In re Breanna S.

Filed 2/14/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re BREANNA S. et al., B275340
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK05103)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

LYDIA O.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Terry Truong, Juvenile Court Referee.
Conditionally affirmed and remanded.
Jamie A. Moran, under appointment by the Court of
Appeal, for Lydia O.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Jesse S.
 Mary C. Wickham, County Counsel, R. Keith Davis,
Assistance County Counsel, and David Michael Miller, Deputy
County Counsel, for Respondent.
__________________
Lydia O. and Jesse S., the mother and presumed father of
nine-year-old Breanna S. and four-year-old David S., appeal the
juvenile court‟s May 17, 2016 order pursuant to Welfare and
1
Institutions Code section 366.26 terminating their parental
rights and identifying adoption as the permanent plan for
Breanna and David. Lydia contends the juvenile court erred in
ruling she had failed to establish the parent-child relationship
exception to termination of parental rights (§ 366.26,
subd. (c)(1)(B)(i)). Jesse contends the court and the Los Angeles
County Department of Children and Family Services
(Department) failed to comply with the notice requirements of the
Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
Lydia has joined Jesse‟s ICWA notice argument (Cal. Rules of
Court, rule 8.200(a)(5)). We agree the Department failed to
comply with ICWA‟s notice requirements, remand the matter to
allow the Department and the juvenile court to remedy that
violation of federal and state law and otherwise conditionally
affirm the order.

1
Statutory references are to this code unless otherwise
stated.

2
 FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition and Review Hearings
The juvenile court sustained an amended dependency
petition on behalf of Breanna and David on July 28, 2014
pursuant to section 300, subdivisions (a) and (b), finding that
Lydia and Jesse had a history of engaging in violent
confrontations in the presence of the children, the children were
frightened of Jesse due to those encounters, Jesse had violated a
criminal court restraining order, and Lydia had failed to protect
the children by remaining in the relationship despite multiple
episodes of domestic violence. In addition, the court found that
Jesse had a history of illicit drug abuse and was a current abuser
of marijuana and alcohol, which rendered him incapable of
providing regular care and supervision of the children. The court
removed the children from Lydia‟s and Jesse‟s custody, placed
them with their maternal grandmother and ordered family
reunification services for both parents.
Between the children‟s detention on May 28, 2014 and the
July 28, 2014 jurisdiction/disposition hearing, Lydia visited the
children only twice.
Prior to the six-month review hearing (§ 366.21, subd. (e))
originally scheduled for mid-January 2015, Breanna and David
were placed with their “maternal great cousins.” Lydia and Jesse
informed the Department they remained in a romantic
relationship notwithstanding the past incidents of violence and
wanted to reunify with their children as a family unit. Lydia‟s
visitation remained infrequent.
At the continued six-month hearing on April 15, 2015 the
court found Lydia and Jesse in partial compliance with their case
plans and ordered the Department to continue to provide them

3
with reunification services. Lydia visited with the children twice
in February 2015 and not at all in March 2015. She had three
visits with them by mid-April.
At the 12-month review hearing in July 2015 (§ 366.21,
subd. (f)) the court again found Lydia in partial compliance and
ordered reunification services continued for her. Lydia failed to
attend her scheduled visits with the children in June and July
2015. According to the relative caregivers‟ call log, Lydia had
failed to call the children for scheduled telephone visits more
than half the time.
Following a contested hearing in September 2015 the court
terminated Jesse‟s services. He had failed to reenroll in a
substance abuse class, as ordered, and had been discharged from
his domestic violence program due to poor attendance.
On November 20, 2015 the court issued a temporary
restraining order against Jesse at Lydia‟s request following a
physical attack earlier that month. As reflected in the sustained
petition and the Department‟s detention and jurisdiction reports,
this was not the first restraining order Lydia had obtained
against Jesse: A restraining order had previously been granted
in May 2012 protecting Lydia and both children; Jesse had been
arrested in February 2014 for violating that order, which
prompted the referral of the family to the Department.
After a contested 18-month permanency review hearing
(§ 366.22) on January 12, 2016, the court terminated Lydia‟s
reunification services and set a selection and implementation
hearing (§ 366.26) for May 9, 2016. Although Lydia had
completed a parenting education class and a domestic violence
program, she was not in compliance with the substance abuse
component of her case plan. In addition, although Lydia had

4
previously identified depression and post-traumatic stress
disorder as the reasons for her failure to consistently visit with
the children, she was not obtaining any mental health treatment.
Lydia reported she had resumed her relationship with Jesse and
was again pregnant. The caregivers reported Lydia‟s visits with
the children remained sporadic.
2. The Selection and Implementation Hearing and
Termination of Parental Rights
In its report for the selection and implementation hearing,
dated May 9, 2016, the Department advised the court that
Breanna and David remained suitably placed with their maternal
cousins, who continued to provide them with a stable home
environment, meeting their physical, emotional and medical
needs. The Department also reported the maternal cousins were
committed to provide the children permanency through adoption
in the event reunification for the parents failed and indicated the
home study for the maternal cousins was nearly complete. In
addition, according to the Department‟s social worker the
children appeared happy and bonded with these caregivers,
referring to them as “mom” and “dad.”
Lydia‟s visits remained monitored; and her contact with the
children was only sporadic. The caregivers reported Lydia often
scheduled a visit and then failed to follow through. Jesse‟s visits
were characterized as “inconsistent,” occurring on average only
twice a month.
At the request of counsel for the children, the hearing was
continued; and the Department was directed to again interview
Breanna, who was experiencing “some conflict” about the options
for a permanent plan. In a report submitted May 17, 2016 the
social worker stated Breanna was clear she wanted to be adopted

5
by her current caregivers; her “conflict” had to do with her
concern about appearing disloyal to Lydia and Jesse.
The court denied Lydia and Jesse‟s request for Breanna to
testify at the continued hearing, explaining her ambivalence was
not in dispute and, given her age (eight years old at this point in
the proceedings), her wishes with regard to the question of
bonding were of minimal significance. Lydia testified her visits
with the children had become more frequent during the preceding
six months and blamed the caregivers for her previous infrequent
visitation, but acknowledged she had not spent any holidays with
Breanna and David, attended any of their medical appointments
or otherwise spent any significant time in their home. Jesse also
testified concerning his even more limited visitation with the
children.
At the conclusion of the contested hearing the court found
by clear and convincing evidence that it would be detrimental to
the children to be returned to their parents, that Breanna and
David were likely to be adopted in a reasonable time and that
Lydia and Jesse had failed to establish the statutory parent-child
relationship exception to termination of parental rights (§ 366.26,
subd. (c)(1)(B)(i)). The court acknowledged that Breanna had a
relationship with Lydia and Jesse, “that she will always see you
as her mother and her father, but that is not enough.”
The court reviewed the parents‟ visitation history and
ruled, “I can‟t find that there has been a consistent and regular
pattern of visitation. Your visitation has not changed from
monitored from the time of the initial hearing on this case in May
of 2014. It has yet to change to unmonitored because you failed
to do what the court ordered you to do, and you get into another
physical altercation with each other.” The court additionally

6
ruled there was insufficient evidence to show the children would
benefit from continuing the parent-child relationship, noting that
Breanna did not want to return to Lydia because she was afraid
Jesse was going to be around. Accordingly, the court terminated
Lydia and Jesse‟s parental rights and reconfirmed adoption as
the children‟s permanent plan.
3. Investigation of Indian Ancestry and ICWA Notice
On her Judicial Council form ICWA-020, Parental
Notification of Indian Status, filed on May 20, 2014, the date of
the initial detention hearing, Lydia indicated she may have
Indian ancestry, identifying the Apache and Yaqui tribes.
Similarly, the detention report filed by the Department stated
“[t]he Indian Child Welfare Act may apply,” explaining that
Lydia had disclosed she may have American Indian ancestry,
naming the Yaqui and Apache tribes but stating she had no
2
further information. The juvenile court ordered the Department
to investigate Lydia‟s possible Indian ancestry, to give notice to
the proper tribe or tribes and the Bureau of Indian Affairs (BIA),
if appropriate, and to include the information concerning her
ancestry in its next report to the court.
In its jurisdiction/disposition report dated June 12, 2014
the Department advised the court it had interviewed Lydia
regarding her Indian ancestry and Lydia had stated “she has
possibly Yaqui Indian heritage from her great [sic] grandmother.”

2
Jesse‟s form ICWA-020, filed May 23, 2014, stated he had
no Indian ancestry as far as he knew. When asked about Jesse‟s
possible Indian ancestry, Lydia responded, “He doesn‟t have any
American Indian ancestry. I think it‟s only me and my side of the
family.”

7
(The relative discussed was actually Lydia‟s maternal
grandmother and the children‟s maternal great-grandmother.)
Lydia did not know her grandmother‟s name but indicated her
mother, Esperanza M., might have more information. A
dependency investigator then met with Esperanza, who stated
there was possible Indian ancestry in the Yaqui tribe through the
children‟s maternal great-grandmother. Esperanza provided the
maternal great-grandmother‟s name (Matilde S.), date of birth,
state of birth (New Mexico) and date of death and state where she
died (California). Esperanza also reported that, although Matilde
was not “registered,” “„she would always say we were Yaqui.”
Esperanza also gave the investigator the name of her father (the
maternal great-grandfather), his date of birth and the year and
state in which he died.
Based on the information provided, the Department
reported, ICWA notices had been processed and sent by
registered mail to the Yaqui tribe, the federal BIA and the United
States Secretary of the Interior. No return receipts or response
from the tribe had been received by the date of the
jurisdiction/disposition report. Nonetheless, the Department
recommended that the court make ICWA findings as to both
Lydia and Jesse.
By the date of the continued jurisdiction/disposition
hearing on July 28, 2014, the Department had received a letter
from the Pascua Yaqui tribe, dated July 16, 2014, which stated
its enrollment department had indicated Breanna, David, Lydia
and Jesse were not members of the tribe and did not have
applications for membership pending. The letter continued,
“Based upon the family information provided and the current

8
enrollment records, the children are not eligible for membership
and the Tribe will not intervene in this matter.”
At the combined jurisdiction/disposition hearing the
juvenile court found there was no reason to know either Breanna
or David was an Indian child within the meaning of ICWA. The
court ordered the parents to keep the Department and the court
aware of any new information relating to possible ICWA status.
DISCUSSION
1. The Juvenile Court Did Not Err in Ruling Lydia Had
Failed To Establish the Parent-child Relationship
Exception to Termination of Parental Rights
a. Governing law and standard of review
The express purpose of a section 366.26 hearing is “to
provide stable, permanent homes” for dependent children.
(§ 366.26, subd. (b).) Once the court has decided to end parent-
child reunification services, the legislative preference is for
adoption. (§ 366.26, subd. (b)(1); In re S.B. (2009) 46 Cal.4th 529,
532 [“[i]f adoption is likely, the court is required to terminate
parental rights, unless specified circumstances compel a finding
that termination would be detrimental to the child”]; In re
Celine R. (2003) 31 Cal.4th 45, 53 [“[I]f the child is adoptable . . .
adoption is the norm. Indeed, the court must order adoption and
its necessary consequence, termination of parental rights, unless
one of the specified circumstances provides a compelling reason
for finding that termination of parental rights would be
detrimental to the child.”]; see In re Marilyn H. (1993) 5 Cal.4th
295, 307 [once reunification efforts have been found unsuccessful,
the state has a “compelling” interest in “providing stable,
permanent homes for children who have been removed from
parental custody,” and the court then must “concentrate its

9
efforts . . . on the child‟s placement and well-being, rather than on
a parent‟s challenge to a custody order”]; see also In re Noah G.
(2016) 247 Cal.App.4th 1292, 1299-1300; In re G.B. (2014)
227 Cal.App.4th 1147, 1163.)
Section 366.26 requires the juvenile court to conduct a two-
part inquiry at the selection and implementation hearing. First,
the court determines whether there is clear and convincing
evidence the child is likely to be adopted within a reasonable
time. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-
250; In re D.M. (2012) 205 Cal.App.4th 283, 290.) Then, if the
court finds by clear and convincing evidence the child is likely to
be adopted, the statute mandates judicial termination of parental
rights unless the parent opposing termination can demonstrate
one of the enumerated statutory exceptions applies. (§ 366.26,
subd. (c)(1)(A) & (B); see Cynthia D., at pp. 250, 259 [when the
child is adoptable and declining to apply one of the statutory
exceptions would not cause detriment to the child, the decision to
terminate parental rights is relatively automatic].)
One of the statutory exceptions to termination is contained
in section 366.26, subdivision (c)(1)(B)(i), which permits the court
to order some other permanent plan if “[t]he parents have
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” The
exception requires the parent to prove both that he or she has
maintained regular visitation and that his or her relationship
with the child “„promotes the well-being of the child to such a
degree as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.‟” (In re Marcelo B.
(2012) 209 Cal.App.4th 635, 643; accord, In re Amber M. (2002)
103 Cal.App.4th 681, 689; see In re Autumn H. (1994)

10
27 Cal.App.4th 567, 575 [“the court balances the strength and
quality of the natural parent/child relationship in a tenuous
placement against the security and the sense of belonging a new
family would confer”].)
A showing the child derives some benefit from the
relationship is not a sufficient ground to depart from the
statutory preference for adoption. (See In re Angel B. (2002)
97 Cal.App.4th 454, 466 [“[a] biological parent who has failed to
reunify with an adoptable child may not derail an adoption
merely by showing the child would derive some benefit from
continuing a relationship maintained during periods of visitation
with the parent”].) No matter how loving and frequent the
contact, and notwithstanding the existence of an “„emotional
bond‟” with the child, “„the parents must show that they occupy “a
parental role” in the child‟s life.‟” (In re K.P. (2012)
203 Cal.App.4th 614, 621; In re I.W. (2009) 180 Cal.App.4th 1517,
1527.) Factors to consider include “„“[t]he age of the child, the
portion of the child‟s life spent in the parent‟s custody, the
„positive‟ or „negative‟ effect of interaction between parent and
child, and the child‟s particular needs.”‟” (In re Marcelo B., supra,
209 Cal.App.4th at p. 643.) Moreover “[b]ecause a section 366.26
hearing occurs only after the court has repeatedly found the
parent unable to meet the child‟s needs, it is only in an
extraordinary case that preservation of the parent‟s rights will
prevail over the Legislature‟s preference for adoptive placement.”
(In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The parent has the burden of proving the statutory
exception applies. (In re I.W., supra, 180 Cal.App.4th at p. 1527;
In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The court‟s
decision a parent has not satisfied this burden may be based on

11
any or all of the component determinations—whether the parent
has maintained regular visitation, whether a beneficial parental
relationship exists, and whether the existence of that
relationship constitutes “a compelling reason for determining
that termination would be detrimental to the child.” (§ 366.26,
subd. (c)(1)(B); see In re K.P., supra, 203 Cal.App.4th at p. 622;
In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) When the
juvenile court finds the parent has not maintained regular
visitation or established the existence of the requisite beneficial
relationship, our review is limited to determining whether the
evidence compels a finding in favor of the parent on this issue as
a matter of law. (In re I.W., at pp. 1527-1528 [“where the issue on
appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law”]; see In re Aurora P.
(2015) 241 Cal.App.4th 1142, 1157.) When the juvenile court
concludes the benefit to the child derived from preserving
parental rights is not sufficiently compelling to outweigh the
benefit achieved by the permanency of adoption, we review that
determination for abuse of discretion. (In re K.P., at pp. 621-622;
In re Bailey J., at pp. 1314-1315.)
b. Lydia failed to establish the (c)(1)(B)(i) exception to
termination of parental rights
Lydia contends she established the existence of a beneficial
parental relationship with the children within the meaning of
section 366.26, subdivision (c)(1)(B)(i), because, contrary to the
juvenile court‟s finding, she maintained regular visitation and

12
 3
had a strong bond with both children. However, the record does
not compel a finding that regular visitation occurred or
demonstrate the juvenile court abused its discretion in
concluding Lydia‟s relationship with the children did not
outweigh the well-being they would gain in a permanent home
with adoptive parents.
As discussed, there was ample evidence in the record that
Lydia visited with Breanna and David only sporadically during
the first 18 months of the dependency proceedings, often
cancelling visits that had been arranged. While her visits
apparently became more regular during the final six months
before the section 366.26 hearing, even then they occurred only
once a week for two hours per visit. Lydia‟s testimony did not
compel a finding, as a matter of law, that she had maintained
regular visitation and contact with the children, as required for
the parent-child relationship exception to termination of parental
rights to apply. (See In re Anthony B. (2015) 239 Cal.App.4th
389, 396 [“„Sporadic visitation is insufficient to satisfy the first
prong of the parent-child relationship exception to adoption.‟
[Citation.] The type of parent-child relationship sufficient to
derail the statutory preference for adoption is one in which
„regular visits and contact have continued or developed a
significant, positive, emotional attachment from parent to child.‟
[Citation.] Such relationship „arises from day-to-day interaction,
companionship and shared experiences.‟”].)
In addition, the juvenile court‟s determination the benefits
of adoption for the children far outweighed those from continuing

3
Lydia does not dispute the juvenile court‟s finding the
children were likely to be adopted.

13
their relationship with Lydia and Jesse was well within its
discretion. To be sure, Lydia acted appropriately when she saw
the children during her monitored visits—playing with them and
helping Breanna with her arithmetic and spelling and David with
his ABC‟s—and Breanna expressed mixed feelings about the
prospect of adoption. But this evidence falls far short of
demonstrating a substantial emotional attachment that would
cause the children to suffer great harm if severed. (See In re
Anthony B., supra, 239 Cal.App.4th at p. 107 [parent-child
relationship exception requires parent to demonstrate
“relationship remained so significant and compelling in [the
child‟] life that the benefit of preserving it outweighed the
stability and benefits of adoption”]; In re Bailey J., supra,
189 Cal.App.4th at p. 1315 [juvenile court determines “the
importance of the relationship in terms of the detrimental impact
that its severance can be expected to have on the child and to
weigh that against the benefit to the child of adoption”]; In re
Autumn H., supra, 27 Cal.App.4th at p. 575 [exception applies
only if the severance of the parent-child relationship would
“deprive the child of a substantial, positive emotional attachment
such that the child would be greatly harmed”].) It was the
caregivers/prospective adoptive parents, not Lydia, who ensured
Breanna and David‟s ongoing needs, both physical and emotional,
were being met. Lydia simply failed to show she occupied “a
parental role” in her children‟s life. (See In re K.P., supra,
203 Cal.App.4th at p. 621.) Furthermore, in balancing the
benefit to Breanna and David of adoption and the possible
detriment from terminating their relationship with their mother,
the juvenile court properly expressed concern over the continuing
violence that characterized Lydia‟s relationship with Jesse, the

14
very reason that dependency jurisdiction was exercised in the
first place. (See In re Noah G., supra, 247 Cal.App.4th at p. 1302
[in considering the parent-child relationship exception to
termination of parental rights, “the juvenile court could properly
focus on the mother‟s unresolved substance addiction issues
because the children became dependents of the court due to her
drug abuse”].) For all these reasons, the juvenile court properly
found the parent-child relationship exception did not apply in
this case.
2. The Department Failed To Satisfy Its Notice Obligation
Under ICWA
a. The ICWA notice requirements
Congress enacted ICWA in 1978 to address an “Indian child
welfare crisis . . . of massive proportions”—an estimated 25 to
35 percent of all Indian children had been separated from their
families and placed in adoptive homes, foster care or institutions.
(H.R.Rep. No. 95-1386, 2d Sess., p. 9 (1978), reprinted in
1978 U.S. Code Cong. & Admin. News, pp. 7530, 7531.) Although
this crisis was the product of several related causes, Congress
expressly found that State agencies and courts had often failed to
recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities
and families. (25 U.S.C. § 1901(5).) To address this failure,
protect Indian children and promote the stability and security of
Indian tribes and families, ICWA establishes minimum federal
standards a state court must follow before removing an Indian

15
child from his or her family. (25 U.S.C. § 1902; In re Isaiah W.
4
(2016) 1 Cal.5th 1, 7-8; In re W.B. (2012) 55 Cal.4th 30, 47.)
As the California Supreme Court recently explained, notice
to Indian tribes is central to effectuating ICWA‟s purpose,
enabling a tribe to determine whether the child involved in a
dependency proceeding is an Indian child and, if so, whether to
intervene in or exercise jurisdiction over the matter.
5
(In re Isaiah W., supra, 1 Cal.5th at pp. 8-9.) ICWA provides, “In
any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child is involved, the
party seeking foster care placement of, or termination of parental
rights to, an Indian child shall notify the parent or Indian
custodian and the Indian child‟s tribe” of the pending proceedings
and its right to intervene. (25 U.S.C. § 1912(a).) Similarly,
California law requires notice to the Indian custodian and the
Indian child‟s tribe in accordance with section 224.2,
subdivision (a)(5), if the Department or court knows or has
reason to know that an Indian child is involved in the

4
ICWA thus reflects the congressional determination it is in
the best interests of Indian children to retain tribal ties and
cultural heritage and in the interest of the tribe to preserve its
future generations. (25 U.S.C. § 1902; In re Isaiah W., supra,
1 Cal.5th at p. 8; see In re H.G. (2015) 234 Cal.App.4th 906, 909-
910; In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1355-1356;
see also § 224, subd. (a).)
5
For purposes of ICWA, an “Indian child” is 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); see § 224.1, subd. (a) [adopting
federal definitions].)

16
proceedings. (§ 224.3, subd. (d); see Cal. Rules of Court,
rule 5.481(b)(1) [notice is required “[i]f it is known or there is
reason to know that an Indian child is involved in a proceeding
listed in rule 5.480,” which includes all dependency cases filed
6
under Welfare and Institutions Code section 300].)
ICWA itself does not define “reason to know,” nor did the
implementing federal regulations in effect while this case was
pending in the dependency court. (See former 25 C.F.R. § 23.11;
In re H.B. (2008) 161 Cal.App.4th 115, 121, fn. 3; In re S.B. (2005)
7
130 Cal.App.4th 1148, 1158.) However, California statutory law,

6
If the court has reason to know an Indian child may be
involved in the pending dependency proceeding but the identity
of the child‟s tribe cannot be determined, ICWA requires notice
be given to the BIA (25 U.S.C. §§ 1903(11), 1912(a); see In re
Isaiah W., supra, 1 Cal.5th at p. 8.) California law reinforces this
requirement: Section 224.2, subdivision (a)(4), provides, “Notice,
to the extent required by federal law, shall be sent to the
Secretary of the Interior‟s designated agent, the Sacramento Area
Director, Bureau of Indian Affairs.” In addition, the California
statute requires any notice sent to the child‟s parents, Indian
custodians or tribe to “also be sent directly to the Secretary of the
Interior” unless the Secretary has waived notice in writing.
(§ 224.2, subd. (a)(4); In re Isaiah W., at p. 9.)
7
New regulations to implement ICWA, adopted as of
December 12, 2016, now identify circumstances in which a court
has “reason to know” the child is an Indian child, including if
“[a]ny participant in the proceeding, officer of the court involved
in the proceeding, Indian Tribe, Indian organization, or agency
informs the court that it has discovered information indicating
that the child is an Indian child.” (25 C.F.R. § 23.107(c)(2).) The
new regulations apply to any child custody proceeding initiated
on or after December 12, 2016, even if the child has been involved

17
which incorporates and enhances ICWA‟s requirements (see In re
W.B., supra, 55 Cal.4th at p. 52 [discussing passage of Senate Bill
No. 678 (2005-2006 Reg. Sess.)]), provides the circumstances that
may provide reason to know the child is an Indian child include,
without limitation, when a member of the child‟s extended family
provides information suggesting the child is a member of a tribe
or eligible for membership in a tribe or one or more of the child‟s
parents, grandparents or great-grandparents are or were a
member of a tribe. (§ 224.3, subd. (b)(1); see In re Isaiah W.,
supra, 1 Cal.5th at p. 15 [“section 224.3, subdivision (b) sets forth
a nonexhaustive list of „circumstances that may provide reason to
know the child is an Indian child‟”]; see also In re Kadence P.
(2015) 241 Cal.App.4th 1376, 1386-1387 & fn. 9 [because only the
tribe may make the determination whether the child is a member
or eligible for membership, there is no general blood quantum
requirement or “remoteness” exception to ICWA notice
requirements]; In re B.H. (2015) 241 Cal.App.4th 603, 606-607 [“a
person need not be a registered member of a tribe to be a member
of a tribe—parents may be unsure or unknowledgeable of their
own status as a member of a tribe”].)
Under the then-effective implementing federal regulations,
ICWA notices, when required, had to include “[a]ll names known,
and current and former addresses of the Indian child‟s biological
mother, biological father, maternal and paternal grandparents

in dependency proceedings prior to that date. A “child-custody
proceeding” includes, as a separate proceeding, a termination of
parental rights, a preadoptive placement or an adoptive
placement. (25 U.S.C. § 1903(1); 25 C.F.R. § 23.2.) If any one of
those types of proceedings is initiated on or after December 12,
2016, the new regulations apply to that proceeding.

18
and great grandparents or Indian custodians, including maiden,
married and former names or aliases; birthdates; places of birth
and death; tribal enrollment numbers, and/or other identifying
8
information.” (Former 25 C.F.R. § 23.11(a), (d)(3) (2014).) In
nearly identical language California law requires that ICWA
notices include “all names known of the Indian child‟s biological
parents, grandparents, and great-grandparents, or Indian
custodians, including maiden, married and former names or
aliases, as well as their current and former addresses, birthdates,
places of birth and death, tribal enrollment numbers, and any
other identifying information, if known.” (§ 224.2,
subd. (a)(5)(C).) The Judicial Council‟s mandatory form, Notice of
Child Custody Proceeding for Indian Child (Indian Child Welfare
Act), ICWA-030, adopted effective January 1, 2008 and used by
the Department in this case, includes boxes for the required
information, including birth date and place, for each parent, each
parent‟s biological mother and father (the child‟s maternal and
paternal grandparents) and each parent‟s four biological
grandparents (the child‟s maternal and paternal great-
grandparents).

8
The new ICWA regulations require that notice include, in
addition to information about the child and his or her parents,
“[i]f known, the names, birthdates, birthplaces, and Tribal
enrollment information of other direct lineal ancestors of the
child, such as grandparents.” (25 C.F.R. §§ 23.11(a),
23.111(d)(1)-(3).)

19
 b. The Department has conceded it omitted required
information from the ICWA notice
Jesse, joined by Lydia, argues the notices sent to the Yaqui
tribe by the Department omitted information required by federal
and state law to be included in ICWA notices: the maternal
grandmother‟s former addresses and place of birth, the maternal
grandfather‟s current and former addresses, the maternal great-
grandmother‟s place of birth and death and the maternal great-
grandfather‟s place of birth and death. In response the
Department concedes certain of this information—the maternal
grandmother‟s former address and place of birth, the maternal
great-grandmother‟s place of birth and place of death and the
maternal great-grandfather‟s place of death—was known to it
and included in its jurisdiction/disposition report to the court, but
omitted from the ICWA notices. The Department admits this
was “a mistake,” but contends the error was harmless, an issue
we consider in the following section of this opinion. As to the
other omitted information identified by Jesse, the Department
argues nothing in the record indicates this information was
known or even ascertainable.
This latter contention appears to misapprehend the
Department‟s “affirmative and continuing duty” to make the
inquiries necessary to determine whether a dependent child is or
may be an Indian child. (In re Isaiah W., supra, 1 Cal.5th at p. 9;
9
§ 224.3; Cal. Rules of Court, rule 5.481.) This affirmative duty is

9
California Rules of Court, rule 5.481(a)(4)(A) directs the
social worker to conduct interviews “to gather the information
listed in Welfare and Institutions Code section 224.2(a)(5), . . .
which is required to complete the Notice of Child Custody
Proceeding for Indian Child (form ICWA-030).”

20
triggered whenever the child protective agency or its social
worker “knows or has reason to know that an Indian child is or
may be involved” (Cal. Rules of Court, rule 5.481(a)(4)), and
obligates the social worker, as soon as practicable, to interview
the child‟s parents, extended family members and any other
person who can reasonably be expected to have information
concerning the child‟s membership status or eligibility. (§ 224.3,
subd. (c); Cal. Rules of Court, rule 5.481(a)(4)(A); see In re
Michael V. (2016) 3 Cal.App.5th 225, 233; In re Shane G. (2008)
166 Cal.App.4th 1532, 1539; see also In re Alice M. (2008)
161 Cal.App.4th 1189, 1200 [“the duty to inquire is triggered by a
lesser standard of certainty regarding the minor‟s Indian child
status . . . than is the duty to send formal notice to the Indian
tribes”].) Although the Department‟s investigator interviewed
Lydia and Esperanza regarding the family‟s Indian ancestry, it
does not appear either of them was asked about the maternal
grandfather (Esperanza‟s husband) or that the Department made
any effort to locate him for an interview. Nor is there any
indication the Department attempted to learn the place of birth
of the maternal great-grandfather (Luis M., the husband of
Matilde), which was omitted from the ICWA notice. Contrary to
the Department‟s position on appeal, it was the social worker‟s
duty to seek out this information, not the obligation of family
members to volunteer it. (See In re Michael V., at p. 236 [“[i]t
was not the paternal great-aunt‟s obligation to speak up; it was
the Department‟s obligation to inquire”].)
c. Omission of information mandated by federal law
requires that ICWA notices be resent
While conceding its mistake in omitting required
information from the ICWA notices, the Department contends the

21
omissions were harmless error in light of the Yaqui tribe‟s
conclusion, based on the substantial biographical data that were
provided, that Breanna and David are not members of the tribe
or eligible for membership in the tribe. It is not reasonably
likely, the Department argues, the tribe‟s response would have
been any different if the notices had included the additional
information. (See, e.g., In re D.N. (2013) 218 Cal.App.4th 1246,
1251 [“[d]eficiencies in ICWA inquiry and notice may be deemed
harmless error when, even if proper notice had been given, the
child would not have been found to be an Indian child”]; In re
Cheyanne F. (2008) 164 Cal.App.4th 571, 576 [“where notice has
been received by the tribe, . . . errors or omissions in the notice
are reviewed under the harmless error standard”].)
In evaluating the harmless error argument, it is essential
to distinguish between violation of notice requirements imposed
by ICWA itself and the federal regulations implementing it, on
the one hand, and violations of state standards for inquiry and
notice that are higher than those mandated by ICWA, on the
10
other hand. As to the former, “ordinarily failure in the juvenile
court to secure compliance with the Act‟s notice provisions is
prejudicial error.” (In re Marinna J. (2001) 90 Cal.App.4th 731,
736; accord, In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424
[“[c]ourts have consistently held failure to provide the required
notice requires remand unless the tribe has participated in the

10
ICWA authorizes the states to provide “a higher standard
of protection to the rights of the parent . . . of an Indian child
than the rights provided under [ICWA].” (25 U.S.C. § 1921.)
Section 224, subdivision (d), states, if California law provides
such a higher standard of protection, “the court shall apply the
higher standard.”

22
proceedings or expressly indicated they have no interest in the
proceedings”]; see In re Cheyanne F., supra, 164 Cal.App.4th at
p. 577 [“[d]eficiencies in an ICWA notice are generally prejudicial,
but may be deemed harmless under some circumstances”].) Any
failure to comply with a higher state standard, however, “must be
held harmless unless the appellant can show a reasonable
probability that he or she would have enjoyed a more favorable
result in the absence of the error. (Cal. Const., art. VI, § 13;
People v. Watson (1956) 46 Cal.2d 818, 836.)” (In re S.B., at
p. 1162; accord, In re H.B., supra, 161 Cal.App.4th at p. 121 [“[a]
violation of ICWA notice requirements may be harmless error,
particularly when, as here, the source of the duty to inquire is not
ICWA itself but rather former rule 1439(d), a rule of court
implementing ICWA”].)
This vigilance in ensuring strict compliance with federal
ICWA notice requirements is necessary because a violation
renders the dependency proceedings, including an adoption
following termination of parental rights, vulnerable to collateral
attack if the dependent child is, in fact, an Indian child. (See
25 U.S.C. § 1914 [“[a]ny Indian child who is the subject of any
action for foster care placement or termination of parental rights
under State law, any parent or Indian custodian from whose
custody such child was removed, and the Indian child‟s tribe may
petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated [specified
provisions of ICWA, including the provisions requiring notice and
mandating the content of the notice]”].) “„To maintain stability in
placements of children in juvenile proceedings, it is preferable to
err on the side of giving notice and examining thoroughly

23
whether the juvenile is an Indian child.‟” (In re D.C. (2015)
243 Cal.App.4th 41, 63.)
Here, the Department violated the requirements of both
federal and state law regarding the content of an ICWA notice.
Although the Pascua Yaqui tribe responded that the children
were not members of, or eligible for membership in, the tribe, the
tribe‟s letter explained its assessment was “[b]ased upon the
family information provided.” Some of the omitted information
pertained directly to the maternal great-grandmother, the
ancestor who Lydia and Esperanza had affirmatively identified
as a Yaqui Indian. We cannot say with any degree of confidence
that additional information concerning that relative, her husband
and her daughter would not have altered the tribe‟s evaluation.
In an additional harmless error argument, the Department
asserts, based on language in the Constitution of the Pascua
11
Yaqui Tribe, that membership in the Pascua Yaqui Tribe
requires a minimum blood quantum of one-quarter. Even if
Matilde, the maternal great-grandmother and the only person
identified by Lydia and Esperanza as having Yaqui ancestry, was
of full blood quantum, the Department continues, Breanna and
David could at most be one-eighth blood quantum Yaqui, thus
making them ineligible for tribal membership.
We recognize an analysis similar to that suggested by the
Department has been made in other cases, although the relative
involved typically has been more distant than the child‟s great-

11
The Department moved in this court for judicial notice of
the Constitution of the Pascua Yaqui Tribe. Jesse opposed the
request in his reply brief. We grant the motion. (See In re J.M.
(2012) 206 Cal.App.4th 375, 382 [“[c]ourts routinely take evidence
of tribes‟ membership criteria in ICWA proceedings”].)

24
grandparent. (See, e.g., In re J.M. (2012) 206 Cal.App.4th 375,
382 [“given the stringency of tribal membership requirements,”
any error in failing to include the names of the children‟s great-
great-grandparents in the ICWA notices was harmless “because
these children are disqualified from membership irrespective of
their great-great-grandparents‟ possible membership in the
tribe”]; In re Shane G., supra, 166 Cal.App.4th at p. 1539
[although maternal grandmother indicated Shane‟s great-great-
great-grandmother was a Comanche princess, notice was not
required; “[m]ost significantly, the evidence before the court
showed the Comanche tribe requires a minimum blood quantum
for membership that exclude[d] Shane”].) Those cases
notwithstanding, the Indian tribe, not the juvenile court or the
court of appeal, is the sole entity authorized to determine
whether a child who may be an Indian child is actually a member
or eligible for membership in the tribe. (See Santa Clara Pueblo
v. Martinez (1978) 436 U.S. 49, 72, fn. 21 [98 S.Ct. 1670,
56 L.Ed.2d 106] [Indian tribe is final arbiter of its membership
rights]; § 224.3, subd. (e)(1) [“[a] determination by an Indian tribe
that a child is or is not a member of or eligible for membership in
that tribe . . . shall be conclusive”]; In re Kadence P., supra,
241 Cal.App.4th at pp. 1386-1387 [the Indian tribe, not the court,
determines whether the child is an Indian child]; In re
Francisco W. (2006) 139 Cal.App.4th 695, 702 [same]; see also
In re Abbigail A. (2016) 1 Cal.5th 83, 95 [“membership . . . is a
tribe‟s determination based on tribal law,” while a child‟s status
as an Indian child “is a conclusion of federal and state law based
12
on the tribe‟s determination”].) Accordingly, although the

12
The new federal ICWA regulations provide, “The

25
Department accurately quotes language from the Pascua Yaqui
constitution, we are unwilling to determine in the first instance
the tribe‟s membership eligibility requirements, particularly
since we are without benefit of testimony regarding how that
language has been applied by the tribe and whether exceptions
have been created by tribal custom and practice.
Moreover, once ICWA notice is required, as it plainly was
in this case, we would be extremely reluctant under most
circumstances to foreclose the tribe‟s prerogative to evaluate a
child‟s membership rights without it first being provided all
available information mandated by ICWA. That reluctance is
controlling here, given the absence in the ICWA notices of
information concerning not only the maternal great-grandmother,
but also Luis M., Matilde‟s husband and the children‟s maternal
great-grandfather. (Cf. In re J.M., supra, 206 Cal.App.4th at
p. 383 [“[t]his is not a case where there are gaps in the family
tree, frustrating the [tribe‟s] ability to meaningfully investigate
the children‟s eligibility for membership”].)
We remand the matter for the juvenile court to conduct a
further investigation into Lydia‟s claim of Indian ancestry by
making a genuine effort to locate other family members who
might have information bearing on the issue. Once that
investigation is completed, new notices must be provided to the
Pascua Yaqui Tribe and the Secretary of the Interior. The
Department shall thereafter notify the court of its actions and file

determination by a Tribe of whether a child is a member,
whether a child is eligible for membership, or whether a
biological parent is a member, is solely within the jurisdiction
and authority of the Tribe, except as otherwise provided by
Federal or Tribal law.” (25 C.F.R. § 23.108(b).)

26
certified mail return receipts for the new ICWA notices, together
with any responses received. The court shall then determine
whether ICWA and state law inquiry and notice requirements
have been satisfied and whether Breanna and David are Indian
children. If the court finds they are Indian children, it shall
conduct a new section 366.26 hearing, as well as all further
proceedings, in compliance with ICWA and related California
law. If not, the court‟s original section 366.26 order remains in
effect.
DISPOSITION
The juvenile court‟s May 17, 2016 section 366.26 order is
conditionally affirmed. The matter is remanded to the juvenile
court for full compliance with the inquiry and notice provisions of
ICWA and related California law and for further proceedings not
inconsistent with this opinion.

PERLUSS, P. J.

We concur:

ZELON, J.

SEGAL, J.

27