In re Lea S. CA2/8 ( 2021 )

Filed 10/18/21 In re Lea S. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re LEA S. et al., Persons Coming B309813
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP04944A–B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.K.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Brett Bianco, Judge. Affirmed in part, reversed in part
and remanded.
Anne E. Fragasso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
The juvenile court exercised dependency jurisdiction over
Lea S. (born 2016) and Naomi S. (born 2018) after parents K.K.
(mother) and K.S. (father) were arrested for leaving the children
alone in a locked vehicle with an outside temperature of 99
degrees and an interior temperature of 111 degrees. The court
also sustained allegations both parents abused marijuana while
caring for the children. After the parents failed to reunify with
the children, the court terminated their parental rights and
approved the children for adoption.
Mother appeals, contending the court erred by
(1) summarily denying her Welfare and Institutions Code section
3881 petition requesting further reunification services;
(2) denying the application of the beneficial parental relationship
exception to adoption; and (3) failing to conduct adequate inquiry
under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.;
ICWA). We reject the first two contentions. Respondent Los
Angeles County Department of Children and Family Services
(DCFS) concedes the ICWA error, so we conditionally reverse the
order terminating parental rights and remand with directions to
comply with ICWA inquiry requirements.
BACKGROUND
Jurisdiction and Disposition
The family came to the attention of DCFS when, on August
1, 2019, the parents left the children in a vehicle alone on a hot
day with the windows open three inches while the parents went
into a store to buy beer. The children were red and sweating
profusely, with temperatures outside at 98 degrees and inside at
111 degrees. Naomi was banging on the window and crying.
1 Statutory citations refer to the Welfare and Institutions
Code.
2
Bystanders had to break out the vehicle’s window to remove the
children.
Police responded and arrested the parents for child
endangerment. Security video from the store showed the parents
inside the store for around 10 minutes. The inside of the parents’
vehicle was dirty, with trash and clothes strewn about.
The parents appeared disheveled, and the children were dirty.
Police suspected the family was living in the vehicle.
A social worker interviewed mother. She reported the
parents had gone into the store to buy beer, claiming they had
only been gone “two to five minutes.” She called her lapse in
judgment a “mistake” and said the children were fine. She
reported she and father drank beer and smoked marijuana, but
not while caring for the children.
The social worker also interviewed father. He claimed he
and mother were in the store for about two and a half minutes.
He admitted he and mother drank beer on the weekends and he
had smoked marijuana two days earlier.
DCFS filed a petition alleging three counts of neglect
pursuant to section 300, subdivision (b). Count b-1 alleged the
parents placed the children in a detrimental and endangering
situation when they left the children alone in a vehicle with the
temperature outside at 98 degrees and the temperature inside at
111 degrees. Counts b-2 and b-3 alleged the parents were current
marijuana abusers and were under the influence while caring for
the young children.
The court ordered the children detained from the parents
and granted the parents monitored visitation. However, the
criminal court had issued a protective order in favor of the
3
children and against the parents, so visits could not begin until
that order was modified.
The children were initially placed with a paternal great
aunt, but she could not care for them, so they were moved.
The paternal grandparents lived in Delaware; they expressed
interest in moving to California and caring for the children.
At the adjudication hearing held on September 10, 2019,
the juvenile court sustained the section 300 petition and set the
matter for disposition.
In August and September 2019, mother had three positive
drug tests and failed to show for two tests. Father had two
positive drug tests and failed to show for two tests. In October
2019, mother had three negative weekly drug tests and father
had four negative weekly drug tests.
During the parents’ criminal proceeding, the criminal court
ordered them to complete a year of parenting classes. The
protective order was also modified to allow the parents peaceful
contact with the children, enabling monitored visitation. DCFS
reported in October 2019 the parents consistently attended
monitored visitation with the children. The children were
hesitant to engage with the parents and appeared unfamiliar
with them, although the children were getting more comfortable.
At the disposition hearing on November 5, 2019, the court
declared the children dependents and removed them from the
parents. The court ordered reunification services for the parents,
including a full drug program, drug testing, aftercare, a 12-step
program, Alanon, a parenting program, and individual
counseling. The court granted monitored visitation as permitted
by the criminal court.
4
Reunification Period
The criminal court convicted the parents of child
endangerment. It granted them probation and community
service; it ordered them to complete a 52-week parenting
program, to comply with DCFS, and not to leave the children
unattended; and it issued a protective order in favor of the
children through 2022.
The paternal grandparents had not moved to California,
so the children remained with their foster parents, who were
designated as foster-adopt caregivers. The children were
thriving. The foster parents fulfilled the children’s basic needs;
they advocated for specialized medical, mental health, and
academic needs; and they facilitated visitation. The children
received in-home individual counseling. Naomi received speech
services. Lea was potty-trained. The children appeared happy
and attached to the foster parents.
During this period, the parents missed a few monitored
visits and nearly half of their weekly drug tests. Father had not
enrolled in any court-ordered programs. Mother had enrolled in
an outpatient substance abuse program but declined two
drug/alcohol tests for the program and missed eight of her weekly
tests for DCFS. During early visits with the children, the
parents did not interact much with them but improved during
later visits. Between December 2019 and March 2020, the
parents engaged well with the children during visits, playing
games, looking at picture books, and bringing snacks. When
visits switched to video calls in March 2020 due to the COVID-19
pandemic, the children initially had trouble engaging, but they
improved.
5
The court ultimately terminated reunification services on
August 31, 2020, finding the parents failed to make substantial
progress in their case plans. Mother objected to the termination
of services. The court set a hearing under section 366.26.
Permanency Planning Period
The children began preschool in September 2020.
Naomi continued in-home speech and occupational therapy
services. The parents continued drug testing with negative test
results. Mother tested positive for alcohol through her substance
abuse treatment program on September 30, 2020.
The parents continued in-person and virtual visits.
The foster parents reported the children did not engage with the
parents and became irritable after a few minutes. During one
visit, the children said they did not want to engage with the
parents and the parents did not speak for most of the visit.
Afterward, the children had elevated emotions and struggled to
sit for dinner or calm down for bedtime. The next week, Naomi
did not engage with the parents, but Lea remained engaged for
the full 30 minutes. Afterward, Naomi was irritable and
struggled to fall asleep.
During virtual visits in December 2020, the children varied
between engagement and screaming and running off screen.
After each visit, they were dysregulated. Without prompting,
Lea said she did not want to have visits with the parents
anymore. The visitation monitor noted during in-person visits at
this time the parents were unable to redirect the children and
had trouble engaging them outside of playing with a phone.
Naomi experienced downward spirals after visits, including
anger, hitting, nightmares, and screaming at nighttime. She was
having accidents and refusing food. Lea appeared sadder and
6
clung to the foster parents, telling them she did not want to see
the parents. When the paternal grandparents appeared
unexpectedly for a virtual visit, Naomi cried for food and was
inconsolable. She spent the rest of the visit off screen cuddling
with her foster mother.
The parents missed three virtual visits in September 2020,
three in October 2020, one in November 2020, and three in
December 2020.
By November 2020, the paternal grandparents still had not
moved to California, but continued to express their wish to
become legal guardians over the children.
The children’s therapist reported they were participating in
psychotherapy with the foster parents and were progressing
toward their objectives. Naomi improved her reflexes and
sensory processing issues. The foster parents had been
instrumental in implementing the therapist’s suggestions during
the week.
DCFS recommended the court terminate parental rights.
The foster parents wanted to adopt the children, and their home
study was approved. In the view of DCFS, the foster parents had
“demonstrated their ongoing love for the children and their
unwavering commitment to provide the children with a stable
home through adoption.” The children called them “mom” and
“dad.”
Mother’s Section 388 Petition and Termination of Parental
Rights
On January 5, 2021, mother filed a petition pursuant to
section 388 to modify the order terminating reunification services
and to grant her additional services. She reported, “I have
completed a full drug program during which I tested clean, a
7
parenting program, I have a sponsor, I have participated in the
12 Step Program, AA/NA Zoom meetings. I would be starting an
aftercare program. I have also participated in individual
counseling.” She claimed the modification was in the children’s
best interests because she had “maintained a strong bond with
my children and it would be in their best interests to be raised by
their mother. I would like an opportunity to reunify with them
and to raise them, in a loving nurturing home. I have learned a
lot from my classes and realize I made a terrible mistake that
I would never repeat.”
The petition included supporting documentation. As
reflected in the test results mother submitted, she tested positive
for cocaine on August 4, 2020 and tested positive for alcohol on
September 30, 2020.
At the combined hearing on mother’s section 388 petition
and termination of parental rights pursuant to section 366.26,
mother’s counsel noted the section 388 petition was late and
requested a continuance. DCFS’s counsel did not oppose the
continuance and noted it was not ready to argue. Nevertheless,
the court accepted the late-filed petition and denied the
continuance. The court noted a late-filed petition is “taken with a
dose of skepticism and is not a good cause for a continuance.
We’re concerned here with expedience hearing of cases to provide
stability and permanency for children and a continuance on these
facts would not be consistent with those objectives.”
The court denied the section 388 motion, reasoning:
“It may be true that mother is now having a wake up moment
that circumstances are beginning to change—and hopefully that
is the case that she will for the sake of herself and those around
her take these issues seriously and continue to work on her path
8
towards recovery, but it cannot be said that there’s a change in
circumstances.
“Nor could it be said it would be in the minor’s best interest
to delay permanency and stability any further. So for those
reasons and the fact that the 388 was untimely—for all of those
reason[s], the 388 is denied.”
The court found the children were adoptable and no
exception to adoption applied. It reasoned the parents did not
maintain regular visitation, so they did not establish a bond with
the children. Further, the benefits of adoption outweighed the
benefits from their parental relationship, so adoption was in their
best interests. And returning the children to the parents would
be detrimental to them. The court terminated the parents’ rights
and designated the current foster parents as the prospective
adoptive parents.
DISCUSSION
I. The Court Properly Denied the Section 388 Petition
Mother contends the juvenile court improperly denied her
section 388 petition without holding a hearing. We review the
denial of a section 388 petition for abuse of discretion. (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.) We find none.
Section 388 allows a parent to petition the court to modify
or set aside a previous order due to changed circumstances or
new evidence. The petition must be verified and “shall set forth
in concise language any change of circumstances or new evidence
which are alleged to require such change of order or termination
of jurisdiction.” (§ 388, subd. (a)(1).)
A parent seeking to modify an order must “ ‘make a prima
facie showing to trigger the right to proceed by way of a full
hearing.’ ” (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)
9
That showing has two parts: “(1) a genuine change of
circumstances or new evidence” and “(2) revoking the previous
order would be in the best interests of the children.” (Ibid.)
“If the liberally construed allegations of the petition do not show
changed circumstances such that the child’s best interests will be
promoted by the proposed change of order, the dependency court
need not order a hearing.” (Ibid.)
The juvenile court acted within its discretion in concluding
mother’s petition did not set forth a prima facie showing of
changed circumstances. Mother’s progress in her programs since
termination of reunification services was commendable, but
incomplete. Although she claimed she completed a drug program
and tested clean, her own supporting documentation showed she
tested positive for cocaine on August 5, 2020—just a few weeks
before the court terminated reunification services on August 31,
2020—and she tested positive for alcohol on September 30, 2020.
There is indication in the record she had not completed her
substance abuse program. She said she “would be starting an
aftercare program,” indicating she had not started the program,
let alone made progress in it. Nor had she progressed beyond
monitored visitation with the children.
Mother’s progress came only after the court terminated
reunification services, suggesting she did, in fact, have a “wake
up moment,” as the juvenile court noted. But at that point it was
too late. “Once reunification services are ordered terminated, the
focus shifts to the needs of the child for permanency and
stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Mother
had more than 12 months after the children’s removal to address
the issues that brought them into the dependency system. Her
efforts were lackluster. She missed visits and missed eight drug
10
tests. At the visits she did attend, the children had trouble
engaging, although they improved over time.
After reunification services were terminated, the quality of
the visits degraded. The children did not want to engage with
the parents and became dysregulated after the visits, causing
trouble for them at dinner and bedtime. Unprompted, Lea
expressed she did not want to visit with the parents anymore.
Naomi experienced downward spirals after visits, including
anger, hitting, nightmares, and screaming at nighttime. She was
having accidents and refusing food. Lea appeared sadder and
clung to the foster parents, telling them she did not want to see
the parents. For mother’s part, she missed 10 virtual visits
between September and December 2020.
Mother argues she showed changed circumstances because
“substantial compliance is compliance” with her reunification
plan, citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th
1322, 1341. That case did not involve a section 388 petition, so it
has little bearing on the issue here. In any case, even if that
were the standard, the juvenile court did not abuse its discretion
in finding no prima facie case of even “substantial compliance”
based on the record here.
Nor did the juvenile court abuse its discretion in finding
mother failed to show an extension of reunification served the
children’s best interests. The children were thriving with their
foster-to-adopt parents, who were dedicated to supporting them
and helping them progress in their therapy and other services.
The children viewed them as their parents, calling them “mom”
and “dad.” In her petition, mother claimed she had established a
bond with the children, but she offered no evidence to support
that conclusory claim. The record shows the contrary. “At this
11
point in the proceedings, on the eve of the selection and
implementation hearing, the children’s interest in stability was
the court’s foremost concern, outweighing any interest mother
may have in reunification.” (In re Anthony W., supra, 87
Cal.App.4th at pp. 251–252.)
Mother argues the following “best interest” factors set forth
in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 supported
modifying the order terminating reunification: “(1) the
seriousness of the problem which led to the dependency, and the
reason for any continuation of the problem; (2) the strength of
relative bonds between the dependent children to both parent
and caretakers; and (3) the degree to which the problem may be
easily removed or ameliorated, and the degree to which it
actually has been.” These factors have been criticized for failing
to account for the focus on the children’s interest in stability after
reunification services have been terminated. (See In re J.C.
(2014) 226 Cal.App.4th 503, 527.) In any case, the factors
supported denial of mother’s section 388 petition here.
The parents’ neglect was serious—they left their young children
alone in a locked, dangerously hot vehicle so they could buy beer.
They struggled with drug and alcohol abuse. These problems
were undoubtedly challenging, and mother had only begun to
address them. In contrast, the children’s bond with their foster
parents was strong while their bond with mother was weak and
appeared to be getting weaker. We cannot say the juvenile court
abused its discretion in summarily denying the section 388
petition without a hearing.2
2 Mother finds it troubling the juvenile court viewed her late-
filed section 388 petition with “a dose of skepticism.” We cannot
be sure what exactly the court meant by that comment.
12
II. The Parental Bond Exception to Adoption Did Not
Apply
Mother contends the juvenile court should have applied the
beneficial parental relationship exception to adoption found in
section 366.26, subdivision (c)(1)(B)(i). This exception requires a
parent to establish by a preponderance of the evidence “the
parent has regularly visited with the child, that the child would
benefit from continuing the relationship, and that terminating
the relationship would be detrimental to the child.” (In re Caden
C. (2021) 11 Cal.5th 614, 629.) As our high court recently
clarified, the statute sets out three elements: “(1) regular
visitation and contact and (2) a relationship, the continuation of
which would benefit the child such that (3) the termination of
parental rights would be detrimental to the child.” (Id. at p. 631.)
The first element looks to whether the parents visit
consistently, to the extent permitted by court orders. (In re
Caden C., supra, 11 Cal.5th at p. 632.) Courts must consider this
element through the lens of the best interests of the child, that is,
how visits facilitate the development of significant and positive
emotional attachment between the parent and child. (Ibid.)
The second element looks to whether the child would
benefit from continuing the parental relationship. (In re Caden
C., supra, 11 Cal.5th at p. 632.) “[T]he relationship may be
shaped by a slew of factors, such as ‘[t]he age of the child, the
portion of the child’s life spent in the parent’s custody, the
Nevertheless, whether or not viewed with “a dose of skepticism,”
mother’s petition did not set forth a prima facie case to justify
holding a hearing so the court acted within its discretion in
summarily denying it.
13
“positive” or “negative” effect of interaction between the parent
and child, and the child’s particular needs.’ ” (Ibid.)
Finally, the third element requires the court to decide
“whether it would be harmful to the child to sever the
relationship and choose adoption.” (In re Caden C., supra, 11
Cal.5th at p. 633.) The court must look to “how the child would
be affected by losing the parental relationship—in effect, what
life would be like for the child in an adoptive home without the
parent in the child’s life.” (Ibid.) For this element, the court
must examine “whether the harm of severing the relationship
outweighs ‘the security and the sense of belonging a new family
would confer.’ [Citation.] ‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[]’ the child, the
court should not terminate parental rights.” (Id. at p. 633.)
Our review combines both substantial evidence and abuse
of discretion standards. We review the factual findings on the
first two elements for substantial evidence. (In re Caden C.,
supra, 11 Cal.5th at p. 639.) We review the juvenile court’s
determination of the third element—the detriment to the child
from the termination of parental rights—for abuse of discretion.
(Id. at p. 640.) Although two standards are involved, this
“hybrid” standard of review “simply embodies the principle that
‘[t]he statutory scheme does not authorize a reviewing court to
substitute its own judgment as to what is in the child’s best
interests for the trial court’s determination in that regard,
reached pursuant to the statutory scheme’s comprehensive and
controlling provisions.’ ” (Id. at p. 641.)
14
Although mother missed a few monitored visits during the
reunification period and missed 10 virtual visits during the
permanency placement period, DCFS does not press the
visitation element on appeal. Following DCFS’s lead, we will
assume mother satisfied the first element of consistent visitation.
She has failed to demonstrate the other two elements.
Substantial evidence supported the juvenile court’s finding
the children would not benefit from a continuing relationship
with mother. The children were relatively young when they were
removed from the parents’ custody—ages 3 and 18 months. After
they were removed, they never appeared entirely comfortable
visiting with the parents, let alone bonded with them. As early
as October 2019, the children were hesitant to engage with the
parents and appeared unfamiliar with them. At the outset of the
reunification period, the parents did not interact much with them
during visits. When visits switched to video calls in March 2020
due to the COVID-19 pandemic—which assuredly presented
challenges to both the parents and children—the children again
had trouble engaging. The children and parents were both
improving during visits over this period, although that
improvement did not prevent the juvenile court from terminated
reunification services in August 2020.
Then, as outlined in the previous section, the parents’
relationship with the children deteriorated. Clearly, the parents’
visits were negatively affecting them. Lea went so far as to say
she did not want to visit the parents anymore. Mother’s 10
missed virtual visits near the end of 2020 deprived the family of
more opportunities to create a bond. Rather than creating
beneficial parent-child relationship, mother’s interaction with the
children appeared to have a detrimental effect on them.
15
For similar reasons, the juvenile court acted within its
discretion in finding no harm to the children from severing their
relationship with mother. The children were clearly bonded with
the foster parents, calling them “mom” and “dad” and seeking
their comfort during and after visits with the parents. The foster
parents were dedicated to supporting the children’s development
and ensuring they received the services they needed. The
children were thriving in their care. Weighed against the
evidence that mother lacked a strong bond with the children, this
evidence supported the juvenile court’s finding that severing the
parent/child relationship would not “ ‘deprive the child of a
substantial, positive emotional attachment such that,’ even
considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child.” (In re Caden C., supra, 11 Cal.5th at
p. 633.)
III. DCFS’s ICWA Inquiry Was Inadequate
Mother contends DCFS did not conduct sufficient inquiry
under ICWA regarding father’s possible Native American
heritage before the juvenile court found the children were not
Indian children.3 DCFS concedes its inquiry was inadequate.
We will therefore conditionally reverse the order terminating
parental rights and remand for further proceedings consistent
with ICWA requirements.
ICWA Proceedings
When the children were detained, mother denied any
Native American heritage. Father reported he had Native
American heritage with the “Natico Tribe.” He was not
3 Although mother does not claim any Indian ancestry, she
may raise ICWA notice errors on appeal related to father. (In re
A.W. (2019) 38 Cal.App.5th 655, 663.)
16
registered and did not know if the paternal grandparents were
registered.
Mother filed an ICWA-020 form indicating she had no
known Indian ancestry. The juvenile court found it had no
reason to know ICWA applied as to mother.
Father filed an ICWA-020 form claiming he was a member
of or eligible for membership with the “Nanticoke” tribe.
He claimed his great-great grandmother Nancy S. was a member
of the tribe. The juvenile court ordered DCFS to investigate the
claim.
DCFS submitted ICWA notices to the Bureau of Indian
Affairs, the Secretary of the Interior, and three Cherokee tribes.
They indicated the children’s possible membership in the
Cherokee and “Naticoke” tribes. “Naticoke” was an apparent
misspelling of the Nanticoke tribe. The notices listed father’s
parents and grandparents, but not father’s great-great
grandmother Nancy S. For father’s mother, the notices listed a
phone number and potential membership in the Cherokee and
“Naticoke” tribes. For father’s father, the notices listed only a
birthplace of Maryland or Atlantic City. For one set of father’s
grandparents, the notices listed a birth date, a birth location of
Delaware, and membership in the “Naticoke” tribe for father’s
grandmother, and listed a partial birth date, date of death, and
membership in the Cherokee tribe for father’s grandfather. For
father’s other set of grandparents, the notices listed only their
names.
In October 2019, DCFS reported it had contacted the
Eastern Band of Cherokee Indians, the United Keetoowah Band
of Cherokee Indians, and the Cherokee nation for updates on the
ICWA notices. The Eastern Band of Cherokee Indians responded
17
in a letter that the children were not Indian children. At that
point, DCFS had received no response from the other tribes.
DCFS reported the “Naticoke” tribe was not a federally
recognized tribe, so it sent notices to the Bureau of Indian Affairs
and the Department of the Interior.
Based on this record, at the November 5, 2019 disposition
hearing, the juvenile court found it had no reason to know the
children were Indian children.
Current ICWA Law
ICWA applies to “ ‘an unmarried individual under age 18
who is either a member of a federally recognized Indian tribe or
is eligible for membership in a federally recognized tribe and is
the biological child of a member of a federally recognized tribe.’ ”
(In re A.M. (2020) 47 Cal.App.5th 303, 315; see § 224.1, subd. (b).)
Throughout dependency proceedings, an agency has “an
affirmative and continuing duty to inquire whether a child for
whom a petition under section 300 . . . may be or has been filed,
is or may be an Indian child. The duty of inquiry begins with the
initial contact, including, but not limited to, asking the party
reporting the child abuse or neglect whether he or she has any
information that the child may be an Indian child.” (§ 224.2,
subd. (a); see Cal. Rules of Court, rule 5.481(a).)
If the child is placed in custody of the agency, the agency
“has a duty to inquire whether that child is an Indian child.
Inquiry includes, but is not limited to, asking the child, parents,
legal guardian, Indian custodian, extended family members,
others who have an interest in the child, and the party reporting
child abuse or neglect, whether the child is, or may be, an Indian
child and where the child, the parents, or Indian custodian is
domiciled.” (§ 224.2, subd. (b).)
18
At the first court appearance of the parties, “the court shall
ask each participant present in the hearing whether the
participant knows or has reason to know that the child is an
Indian child. The court shall instruct the parties to inform the
court if they subsequently receive information that provides
reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
As of recent amendments effective January 2019, state law
dictates that a court or agency has “reason to know” a child is an
Indian child if, inter alia, “[a] person having an interest in the
child, including the child, an officer of the court, a tribe, an
Indian organization, a public or private agency, or a member of
the child’s extended family informs the court that the child is an
Indian child,” or “[a]ny participant in the proceeding, officer of
the court, Indian tribe, Indian organization, or agency informs
the court that it has discovered information indicating that the
child is an Indian child.” (§ 224.2, subds. (d)(1), (3).)
If the court or social worker has “reason to believe” that an
Indian child is involved in the proceeding, the court or social
worker “shall make further inquiry regarding the possible Indian
status of the child.” (§ 224.2, subd. (e).) The phrase “reason to
believe” was not statutorily defined in the 2019 amendments,
although it is now.4 Once there is a “reason to believe” a child
4 Section 224.2, subdivision (e) was amended effective
September 18, 2020 to define information triggering a “reason to
believe” as “information suggesting that either the parent of the
child or the child is a member or may be eligible for membership
in an Indian tribe. Information suggesting membership or
eligibility for membership includes, but is not limited to,
information that indicates, but does not establish, the existence
of one or more of the grounds for reason to know enumerated in
paragraphs (1) to (6), inclusive, of subdivision (d).” (Stats. 2020,
19
may be an Indian child, the new law sets out the steps for the
agency’s inquiry, including, “(A) Interviewing the parents,
Indian custodian, and extended family members to gather the
information required in paragraph (5) of subdivision (a) of Section
224.3 [information required in ICWA notice]. [¶] (B) Contacting
the Bureau of Indian Affairs and the State Department of Social
Services for assistance in identifying the names and contact
information of the tribes in which the child may be a member, or
eligible for membership in, and contacting the tribes and any
other person that may reasonably be expected to have
information regarding the child’s membership status or
eligibility. [¶] (C) Contacting the tribe or tribes and any other
person that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or
eligibility. . . . Contact with a tribe shall include sharing
information identified by the tribe as necessary for the tribe to
make a membership or eligibility determination, as well as
information on the current status of the child and the case.”
(§ 224.2, subd. (e).)
Once ICWA notice is triggered, “the notice to the tribe must
include a wide range of information about relatives, including
grandparents and great-grandparents, to enable the tribe to
properly identify the children’s Indian ancestry.” (In re A.M.,
supra, 47 Cal.App.4th at p. 317.) That information includes “
‘[a]ll names known of the Indian child’s biological parents,
grandparents, and great-grandparents, or Indian custodians,
ch. 104, § 15.) The court in this case made the ICWA
determination prior to this amendment, so the version in effect at
that time applies. (See In re T.G. (2020) 58 Cal.App.5th 275, 290,
fn. 14.)
20
including maiden, married, and former names or aliases, as well
as their current and former addresses, birth dates, places of birth
and death, tribal enrollment information of other direct lineal
ancestors of the child, and any other identifying information, if
known.’ ” (Ibid., quoting § 224.3, subd. (a)(5)(C).) “ ‘Any violation
of this policy requires the appellate court to vacate the offending
order and remand the matter for further proceedings consistent
with ICWA requirements.’ ” (In re A.M., supra, at p. 317.)
We review the juvenile court’s finding that sufficient
inquiry was made under ICWA for substantial evidence. (In re
D.N. (2013) 218 Cal.App.4th 1246, 1251.)
ICWA Inquiry
DCFS concedes it did not follow the statutory dictates for
sufficient ICWA inquiry in this case. Father’s ICWA-020 form
listed the Nanticoke tribe and identified his great-great
grandmother as a member. There is no dispute that created a
“reason to believe” the children might have been Indian children,
triggering an obligation for further inquiry. DCFS was required
to interview “the parents, Indian custodian, and extended family
members to gather the information” for ICWA notices. (§ 224.2,
subd. (e).) The record does not disclose DCFS interviewed any
paternal family members to gather information related to the
children’s Indian status, even though a paternal great aunt and
the paternal grandparents were both involved in the case and
available to DCFS.
The notices sent to the Cherokee tribes, the Bureau of
Indian Affairs, and the Department of the Interior were also
deficient. The notices misspelled the Nanticoke tribe, and
provided little to no information on father’s parents and
grandparents beyond their names. At a minimum, the notices
21
should have identified father’s relatives’ “ ‘maiden, married, and
former names or aliases, as well as their current and former
addresses, birth dates, places of birth and death, tribal
enrollment information of other direct lineal ancestors of the
child, and any other identifying information, if known.’ ”
(In re A.M., supra, 47 Cal.App.4th at p. 317, quoting § 224.3,
subd. (a)(5)(C).)
Mother argues DCFS failed to include father’s great-great
grandmother Nancy S. in the ICWA notices. She would be the
children’s great-great-great grandmother. Such a distant relative
is not listed in section 224.3 alongside the relatives who must be
included in ICWA notices. (§ 224.3, subd. (a)(5)(C) [listing the
Indian child’s biological parents, grandparents, and great-
grandparents for ICWA notices]; see In re D.N., supra, 218
Cal.App.4th at p. 1252 [information about children’s great-great
grandmother not required for ICWA notices].)
Nevertheless, “[n]otice given by DCFS pursuant to ICWA
must contain enough information to permit the tribe to conduct a
meaningful review of its records to determine the child’s
eligibility for membership.” (In re S.E. (2013) 217 Cal.App.4th
610, 615.) When DCFS has been given specific information that a
more distant relative is a member of an Indian tribe, the
inclusion of that information in ICWA notices is “required
regardless of the lack of a preprinted line on the Judicial Council
form asking for it.” (Id. at pp. 615–616 [requiring ICWA notices
to include child’s great-great grandfather, whom mother claimed
was Native American]; see In re E.H. (2018) 26 Cal.App.5th 1058,
1073 [interpreting federal ICWA regulations to require notice to
include child’s great-great grandparent’s information].) Father
specifically informed DCFS his great-great grandmother was a
22
member of the Nanticoke tribe, and he provided her name.
DCFS should have included that information in the ICWA notices
it sent.
Mother also asserts in her brief on appeal that no notice
was sent to the Delaware Tribe of Indians, Oklahoma, which she
claims is federally recognized and includes the Nanticoke tribe.
She is right there is no such notice in the record, but she cites no
evidence to support her assertions that (1) the Delaware Tribe of
Indians, Oklahoma is federally recognized and (2) the Nanticoke
tribe is part of it. She may be right on both points; DCFS
concedes in passing that notice must be sent to the Delaware
Tribe of Indians. However, without more thorough briefing or
evidentiary support, we will not direct notice to be given to the
Delaware Tribe of Indians. The juvenile court may do so if
appropriate when it addresses these issues on remand.
To summarize, on remand, DCFS must interview the
paternal great aunt and paternal grandparents, as well as any
other relatives who may have relevant information about the
children’s Indian status. Once DCFS conducts this further
inquiry, it must send new notices to the relevant tribes and
entities containing the biographical information it has collected
regarding father’s relatives. The notices must include father’s
great-great grandmother Nancy S. and any of her identifying
information DCFS has collected. The juvenile court should
address on remand whether notice to the Delaware Tribe of
Indians is required.
23
DISPOSITION
The order denying mother’s section 388 petition is affirmed.
The order terminating parental rights is conditionally reversed.
The matter is remanded for further proceedings to satisfy ICWA
requirements. Should the juvenile court conclude ICWA does not
apply and the children are not Indian children, it should
reinstate the order terminating parental rights. If a tribe
indicates the children are Indian children, the juvenile court
should conduct further proceedings in compliance with ICWA.
In all other respects, the order terminating parental rights
is affirmed.
OHTA, J. *
We Concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
24