Filed 11/20/14 In re Reuben G. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


In re REUBEN G., et al., Persons Coming                                    B255027
Under the Juvenile Court Law.
                                                                           (Los Angeles County
LOS ANGELES COUNTY                                                         Super. Ct. No. CK67583)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

DAISY G.,

         Defendant and Appellant.




         APPEAL from judgment and orders of the Superior Court of Los Angeles
County, Marguerite Downing, Judge. Reversed in part and dismissed as moot in part.
         Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the County Counsel, Richard D. Weiss, Acting County Counsel,
Dawyn Harrison, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy
County Counsel, for Respondent.
                        ___________________________________________
       Daisy G. (mother) appeals from the juvenile court’s orders sustaining the

jurisdictional findings against her and removing her infant son. Mother also appeals

from the court’s concurrent order at a six-month review hearing denying the return to

her custody of her five older children. Mother contends there was insufficient evidence

of risk to her infant based on past domestic violence involving the child’s deceased

father and the mother’s past marijuana use. She also contends there was no substantial

evidence showing detriment to her five older children if they were returned to her care.

Lastly, mother argues that the Department of Children and Family Services

(Department) failed to provide adequate notice under the Indian Child Welfare Act

(ICWA) and the Department concedes this point. We agree with mother on all grounds

and reverse.1

                   FACTUAL AND PROCEDURAL BACKGROUND

       1.       The Petition Regarding the Five Older Children

       When this case began in early 2013, mother and Reuben G. (father) had five

children together: Reuben Jr. (Reuben), age 13; Sharon, age 9; R., age 6; Ro., age 3;

and Y., age 1. On March 1, 2013, the Department received a referral indicating that

mother had physically abused Y. A social worker from the Department interviewed the

family later that day. The social worker observed a “fresh unexplained belt mark” on

Ro.’s back, and two of the children reported incidents of domestic violence. R. said she

had seen “father hit their mother with his hand on the face and then thr[o]w the mother’s


1
      However, as noted below, a portion of this appeal is moot and, therefore, we
dismiss that portion.

                                            2
back[]pack, hitting the mother on the forehead . . . . ” Sharon said “she is scared of

father because [he] might hit her mother again.” Reuben said his parents argued, but

denied witnessing any physical fighting. Mother said father threw a backpack during an

argument and it “landed on the ground.” Ro. and Y. were too young to give a

meaningful statement.

       On March 7, 2013, the Department filed a petition alleging the children were

endangered by the parents’ history of domestic violence and father’s history of abuse of

alcohol and marijuana.2 The record does not reveal why the Department chose not to

pursue the referring party’s allegation that mother physically abused Y. The court

detained all of the children in shelter care.

       On April 3, 2013, the Department filed a first amended petition adding

allegations that father physically abused Ro. by striking him with a belt, mother had

a history of abuse of marijuana, and mother had “mental and emotional problems” that

rendered her incapable of providing regular care for the children. In the

Jurisdiction/Disposition Report, the Department stated that the three older children all

denied that mother used drugs, or that she had any mental or emotional problems. The

2
       There were also two prior dependency cases involving the family. In March
2007, the court sustained a petition based on the parents’ history of physical and verbal
altercations in the presence of the children, which included an incident where father had
slapped mother. Family reunification services were provided, and jurisdiction was
eventually terminated. In October 2009, the Department found allegations of neglect
against the parents to be substantiated after a social worker visited the family home and
discovered “mold in the bathroom, . . . entertainment centers piled . . . that could . . . fall
over, a motorcycle covered with a plastic sheet in the living room, . . . multipl[e] carpets
that could cause someone to trip,” and holes in the wall that were “stuffed with plastic
bags.” The parents agreed to cooperate with a Voluntary Family Maintenance
Agreement and the Department terminated services in August 2010.

                                                3
two younger children were still unable to give a meaningful statement. Mother

acknowledged that she had used marijuana in December 2012 but claimed that she no

longer used marijuana due to her current pregnancy.

        Mother submitted to a drug test on March 20, 2013, and tested positive for

marijuana. On April 4, 2013, she did not appear for a random drug test. On April 24,

2013, the court sustained the allegations of the domestic violence, father’s physical

abuse of Ro., and mother and father’s substance abuse. The court struck the allegation

that mother suffered from mental and emotional problems but ordered mother to

participate in an Evidence Code section 7303 evaluation. The court removed the

children from their parents’ custody and allowed the parents monitored visits at least

twice a week. The court also ordered mother to (1) submit to random drug testing as

well as a drug treatment program should she miss any tests or test positive,

(2) participate in a domestic violence program for victims, (3) take a parenting class,

and (4) do individual counseling. A six-month review hearing was set for October 22,

2013.

        2.    The Petition Regarding Royal

        Father was shot and killed on April 29, 2013. In May 2013, two psychiatrists

evaluated mother pursuant to the court’s order and concluded that her only mental

health diagnosis was a “state of bereavement due to her husband’s killing.” The


3
       Evidence Code section 730 provides that “[w]hen it appears to the court . . . that
expert evidence is or may be required by the court . . . the court on its own
motion . . . may appoint one or more experts to investigate, to render a report as may be
ordered by the court, and to testify as an expert . . . . ”

                                            4
psychiatrists also indicated that mother had addressed the allegations of domestic

violence during her evaluation; mother acknowledged that father had slapped her once

and claimed that father had only thrown a backpack at her by accident. In June 2013,

mother enrolled in a drug treatment program,4 parenting classes and individual

counseling. In June, July and August 2013, mother drug tested negative. On

August 12, 2013, the Department reported that although mother “denied” that Ro.

needed a “developmental assessment,” she had signed an authorization for such an

assessment.

       On August 15, 2013, mother gave birth to a baby boy, Royal G.5 On August 22,

2013, the Department filed a petition alleging under Welfare and Institutions Code6

section 300, subdivision (b), mother’s abuse of marijuana endangered Royal’s health

and safety, and under subdivision (j), mother’s failure to protect her older children from

father’s violent behavior and substance abuse placed Royal at risk of harm.7 The court

detained Royal but gave the Department discretion to place him with mother. The

Department placed Royal with a relative. Royal’s adjudication hearing was initially set


4
      It is not clear from the record when an order to complete a drug treatment
program was made.
5
      The Department states that mother was a “no-show” at a random drug test on
August 15, 2013; however, this was no doubt due to mother’s giving birth to Royal that
day.
6
      All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
7
       The petition also made other allegations which were not sustained by the court
and are not at issue on appeal.

                                            5
for October 2013 but was continued approximately five months (due to the

Department’s failure to properly serve notice under the ICWA) during which time the

infant remained out of mother’s care.

       On September 12, 2013, mother missed a drug test. On October 22, 2013, the

Department reported that Royal was in good health, that mother visited him three times

a week, and that the visits “[went] well.” However, the Department recommended that

Royal be removed from mother’s custody because she had not “consistently participated

in any services” and “had not shown an understanding” of her wrongdoing. Indeed, in

conversations with mother on September 9, 2013 and earlier, mother had “indicated that

she does not see anything wrong with the functioning of her family other than [the

Department’s] involve[ment].” The Department’s conclusion that mother had not

consistently participated in services was based on evidence that she had switched

programs twice; however, mother had consistently participated in services at the latest

program since September 16, 2013.

       With respect to the five older children, the Department reported that mother “had

demonstrated a dedication to visiting her children” and that mother “sits with the

children, cooks for them, and engages with them” during visits. However, due to

mother’s failure to complete court-ordered services and her “refusal to acknowledge

Ro.’s developmental delay,” the Department recommended that the children not be

returned home at the next review hearing. The six-month review hearing scheduled for

October 22, 2013 was continued to allow the Department to re-serve notice under the

ICWA.


                                            6
       On December 18, 2013, the Department reported the mother had “continued to

participate in services” and that the Department had liberalized mother’s visits to

unmonitored. The Department submitted letters from a drug treatment center stating

that mother had participated in a program since September 2013 that addressed

substance abuse, domestic violence and parenting skills, that mother had been a “role

model for the other women,” that all “random test[s] . . . were negative for all drugs,”

and that, in individual counseling sessions, she had shown “understanding of the need

for her to further improve herself” and had “acknowledge[d] her need to follow the

requirements [the Department] has in place in order for her to . . . become a better

parent.” However, the Department recommended that none of the children be returned

to mother’s care.

       At a December 18, 2013 hearing, minor’s counsel reported that “the caretakers

for Reuben and for Royal . . . have no concerns about . . . mother having unsupervised

visits with those two children.” The social worker had not yet talked to the relative

caring for the other children about mother’s visits. The Department reported that it had

been “liberalizing mother’s visits,” and “clearly recogniz[ed] [mother] is, at this point,

complying with what she needs to do and showing progress.” The court granted mother

unmonitored visits with the older children, and continued the adjudication and

six-month review hearings to allow the Department further opportunity to comply with

the ICWA.

       On February 13, 2014, the Department reported that, during one visit, R. “rode

on the handlebars of [] mother’s bike” and, “since the initiation of [] unmonitored visits,


                                             7
[] ha[d] been involved in two physical altercations.” The Department continued to

recommend that the older children not be returned to mother’s care. The hearing set for

that day was continued to allow the Department to provide notice under the ICWA.

       The adjudication hearing with respect to Royal, and the six-month review

hearing with respect to the five older children, were held on March 10, 2014. The

Department filed a report stating that mother had completed parenting, substance abuse

and domestic violence classes, and that “letters from the therapist and program director

indicate that [she] was an active participant in treatment.” Mother’s treatment center

reported that she “ha[d] been a model client and always does what is expected of her.”

The Department reported that since mother had had unmonitored visits with the

children, (1) Reuben had accused his caregiver of “imped[ing] his visits with []

mother,” had “ditched” class on one day, and had told his caregiver that his skipping

class “would reflect poorly on” her, and (2) Sharon was sad because “mother paid more

attention to Reuben during the visits.”

       At the hearing, the Department recommended that the petition’s allegations

concerning Royal be sustained because mother had “continued to show and exhibit the

same behaviors that brought this case in initially,” namely that “she had

difficulty . . . functioning generally in society because she has a terrible attitude. She

has a terrible attitude towards the classes that the Department has asked her to complete

and . . . has repeatedly stated she doesn’t get anything out of them; there’s nothing

wrong with her family other than [the Department].”




                                              8
        The court sustained the allegations that mother’s substance abuse of marijuana

endangered Royal under section 300, subdivision (b), and that mother’s failure to

protect the older children from father’s domestic violence, physical abuse of Ro., and

substance abuse, endangered Royal under section 300, subdivision (j). Although the

court did not specifically order that Royal be removed from mother’s custody, this was

an oversight since the court only provided that mother continue to have unmonitored

visitation with the infant.

        The court then proceeded to address the six-month review of the older children’s

case. The Department argued that there were “safety concerns” involved in returning

the children to mother’s care because mother had allowed R. to ride on her bicycle

handlebars.8 In addition, the Department argued that “the caretaker has had some real

concerns about the children’s behavior when they come back.” On these grounds, the

Department argued that the children should not be returned to mother’s care. The court

found that “return of the children to the physical custody of the mother would create a

substantial risk of detriment to their safety, protection, physical and emotional well-

being . . . . ”

        Mother timely appealed from the orders at the hearing. At a twelve-month

review hearing held on June 25, 2014, the juvenile court ordered Reuben and Sharon

returned to mother’s custody.



8
       The Department also argued that the February 13, 2014 report stated that mother
“wouldn’t tell the caretaker where they were going.” However, this evidence was not
included the Department’s report.

                                             9
                                      CONTENTIONS

       Mother contends that the juvenile court’s jurisdictional and dispositional orders

as to Royal were not supported by substantial evidence, and that the court erred in

finding that it would be detrimental to the five older children to be returned to her care.

Mother also argues that the Department failed to provide proper notice under the ICWA.

                                       DISCUSSION

       1.     There Was No Substantial Evidence Supporting the Court’s
              Jurisdictional Findings as to Royal

       Mother challenges the juvenile court’s jurisdictional findings that Royal was

a dependent under section 300, subdivisions (b) and (j). Subdivision (b) allows the

court to take 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 . . . . ” Subdivision (j) provides for jurisdiction when “[t]he child’s sibling has

been abused or neglected . . . and there is a substantial risk that the child will be abused

or neglected . . . . ” We review the juvenile court’s jurisdictional findings for substantial

evidence. (In re David M. (2005) 134 Cal.App.4th 822, 828.)

       Mother first contends there was no substantial evidence supporting the court’s

finding that under section 300, subdivision (j), Royal was endangered by father’s violent

actions and substance abuse as father was deceased at the time of the jurisdiction

hearing. The Department contends that mother minimized and denied that domestic

violence had occurred, and, thus, although father was now deceased, mother still



                                              10
presented a risk to Royal. In support of this argument, the Department cites to

statements mother made in March 2013 and May 2013 in which she denied that father

purposefully threw a backpack at her.9 However, mother made those statements

between ten months and a year prior to Royal’s jurisdiction hearing. During the interim,

mother had completed a domestic violence program and individual counseling as

ordered by the court. In addition, mother’s treatment program informed the court she

had been an “active participant” in her classes and “a model client.”

       Although the Department argued at the hearing that mother had a “terrible

attitude” based on her refusal to acknowledge there was something “wrong with her

family,” this argument was based on statements mother had made at least six months

earlier. Since that time, the Department had submitted evidence to the court that mother

had received uniformly positive reviews from her treatment program stating that she had

shown “understanding of the need for her to further improve herself,” and that the

Department itself “clearly recogniz[ed] [that] [mother] is, at this point, complying with

what she needs to do and showing progress.”

       In addition, the Department did not submit evidence to the court that mother had

exhibited any behavior, in the past six months, showing she was unable or unwilling to

protect her children from a third party’s violent actions or substance abuse. On these

grounds, there was no substantial evidence supporting the trial court’s finding that

“there [wa]s a substantial risk that Royal will be abused or neglected.”


9
      The Department also cites to its April 24, 2013 report where it stated that
“mother [] admits to having a domestic violence history with father [] in 2007.”

                                            11
       With respect to the allegation that mother’s abuse of marijuana presented

a danger to Royal, the evidence showed that mother had completed her drug treatment

program and tested negative for drugs during the prior eleven months except for one

missed drug test on September 12, 2013. Nor was there ever any evidence that mother’s

use of marijuana affected her ability to safely parent and provide for her children: her

older children denied ever witnessing mother use marijuana and there was no evidence

that mother’s failure to protect the children from father was connected to her marijuana

usage. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 [“a parent’s use of

marijuana ‘without more,’ does not bring a minor within the jurisdiction of the

dependency court.”])

       While the Department acknowledges that mother consistently attended her drug

treatment program and completed it with positive reviews, it contends that Royal is still

at risk because mother switched treatment programs two times. This contention is not

persuasive. Mother asked the Department’s social worker whether she was permitted to

switch programs and the Department said that she did not need permission and only

that, if she did switch programs, this could “delay the completion of any program,

which could have a b[e]aring on the Family Reunification efforts.” Furthermore,

although the Department argues that “mother’s completion of the program did not, in

and of itself, eradicate the risk her substance abuse posed to Royal,” the Department

was required to ground that assertion on actual evidence, and the only evidence the

Department presented showed mother had taken all the steps required of her to address

this problem. Lastly, the Department also argues that mother had tested positive for


                                            12
marijuana and missed a drug test approximately a year prior to the jurisdiction hearing

while she was pregnant with Royal. Although this presented a risk to Royal, it was

insufficient by itself to support the sustaining of jurisdiction one year later. On these

grounds, we find that the trial court’s finding of jurisdiction under section 300,

subdivision (b), was not supported by substantial evidence.10

       2.     There Was No Substantial Evidence That Return of R.,
              Ro. and Y. to Mother’s Care Would Create
              A Substantial Risk of Detriment to Them

       Section 366.21, subdivision (e), governs the six-month review hearing and

provides that “the court shall order the return of the child to the physical custody of his

or her parent or legal guardian unless the court finds, by a preponderance of the

evidence, that the return of the child to his or her parent or legal guardian would create

a substantial risk of detriment to the safety, protection, or physical or emotional

well-being of the child. The social worker shall have the burden of establishing that

detriment. . . . In making its determination, the court . . . shall consider the efforts or

progress, or both, demonstrated by the parent [] and the extent to which he or she

availed himself or herself to services provided . . . . ”

       “The dependency scheme is based on the law’s strong preference for maintaining

family relationships whenever possible. [Citations.] When a child is removed from


10
       Mother also challenges the removal of Royal from her custody, however, as we
find that jurisdiction over Royal was improper, we need not reach the dispositional
order. Furthermore, as stated above, the court never actually made a removal order as to
Royal, let alone any of the attendant factual findings required by section 361.
(Section 361, subd. (d) [“The court shall state the facts on which the decision to remove
the minor is based.”])

                                              13
parental custody, certain legal safeguards are applied to prevent unwarranted or

arbitrary continuation of out-of-home placement. [Citations.] Until reunification

services are terminated, there is a statutory presumption that a dependent child will be

returned to parental custody. [Citation.]” (In re Yvonne W. (2008) 165 Cal.App.4th

1394, 1400.)

       We review the record for substantial evidence in support of the court’s finding

that the older children would be at substantial risk of detriment if returned to mother’s

custody. (In re Yvonne W., supra, 165 Cal.App.4th at pp. 1400-1401.) However, as

Reuben and Sharon were returned to mother’s custody during the pendency of this

appeal, this issue is moot as to them. (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.)

Accordingly, we only review the court’s finding of detriment as to R., Ro. and Y.

       Mother contends there was no substantial evidence of detriment because she had

completed her entire case plan, the staff at her treatment program had spoken of her

progress in positive terms, and her visits with the children went well. The court was

required under section 366.21, subdivision (e), to consider these efforts by mother to

avail herself of the services ordered as well as her progress in completing those services.

In addition, the evidence that mother consistently visited the children and that her

behavior during those visits was appropriate supported a finding that the children could

be safely returned to her care.

       In response, the Department argues that the evidence established that mother was

“unable to [put] the children’s welfare and well-being above her own” because she

denied Ro. had a speech delay and allowed R. to ride on her bicycle handlebars, and


                                            14
because her children “struggl[ed] with behavioral issues as her time with them became

liberalized.” However, this evidence was insufficient by itself to show a “substantial

risk of detriment.” Mother did, in fact, authorize Ro. to undergo an assessment to

address any possible development delays, and the Department did not present evidence

as to the length of any delay mother’s initial denial caused in Ro. receiving services.

Furthermore, that mother allowed R. to ride on her handlebars constituted only a minor

safety infraction. Lastly, although the Department presented evidence that the children

experienced “behavioral issues” after mother’s unmonitored visits with them, the

Department did not present evidence indicating that those issues were the result of any

inappropriate parenting by mother, rather than the result of the children’s struggle with

the uncertain transition from foster care back to mother’s care.

       The standard for showing detriment is “a fairly high one. It cannot mean merely

that the parent in question is less than ideal, did not benefit from the reunification

services as much as we might have hoped, or seems less capable than an available foster

parent or other family member.” (David B. v. Superior Court (2004) 123 Cal.App.4th

768, 789.) Here, the Department did not meet its burden of showing that the children

would be at substantial risk of detriment if returned to mother’s care, and, thus, the court

erred in continuing their removal from mother.

       3.     The Case Must Be Remanded for Compliance With the ICWA

       In 1978, Congress passed the ICWA (25 U.S.C. § 1901 et seq.) which is

designed “to promote the stability and security of Indian tribes and families by

establishing minimum standards for removal of Indian children from their families and


                                             15
placement of such children ‘in . . . homes which will reflect the unique values of Indian

culture . . . . ’ ” (In re Levi U. (2000) 78 Cal.App.4th 191, 195; see 25 U.S.C. § 1902;

Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32–36.) Among

the procedural safeguards included in the ICWA is a provision for notice, which states

in part: “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.” (25 U.S.C.

§ 1912(a).) The Indian status of a child need not be certain or conclusive to trigger the

ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)

       The Department acknowledges that notices were not provided in accordance with

the ICWA because they contained incorrect information or omitted information

regarding the family’s Native American heritage. The juvenile court is required to

inquire about a child’s “Indian status” in all dependency proceedings. (In re W.B., Jr.

(2012) 55 Cal.4th 30, 52-53.) “Once the court has learned that a child under its

jurisdiction may have Indian ancestry, the next step [the] ICWA typically requires is

notice to the tribe or, if no tribe is identified, to the [Bureau of Indian Affairs.]” (Id. at

p. 53; italics added.)

       Here, mother and maternal relatives had tribal enrollment numbers, and mother

claimed father had Cherokee heritage. None of the ICWA notices sent reflected all of

this information. Accordingly, a limited remand is necessary with directions to the


                                              16
juvenile court to ensure that the ICWA’s requirements are satisfied. (See In re

Brooke C. (2005) 127 Cal.App.4th 377, 385 [holding that orders other than the

termination of parental rights may be affirmed despite lack of the ICWA notice, and the

matter remanded only for the purpose of allowing the juvenile court to ensure

compliance with the notice requirements]; but see Nicole K. v. Superior Court (2007)

146 Cal.App.4th 779, 781 [disagreeing with In re Brooke C. and holding that “when

there has been a lack of ICWA notice, the juvenile court’s orders must be vacated

because they are based on different standards than should have been applied if ICWA

notice was provided and showed the child is an Indian child.”])

       If, after proper notice is given under the ICWA, “neither the tribe nor the Bureau

of Indian Affairs has provided a determinative response within 60 days after receiving

that notice, then the court may determine that the [ICWA] does not apply to the

proceedings, provided that the court must reverse its determination of the inapplicability

of the act and must apply it prospectively if a tribe or the Bureau of Indian Affairs

subsequently confirms that the child is an Indian child.” (Cal. Rules of Court,

rule 5.482(d)(1).) In the alternative, if it is determined that the children are Indian

children and that the ICWA applies to these proceedings, either the children or the

parents can petition the dependency court to invalidate any prior order which violated

the statute. (Cal. Rules of Court, rule 5.486(a); In re Brooke C., supra, 127 Cal.App.4th

at pp. 385-386.)

                                        DISPOSITION




                                             17
       The judgment as to Royal and the six-month review findings as to R., Ro. and Y.

are reversed. The appeal as to Reuben and Sharon is dismissed as moot. The matter is

remanded for the purpose of directing the juvenile court to order the Department to

comply with the notice provisions of the ICWA. If, after proper notice, a tribe claims

that the children are Indian children, the juvenile court shall proceed in conformity with

the ICWA, and the children or mother may petition the juvenile court to invalidate any

orders that violated the ICWA. If, on the other hand, no tribe makes such claim, the

prior defective notices become harmless error.



       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                                      LAVIN, J.*

WE CONCUR:




       KITCHING, Acting P. J.                           ALDRICH, J.




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

                                            18
