Filed 11/25/15 Certified for Publication 12/21/15 (order attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                             DIVISION THREE


In re NATALIE A. et al., Persons Coming                              B261303
Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. DK01396)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

ROLAND C.,

        Defendant and Appellant.



        APPEAL from orders of the Superior Court of Los Angeles County,
Teresa Sullivan, Judge. Affirmed in part, reversed in part with directions.

        Grace Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.

        Mary C. Wickman, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Julia Roberson, Associate County Counsel, for Plaintiff and
Respondent.

                                         _____________________
                                    INTRODUCTION
       Roland C. (father) appeals a jurisdictional finding and dispositional order in the
dependency case of his three children, Natalie, Jocelyn and Jeremiah. All three children
were under age six when the events underlying this appeal occurred. Father contends the
evidence was insufficient to find he is a current abuser of marijuana. He also argues the
juvenile court abused its discretion by ordering him to complete substance abuse related
services as part of his dispositional case plan. We conclude father’s admitted use of
marijuana, his failure to ensure his very young children were adequately supervised, and
his absent drug tests all constituted sufficient evidence to support both the jurisdictional
finding and the dispositional order.
       Father also contends he provided sufficient information of possible Indian heritage
to trigger the Indian Child Welfare Act’s (ICWA) notice provisions. We agree.
Accordingly, we reverse the court’s finding in that regard, and remand with directions to
comply with ICWA’s notice requirements. In all other respects we affirm.
                    FACTS AND PROCEDURAL BACKGROUND
       At the time of the following events, then five-year-old Natalie, two-year-old
Jocelyn and one-year-old Jeremiah were already under dependency court supervision
based on sustained allegations concerning their mother’s substance abuse and Jeremiah’s
positive neo-natal toxicology screen for marijuana. The juvenile court had released the
children to father, who resided in the paternal grandparents’ home at the time. Father had
agreed to a case plan requiring, among other things, on demand drug testing upon
suspicion of use.
       On October 1, 2014, the Los Angeles County Department of Children and Family
Services (the Department) received a referral alleging that, while in father’s care, one-
year-old Jeremiah sustained a second degree burn to his hand from an iron. The referring
party reported that father left the iron unattended, and Jeremiah burned the palm of his
hand after pulling the iron down by its cord.




                                                2
       On October 3, 2014, a social worker went to the paternal grandparents’ home to
investigate the referral. When she arrived, the social worker found two-year-old Jocelyn
and one-year-old Jeremiah at the home without adult supervision. Paternal
grandmother’s children, 14-year-old Jazmine and 12-year-old Ruben were also home,
though Jazmine was sleeping at the time. Ruben reported that father had gone on a trip
and paternal grandmother had gone to the store.
       Paternal grandmother returned home approximately 40 minutes later. She told the
social worker that father left that afternoon for a trip to Las Vegas with friends, and he
left the children with her. She did not know when father would return. She said the
children were napping when she ran to the store to buy toilet paper, and she did not
believe they were “alone” since Jazmine and Ruben were there to watch them.
       After father returned from Las Vegas, the Department held a meeting with father,
mother and paternal grandmother to address concerns about the children’s safety and
well-being while in father’s care. Father admitted that Jeremiah burned himself on an
iron. He said the child pulled the iron’s cord when he “turned away for a moment,” and
he immediately took Jeremiah to the emergency room to have the burn treated. As for
leaving Jeremiah and Jocelyn without adult supervision, father agreed it was not
appropriate to leave children that age in the care of a 12- and 14-year-old.
       When asked if he used drugs or alcohol during his trip to Las Vegas, father
admitted that he smoked marijuana. He denied using the drug before or after his trip and
agreed to drug test after the meeting. He also agreed to an action plan requiring him to
(1) assure the children have adult supervision, (2) be less reliant on paternal grandmother
for care of the children, and (3) submit to six clean drug tests.
       Father failed to drug test after the meeting. He claimed he was involved in a car
accident, which prevented him from testing at the appointed time. A week later, father
submitted to a drug test. The sample, however, was too dilute to yield accurate results, as
indicated by lower than normal creatinine levels in father’s urine.




                                              3
       On October 20, 2014, paternal grandmother called the Department to report that
father had left Jocelyn and Jeremiah home alone two days earlier. According to paternal
grandmother, she left the younger children with father that morning, while she took
Natalie and her children to attend a Halloween party. Later that morning, she received a
call from a neighbor, Nicole, who found the family dog roaming outside. Nicole offered
to return the dog to paternal grandparents’ home. Moments later, Nicole called paternal
grandmother again to report that she found two small children alone in the home.
Paternal grandmother called father, but he did not answer his phone. Another neighbor,
Gus, showed up moments later to retrieve the dog. Gus reported that father had called
him and asked him to go to the paternal grandparents’ home because father had stepped
out, the children were home alone, and a woman was there with the family dog.
       Two social workers went to the home to investigate the incident. Father initially
said he could not remember what happened over the weekend or whether he stayed home
with the children. As the interview went on, father recalled that paternal grandmother
woke him on Saturday morning to tell him she was taking Natalie to a Halloween party
and leaving the younger children with him. He said he fell back asleep and did not hear
anyone knock on the door. He claimed Gus was in the front yard the whole time and the
children were never alone. He said he woke up when paternal grandmother called him.
He then went downstairs, found the children, and met Nicole outside to thank her for
returning the dog. The social workers also interviewed Nicole about the incident. Her
account was consistent with paternal grandmother’s report.
       Based on the foregoing investigation, the Department filed a supplemental petition
alleging (1) father neglected the children by leaving them alone for extended periods of
time without adult supervision and (2) father was “a current abuser of marijuana” which
rendered him incapable of providing regular care for children of such young ages.
       On October 31, 2014, the court held a detention hearing on the supplemental
petition. Father submitted on the children’s detention and requested referrals for services.
His counsel represented that father had tried to enroll in a substance abuse program
earlier that day, but the treatment center’s office was closed. The court found the


                                             4
Department made a prima facie case for detaining the children and ordered father to
submit to drug testing.
       In advance of the jurisdiction and disposition hearing, the Department interviewed
paternal grandmother about father’s alleged drug use. Paternal grandmother reported that
father began using drugs after the family moved to the Antelope Valley in 2002. Though
father did not want to admit he was using drugs, paternal grandmother eventually
persuaded him to join a rehabilitation program through her church in San Diego. Father
did not do well in the program, and he left the facility after three or four months. He
returned to paternal grandparents’ home and promised to stay away from drugs. Despite
this promise, father had multiple drug-related criminal charges, including charges in 2006
and 2007 for drug possession and charges in 2010 and 2012 for disorderly conduct
associated with drug or alcohol intoxication.
       During his interview, father initially stated that he did not believe he needed to
complete an outpatient substance abuse program. At other points in the interview, he
acknowledged he should complete a program, but claimed the programs were too long
and would hinder his ability to find a job. Despite representing that he had attempted to
enroll in a treatment program at the detention hearing, father still had not enrolled when
he was interviewed almost a month later. He maintained that his past drug problems
were irrelevant to the current situation with his children.
       At the time of the interview, father was living “place to place” because paternal
grandmother had expelled him from her home. Father remained unemployed. Though
the Department sought to provide him with a bus pass and resources to locate housing
and employment, father failed to make further contact with the social worker or to
apprise the Department of his whereabouts. The Department also reported that father
failed to appear for another drug test on November 18, 2014.
       On December 17, 2014, the court held a combined jurisdiction and disposition
hearing on the supplemental petition. Father failed to appear. Father’s counsel asked the
court to dismiss the petition in its entirety. He argued the inadequate supervision
allegation stemmed from one-time occurrences and there was no current risk of harm. As


                                              5
for the drug abuse allegation, father’s counsel stressed that father had admitted to
smoking marijuana only one time in Las Vegas, and he argued father’s missed tests
should not be counted against him prior to disposition.
          The court directed the Department’s counsel to address the substance abuse
allegation only. The Department emphasized father’s admitted use of marijuana, his
dilute urine sample, his other failures to test, and paternal grandmother’s statements about
father’s history of substance abuse. The Department also argued there was a link
between father’s failure to supervise his youngest children and his substance abuse
issues.
          The court sustained both allegations in the supplemental petition. With respect to
a reunification plan, the court ordered father to attend a full drug and alcohol program
with aftercare, random or on-demand drug testing, and a 12-step program with a sponsor
and court card.
                                        DISCUSSION
          1.    The Jurisdictional Finding Is Supported by Substantial Evidence
          Father contends the evidence was insufficient to sustain the drug abuse count
under the standard announced by this court in In re Drake M. (2012) 211 Cal.App.4th
754 (Drake M.). He contends the “only evidence” of his marijuana use was his
admission concerning his trip to Las Vegas. He also stresses that he has not tested
positive for marijuana during the course of this case. He argues there was no evidence to
find he is a “current abuser of marijuana.” We disagree.
          “The provision of a home environment free from the negative effects of substance
abuse is a necessary condition for the safety, protection and physical and emotional well-
being of the child.” (Wel. & Inst. Code, § 300.2.)1 Thus, section 300, subdivision (b),
creates juvenile court jurisdiction where it is shown that a “child has suffered, or there is
a substantial risk that the child will suffer, serious physical harm or illness, as a result of


1
       Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.


                                               6
the failure or inability of his or her parent . . . to adequately supervise or protect the
child, . . . or the willful or negligent failure of the child’s parent . . . to adequately
supervise or protect the child from the conduct of the custodian with whom the child has
been left, . . . or by the inability of the parent . . . to provide regular care for the child due
to the parent’s . . . substance abuse.”
        “In reviewing the jurisdictional findings . . . , we look to see if substantial
evidence, contradicted or uncontradicted, supports them. [Citation.] In making this
determination, we draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183,
193.)
        We begin with father’s contention that the evidence was insufficient to find he is a
“current abuser of marijuana” under our opinion in Drake M., supra, 211 Cal.App.4th
754. In Drake M., we reaffirmed that “the mere usage of drugs by a parent is not a
sufficient basis on which dependency jurisdiction can be found” (id. at p. 764), and held
that “a finding of substance abuse for purposes of section 300, subdivision (b), must be
based on evidence sufficient to . . . establish that the parent or guardian at issue has a
current substance abuse problem as defined in the [American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000 (DSM-IV-
TR)]” (id. at p. 766). We quoted “[t]he full definition of ‘substance abuse’ found in the
DSM-IV-TR[,] [which] describes the condition as ‘[a] maladaptive pattern of substance
use leading to clinically significant impairment or distress, as manifested by one (or
more) of the following, occurring within a 12-month period: [¶] (1) recurrent substance
use resulting in a failure to fulfill major role obligations at work, school, or home (e.g.,
repeated absences or poor work performance related to substance use; substance-related
absences, suspensions, or expulsions from school; neglect of children or household)[; ¶]
(2) recurrent substance use in situations in which it is physically hazardous (e.g., driving
an automobile or operating a machine when impaired by substance use)[; ¶] (3) recurrent


                                                 7
substance-related legal problems (e.g., arrests for substance-related disorderly
conduct)[; and ¶] (4) continued substance use despite having persistent or recurrent social
or interpersonal problems caused or exacerbated by the effects of the substance (e.g.,
arguments with spouse about consequences of intoxication, physical fights).’ ” (Ibid.,
quoting DSM-IV-TR, p. 199.) We concluded the evidence was insufficient to establish
that the father’s use of prescribed medical marijuana to treat his chronic knee pain
constituted “substance abuse” under this definition. In so concluding, we relied on
undisputed evidence showing that the father had been employed for many years, had no
criminal history, and did not operate a motor vehicle or care for the child within a
minimum of four hours after ingesting marijuana. (Id. at pp. 767-768.)
       Unlike Drake M., substantial evidence in this case supports the juvenile court’s
finding that father is a substance abuser. Indeed, the evidence suggests one of the most
salient manifestation of parental substance abuse is present here—father’s drug use has
resulted in “ ‘a failure to fulfill major role obligations at . . . home (e.g., . . . neglect of
children or household) . . . .’ ” (Drake M., supra, 211 Cal.App.4th at p. 766, quoting
DSM-IV-TR, p. 199.) Based on the evidence, the juvenile court could reasonably have
inferred a nexus between father’s drug use and his failure to ensure his young children
were safely cared for and supervised. It is undisputed that when father went on a trip to
Las Vegas to smoke marijuana with his friends, he left his children with the paternal
grandparents, who then left two-year-old Jocelyn and one-year-old Jeremiah at the home
without adult supervision. (See § 300, subd. (b) [authorizing jurisdiction where parent
has failed to “adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left”].) Apart from this incident, there is evidence of
father’s repeated failures to fulfill major role obligations, including father’s continued
unemployment, his transient living situation, and his failure to enroll in drug treatment
programs as agreed to with the Department. Taken together, the court could reasonably
conclude based on this evidence that father’s abuse of marijuana contributed to his failure
to adequately supervise his children. (See Drake M., at p. 767 [where children are “ ‘of
such tender years that the absence of adequate supervision and care poses an inherent risk


                                                 8
to their physical health and safety,’ ” a “finding of substance abuse is prima facie
evidence of the inability of a parent or guardian to provide regular care resulting in a
substantial risk of physical harm”].)
       Moreover, the record contains only one drug test by father, which was effectively
inconclusive because father provided a dilute urine sample. Father failed to show for
every other drug test he was ordered to take. Thus, unlike in Drake M., where the father
“stated that he was willing to do whatever was necessary to prevent Drake’s removal
from his custody . . . [and] agreed to take on-demand drug screens” (Drake M., supra,
211 Cal.App.4th at p. 759), here, a reasonable inference could be drawn that father’s
marijuana use was more frequent than the one admitted instance in Las Vegas. Father’s
past substance abuse and failure to complete a drug treatment program readily bolster this
inference. All told, the record amply supports the juvenile court’s finding that father is
an abuser of marijuana and that his abuse of the drug has affected his ability to
adequately care for his very young children.
       2.     The Disposition Order Was a Reasonable Exercise of Discretion
       Based largely on his contentions concerning the drug abuse finding, father argues
the juvenile court abused its discretion by ordering him to participate in drug testing and
a treatment program. Having determined the jurisdictional finding is supported by
substantial evidence, we also conclude the court acted within its discretion by ordering
services to address father’s drug abuse and the harm it posed to his children.
       “The juvenile court has broad discretion to determine what would best serve and
protect the child’s interests and to fashion a dispositional order accordingly. On appeal,
this determination cannot be reversed absent a clear abuse of discretion.” (In re Baby
Boy H. (1998) 63 Cal.App.4th 470, 474.) In reviewing an order for abuse of discretion,
we “ ‘must consider all the evidence, draw all reasonable inferences, and resolve all
evidentiary conflicts, in a light most favorable to the trial court’s ruling. [Citation.] The
precise test is whether any rational trier of fact could conclude that the trial court order
advanced the best interests of the child.’ ” (In re Robert L. (1993) 21 Cal.App.4th 1057,



                                               9
1067.) “The trial court is accorded wide discretion and its determination will not be
disturbed on appeal absent ‘a manifest showing of abuse.’ [Citation.]” (Ibid.)
       We have no trouble concluding that the juvenile court’s disposition order
constituted a reasonable exercise of discretion, rationally tailored to advancing the
dependent children’s best interests. As we explained, the evidence established that
father’s marijuana abuse posed a substantial risk to the children in light of their very
young ages. And, while father continues to deny he currently uses marijuana, he has
repeatedly failed to submit to a drug test or to complete treatment for his past and current
substance abuse issues. On this record, the juvenile court reasonably concluded that drug
testing and treatment programs were necessary to eliminate the conditions that led to the
children’s dependency status. (See § 362, subd. (d).) We find no abuse of discretion.
       3.      The Juvenile Court Is Directed to Comply with ICWA Notice Requirements
       When the Department filed its original petition concerning mother’s substance
abuse, both mother and father indicated to the Department that they had Indian heritage.
The original detention report indicates that mother informed the Department that her
parents were part of the Cherokee tribe. At the detention hearing, father submitted an
ICWA form indicating that unidentified cousins and uncles were registered members of
the Chumash tribe. Based on the parents’ representations, the juvenile court ordered the
Department to investigate the claims.
       Two months later, the Department reported on interviews it had with paternal
grandmother and maternal grandmother concerning their respective family’s Indian
heritage. Consistent with the parents’ representations, paternal grandmother indicated her
family had Chumash heritage, while maternal grandmother reported her father was full or
half Cherokee. At the adjudication hearing on the original petition, the court addressed
the outstanding ICWA issues. While the court directed the Department to continue
investigating mother’s claimed Indian ancestry, it reasoned that no further investigation
or notice was required concerning father’s claim because the children were to remain in
his custody.



                                             10
       The Department sent ICWA notices to the Cherokee tribes, the Bureau of Indian
Affairs, and the Secretary of the Interior concerning mother’s claimed Indian heritage.
After receiving progress reports from the Department concerning these ICWA notices,
the court found that it had no reason to know the children were Indian children as defined
by ICWA.
       Subsequent to the court’s ICWA finding, the Department filed its supplemental
petition concerning father’s failure to supervise the children and marijuana abuse.
Though the detention report again noted that father informed the Department he may
have Indian heritage, the court did not address the issue at the detention hearing and the
record does not indicate that father’s possible Indian heritage was addressed at any
hearing thereafter.
       Father claims, and the Department concedes, that the information he provided to
the court and the Department concerning his possible Chumash heritage was sufficient to
trigger ICWA’s notice requirements. We too agree. However, under these circumstances
the appropriate remedy is not to reverse the jurisdictional findings, but rather to remand
the matter to the juvenile court to comply with ICWA’s notice requirements. (See In re
Christian P. (2012) 208 Cal.App.4th 437, 452-453.) At this time, there is not a sufficient
showing that Natalie, Jocelyn, and Jeremiah are, in fact, Indian children as defined by
ICWA. If, after proper notice, a tribe claims the children are Indian children, the
interested parties can petition the juvenile court to invalidate any orders that violated
ICWA. However, if “no tribe makes such claim, prior defective notice becomes harmless
error.” (Id. at p. 453; see also In re Damian C. (2009) 178 Cal.App.4th 192, 199-200.)
Accordingly, we will reverse the court’s earlier ICWA finding to the extent it relates to
the children’s possible Indian heritage through father’s lineage and remand with
directions to issue ICWA notices concerning father’s claimed Indian heritage.




                                             11
                                      DISPOSITION
       The jurisdictional finding and disposition order are affirmed. The ICWA finding
is reversed to the extent it relates to the children’s possible Indian heritage through
father’s lineage, and the juvenile court is directed to order the Department to complete
the ICWA inquiry and notice concerning father’s claimed Indian heritage.




                                                   JONES, J. *

We concur:



                     ALDRICH, Acting P. J.




                     LAVIN, J.




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


                                              12
Filed 12/21/15
                    CERTIFIED FOR PARTIAL PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION THREE

In re NATALIE A. et al., Persons Coming              B261303
Under the Juvenile Court Law.
                                                     (Los Angeles County
                                                     Super. Ct. No. DK01396)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND                           ORDER CERTIFYING OPINION
FAMILY SERVICES,                                     FOR PARTIAL PUBLICATION
                                                     [NO CHANGE IN JUDGMENT]
        Plaintiff and Respondent,

        v.

ROLAND C.,

        Defendant and Appellant.


THE COURT:
        The opinion in the above-entitled matter filed on November 25, 2015, was not
certified for publication in the Official Reports. For good cause it now appears that this
opinion should be published in the Official Reports with the exception of part 3 of the
Discussion.
        [There is no change in the judgment.]




_________________        _____________________                 ___________________
                                                                               *
ALDRICH, J, Acting P. J.         LAVIN, J.                            JONES, J.
*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                             1
