Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County Nos. DP017512, DP017513, DP017514, DP017515 & DP017516, Caryl Lee, Judge. Affirmed in part, reversed in part, and remanded as directed.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant, J.J.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant, D.S.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen, Senior Deputy, and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
O’LEARY, J.
D.S. (Mother) appeals from the juvenile court’s jurisdictional and dispositional orders regarding her five children (15-year-old boy, 9-year-old boy, 5-year-old girl, 3-year-old girl, and 2-year-old girl.) J.J. (Father) also has appealed regarding his children (15-year-old-girl, 3-year-old girl, 2-year-old girl). Mother and Father challenge the sufficiency of the evidence supporting the court’s decision to sustain the petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). They assert the court erred in removing the minors from their custody. In addition, Father contends the court erred in proceeding with the hearing before receiving documentation regarding his claim of Native American heritage. We find all the contentions lack merit except for Father’s Indian Child Welfare Act (ICWA) claim. Accordingly, we affirm all the orders with respect to Mother. We reverse the jurisdictional and dispositional orders with respect to Father and remand the matter for the court to determine if there is a need for an ICWA investigation.
The children in this case have unique names. To provide protective nondisclosure, use of initials was considered. But this was determined to be confusing and unmanageable. For the sake of clarity and confidentiality, the children are referred to only by gender and age in this opinion.
All further statutory references are to the Welfare and Institutions Code.
I
In September 2008, the children were detained after school personnel observed 9-year-old boy had marks and scratches on his face. Nine-year-old boy’s little sister, 5-year-old girl, reported Mother had “whooped” 9-year-old boy with a belt the night before. Mother refused to speak to the emergency response social worker waiting to speak to her at the school daycare. Mother quickly took the children and told the social worker “‘I don’t know you so I can’t talk to you.’” The following day, the children did not attend school. That evening the Orange County Social Services Agency (SSA) and the Orange Police Department conducted a welfare check on the home. They learned 15-year-old boy (who was then 14 years old) had been left home alone since the night before. During their visit, Mother arrived home with the other children.
An officer reported 9-year-old boy had two black and blue marks on the sides of both eyes, two bruises to his right eye, and a half-circle bruise on his left eye, a scab on his elbow, and several healed scars on his back. Social Worker, Stefanie Witt, interviewed Mother, 15-year-old boy, and 9-year-old boy, who gave conflicting stories about what had occurred. Nine-year-old boy stated Mother had advised him not to talk to the social worker or the police. He later admitted Mother had hit him twice with a belt towards his face and he had used his arms to block the blows, causing an injury that now had a scab on his elbow. All the children were taken into protective custody.
At the hearing, the court considered several reports prepared by social worker, Richard Hubert, several photographs of 9-year-old boy’s injuries, and a written response from Mother. The court also considered testimony from 15-year-old boy, 9-year-old boy, Witt, Hubert, and Mother’s stepmother.
The Reports: Hubert reported Mother had a prior history of child welfare services in Arizona and California. In 2002, there was a substantiated report from Arizona’s child protective services concluding Mother had hit 15-year-old boy (when he was eight years old) with an extension cord. The child had five to 10 marks on his back as well as extensive bruises on his thigh, hip, back, and buttocks. In 2006, Arizona police investigated a report of general neglect after the same boy was reported missing. Mother told police her son had run away after she confronted him about touching his sister “in her diaper area.” More recently in California (2007), SSA investigated reports concerning possible sexual abuse of 9-year-old boy by 15-year-old boy, and general neglect of all the children. SSA determined the sexual abuse report to be unfounded and the general neglect inconclusive. Later that year, Irvine police investigated a report that 3-year-old girl (then only one year old) had hung herself with a chain link dog collar on the handle of a foosball table. Three-year-old girl was hospitalized. Mother stated she had fallen asleep when it happened. The doctor stated it was “possible but not likely that the child’s injury was self-inflicted given her level of development.” The children were taken into protective custody, but SSA decided not to file a petition and released the children to Mother who accepted Voluntary Family Services from June 2007 to March 2008. Mother received cash aid, a housing voucher, funds from CalWorks, and an in-home parent education program.
Only six months had passed before school personnel observed 9-year-old boy’s injuries in September 2008. Hubert stated 9-year-old boy gave more details about the beating and past incidents of abuse during a Child Abuse Services Team (CAST) interview. Nine-year-old boy stated his arm bled after Mother hit him with the belt, but he did not know how his face or back were injured. He recalled a whooping in the past for stealing food from the refrigerator. He stated Mother hit 15-year-old boy and 5-year-old girl with the belt, and she hit his little sisters (3-year-old girl and 2-year-old girl) with a shoe. Nine-year-old boy stated he had once seen marks on 15-year-old boy’s back and arms following a hard whooping from Mother.
All the children frequently said “whoopings” when describing Mother hitting them with a belt. During the hearing, 15-year-old boy clarified it did not just mean being hit. He explained, “Well, [Mother] would tell me, and I kind of believed it, that whoopins [sic] is when you have to lay across the bed and get hit with a belt. And she would tell me that all black kids got whoopins [sic] and it was a usual black thing.” 15-year-old boy said Mother would have them remove their clothes before she started to hit them, and if the moved, they would receive three more strikes with the belt.
During a CAST interview, 5-year-old girl reported Mother hit all the children with the belt when they did something wrong. She recalled once seeing blood after Mother hit her buttocks. Five-year-old girl stated Mother “whips me” when she “pees her pants or panties.” She stated 3-year-old girl was also whipped with the belt when she had accidents. Five-year-old girl stated her brother also got “whoopings” and she had seen 9-year-old boy get bruises from the beatings. Five-year-old girl clarified the youngest sister did not get “whoopings,” but Mother would hit 2-year-old girl with an open hand.
Initially, James maintained Mother stopped giving the children “whoopings” after she took classes. Fifteen-year-old boy tried to cover for his brother, explaining 9-year-old boy changed his story and initially said Mother caused the marks on his eyes but later said he got the marks at school. Fifteen-year-old boy stated he had lived most of his life in Arizona and had moved in with Mother last year. He claimed Mother no longer hit her children with a belt, and he had not been hit in over one year. He stated Mother hit the children with her hand, and 9-year-old boy was frequently disciplined.
The following month, Hubert visited the children in their foster home and spoke with them again. Fifteen-year-old boy stated he no longer wanted any contact with Mother because the night before he had confronted Mother about the last time she hit him, and she told 15-year-old boy “no one in the family liked him.” Fifteen-year-old boy admitted that five months ago Mother attempted to hit him with the belt, he moved to dodge the blow, but the belt hit his left cheek under his eye. His cheek got swollen and Mother hit him several more times with the belt. Fifteen-year-old boy showed Hubert small dark marks on his right upper arm, which 15-year-old boy claimed were scars from past beatings. This child stated he did not want to move to Arizona but wanted to stay in the foster home because it was the “‘only place that he has ever felt loved.’”
The foster parents reported all the children were doing well but 9-year-old boy and 5-year-old girl had bed-wetting incidents after visits with Mother. They said 15-year-old boy reported Mother always puts him down. Five-year-old girl told them Mother used to beat her when she accidently urinated on herself. Nine-year-old boy reported he was happy in the foster home. Five-year-old girl stated she looked forward to her next visit with Mother.
In November 2008, Father appeared in court for the first time regarding his three children (15-year-old boy, 3-year-old girl, and 2-year-old girl). He was authorized to have monitored visits. When asked by the court about possible Native American heritage, Father stated he believed his grandmother was Hispanic and Native American.
Two weeks later, Father alerted Hubert the children were being abused in foster care. Despite his concerns about abuse, Father indicated 15-year-old boy could stay there. Father wanted 3-year-old girl and 2-year-old girl placed in his custody or with Mother’s relatives. A foster care social worker visited the foster home and interviewed the children, who all denied being abused by the foster parents.
Both the foster mother and foster care social worker expressed concern about the children’s deteriorating behavior following visits with Mother and Father. Three-year-old girl was observed to sit in the corner and cry after visits. She would have nightmares and ask to sleep with the foster mother the night after visits. Two-year-old girl would become aggressive towards other children after visits. Five-year-old girl began telling the foster mother stories about all the children being locked and starving in their rooms by Mother at night. Her bed-wetting increased after visits with Mother and Father.
Mother submitted a written affidavit in response to the petition’s allegations rather than be interviewed. She later changed her mind, and spoke with Hubert at the end of November. Mother stated she had been in a relationship with Father for 17 years, and they lived together from 2003 to 2007. She denied they were engaged. Mother admitted she hit 15-year-old boy when he was eight years old but stated the child was “gang banging” and associated with the “Crips.” She denied running away from SSA at the school, explaining she did not speak to the social worker because she had a prior history of being attacked by a stranger. Mother expressed concern about 9-year-old boy’s injuries and opined they must have occurred at the after-school program “because it did not come from me.” Mother requested counseling for 15-year-old boy and 9-year-old boy because she believed they had problems lying and stealing. She wanted to get her children back.
A few weeks later, Hubert interviewed Father, who stated he was engaged to Mother and they planned to marry in a few months. He admitted past drug usage and a prior criminal record. He claimed to have completed a drug treatment program while incarcerated. He did not believe Mother abused the children and stated 15-year-old boy had coached his siblings to say she had. Father denied all the allegations in the petition. Before the hearing, Mother submitted a second written response to the petition’s allegations, repeating much of the same information contained in her first written response.
The Testimony: Nine-year-old boy testified first. Initially, he denied Mother hit him or his siblings. However, after further questioning, 9-year-old boy stated Mother had hit him and 15-year-old boy. He could not remember what she hit him with but admitted it caused a mark on his arm. He said he would be punished if he did not do his chores and Mother locked him in his room at night so he could not eat more food. When asked how he got the marks on his face, 9-year-old boy replied, “I don’t know. My mom didn’t do it.” Nine-year-old boy stated he loved his mother and was concerned he would “lose her” and he worried she might get in trouble.
Fifteen-year-old boy testified next. He admitted lying to the social workers and the police after he was detained and for the month he lived in Orangewood Children’s Home (Orangewood). He explained Mother repeatedly had told him to “deny everything” if anyone came to the house. During his childhood, Mother often threatened she would leave the children in foster care, telling them they would be abused and “dirt poor” there. Mother told her children everybody in the foster system was not given the chance to grow up and be successful in life. At Orangewood, Mother warned 15-year-old boy that if he wanted “a good life,” he should deny everything. He said he lied about the beatings to protect his siblings from the foster system. However, after living for two months with a loving foster family, 15-year-old boy explained he had changed his mind and wanted to come to court and finally tell the truth about what happened. He stated, “I’m telling the truth now because I know that the things my mother was doing to us are not the right things.” Fifteen-year-old boy stated he now realized Mother had lied about the foster system, and after being with a family that was affectionate and caring, “I saw that this is what me and my brothers and sisters need and we don’t need to go back with her.” Fifteen-year-old boy clarified he was “not angry at her, but I just know that the things she’s doing is wrong.”
Fifteen-year-old boy stated Mother frequently beat him and his siblings and the abuse started when he was seven or eight years old. He said Mother also verbally abused them, and she would often call them derogatory names. She called all the children bastards because their fathers were never involved in their lives. Mother also frequently called them her “mistakes.” He described an incident occurring a few months ago when Mother started hitting him with the belt, he began to run away, and she chased him and continued to strike him until he ran into the garage and wrapped himself in a blanket. She continued to try to hit him but eventually “just threw [him while wrapped] in the blanket and walked off. And I stayed in the garage [for] 20 minutes, until I felt like I could come out.” Fifteen-year-old boy said for the next few months he stayed in his room and avoided speaking to Mother so she would not have any reason to beat him. He admitted Mother made him feel like he was nothing, and at one time, he felt like committing suicide.
Fifteen-year-old boy explained he and his siblings were taken by social services in Arizona after his friend’s mother saw red belt marks on his back and arms. She did not believe 15-year-old boy’s story the injuries were caused in a fight, and she called the police. He said Mother stopped hitting them with objects while she was being supervised by social services in Arizona, but the “whoopings” resumed after social services stopped making home visits.
Fifteen-year-old boy said Mother hit 5-year-old girl for bed-wetting accidents. He had seen Mother hit 3-year-old girl with a shoe and 2-year-old girl with an open hand. He recalled the last time Mother hit 9-year-old boy was when they were taken into protective custody. He stated 9-year-old boy had received a “whoopin” [sic] for taking food late at night. Mother often called 9-year-old boy “fat boy” because he liked to eat. He saw 9-year-old boy crying, and he had marks all over his face. The next day after school, Mother told 15-year-old boy they had to go to another city.
Fifteen-year-old boy testified Father was also verbally abusive and would call him names. Father told 15-year-old boy that he was “worth nothing and that he wished that I wasn’t his child and that I meant nothing to him and he doesn’t care about me....” Fifteen-year-old boy reported Father said these things after he drank alcohol. He saw father drink beer and half a bottle of rum and Coco-Cola every night. He concluded Father was an alcoholic, which he defined as someone “who drinks until they get drunk and that they constantly drink and that they need drinking in their life to be satisfied.” He defined being drunk as being when “you don’t know what you’re saying and you can’t remember what happened yesterday and you’re tripping all over yourself.”
Hubert testified he believed 15-year-old boy was now being honest. Hubert said 15-year-old boy began admitting there was physical abuse about a month after being detained. Based on his education, training, and experience, Hubert opined, “There is a phenomenon, when children are removed from the home and they start feeling a little safer and more secure, that they will feel more comfortable disclosing any past abuse. [A]s time goes on, we do tend to find more abuse disclosures from children.” He was not surprised 15-year-old boy disclosed past abuse in stages and after having spent time away from Mother. Hubert opined the children’s statements and photographs support the conclusion Mother used excessive discipline on the children and Father had an alcohol abuse problem.
Witt testified the reason the children were removed from the home was because 9-year-old boy stated Mother hit him with a belt causing “a severe gash that bled....” In addition, Mother gave inconsistent stories as to where she had gone and the police officers who came to the house were concerned about the children’s welfare.
Mother asked her stepmother, Loretta P., to testify. Loretta stated she had examined 9-year-old boy’s face the night the children were detained. She said the discoloration seen under 9-year-old boy’s eyes was his natural pigmentation. She saw the fresh mark on his nose, but she did not believe it could have been caused by a belt. Loretta was asked to examine the photographs taken the night 9-year-old boy was detained. She opined the photographs showed more marks than she had observed firsthand. She questioned how those “new” injuries took place and believed they looked “fresh.” Loretta stated she had a close relationship with Mother, and she did not believe Mother abused her children.
The Court’s Ruling: After considering the above evidence and argument of counsel, the court sustained an amended petition finding the children came under section 300, subdivisions (a) and (b). The court concluded, “The picture that has been painted by the children and the reports in this case [are] very, very troubling to this court. Even if these children were making up every single bit of information, we would still have a problem, because this is not normal for people to physically abuse, nor is it normal for children to make up abuse, if that is the case. So regardless, we have a problem in this family.”
The court acknowledged there were inconsistencies in the reports and testimony. It recognized the children did not report the abuse until a later date. It reasoned, “but there is a phrase that comes to mind that is pretty applicable in this case, the devil is in the details. And we’ve got details and those cannot be ignored.” The court found 15-year-old boy to be mature for his age, and a credible witness. The court believed 15-year-old boy’s testimony about the reasons he initially lied to the authorities, and then after spending time in the foster system, realized “he was suffering from a situation that he really didn’t deserve to be involved in. And his answer was beyond telling. When I realized that this wasn’t normal, I felt that I had to come forward. That he wanted to be in a family that loved him.... He clearly had an epiphany, so to speak, that this type of behavior was simply not going to be tolerated.”
The court found mother’s written statement as being self-serving, and it observed, “she effectively testified, without having to face cross-examination, by providing all kinds of responses to the petition and to any comments that were made by the [social] worker. The court noted Mother had an advanced education, and her action of fleeing from social workers instead of trying to figure out why the social worker wanted to talk to her tends to give “a consciousness of guilty behavior.” The court concluded the record showed Mother was very angry, which possibly could be attributed to the fact she is under a great deal of stress as a single mother raising five children. The court recognized Mother had a “huge burden,” which could have caused Mother to lose her temper, and she and Father clearly needed help.
The court determined 5-year-old girl would be placed with her father in Arizona under a plan of family maintenance. The court determined giving Mother and Father custody of the other children would be detrimental, and it ordered they receive family reunification services. It denied Father’s request for immediate placement due to his long history with Mother, and his plans to continue living with her and get married. Mother and Father appealed.
II
Mother and Father contend substantial evidence does not support the juvenile court’s jurisdictional findings under section 300, subdivisions (a) and (b). We disagree.
Section 355 demands that jurisdictional findings must be supported with proof by a preponderance of the evidence. In reviewing the jurisdictional findings, we look to see if substantial evidence, contradicted or uncontradicted, supports them. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) 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 for the lower court’s determination. (Ibid.)
Section 300 provides, in pertinent part: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.... [¶] (b) The 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....”
In short, there are three elements of proof: “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Here, there was ample evidence of abuse and neglect. The photographs, the marks observed by 9-year-old boy’s daycare provider, and the children’s statements and testimony, established Mother physically abused them, and Father failed to protect them and had an unresolved alcohol abuse problem. Both parents attack the credibility of the evidence, especially 15-year-old boy’s testimony. They point out 15-year-old boy and 9-year-old boy changed their stories and should not be believed. However, the court found their trial testimony convincing, and we cannot reassess or reweigh the credibility of the witnesses. Moreover, given the record, we cannot find any basis to question the court’s judgment. There was independent corroborating evidence significant abuse occurred. For example, when 9-year-old boy’s daycare first asked him about the bruises on his face, 5-year-old girl stated he had gotten in trouble the night before and had been “whooped” with a belt. She volunteered all the children received “whoopings” with the belt. As noted by the trial court, Mother’s refusal to speak to the social worker that day and her quick escape was indicative of a consciousness of guilt. The photographs of 9-year-old boy’s face showed injuries consistent with the abuse he and 15-year-old boy described. Finally, it cannot be ignored the children were previously taken into protective custody in Arizona after Mother severely injured 15-year-old boy by beating him with an extension cord. There had been several reports involving this family, including a reputed “accidental” hanging by a dog chain.
As for the inconsistent testimony, the record provides a reasonable explanation for why this occurred. Nine-year-old boy and 15-year-old boy both stated Mother instructed them not to talk to the police or the social worker. That they changed their stories does not automatically make their testimony unbelievable. As the social worker explained, abused children are often unable to discuss their dire circumstances until after they have spent some time away from their parents and they have experienced life in a safe, loving environment. The juvenile court reasonably found credible 15-year-old boy’s testimony he had initially lied because he was led to believe he needed to protect his family from the foster system, but after spending time with his loving foster family, he had the epiphany that telling the truth would in fact save his siblings and give them a better life. The court spent a great deal of time discussing how both 9-year-old boy and 15-year-old boy eventually gave detailed information about their circumstances that cannot be ignored.
Mother focuses on the court’s opening remarks, when it commented, “Even if these children were making up every single bit of information, we would still have a problem, because this is not normal for people to physically abuse, nor is it normal for children to make up abuse, if that is the case.” She argues this statement means the court did not find the children to be truthful or credible witness and jurisdiction cannot be based on made up stories about abuse even if it indicates the family is experiencing some other kind of problem that merits intervention. This argument misstates the court’s ruling. The court’s one statement cannot be analyzed in a vacuum. The 12 pages of reporter’s transcript following the court’s initial statements clearly show the court found the children credible witnesses. Its initial remarks were in response to, and a rejection of, Mother’s contention the children must be returned because all of them, especially 15-year-old boy, were making up stories of abuse.
Father argues the evidence clearly shows he was unaware Mother was abusing the children. He had not been residing with the family since mid-2007. He kept in contact by telephone, but there was no evidence the children told him about the abuse. He claims there is no evidence he observed abuse. He also argues the court should not have believed 15-year-old boy’s testimony he was an alcoholic, or failed to provide for his children. The court concluded Father knew or should have known of the abuse because when he did reside with the family, Mother beat the children in the back room and locked them in their rooms. Fifteen-year-old boy said Father was in the next room when they would yell for help and shout for Mother to stop. The children had visible injuries, and discussed how they heard each other cry during the beatings. Fifteen-year-old boy testified that when Father lived with them, he would often be verbally abusive and angry at the children when he was drinking. The court reasonably determined15-year-old boy was a credible witness, and we have no sound reason to second guess the court’s firsthand impression and credibility finding. This child provided many details about the type, quantity, and frequency of Father’s alcohol consumption. As aptly noted by the juvenile court, the devil is in the details.
III
Mother and Father attack the dispositional order removing the children from their custody. Mother argues there was insufficient evidence the children were at substantial risk of significant harm if left in her care. (See § 361, subd. (c)(1).) Father asserts that because the jurisdictional findings were defective, so too are the dispositional findings and orders. Not so. We conclude the court got it right and given the evidence of years of abuse, and parents who continued to deny the abuse occurred, the children were at risk of significant harm if returned to their care. Although there is no evidence Father personally physically harmed the children, there was evidence of verbal abuse and a failure to protect the children from Mother when he resided with them. It is undisputed he did not plan to live separately from Mother but rather they had reunited, and Father had plans for them to soon marry. Regardless of the reasons behind Mother’s actions and her desire to be with her children, it cannot be overlooked that excessive physical abuse has been ongoing for many years, and despite participating in family services in 2007 and 2008, Mother failed to change her ways. It is very telling that rather than stop the “whoopings,” she convinced her children, by using fear tactics and threats of abandonment, to lie to social workers and the police if they were ever questioned about their punishments. We conclude there was substantial evidence to support the court’s conclusion there existed clear and convincing evidence of substantial danger to the children if they were returned home, and no other reasonable means exist to protect the children. (§ 361, subd. (c)(1).)
IV
Before the dispositional hearing, Father reported Native American heritage through the paternal grandmother. Father argues the court erred in proceeding with the jurisdictional and dispositional hearing because the court file did not include the results of the ICWA investigation (§ 224.2, subd. (d); 25 U.S.C. § 1912(a)), and the matter must be reversed and remanded. SSA contends any error was harmless for two reasons: (1) It filed a request for this court to take judicial notice of a postjudgment social worker’s report dated March 11, 2009, in which Father stated he spoke with the paternal grandmother and learned there was no American Indian ancestry; and (2) Alternatively, SSA argues Father’s argument fails because he did not make an offer of proof on appeal. We agree with Father.
We have no legal basis to take judicial notice of the postjudgment report. As noted in Father’s opposition to the request, the report is not properly before this court (In re Zeth S. (2003) 31 Cal.4th 396, 405), and Father has not been afforded a full and fair evidentiary hearing on the factual statements contained in the report. SSA relies on In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 (Rebecca R.), to support its claim Father had the burden of making an offer of proof of American Indian heritage on appeal. The case is inapt. In Rebecca R., father was not asked in the juvenile court or by SSA if he had American Indian heritage. On appeal, father sought a reversal due to the court’s error, but the appellate court determined father failed to establish a miscarriage of justice because he did not make an offer of proof regarding American Indian heritage. In contrast here, Father was asked the appropriate question, and he responded by claiming to have American Indian ancestry with an unknown tribe. Based on the record before us, the ICWA notice requirements were triggered at that time. The case must be remanded so the court can determine the status of the ICWA investigation and the children’s ICWA standing.
V
Respondent’s request for judicial notice and/or motion to augment the record is denied. The jurisdictional and dispositional orders concerning Mother are affirmed. The jurisdictional and dispositional orders concerning Father are reversed and remanded for the juvenile court to determine the status of the ICWA investigation and if proper ICWA notice must be given to the Bureau of Indian Affairs. If Father is no longer claiming American Indian heritage, the jurisdictional and dispositional orders shall be reinstated. If Father is claiming American Indian heritage, and his children are determined not to be Indian children after proper ICWA notice is given, the jurisdictional and dispositional orders shall be reinstated. Conversely, if Father’s children are determined to be Indian children after proper ICWA notice, then the court shall proceed in conformity with ICWA.
WE CONCUR: SILLS, P. J., ARONSON, J.