In re A.R. CA2/4 ( 2023 )

Filed 5/24/23 In re A.R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
In re A.R., a Person Coming B316221
Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. Nos.
20CCJP01563,
20CCJP01563A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
A.R.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mary E. Kelly, Judge. Affirmed in part and
remanded with instructions.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Father A.R. appeals from a juvenile court order terminating
his reunification services with his son, A. He contends the
matter must be remanded for further proceedings because the
Los Angeles County Department of Children and Family Services
(DCFS) and the court failed to comply with the inquiry and notice
requirements of the Indian Child Welfare Act (25 U.S.C. § 1901,
et seq.) (ICWA). DCFS agrees, as do we, that the legal
requirements imposed under ICWA were not satisfied.
Accordingly, we remand the matter solely to ensure compliance
with ICWA and related state statutes. The remainder of the
order is conditionally affirmed.
BACKGROUND
Because the sole issue on appeal is compliance with ICWA,
we limit our summary of the facts to those relevant to that issue
except as necessary for context.
A. was born in September 2019. In March 2020, DCFS
filed a dependency petition on behalf of A. under Welfare and
Institutions Code section 300, subdivisions (a) and (b)(1).1 The
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
petition alleged that A. was at risk of harm due to violent
altercations between father and A.’s mother, S.M., while they
were caring for A., as well as mother’s abuse of marijuana.2 A.
was detained from both parents and placed with maternal
grandmother.
In the Indian Child Inquiry Attachment (ICWA-010(A)),
DCFS checked the box indicating that A. “may have Indian
ancestry.” Father completed a Parental Notification of Indian
Status form (ICWA-020) on March 20, 2020. He checked the box
stating, “The child is or may be a member of, or eligible for
membership in, a federally recognized Indian tribe.” He
identified Cherokee as a possible tribe and listed paternal great-
grandmother as the individual with potential heritage, but
provided no further details. Mother also completed the same
form, indicating that she had no Indian ancestry as far as she
knew.
At the detention hearing in March 2020, the court found
father to be A.’s presumed father. The court asked father to
confirm his statement that paternal great-grandmother “may
have Cherokee in her background”; father stated that was
correct. The court continued, “I will need the department to
conduct further investigation and follow up and potentially send
notices - - I will need the department to send notices as such.”
Father also informed the court that paternal great-grandmother
was deceased. The court ordered DCFS to “ask for any potential
collaterals to provide any information.” The court found it had no
reason to believe ICWA applied with respect to mother.
According to the April 2020 jurisdiction/disposition report,
father said he had heard through his family that they might have
2 Mother is not a party to this appeal.
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Native American heritage but he did not have any details.
Father told DCFS that he would “ask around.” The record
contains no further information from father.
DCFS sent ICWA notices on April 9, 2020 to mother,
father, the Bureau of Indian Affairs, and the Secretary of the
Interior. The notice contained A.’s name and date of birth,
mother’s and father’s names, addresses, and date and place of
birth, the name and current address of paternal grandmother,
and the name of paternal grandfather. It did not contain any
information for paternal great-grandparents. Regarding claimed
eligibility, the form stated “Native American Ancestry Claimed –
Tribe Unknown”; it did not list Cherokee as a possible tribal
affiliation. DCFS did not send an ICWA notice to any Cherokee
tribes.
DCFS received a response letter from the United States
Department of the Interior on April 21, 2020. The letter stated
that DCFS’s notice “contains insufficient information to
determine Tribal affiliation.”
At the adjudication hearing in June 2020, the court
sustained the petition as to mother and father, found jurisdiction
over A. under section 300, subdivisions (a) and (b), and found that
removing the child was necessary. The court ordered
reunification services and monitored visitation for mother and
father. With respect to ICWA, the court noted that father
“thought he might have ancestry based on folklore and never
identified a national tribe.” The court then found that “there is
no reason to believe that there is membership in a tribe” and thus
that it had no reason to know that A. was an Indian child under
ICWA.
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DCFS’s subsequent reports referred to the court’s June
2020 finding that ICWA did not apply. There is no record of any
further ICWA investigation by DCFS.
In December 2020, DCFS reported that father was not
complying with his case plan, including failing to show up for
drug testing, continuing to engage in arguments with mother,
and failing to enroll in counseling. DCFS concluded that A.
remained at high risk of harm if returned to father.
In a July 2021 report, DCFS reported that father had not
been participating in any services, although he continued to
sporadically visit A. Father was not present for the 12-month
review hearing in August 2021. The court found father was not
in compliance with his case plan and terminated his reunification
services. The court continued mother’s services over DCFS’s
objection.
Father timely appealed from the court’s order terminating
his services. The court terminated mother’s reunification
services in May 2022, while this appeal was pending.3 In
December 2022, the court terminated jurisdiction and established
A.’s caretakers as his legal guardians.
DISCUSSION
The only issue in this case is whether DCFS and the court
properly complied with ICWA and related state statutes. Father
contends that the court’s finding that ICWA did not apply is
invalid due to DCFS’s failure to discharge its duty of inquiry into
A.’s possible Native American heritage and its failure to provide
notice to any Cherokee tribes. DCFS concedes that further
3 We granted DCFS’s request for judicial notice of the court’s
minute orders from the May and December 2022 hearings.
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inquiry into father’s claim of possible Native American ancestry
is necessary.
A. Requirements
“In any given case, ICWA applies or not depending on
whether the child who is the subject of the custody proceeding is
an Indian child.” (In re Abbigail A. (2016) 1 Cal.5th 83, 90.) Both
ICWA and state statutory law define an “Indian child” as a child
who is either a member of an Indian tribe or is eligible for
membership in an Indian tribe and is the biological child of a
member of an Indian tribe. (25 U.S.C. § 1903(4); accord, § 224.1,
subds. (a)-(b).)
“‘“Federal regulations implementing ICWA [ ] require that
state courts ‘ask each participant in an emergency or voluntary
or involuntary child-custody proceeding whether the participant
knows or has reason to know that the child is an Indian child.’
[Citation.] The court must also ‘instruct the parties to inform the
court if they subsequently receive information that provides
reason to know the child is an Indian child.’”’” (In re Y.W. (2021)
70 Cal.App.5th 542, 551; see 25 C.F.R. § 23.107(a) (2021).)
Additionally, state law “more broadly imposes on social
services agencies and juvenile courts (but not parents) an
‘affirmative and continuing duty to inquire’ whether a child in
the dependency proceeding ‘is or may be an Indian child.’” (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 741-742; see § 224.2,
subd. (a); In re Y.W., supra, 70 Cal.App.5th at p. 551.)
DCFS’s duty to inquire “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
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parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).) If
this initial inquiry creates a “reason to believe” a child is an
Indian child, DCFS is required to “make further inquiry
regarding the possible Indian status of the child, and shall make
that inquiry as soon as practicable.” (§ 224.2, subd. (e); In re D.S.
(2020) 46 Cal.App.5th 1041, 1052.) If the further inquiry gives
DCFS a “‘reason to know’” the child is an Indian child, then the
formal notice requirements set forth in section 224.3 apply.
(§§ 224.2, subd. (d), 224.3, subd. (a); In re D.S., supra, 46
Cal.App.5th at p. 1052.) Alternatively, the juvenile court may
find that a child is not an Indian child if the agency’s “proper and
adequate” inquiry and due diligence reveals no “reason to know”
the child is an Indian child. (§ 224.2, subd. (i)(2); In re D.S.,
supra, 46 Cal.App.5th at p. 1050.)
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V. (2022) 75
Cal.App.5th 433, 438; see also In re D.S., supra, 46 Cal.App.5th
at p. 1051; § 224.2, subd. (i)(2).) If an inquiry is inadequate, we
“must assess whether it is reasonably probable that the juvenile
court would have made the same ICWA finding had the inquiry
been done properly.” (In re Dezi. C. (2022) 79 Cal.App.5th 769,
777, review granted Sept. 21, 2022, S275578 (Dezi C.).) “If so, the
error is harmless and we should affirm; otherwise, we must send
it back for the Department to conduct a more comprehensive
inquiry.” (Ibid.)
B. Analysis
Father contends that DCFS failed to fulfill its duty of
initial inquiry required by ICWA and related state law. DCFS
concedes its inquiry efforts as to father’s heritage were
insufficient, and we agree. Despite its statutory obligations and
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direct orders from the court, DCFS failed to discuss father’s
heritage claim with any paternal relatives other than father. The
duty of inquiry required that DCFS interview, among others,
extended family members and others with an interest in the
child. (§ 224.2, subd. (b); see In re A.M. (2020) 47 Cal.App.5th
303, 322.) DCFS further concedes that its inquiry error was
prejudicial. We agree and accordingly remand the matter for
DCFS and the juvenile court to conduct further investigation into
father’s claims of Native American ancestry. We need not reach
father’s additional claim that the ICWA notices DCFS sent were
inadequate. Given our finding of inquiry error, that claim is
moot.
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DISPOSITION
The order terminating father’s reunification services is
conditionally affirmed. The matter is remanded with instructions
to DCFS and the juvenile court to conduct further ICWA inquiry
as soon as practicable. If that inquiry reveals evidence of Native
American heritage, then DCFS and the court must comply with
the additional ICWA requirements, including, if applicable, the
notice requirements of section 224.3. If it does not, then the
order shall stand.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
DAUM, J.*

Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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