Filed 10/2/14 In re Clyde G. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR


In re CLYDE G., et al.,                                                         B253028
                                                                                (Los Angeles County
Persons Coming Under the Juvenile Court Law.                                     Super. Ct. No. CK98699)


LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

TANIA M.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court for Los Angeles County,
Tony L. Richardson, Judge. Reversed and remanded.
         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant
and Appellant.
         John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and
Respondent.
      Tania M. (mother) appeals from the jurisdiction and disposition orders of the
juvenile court regarding her sons, Clyde G. and Phillip G. Mother contends
(1) there was insufficient evidence to support the juvenile court’s findings
sustaining allegations that mother’s acts or omissions caused her sons to suffer, or
raised a substantial risk that her sons will suffer, serious physical harm or illness;
(2) there was insufficient evidence to support the juvenile court’s finding that
removal of her sons from mother’s custody was necessary to protect them; and
(3) the juvenile court violated the notice requirements of the Indian Child Welfare
Act (25 U.S.C. § 1901, et seq.) (ICWA). Respondent Los Angeles County
Department of Children and Family Services (the Department) concedes there was
insufficient evidence to support the jurisdictional findings as to three of the counts
alleged against mother, and that the ICWA notice requirement was not satisfied,
but contends there was sufficient evidence to support the juvenile court’s orders as
to two of the counts alleged against mother. We conclude there was insufficient
evidence to support the juvenile court’s jurisdiction order as to mother on those
counts and reverse the order to the extent it finds jurisdiction as to mother.
However, because the children’s presumed father pleaded no contest to allegations
as to him, the juvenile court retains jurisdiction over the children. Accordingly, we
remand the matter to the juvenile court to reconsider the disposition order in light
of our opinion.


                                  BACKGROUND
      In April 2013, mother had three children: sons Clyde (almost three years
old) and Phillip (one and a half years old), and daughter Lelah H. (five months
old). All three children were under the care of mother’s aunt, Delphine D., and
mother’s brother, Ryan M.; a family law court had awarded Delphine physical and



                                           2
legal custody of Clyde and Phillip on April 4, 2013.1 Ryan did most of the care
giving for the children, under Delphine’s supervision.
      Delphine, Ryan and the children were living temporarily in the home of a
friend of Delphine, John Adams, because Delphine’s longtime partner died and
Delphine was having financial problems. Also living in the home were Adams’
sister-in-law, Bonnie Medina, Medina’s two grandchildren (ages two and three;
Adams and Medina were those children’s legal guardians), and Adams’ son, Mark
Anthony Calderon.
      On the weekend of April 19, 2013, Calderon’s three children and their two
younger half-siblings were visiting. For the weekend, Calderon’s children and
mother’s children slept in the den, along with Ryan and Calderon. One of the
visiting children (who was younger than Lelah) slept in the bassinet that Lelah
ordinarily slept in. Ryan and mother’s children slept on the floor. Ryan made a
pallet for Lelah to sleep on, using her blankets.
      At around 1:30 a.m. on the morning of April 20, Ryan gave Lelah a feeding
and placed her back on the pallet. Later that morning, he was changing Phillip’s
diaper and looked over at Lelah. He saw something under her nose and went to
wipe it. When he picked her up, he realized she was not breathing. Someone
called 911.
      Paramedics arrived and transported Lelah to the hospital, where she was
pronounced dead by attending physician Dr. Rauch. Dr. Rauch stated the actual
cause of death was not known at the time, but that the probable cause appeared to
be “Smothering or Shaken Baby Syndrome.”

1
       The family law matter had been filed by Clyde G., Sr. (father), the presumed
father of Clyde and Phillip, and did not involve Lelah, who had a different father.
Mother was incarcerated at the time of the family court hearing, and did not participate.
Custody was awarded to Delphine pendente lite pending a May 15, 2013 review hearing.


                                            3
      The Department was contacted, and a social worker interviewed all of the
adults present in the home at the time of the death, and assessed all of the children.
All were cooperative, and all of the children appeared to be well cared for, with no
signs of abuse. The social worker also spoke by telephone with mother two days
later. Mother told the social worker that she did not have a cell phone or
permanent address, and that she was unable to care for her children at that time.
She explained that her relatives always provided care for the children, and she
never had any concerns about the children in the care of her aunt, Delphine, and
her brother Ryan.
      The Department conducted a home assessment, and found there was an
unfenced swimming pool in the back yard that appeared not to have been cleaned
for some time; there was, however, an alarm on the patio door that alerts with a
beeping sound whenever the door is opened. On April 24, the Department
received information from a deputy coroner, based upon the reports of detectives
who observed the autopsy. The detectives reported that Lelah was clean and well
nourished, no trauma was seen, and the cause of death was “non-criminal.”
      The Department also examined the family’s prior child welfare history and
the criminal histories of mother, father, and the adults living in the house at the
time of Lelah’s death.
      The Department noted that mother’s two older children had been the subject
of a referral in August 2012, alleging neglect by mother. The caller reported that
mother was using drugs and not allowing father to see the children. In its
investigation of that referral, a social worker spoke to the children’s maternal
grandmother, who reported that father (whom the grandmother believed called in
the referral) was abusive and violent, and trying to make mother look bad. The
social worker also spoke to the maternal great aunt, Lynetta W., who was caring
for the children at that time. Lynetta, who also believed that father was the source

                                           4
of the referral, described an incident of domestic violence by father against mother,
and said that a family law judge gave full custody of the children to mother after
she drug tested with negative results. The Department asked mother to drug test in
August 2012, but she did not appear for the test. The Department concluded its
investigation by finding the allegation of general neglect was inconclusive.
      With regard to criminal histories, the Department found that mother had
multiple arrests and convictions for possessing controlled substance paraphernalia,
among other crimes, and that father had an extensive criminal history that included
both drug crimes and violent crimes. In addition, the Department found that
Calderon (the son of the home’s owner, who lived in Adams’ home) had a
conviction for cruelty to a child, among other convictions.
      On April 26, 2013, the Department filed a juvenile dependency petition
alleging five counts under Welfare and Institutions Code2 section 300, subdivision
(b), and one count under section 300, subdivision (j). The first three counts alleged
that mother made an inappropriate plan for the children’s care and supervision by
leaving the children in the care of their maternal great aunt, who (1) caused Lelah
to sleep on the floor in an unsafe sleeping environment (count b-1); (2) allowed an
unrelated adult with a criminal history of child cruelty to reside in the same home
as the children (count b-2); and (3) caused the children to live in a home with an
unfenced swimming pool partially filled with black water (count b-3). In each
count, the Department alleged that mother’s inappropriate plan for the children
placed the children at risk of physical harm, damage, and danger. Count b-4
alleged that mother has a history of illicit drug use that renders her incapable of
providing regular care and supervision of the children, which places the children at
risk of physical harm and damage, and count b-5 alleged that father has a history of

2
      Further undesignated statutory references are to the Welfare and Institutions Code.


                                           5
violent crimes and domestic violence, which places the children at risk of physical
harm and damage. The single count under section 300, subdivision (j), was
identical to count b-1.
      At the detention hearing, the juvenile court found a prima facie case under
section 300, subdivisions (b) and (j), and ordered the children detained in shelter
care. The court also found that Clyde G., Sr. is the presumed father of both
children, and ordered the Department to conduct a pre-release investigation of
father.
      The Department conducted the investigation and concluded that the children
should not be released to father. The Department noted that father was ordered by
the family law court to complete anger management and parenting classes, but he
had not completed them. The Department also noted that father admitted he and
mother were involved in two instances of domestic violence, one of which took
place in the presence of Clyde Jr. when he was a baby; mother and father separated
after that incident and have not been together since then. Father also admitted
another incident of domestic violence with his new girlfriend after he and mother
separated.
      In May 2013, mother filed a form stating that one or more of her ancestors is
or was a member of a Cherokee tribe. Mother also filled out a parentage
questionnaire for each of her children. She stated that either Nigal D. or father was
the father of Clyde Jr., and that either “Mario” or father was the father of Phillip.
The juvenile court ordered a DNA paternity test for father. The test results showed
that father was not the biological father of either child.
      In its jurisdiction/disposition report filed on August 2, 2013, the Department
reported that mother said she was not ready to be a mother when she had her first
child, and relied upon the assistance of her family to help her with her children.
Mother lived with her mother, Phyllis M., when Clyde was born in 2010 and while

                                           6
she was pregnant with Phillip. By July 2012, both children were living with
Delphine and Ryan. In September 2012, Delphine took the children to live with
Lynetta while repairs were being made to Delphine’s house. When Lynetta would
not allow mother’s new boyfriend (the father of Lelah) to stay in her house, mother
took the children back to Phyllis’ home, where they lived from October 2012 to
January 2013. When Phyllis had surgery in January 2013, the children (including
Lelah, who was born in November 2012) were returned to the care of Delphine and
Ryan, who had moved into John Adams’ home.
      In that same report, the Department reported that Denise Bertone from the
coroner’s office told the Department’s investigator on June 24, 2013, that Lelah
died of Sudden Infant Death Syndrome. Bertone stated there were no anatomical
findings for suffocation, and it could not be determined if external causes were
involved. She noted there were unsafe sleeping conditions, in that Lelah had been
sleeping face down on soft bedding.
      The Department also reported on their investigator’s May 20, 2013 interview
with mother. Mother stated that she asked her family to help her with her children
because she was not ready to be a mother and believed she had post partum
depression. Mother indicated that she wanted the children returned to the custody
of Delphine and Ryan. She also said that she and father had abused crack cocaine
together, but she never used drugs while she was pregnant and has been sober since
2008. She said she would be willing to drug test once the court orders her to do so.
      On August 2, 2013, the day of the jurisdiction/disposition hearing, the
Department filed an amended petition. The amended petition added two claims
(one under subd. (a) and the other under subd. (b) of § 300) based upon allegations
of domestic violence that took place in January 2011 and before. In count a-1, the
amended petition alleges that mother’s and father’s violent conduct places the
children at risk of physical harm, damage, and danger. In count b-6, the amended

                                         7
petition alleges that the “unresolved conflict between the parents places the
children at risk of harm.” The amended petition also deleted the count under
section 300, subdivision (j). Attached to the amended petition were forms stating
that Clyde and Phillip are or may be a member or eligible for membership in the
Cherokee or Blackfeet tribe.
      The jurisdiction/disposition hearing was continued for three months. In a
supplemental report filed for the continued hearing, the Department reported that
mother was homeless, unemployed, and pregnant. She was enrolled in the Black
Infant Health Program in Pasadena, a program for pregnant women that provides
general information about the care of a child; the program does not provide
specialized programs for domestic violence or drug rehabilitation. She was
enrolled in random drug testing in October, but missed her drug tests.3
      The Department also provided the court with the coroner’s report. The
coroner’s report states that “no definitive cause of death was identified. As such,
this is considered a case of sudden unexplained infant death (SUID).” The coroner
listed various risk factors for SUID, which include “sleeping on the belly or side,
bed sharing, unsafe sleeping surface such as soft bedding and/or excessive
bundling.” The coroner also noted there were no signs of fatal trauma or evidence
of drug intoxication.
      At the jurisdiction/disposition hearing, the juvenile court noted that count
a-1 (one of the two counts related to mother’s and father’s past incidents of
domestic violence) and count b-5 (based on father’s criminal history) were
stricken. The court received into evidence the various reports that had been filed
by the Department, and no other evidence was presented. Mother’s counsel argued

3
      We note there is no court order in the record ordering mother to participate in
random drug testing.


                                            8
that all counts against mother should be dismissed. Counsel argued that mother
could not be held responsible for Lelah’s death, and that mother had no reason to
believe there was any risk of harm to her children by having them cared for by
Delphine, who had been awarded custody by the family law court, and Ryan.
Counsel also argued that mother’s history of drug use was not sufficient to
establish any current risk of harm to the children, and that the allegation regarding
domestic violence should be sustained only as to father because mother was the
victim of father’s abuse.
       The juvenile court found the Department had met its burden of proof to
establish jurisdiction with respect to counts b-1, b-2, and b-3 (the inappropriate
plan counts), and b-4 (the history of drug use count). The court expressed some
concern about count b-6, the domestic violence count, because the last incident had
occurred more than two years before the petition, but nevertheless found
jurisdiction under that count because the incidents “were unresolved.”4 Having
declared the children dependent children under section 300, subdivision (b), the
court moved on to disposition, and found by clear and convincing evidence that
there was a substantial danger if the children were returned to the custody of either
parent. The court ordered the children placed under supervision of the Department
for placement in the approved home of a relative or non-relative extended family
member, and ordered a case plan for mother that included a drug/alcohol program
with random testing, a domestic violence program, and counseling. On the form
case plan, the court checked a box indicating that ICWA did not apply.
       Mother timely filed a notice of appeal from the jurisdiction, disposition, and
paternity findings and orders.

4
       Father waived his rights and entered a no contest plea to the petition. The only
count alleged against him was b-6.


                                            9
                                     DISCUSSION
      As noted, mother contends on appeal that there was insufficient evidence to
support the juvenile court’s jurisdiction and disposition findings, and that the court
violated the ICWA notice requirements. We conclude there was insufficient
evidence to support the juvenile court’s finding of jurisdiction as to mother.
However, because jurisdiction remains as to father, we remand to the juvenile
court to reconsider its disposition order and to comply with the ICWA notice
requirements.


   A. Requirements for Establishing Dependency Jurisdiction and Standard of
      Review

      Section 300 provides, in relevant part, that a child is within the jurisdiction
of the juvenile court and may be declared to be a dependent child of the court 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, . . . or by the
inability of the parent or guardian to provide regular care for the child due to the
parent’s or guardian’s . . . substance abuse.” (§ 300, subd. (b).) The purpose of
section 300 is “to limit court intervention to situations in which children are
threatened with serious physical or emotional harm” as a result of their parents’
conduct. (In re Marilyn H. (1993) 5 Cal.4th 295, 303.) To establish jurisdiction
under section 300, subdivision (b), the following elements must be shown:
“‘(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.’ [Citation.]” (In re Savannah M. (2005) 131 Cal.App.4th
1387, 1396.) The Department has the burden of proof on these elements, and must

                                            10
show specifically how the child has been or will be harmed by a parent’s conduct.
(In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) Moreover, the evidence
must show “that at the time of the jurisdictional hearing the child is at substantial
risk of serious physical harm in the future (e.g., evidence showing a substantial risk
that past physical harm will reoccur).” (In re Savannah M., supra, 131
Cal.App.4th at p. 1396; see also In re Rocco M. (1991) 1 Cal.App.4th 814, 820,
824.)
        When the sufficiency of the evidence to support a juvenile court’s finding of
jurisdiction is challenged on appeal, the reviewing court must “review the record
to determine whether there is any substantial evidence to support the juvenile
court’s conclusions, and we resolve all conflicts and make all reasonable
inferences from the evidence to uphold the court’s orders, if possible. [Citation.]
‘However, substantial evidence is not synonymous with any evidence. [Citations.]
A decision supported by a mere scintilla of evidence need not be affirmed on
appeal. [Citation.] Furthermore, “[w]hile substantial evidence may consist of
inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest
on the evidence’ [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in question in light of
the whole record.” [Citation.]’ [Citation.]” (In re David M. (2005) 134
Cal.App.4th 822, 828.)


   B. Substantial Evidence Does Not Support the Juvenile Court’s Finding of
         Jurisdiction as to Mother

        Although the juvenile court found the Department had met its burden, and
sustained the petition as to all of the counts, the Department “concedes that the
juvenile court erred in sustaining the findings involving mother’s failure to provide

                                           11
[an] appropriate plan of care for the children under section 300, subdivision (b),
counts b-1, b-2, and b-3.” We agree. Thus, the only counts at issue in this appeal
are count b-4, based upon allegations of mother’s history of drug use, and count
b-6, based on allegations of domestic violence between mother and father in or
before January 2011.


      1.     Count b-4
      There is no question that the Department presented sufficient evidence of
mother’s history of drug use. What is missing is any evidence that mother’s use of
illicit drugs caused serious physical harm to Clyde or Phillip, or puts them at risk
of suffering serious physical harm. Rather, the evidence is that mother was aware
of her inability to care for her children, and sought the assistance of her family
members to care for them. The family members provided that care. Although one
of the children died while in her family’s care, the coroner concluded the cause of
death was sudden unexplained infant death (which may have been related to the
fact that the infant was sleeping on a soft surface), and observed there were no
signs of trauma or evidence of drug intoxication. Importantly, Clyde and Phillip
were found to be healthy and well cared for. In short, there is no evidence that
mother’s drug use caused any harm to the children or is likely to cause harm in the
future.


      2.     Count b-6
      Count b-6 alleges that mother and father “have an unresolved history of
engaging in physical altercations in the presence of the children,” citing an incident
that took place in January 2011 (when Clyde was an infant and Phillip had not yet
been born), and that “[s]uch unresolved conflict between the parents places the
children at risk of harm.” In sustaining this count, the juvenile court noted it had

                                          12
considered striking the count because there was no evidence of any altercations
after January 2011, but the court found there was sufficient evidence to sustain the
count because “those incidents were unresolved.”
       However, the evidence shows that the incidents were resolved, because
mother and father separated right after the January 2011 incident and have not been
together since. Thus, this case is not like those in which a parent fails to protect a
child by remaining in an abusive relationship. Moreover, although there is
evidence that father has subsequently been involved in domestic violence incidents
with others, there is no such evidence as to mother, and no reason to believe that
she is or will be involved in another relationship involving domestic violence in the
presence of her children. Finally, the family law court granted custody of the
children to Delphine and ordered that father’s visitation be supervised. (See In re
A.G. (2013) 220 Cal.App.4th 675, 677 [where family court order eliminates risk of
harm to children, the matter belongs in family court; there is no reason for
dependency proceeding].) Thus, there is no evidence that mother’s history of
domestic violence raises a substantial risk that the children will suffer serious
physical harm.


    C. The Juvenile Court Must Reconsider its Disposition Order
       Because we conclude there is insufficient evidence to support the sustaining
of the amended petition as to mother, the jurisdictional finding as to mother must
be reversed. Ordinarily, the reversal of a jurisdictional finding would require
reversal of the disposition order. We note, however, that father pleaded no contest
to the petition5 and did not appeal from the juvenile court’s jurisdiction order.
Therefore, the children remain dependents of the juvenile court. (In re Alysha S.

5
       The only count that alleged conduct by father was count b-6.


                                           13
(1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent
is good against both. More accurately, the minor is a dependent if the actions of
either parent bring her within one of the statutory definitions of a dependent”].)
      Although we found there was insufficient evidence to support the allegations
of count b-6 as to mother -- relying in part on the lack of evidence to show a
substantial risk of harm to the children in light of the family law court’s order
granting custody to Delphine and requiring father’s visits to be supervised6 -- we
have no jurisdiction to reverse the jurisdiction order as to father. However,
because the juvenile court’s disposition order removing the children from the
custody of mother was based primarily on the court’s jurisdiction findings as to
mother, for which we found there was insufficient evidence, we must remand the
matter to the juvenile court with directions to reconsider the disposition order.
Nothing in this opinion precludes the juvenile court from concluding on remand
that dependency jurisdiction is unnecessary in light of the family court order, and
dismissing this dependency case.


    D. The Juvenile Court Must Comply With ICWA on Remand
      As noted, mother submitted forms stating that Clyde and Phillip are or may
be members or eligible for membership in the Cherokee or Blackfeet tribe. Under
ICWA, when a court knows or has reason to know that an Indian child is involved
in a dependency proceeding, notice must be given to the Indian child’s tribe, by
registered mail with return receipt requested, of the pending proceedings and of
their right to intervene. (25 U.S.C. § 1912(a); In re Francisco W. (2006) 139
Cal.App.4th 695, 702.) To enable the juvenile court to review whether proper
notice has been given, the Department must file with the court the ICWA notice,

6
       The family law court also ordered father to complete anger management and
parenting classes.

                                          14
return receipts, and any responses received from the tribes and/or Bureau of Indian
Affairs. (In re Francisco W., supra, 139 Cal.App.4th at p. 703.)
      Mother asserts, and the Department concedes, that no ICWA notices were
sent in this case. We agree there is no evidence that the Department sent any
ICWA notices. Accordingly, on remand, unless the juvenile court determines that
dependency jurisdiction is unnecessary and dismisses the action, the court shall
order the Department to comply with the ICWA notice provisions and file all
required documentation with juvenile court.


                                  DISPOSITION
             The juvenile court’s orders as to mother are reversed, and the matter is
remanded for the juvenile court to reconsider its disposition order. Unless the
juvenile court dismisses the dependency action, the court shall order the
Department to comply with the ICWA notice provisions and file with the juvenile
court all required documentation. If, after proper notice, a tribe claims the children
as Indian children, the juvenile court shall proceed in conformity with ICWA.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                               WILLHITE, J.

             We concur:




             EPSTEIN, P. J.                    EDMON, J.*

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


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