Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK80677 Marilyn Mackel, Juvenile Court Referee.
Jamie A. Moran, under the appointment of the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Father, Mark W., Sr., challenges an order granting a subsequent petition filed pursuant to Welfare and Institutions Code section 342 and removing his son, Mark W., Jr., from his custody. Father contends the use of a section 342 petition was procedurally improper, the juvenile court’s jurisdictional finding on the subsequent petition is not supported by substantial evidence, the removal order is not supported by substantial evidence, and reversal is required to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We strike the jurisdictional finding, reverse the order of removal and remand with directions to dismiss the section 342 petition and to comply with the notice requirements of ICWA and state law.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Mark was born in 2008 to Father and Sophia B. (Mother). At the time of Mark’s birth, Father was 18, and Mother was 22. Father and Mother were never married, do not live together and are not a couple. Both parents were dependents of the juvenile court. Father was raised by his foster mother, Eloise G., with whom he was placed when he was seven days old. Father continued to live with her after he attained the age of 18 and during a portion of these dependency proceedings.
Mother is not a party to this appeal. We therefore limit our factual statement to those facts relevant to Father.
Mark has an older half-sister, Mariana G., whose father, Marlon G. is deceased. Mother and Marlon G. were married when Marlon G. was shot and killed. Father met Mother through Marlon G.
Mariana is not a subject of this appeal.
On January 11, 2010, the Department of Children and Family Services (DCFS) took Mark and Mariana into protective custody. The children were living with Mother at the time. On January 14, DCFS filed a section 300 petition on behalf of both children, and the juvenile court ordered them detained. Following a contested adjudication hearing held on January 26, 27 and 28, 2010, the court declared Mark a dependent child under subdivisions (b) and (j) of section 300 and Mariana a dependent child under section 300, subdivision (b), as a result of Mother’s use of inappropriate physical discipline and her use of marijuana. As to the sole allegation against Father, that he had a history of illicit drug use and currently used marijuana, the court concluded that DCFS had not met its burden and ordered the allegation stricken.
Father testified that he only used marijuana in high school at the age of 15 or 16 and that he did not currently use marijuana. Although he was arrested for possessing marijuana days before turning 18, he explained that he was carrying the marijuana as a favor for a friend. At the time, he was on probation for attempted robbery. Father has no adult criminal history.
At disposition, the trial court removed Mark and Mariana from Mother’s custody, ordered Mariana suitably placed and ordered family reunification services for Mother. Over the objection of DCFS, the court placed Mark in the home of Father, who then was 20 years old, on the condition that he continue to live with Eloise G., and ordered DCFS to provide Father family maintenance services. The court asked Father to submit to the jurisdiction of the court, and Father agreed. The court ordered Father to attend a fatherhood group, to attend Daddy and Me classes with Mark, to submit to six random drug tests with clean results. If Father tested dirty or missed a test, he was to enroll in a drug treatment program. The court further directed that Father was to be Mark’s primary caretaker and that Eloise G. was not to be Mark’s babysitter.
On February 17, March 16, April 9, May 25, June 23 and July 14, 2010, Father was called to take a drug test. His February 17 and March 16 tests were negative, but he failed to show for the remaining four tests.
On June 24, 2010, Father, along with his girlfriend Arieal J., and Mark moved out of Eloise G.’s home and into a motel. Father called Latasha Pruitt (Pruitt) from the Family Preservation Involvement Center and told her that he “had got put out early that morning. The sheriffs came out and gave him a restraining order.” Father informed Pruitt that he was leaving Eloise G.’s house, was going to obtain funds from the Department of Public Social Services (DPSS), after which he would be staying at the Airport Motel. Pruitt visited Father at the motel weekly. Mark and Arieal J. were living with Father. In Pruitt’s view, Mark was being well cared for “in a safe and healthy environment.”
According to Eloise G. she obtained the restraining order because Father and his girlfriend “were being disrespectful to her and her household.” Father continued to live with Eloise G. after his DCFS case was closed. Father subsequently allowed Arieal to live in the house without Eloise G.’s permission. Eloise G. explained that Father “could not stay in her home with a female unless they were married. She said that her money was coming up missing and she asked [Father] and his girlfriend to leave her home.... [Father] became disrespectful and stated that he was not going anywhere and she would have to evict him.... [Father] refused to leave.... [He] was not paying her rent, so she did not have to evict him but did obtain a restraining order for three years to get [Father] and his girlfriend out of her house.”
On July 20, 2010, while Father, Mark and Arieal J. were at DCFS offices, the Children’s Social Worker (CSW) attempted to detain Mark. Although the CSW explained the situation to Father, he refused to release Mark and left the DCFS office with his son. The same day, the CSW, accompanied by Los Angeles police officers, went to Father’s last known address, the Airport Park View Motel located at 3900 Century Boulevard in Inglewood, in attempt to detain Mark. Father and Mark were not present at the motel, however. The CSW attempted unsuccessfully to contact Father by cell phone to learn his whereabouts. The CSW left a message, asking Father to call her so that Mark could be detained. Father did not respond.
Father said, “I have done everything I need to do[.] [Y]ou ain’t taking my son[.] I am gone.”
The following day, July 21, the CSW and a police officer returned to the Airport Park View Motel. Again, Father was not present. DCFS requested a protective custody warrant for Mark.
On July 23, 2010, DCFS filed a section 342 subsequent petition, alleging that Mark was a dependent of the court under section 300, subdivision (b). In count b-1, DCFS alleged that Father secreted Mark’s whereabouts from DCFS thereby endangering him. In count b-2, DCFS alleged that Father failed to comply with juvenile court orders thereby endangering Mark. A detention hearing was held the same day. Father appeared in court. Mark was with Father. The juvenile court found that it would be contrary to Mark’s welfare to continue in Father’s home and it ordered Mark detained in shelter care.
A contested adjudication hearing on the section 342 petition commenced in August 2010 and was completed in September 2010. Arieal J. testified that on July 20, 2010, she, Father and Mark went to DCFS offices because the CSW had asked her to submit to a Live Scan. Upon their arrival, the CSW told Father that she wanted to detain Mark because Father failed to attend Daddy and Me classes and to complete his drug testing. Father asked if there was any paperwork directing DCFS to detain Mark. The CSW had none. Father, who was carrying Mark, then walked out of the office. Father was upset and crying. Although the CSW asked Father not to leave, neither she nor any other DCFS employee asked Father to hand over Mark, attempted to take Mark from Father or to stop Father from leaving.
On numerous occasions, Arieal accompanied Father to drug testing. On four or five occasions, Father reported for testing, but his name was not on the list.
Arieal who had been living with Father since November 2009, never observed Father put Mark in a dangerous situation or neglect Mark. She believed that Father was a good father to his son.
Arieal lived with Father and Mark at Eloise G.’s home until June 24, 2010, when they moved to a motel. Arieal overheard Father talking on the phone to the CSW about leaving Eloise G.’s house. At a subsequent meeting, the CSW was advised of the address of the motel. The CSW never visited the motel but she did call Father.
When the adjudication hearing resumed on September 1, 2010, Pruitt testified. She worked with Father from March 11, 2010, when she received his case plan, until July 13, 2010. During this time, Pruitt met with Father once a week. Around June 23 or 24, Father called Pruitt and advised her that he had to leave Eloise G.’s home after sheriffs served him with a restraining order. Father stated that after he obtained funds from DPSS, he would be staying in a hotel. Later, Father again called Pruitt and advised her that he was staying at the Airport Motel located at 3900 Century Boulevard. Pruitt visited Father at the motel the following week. Mark and Arieal were living with Father. Based on Father’s statements to Pruitt, that latter believed that Father intended to inform the CSW and case manager about his conflict with Eloise G. Pruitt herself left a message for the CSW but never received a call back.
According to Pruitt, this was the second restraining order obtained by Eloise G. She first obtained a restraining order in April 2010. Pruitt called the CSW and left messages after learning about the first and second restraining orders. Pruitt did not know if the CSW did anything to address the situation between Father and Eloise G.
The CSW then assigned to the case, Tanya Norville, was not present during Pruitt’s meetings with Father at the hotel. Consequently, Pruitt made it a point to communicate with the assigned CSW on a regular basis “and let them know what is going on with the case that the client is complying or not complying.”
Other CSWs handled Mark’s case prior to CSW Norville.
During her visits with Father at the motel, Pruitt never had any concerns about how Father was parenting Mark or about Mark’s physical or emotional health. Arieal’s presence did not concern Pruitt either. To Pruitt’s knowledge, Mark “was in a safe and healthy environment.” In fact, at no time while working with Father did Pruitt experience cause for concern regarding Mark’s physical or mental health, Father’s parenting or Arieal’s presence.
On July 13, 2010, Pruitt, CSW Norville and Father had a meeting. The discussion focused on Father’s compliance with the service plan, including drug testing, the restraining order obtained by Eloise G., his housing situation and the need for Arieal to Live Scan. With regard to drug testing, the CSW informed Pruitt that there were two incidents where Father went to take a drug test but the necessary documentation was not there. The CSW was to arrange for makeup dates so that Father could take at least three more drug tests. Father also needed to get the documentation from the CSW so he could start Daddy and Me classes.
During the period of time that Pruitt worked with Father, Father voiced concern that he had been trying unsuccessfully to contact the CSW to obtain the information he needed. Pruitt advised him “to go to the next line and call the supervisor, and the next time [sic] would be the duty worker.”
Father also testified at the adjudication on the section 342 petition. He testified about his relationship with Eloise G., who he referred to as his grandmother. When Father was first placed with Eloise G., she was married. Her husband later died, after which Father helped Eloise G. During the period of time that Eloise relied upon Father for help, Mark was born. After Mark was placed with Father, Father was not able to help Eloise G. as much and arguments ensued. Father informed the CSW about these arguments, which started in March 2010. In April, Father called the CSW and requested “help finding another place to raise my son.” The CSW said she would “try and figure something out.”
In June 2010, Father was forced to move out of Eloise G.’s home after being served with a restraining order. Father contacted the CSW that day. The CSW said Father could leave. Father also called his family preservation worker. Father was given information about obtaining funding for housing from AFDC. Father contacted AFDC and obtained funding to stay in a hotel for 15 to 16 days. He then moved into the motel on Century Boulevard and left two messages advising CSW Norville of his whereabouts. At no time did CSW Norville come to the motel after telling Father that she would. A family preservation worker, however, visited him weekly. Father stayed at the Airport Parkview Motel until July 20, about one week after the July 13 meeting. After the money he obtained from AFDC was depleted and after leaving the motel, Father managed to support himself by performing odd jobs and staying with family.
At the time of the adjudication hearing on the section 342 petition, Father and Mark were staying with a relative. A new CSW had been assigned to his case and had provided Father with referrals for drug testing, and Father had already submitted to a drug test.
Father acknowledged having a conversation in March 2010 with a CSW regarding Daddy and Me classes. He recounted that he called Anthony Young about the classes and was told he needed a recommendation and that the CSW said one would be submitted. Father also recalled a CSW providing him with a number for drug testing on March 3, 2010 and being told that if he missed any drug test, he would have to attend a drug program. Father further remembered being advised by a CSW that he had missed one test and that she would be submitting an on demand test for Father on March 12, 2010.
With regard to the Fatherhood Program, Father first contacted the program in April 2010. He missed the date for the orientation meeting and failed to attend the following week as he “was trying to find a placement and a job.” Father acknowledged that he had yet to enroll in a fatherhood program.
Father noted that Pruitt incorrectly testified he told her that Eloise G. had obtained two restraining orders against him. The first of these orders, which was issued in April 2010, actually had been obtained against Arieal on the ground of mental abuse. The second restraining order was issued against Father and also alleged mental abuse.
On September 1, 2010, following a recess in the adjudication hearing, the court ordered DCFS to conduct an administrative review of this case, noting “[i]t’s pretty obvious to the court that somebody dropped the ball.” It further ordered DCFS “to actively pursue appropriate housing for Father, refer the Father to the Job Corp[s]. This man is a foster youth in a non[] relative legal guardianship. He is 20 years of age.” The court further recommended that DCFS “show some flexibility in the provision of [Independent Living Program] services and consider providing those services to the Father, including any housing assistance that might be available to him through the Independent Living Program.” The court encouraged Father to focus on housing and employment during the two-week period of time DCFS had to prepare its administrative review, and it granted him unmonitored visitation with Mark. The court also asked Father’s counsel to communicate with the Job Corps on Father’s behalf and “to step up on this as well get busy with assistance to get things going.” The juvenile court further stated its inclination “to dismiss the petition at this time” but noted that “the situation is such we can’t return the child to him today under the circumstances that he is living in.” Rather than dismiss the petition, the court continued the matter for receipt of the administrative review and emphasized that “the goal of the court here is to get the child back with the father.”
When the adjudication hearing resumed on September 14, 2010, Father’s counsel informed the court that Father went to the Job Corps but was informed that he was not eligible because he had been out of school for too long. The court said, “Absolutely not possible. Go back. Send him back with a letter. There is no such thing as out of school for too long for the Job Corp[s]. Absolutely no such thing.” Counsel also advised the court that Father went to the Independent Living Program office but was told “they would be unable to assist him because he is not in school and employed.” Father was staying with a cousin, had enrolled in school to be a security guard and had applied for employment at a number of places.
With regard to adjudication, Father’s counsel represented that Father had completed his drug testing and asked for confirmation of completion before telling Father to stop testing. Counsel further asked that the section 342 petition be dismissed in its entirety, explaining that “Father is willing to cooperate with whatever services are available from the Department.” In addition, Father asked “for return of his son at an appropriate time.” After listening to further argument by counsel, the court struck count b-1 but sustained count b-2 which, as amended, provided that Father “failed to comply with Juvenile Court orders to maintain his residence with his former caretaker, to attend fatherhood group counseling and to provide six clean random drug tests. Such failure to comply with Juvenile Court orders by the father endangers the child’s physical and emotional health and safety and places the child at risk of severe physical and emotional harm and damage.” The court further stated, “Let the record reflect that the Department in its o[w]n administrative review did not acknowledge its own failing and the report is really not supportive for the Department to some extent facilitated the father’s disobedience of the court’s orders and let that be reflected on the minute order.”
The court then proceeded to disposition. It placed Mark in the care and custody of DCFS and ordered DCFS to provide Father with family reunification services. This appeal followed.
DISCUSSION
Section 342 Petition
Father contends that DCFS should have filed a section 387 supplemental petition rather than a section 342 subsequent petition. We disagree.
Section 342 provides: “In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations. [¶] All procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section.”
In pertinent part, section 387 provides: “(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition. [¶] (b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child....”
Subsequent and supplemental petitions differ. (In re Barbara P. (1994) 30 Cal.App.4th 926, 933.) A subsequent petition is filed when new, independent allegations of dependency can be made after the court has initially declared a minor to be a dependent child. (§ 342.) A supplemental petition is filed inter alia when a dependent child has been placed with a parent, but the department now seeks to remove the child, effectively requesting the court to modify its previous placement order. (See § 387, subd. (a).)
In this case, the juvenile court declared Mark a dependent of the court pursuant to section 300, subdivisions (b) and (j), as a result of Mother’s conduct. It dismissed the sole count against Father, rendering him a nonoffending parent. The court placed Mark with Father under DCFS supervision and ordered the provision of family maintenance services.
Here, DCFS believed that Father’s failure to comply with the juvenile court’s orders endangered Mark and constituted a new and independent basis for dependency jurisdiction. Under these circumstances, DCFS properly proceeded in accordance with section 342, alleging “new facts or circumstances, other than those under which the original petition was sustained” which it believed were “sufficient to state that the minor is a person described in Section 300.” (§ 342.)
That the juvenile court ultimately removed Mark from Father’s custody does not compel the conclusion that a section 387, rather than a section 342, petition should have been filed. When a section 342 petition is filed, the juvenile court must follow the procedures and conduct the hearings required for an original petition. Removal of the child following a jurisdictional hearing is a dispositional option depending on the evidence adduced before the court. Father has failed to convince us that DCFS erred procedurally in filing a subsequent petition pursuant to section 342.
Jurisdictional Finding
Father challenges the sufficiency of the evidence supporting the juvenile court’s jurisdictional finding that Mark was a dependent pursuant to section 300, subdivision (b), as a result of Father’s failure to comply with court orders to maintain his residence with Eloise G., to attend fatherhood group counseling and to provide six clean random drug tests. This challenge is well taken.
When reviewing the sufficiency of the evidence, we examine the entire record for substantial evidence to support the juvenile court’s finding. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387.) “We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court’s order and affirm the order even if there is other evidence supporting a contrary finding.” (Id. at pp. 1387-1388.)
A child may be declared a dependent of the juvenile court under subdivision (b) of section 300, the failure to protect provision, when “[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... 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 willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent... to provide regular care for the child due to the parent’s... mental illness, developmental disability, or substance abuse. No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family.... The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”
There are three prerequisites for a jurisdictional finding under subdivision (b) of section 300—i.e., (1) neglect by the parent in one or more of the enumerated forms, (2) causation, and (3) serious physical harm or substantial risk of serious physical harm to the child. (In re J.O. (2009) 178 Cal.App.4th 139, 152; In re James R. (2009) 176 Cal.App.4th 129, 135.) The last of these prerequisites “‘“requires a showing that at the time of the jurisdiction 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 J.O., supra, at p. 152.)
At the time the dispositional order on the original section 300 petition was issued, Father was a noncustodial and nonoffending parent. He requested custody of Mark and agreed to submit to the jurisdiction of the juvenile court, which then placed Mark with him and ordered the provision of family maintenance services. (§ 16506, subd. (c).)
At the time the court placed Mark with Father, the court made it clear that its placement order was conditioned on Father remaining in Eloise G.’s home. Although Father later moved out of Eloise G.’s home, it was not by choice. He was forced to leave after disagreements arose and Eloise G. obtained a restraining order against him. Father promptly notified the CSW and family preservation worker of the situation, obtained housing assistance from AFDC and relocated to a motel with Mark and Arieal. Father testified that the CSW told him he could leave Eloise G.’s home, and DCFS provided no evidence to the contrary.
With regard to the drug testing and fatherhood counseling requirements, Father encountered some difficulties in obtaining the necessary assistance from the CSW. In fact, the juvenile court found it necessary to continue the hearing on the section 342 petition, noting there was “a problem with supervision which we needed to be intense for this young man.” The court added, “There [are] too many gaps. I don’t know what’s going on. Something is amiss here. I am really concerned about this because... the supervision appears to be lacking.”
Futhermore, at the conclusion of testimony, but prior to ruling on the section 342 petition, the court ordered DCFS to conduct an administrative review and stated it was inclined to dismiss the petition. At the next hearing, however, despite an indication that Father had completed drug testing and followed the court’s suggestions for obtaining employment and assistance, the court sustained count b-2 of the subsequent petition as amended on the basis of Father’s noncompliance with previous orders without identifying any nexus between this noncompliance and harm or a risk of harm to Mark. Our review of the record reveals there was no such nexus to identify.
Fundamentally, the record is devoid of any evidence that Father failed or was unable to adequately supervise or protect Mark, or that Father willfully or negligently failed to provide for Mark’s physical, emotional or medical needs. There also was no evidence that Father suffered from any mental illness, developmental disability or substance abuse that would impede his ability to provide Mark with regular care. In fact, during the adjudication hearing, the juvenile court expressed its belief that “[Father] has been parenting the child properly.”
Although DCFS opined that the “risk level” to Mark was “high due to father’s instability, his noncompliance with the drug testing, and with other aspects of the case plan, ” it failed to present evidence that Father’s noncompliance with court orders caused Mark actual harm or exposed him to a substantial risk of future harm. Stated otherwise, “[t]he record on appeal lacks any evidence of a specific, defined risk of harm.... Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative.” (In re David M. (2005) 134 Cal.App.4th 822, 829, italics omitted.) Absent evidence at the time of the hearing on the section 342 petition that Mark had suffered or was at substantial risk of suffering serious physical harm in the future as a result of Father’s noncompliance with court orders, there was no basis for the juvenile court to sustain count b-2 of the section 342 petition. The court’s jurisdictional finding must be stricken.
Removal Order
In light of our decision to strike the juvenile court’s jurisdictional finding, the dispositional order must be reversed and the section 342 petition dismissed.
ICWA
Defendant contends, and the People acknowledge, that the juvenile court failed to comply with the notice provisions of ICWA. On January 14, 2010, Father executed a Parental Notice of Indian Status in which he indicated that his paternal grandmother was a member of the Blackfoot Tribe. At a hearing held the same day, the juvenile court directed DCFS to notice the “Bureau of Indian Affairs, Department of Interior and Blackfoot [Tribe]” with regard to Father. The court’s minute order of January 14 inconsistently states that “ICWA does not apply [i]n this case” and then directs DCFS to “[p]rovide ICWA notice to [the] Department of Interior, the Bureau of Indian Affairs and the Blackfoot Tribe” for Father. Strangely, it then directs DCFS to use the name of Mariana’s deceased father, who Mother alleged had American Indian ancestry. The jurisdiction/disposition report stated that ICWA “does or may apply” but referenced only Mariana as a possible Indian child. Subsequent DCFS reports state that ICWA does not apply, and two reports add that on January 14, 2010, the juvenile court found that ICWA does not apply.
Needless to say, something went wrong. The juvenile court knew or had reason to know the proceedings might involve a child of American Indian, specifically Blackfoot, heritage, thereby triggering the notice requirements of ICWA (In re Francisco W. (2006) 139 Cal.App.4th 695, 703) and section 224.2. (In re Alice M., supra, 161 Cal.App.4th at p. 1197). There is no indication in the record, however, that DCFS sent out the required notices on behalf of Mark. This was error. (In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384.)
California Rules of Court, rule 5.481(b)(1) requires the juvenile court to give notice in possible ICWA cases as directed in section 224.2. This state statutory provision, which became effective on January 1, 2007, calls for a higher level of notice. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1202; In re J.T. (2007) 154 Cal.App.4th 986, 994.)
ICWA error is not jurisdictional, however. (In re Brooke C., supra, 127 Cal.App.4th at p. 384; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410-1411.) “[T]o hold otherwise would deprive the juvenile court of all authority over the dependent child, requiring the immediate return of the child to the parents whose fitness was in doubt.” (Brooke C., supra, at p. 385, citing Antoinette S., supra, at pp. 1410-1411.)
Only an order terminating parental rights is subject to reversal for the failure to comply with ICWA notice requirements. (In re Brooke C., supra, 127 Cal.App.4th at p. 385; contra, Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 781, 784-785 .) This appeal does not involve such an order.
Although we have concluded that the dispositional order from which this appeal is taken must be reversed and the section 342 petition must be dismissed, Mark remains a dependent of the court under the original section 300 petition. Therefore, a limited remand with directions is required to enable DCFS to comply with notice requirements of ICWA and section 224.2. (In re Alice M., supra, 161 Cal.App.4th at p. 1203; In re Brooke C., supra, 127 Cal.App.4th at p. 385.) “If, after proper notice is given under [federal and state law], [Mark] is determined not to be an Indian child and the ICWA does not apply, prior defective notice becomes harmless error. [Citation.] In this event, no basis exists to attack a prior order because of failure to comply with the ICWA.... Alternatively, after proper notice under the ICWA, if [Mark] is determined to be an Indian child and the ICWA applies to these proceedings, [Father] can then petition the juvenile court to invalidate orders which violated” ICWA or its state statutory counterpart. (Brooke C., supra, at p. 385.)
DISPOSITION
The jurisdictional finding on the section 342 petition is stricken, and the dispositional order removing Mark from Father is reversed. The matter is remanded to the juvenile court with directions to dismiss the section 342 petition and to comply with the notice requirements of ICWA and section 224.2. If, after proper notice, the court determines that Mark is a child with American Indian ancestry and that ICWA applies to these proceedings, Father may petition the court to invalidate any orders that violate ICWA.
We concur: WOODS, Acting P. J., ZELON, J.