and notice requirements.
                                    BACKGROUND
Detention and section 300 petition
       On November 3, 2014, Gardena police officers arrested father after they
responded to a domestic violence incident at the family home. Upon arriving at the
home, officers saw father arguing with his former girlfriend, Sharone W. who had
abrasions under her right eye and her right collar bone, bruising on the underside of her
left forearm, bleeding in or round both earlobes, and blood around her lips and inside her
mouth. She refused medical attention and said her injuries were “probably” caused when
she fell after father pushed her. Both Sharone and father denied hitting each other.
Sharone’s injuries led the arresting officer to conclude that father was the aggressor and




1      The children’s mother is not a party to this appeal.

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


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took father into custody. While in custody, father showed officers a wound on his chest
that he claimed to have sustained when Sharone bit him.
       Responding Officer Maderois informed the Department’s social worker of father’s
arrest. It was reported that at the time father was arrested, he had outstanding warrants
for offenses ranging from illegal drug possession to domestic violence. Officer Maderois
further reported that father admitted having had a heated argument with Sharone that led
to a physical altercation. Officer Maderois stated that the children were horrified by the
violence they had witnessed and were crying and screaming for help. Officer Maderois
reported that the family home was filthy, with cigarette butts and broken glass on the
carpet, exposed electrical wiring, no working toilet, and an unpleasant odor. The home
was also infested with roaches. C.D. was walking around barefoot near the glass.
Officer Maderois took the children, who were in the home at the time of father’s arrest,
into protective custody.
       The children were taken to the hospital for a forensic examination. The nurse
performing the examination found the children were filthy, had soiled their pants and
diaper, and reacted with fear to adult interaction. The children’s poor hygiene led the
nurse to conclude they had been neglected.
       In an interview with the Department’s social worker, father described Sharone as
his ex-girlfriend with whom he had broken up “a while ago.” He accused Sharone of
being the aggressor during their altercation and said that she repeatedly struck him and
threw objects at him. He admitted that both children were present and crying during the
altercation and were struck by pieces of a plastic bottle. Father denied hitting Sharone or
causing her injuries. He also denied that the home was filthy or unsafe and blamed
Sharone, the police, the apartment manager, and staff from Section 8 Housing3 for
“trashing” his apartment. Father stated that he, the children, and the children’s mother



3      Section 8 of the United States Housing Act of 1937, commonly known as the
“Section 8 Housing Program,” subsidizes rent for the elderly and persons with low
income.

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had no Indian heritage but that the children’s paternal grandfather did. He did not
provide the paternal grandfather’s name or any further information.
       The Department filed a petition on November 7, 2014 alleging, under section 300,
subdivisions (a) and (b), that father’s domestic violence and the filthy and unsafe
condition of the family home placed the children at risk of harm. The accompanying
detention report stated that ICWA did not apply.
       At the November 7, 2014 detention hearing, father filed a form ICWA-020 stating
that his great-grandfather, Elize B., was a member of the Paiute Indian Tribe. The
juvenile court ordered Harmony and C.D. detained from father’s custody and granted
father monitored visits. The court ordered the Department to provide father with referrals
for domestic violence and anger management counseling, parenting classes, and random
drug testing. The court further ordered the Department to investigate father’s claim of
Indian heritage by interviewing the paternal grandparents and any other known relatives,
to provide notice to the Bureau of Indian Affairs and the Secretary of the Interior, and to
attach the notices to a report to be filed on January 8, 2014.
Jurisdiction and disposition
       The children were placed together in a foster home on November 24, 2014.
Harmony’s caregiver reported that the child needed to urinate frequently and that she
emitted an unpleasant odor. C.D. was seen by a doctor on November 25, 2014, for an ear
infection and an upper respiratory infection and was prescribed medication for those
conditions.
       Father was not interviewed for the Department’s December 2, 2014
jurisdiction/disposition report because he failed to appear for a meeting with the social
worker, and a subsequent meeting had to be postponed. The Department noted in its
report that there had been a prior referral regarding father in July 2013 alleging domestic
violence between father and the paternal grandmother. The referral indicated that the
paternal grandmother had contacted law enforcement for assistance and that father was
subsequently arrested on an outstanding warrant.



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       In a last minute report filed on December 4, 2014, the Department reported on a
December 2, 2014 interview with father, who denied any Indian heritage and said he had
no information regarding paternal relatives or tribal contacts. Father also denied the
domestic violence allegations and any prior domestic violence with Sharone. He said that
during the November 3, 2014 altercation, Sharone bit him, hit, him, and threw objects at
him. He claimed the children were asleep in the home during the incident. Father also
denied that the home was unsafe and filthy. He said the toilet was in working condition
but may not have been flushed at the time officers responded to the home. He denied that
there was exposed electrical wiring accessible to the children and explained that he had
recently discarded a television and a cable cord was lying on the floor along the wall.
Father said that there was no trash in the home, and that the glass and cigarette butts on
the floor were the result of a thrown ashtray during the altercation with Sharone. The
odor in the home emanated from spoiled food in a defrosting refrigerator during a recent
power failure. Father noted that the home had undergone a Section 8 housing inspection
a month and half ago, and there had been no concerns.
       As to the children’s hygiene, father denied that they were unkempt and dirty and
said they may have been a little sticky from ice cream and chips they had eaten earlier in
the day.
Adjudication hearing
       At the December 4, 2014 adjudication hearing, father called Officer Maderois as a
witness. Officer Maderois testified that he responded to father’s home on November 3,
2014, after a neighbor reported hearing a woman screaming. As Officer Maderois
approached the home, he could hear father yelling at someone to get out of his apartment.
Father was facing a woman, who was six inches away from him with her back to the
wall. Officer Maderois did not see father push or hit the woman. When Officer
Maderois entered the home, he saw broken glass and cigarette butts on the floor. A one-
year-old child was present, wearing only a diaper and no shoes. The other child was
sleeping in a bedroom.



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       Officer Maderois observed that the woman was injured. She had blood on both
earlobes, inside her ears, and on the side of her cheek. She also had a fresh one-fourth
inch laceration under her right eye and on her upper cheek bone, a four-inch scratch
across her upper right chest and collar bone, and bruising under her right arm. She had
blood around her lips but refused to allow the officer to inspect the inside of her mouth
and refused medical attention. Officer Maderois did not see any exposed wires inside the
home. He noticed a strong stench in the bathroom, feces in the toilet, and cockroaches
throughout the house.
       Father testified that on November 3, 2014, his ex-girlfriend Sharone came by his
apartment and asked to use his bathroom. Inside the apartment, an argument ensued and
Sharone hit him with an ashtray containing cigarettes, and the ashtray shattered. Sharone
then proceeded to hit father and to throw things at him. She bit father on the chest, and
he pushed her, causing her to fall to the ground. When the police arrived, they
handcuffed father and arrested him.
       Regarding the condition of the home, father testified that cigarette butts on the
floor were the result of the thrown ashtray, there were no exposed wires, and that the
toilet was functional. He said the entire building had roaches, and his home had recently
passed a Section 8 housing inspection. He had given notice of his intent to vacate the
unit and was preparing for a move to Mississippi.
       At the conclusion of the hearing, the juvenile court found father’s testimony that
he had not caused Sharone’s injuries not to be credible. The court struck the domestic
violence allegations under section 300, subdivision (a), and the allegations under
subdivision (b) that father and Sharone had physically assaulted one another on prior
occasions, that the toilet in the home was broken, and that electrical wiring was exposed
within access of the children. The court then sustained the petition as amended,4 declared


4       The sustained allegations state: “b-1 [¶] The children Harmony [D.] and [C.D.]’s
father, [D.D.] and the father’s female companion, Sharon [W.], have a history of
engaging in violent altercations against each other in the children’s presence. On
11/3/14, the father struck the female companion’s face and body in the children’s

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the children to be dependents of the juvenile court, and ordered them removed from
father’s custody. Father was accorded reunification services, unmonitored visits at the
children’s placement and monitored visits outside that placement. The juvenile court
ordered father to participate in parenting classes, a domestic violence program, individual
counseling with a licensed therapist to address case issues, and to submit to 10 random or
on demand drug tests. The court ordered the Department to investigate placing the
children with paternal relatives in Mississippi, and set a six-month review hearing.
       Father filed the instant appeal.
Subsequent proceedings
       At an April 30, 2015 hearing, the juvenile court ordered the Department to further
investigate father’s Native American heritage. On June 4, 2015, the juvenile court found
that notice of the proceedings had not been provided to the previously named Indian
tribes as required by law.




presence, inflicting bleeding lacerations to her lips, cheek, both ear lobes and right collar
bone and bruising to her left harm. The father pushed the female companion causing her
to fall and sustain injuries. The female companion bit and struck the father’s body,
inflicting a bleeding laceration to the father’s chest. The female companion scratched the
father’s face causing the father pain. The female companion threw objects at the father.
On 11/3/14, the father was arrested for Inflicting Corporal Injury to Spouse/Cohabitant.
The violent conduct between the father and the female companion endangers the
children’s physical health and safety and places the children at risk of physical harm,
damage, and danger.”

“b-2 [¶] On 11/3/14, the children Harmony [D.] and [C.D.]’s father, [D.D.], established a
filthy, unsanitary and hazardous home environment for the children in that trash was on
the floor, the home was infested with cock roaches and the home was permeated with an
odor. There were broken glasses on the floor. The furniture was broken. Such a filthy
and unsanitary and hazardous home environment established for the children by the
father endangers the children’s physical health and safety and places the children at risk
of physical harm, damage, and danger.”


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                                        DISCUSSION
I. Standard of review
       We review the juvenile’s court’s jurisdictional findings and its selection of a
dispositional order for a minor under the substantial evidence standard. (In re Heather A.
(1996) 52 Cal.App.4th 183, 193; In re Hailey T. (2012) 212 Cal.App.4th 139, 146.)
Under this standard, we review the record to determine whether there is any reasonable,
credible, and solid evidence to support the juvenile court’s conclusions, and we resolve
all conflicts in the evidence and make all reasonable inferences from the evidence in
support of the court’s orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
II. Jurisdiction
       Father contends there was insufficient evidence to support the findings under
section 300, subdivision (b), that the children were at risk of harm at the time of the
December 4, 2014 adjudication hearing as the result of domestic violence or an
unsanitary, hazardous home environment. He argues that the November 3, 2014 incident
was the only time father engaged in an altercation, that he had terminated his relationship
with Sharone, and that there was no evidence he was in a relationship with anyone else.
Father further argues that he had moved out of the unit that had been deemed to be
unsanitary and hazardous, had secured temporary housing, and was in the process of
moving to live with relatives in Mississippi.
       Section 300, subdivision (b) accords the juvenile court jurisdiction over a child if
“[t]he 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 the child.” The relevant inquiry under section
300, subdivision (b) is whether the circumstances at the time of the jurisdictional hearing
subject the minor to the defined risk of harm. (In re Rocco M. (1991) 1 Cal.App.4th 814,
824.) When making this determination, the juvenile court may consider past events (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in
Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6), as a parent’s past conduct



                                                8
is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163,
1169-1170.)
        “Exposing children to recurring domestic violence may be sufficient to establish
jurisdiction under section 300, subdivision (b). [Citations.]” (In re. T.V. (2013) 217
Cal.App.4th 126, 134.) “‘“[D]omestic violence in the same household where children are
living . . . is a failure to protect [the children] from the substantial risk of encountering the
violence and suffering serious physical harm or illness from it.” [Citation.] Children can
be “put in a position of physical danger from [spousal] violence” because, “for example,
they could wander into the room where it was occurring and be accidentally hit by a
thrown object, by a fist, arm, foot, or leg . . . .” [Citation.]’ [Citation.]” (In re R.C.
(2012) 210 Cal.App.4th 930, 941, quoting In re Heather A., supra, 52 Cal.App.4th at p.
194.)
        Substantial evidence supports the juvenile court’s jurisdictional findings that the
children were at substantial risk of harm because of father’s domestic violence. Father
was arrested for domestic violence after he admitted engaging in a physical altercation
with Sharone in which they both sustained injuries. Father admitted that the children
were present and crying during the altercation, and that they were struck by objects
thrown during the altercation.
        Father argues that the children were not at continuing risk of harm at the time of
the adjudication hearing because he had terminated his relationship with Sharone. But
father claimed to have terminated his relationship with Sharone before the November 3,
2014 incident, yet he allowed her into his home and violence ensued. Father also claims
the November 3, 2014 incident was the only time he engaged in an altercation. There is
evidence in the record, however, of a July 2013 violent incident between father and the
paternal grandmother that required law enforcement intervention. Substantial evidence
supports the juvenile court’s jurisdictional findings based on father’s domestic violence.
        Substantial evidence also supports the juvenile court’s findings that the children
were at continuing risk of harm because of father’s neglect and maintenance of an
unsanitary and hazardous home environment. Responding law enforcement officers


                                               9
reported that the family home was filthy and hazardous. Trash and broken glass littered
the floor, cockroaches were everywhere, and a strong stench was in the bathroom, where
the toilet appeared to be nonfunctional. There was broken furniture, and the children
appeared to have been sleeping on a broken mattress. There was evidence that the
children suffered harm as the result of the neglect. A nurse who completed a forensic
medical examination of the children found that the children were filthy and wearing
soiled garments and a soiled diaper, and that they were fearful of adult interaction. The
children’s poor hygiene led the nurse to conclude they had been neglected. C.D. was
later diagnosed with ear and upper respiratory infections that required treatment and
medication. The fact that neither child had yet suffered serious physical harm did not
preclude the juvenile court from assuming jurisdiction over them. “‘[A] court need not
wait until a child is seriously abused or injured to assume jurisdiction and take the steps
necessary to protect the child.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773,
quoting In re R.V. (2012) 208 Cal.App.4th 837, 843.) Father’s repeated denial of any
problem with the family home serves only to underscore the need for juvenile court
intervention.
       Substantial evidence supports the jurisdictional findings.
III. Dispositional order
       Father contends substantial evidence does not support the order removing the
children from his custody. Father’s violent conduct in the presence of the children, the
unsanitary and hazardous condition of the home, and father’s failure to recognize the
danger to the children presented by his own conduct and the hazards present in his home,
support the juvenile court’s removal order.
       Father further contends substantial evidence does not support the juvenile court’s
determination that there were no reasonable means to protect the children without
removing them from father’s custody. He claims there were alternative out-of-home
placements for the children with him or with other paternal relatives that should have
been considered.



                                              10
       The record shows that the juvenile court considered and discussed with counsel
the possibility of placing the children with father. The court rejected that option because
father had not maintained regular contact with the social worker and had not enrolled in
any programs. The record also shows that the Department considered a paternal aunt
father had suggested as a possible initial placement option. Although the aunt had
expressed interest in caring for the children, the Department was unable to place them
with her because of her criminal history.
       Substantial evidence supports the juvenile court’s dispositional order removing the
children from father’s custody.
IV. ICWA
       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
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.5
       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

5      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).)


                                              11
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.” (§ 224.2, subd. (a)(1)-(3).)
       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:
               “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.”6




6      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).”

                                              12
       Father contends, and the Department concedes, that the inquiry and notice
requirements of ICWA were not met in this case and that the trial court erred by holding
the adjudication hearing without ensuring compliance with those requirements. Failure to
comply with the inquiry and notice requirements of ICWA did not divest the juvenile
court of jurisdiction over the subject matter of this case, however, and it does not prohibit
this court from issuing a limited remand to permit compliance, with directions to the trial
court that depend on the outcome of the ICWA notice. (In re Brooke C. (2005) 127
Cal.App.4th 377, 384-385.)
                                      DISPOSITION
       The order of December 4, 2014, is affirmed and the matter is remanded to the
juvenile court for the limited purpose of directing the juvenile court to order the
Department to comply with the inquiry and notice requirements of ICWA and applicable
California law. If, after proper inquiry and notice, a tribe claims that Harmony and C.D.
are Indian children, or if other information is presented to the juvenile court that suggests
the minors are Indian children, the juvenile court is ordered to conduct a new hearing in
conformity with the provisions of ICWA and California law relating to child custody
proceedings involving Indian children, and the children, the tribe, and father may petition
the juvenile court to invalidate any orders that violate ICWA.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ____________________________, J.
                                                  CHAVEZ

We concur:


__________________________, P. J.
BOREN


__________________________, J.
ASHMANN-GERST


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