In re A.M. CA2/2

Filed 8/21/20 In re A.M. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re A.M. et al., Persons B304330
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. Nos.
CK96950E
CK96950F)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

M.M.,

Defendant and
Appellant.
In re A.M. et al., Persons B305027
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. Nos.
CK96950E
CK96950F)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

C.D. et al.,

Defendants and
Appellants.

APPEALS from orders of the Superior Court of Los Angeles
County. Craig S. Barnes, Judge. Affirmed.
Jesse F. Rodriguez, under appointment by the Court of
Appeal, for Defendant and Appellant M.M.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant C.D.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Melania Vartanian, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________________________

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 These consolidated appeals follow the juvenile court’s
February 2020 orders terminating the parental rights of
appellants C.D. (father) and M.M. (mother) to their five-year-old
daughter A.M. (daughter) and four-year-old son C.M. (son).1
Father makes one argument on appeal. He claims because it is
unclear from the record what information was included in notices
sent to Indian tribes under the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.), the juvenile court’s finding
that the ICWA did not apply is not supported by substantial
evidence. As a result, father states we must reverse the juvenile
court’s orders terminating parental rights. Mother makes no
independent arguments on appeal but joins in father’s argument.
Other than their challenge to the court’s ICWA finding, neither
mother nor father challenges the propriety of the juvenile court’s
orders terminating parental rights. Thus, the sole issue before us
is whether the juvenile court committed reversible error when it
determined the ICWA did not apply in this case. We find no
reversible error and affirm.
BACKGROUND
The parties do not dispute the following facts and
procedural history, most of which is recounted in the parties’
briefs on appeal.

1In addition to mother’s and father’s appeals from the
February 2020 orders terminating parental rights (termination
appeals), mother also filed a notice of appeal from an earlier
order denying a section 388 petition (388 appeal). In May 2020,
we granted mother’s request to consolidate the termination
appeals and the 388 appeal under appeal No. B304330. Despite
having appealed from the order denying her section 388 petition,
mother does not challenge that order in her briefing on appeal,
and we deem the issue forfeited.

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1. The Family
In addition to daughter and son, mother and father are
parents to three older children. Mother also has one other older
child. Although only daughter and son are involved in this
appeal, their four older siblings also were dependents of the
juvenile court.
For almost two years after daughter was born and more
than one year after son was born, father denied he was the father
of either child and did not want to participate in the underlying
proceedings. Similarly, mother initially reported father was not
the father of daughter and claimed she did not know who
fathered son. However, in September 2016, based on DNA
testing, the juvenile court found father was the biological father
of both daughter and son.
2. Instant Proceedings
In November 2014, soon after daughter was born, the Los
Angeles County Department of Children and Family Services
(Department) filed a petition under Welfare and Institutions
Code section 300 on daughter’s behalf.2 Less than one year later,
in September 2015, the Department filed a subsequent petition
under section 342 on behalf of daughter and her older siblings.
Soon after, the Department filed a section 300 petition on behalf
of son, who was at the time only two months old. At various
times during the early stages of the underlying proceedings, the
juvenile court issued arrest warrants for mother and protective
custody warrants for daughter and son because mother’s
whereabouts or the children’s whereabouts were unknown for
many months at a time.

2 Undesignated statutory references are to the Welfare and
Institutions Code.

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 By February 2017, the juvenile court had sustained the two
section 300 petitions and the section 342 petition. All told, the
sustained counts alleged daughter’s and son’s siblings were
dependents of the court because of father’s violent conduct
against mother, mother failed to comply with court orders and
allowed father unlimited access to the siblings, mother physically
assaulted an unrelated child and encouraged one of the siblings
to assault an unrelated child, father sexually abused the siblings,
and mother failed to protect the children from sexual abuse.
Family reunification services were ordered, but ultimately proved
unsuccessful and were terminated.
On February 27, 2020, the juvenile court found daughter
and son were likely to be adopted, found no exception to
termination of parental rights existed, and terminated mother ‘s
and father’s parental rights to daughter and son. Neither mother
nor father challenges the substantial evidence supporting the
juvenile court’s February 27, 2020 orders terminating parental
rights.
3. ICWA Facts and Proceedings
In October 2014 (prior to the filing of the petition on
daughter’s behalf), mother reported daughter did not have Indian
ancestry.
However, more than one year later, in March 2016, mother
reported she may have Cherokee ancestry through her father and
her grandmother, who was deceased. As a result, the juvenile
court ordered the Department to provide notice to the Cherokee
tribes and to investigate mother’s possible Indian heritage. The
following month, the Department reported it had been unable to
investigate mother’s possible Indian heritage because it had been

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unable to gather sufficient information from mother’s family.
Mother had no tribal enrollment number information.
In March and April 2017, father and mother appealed from
the juvenile court’s 2017 jurisdiction, disposition, and status
review findings. (Appeal No. B282756.) Before that appeal was
heard, however, the parties stipulated to a remand with
directions that the juvenile court order the Department to further
investigate mother’s claim of Cherokee heritage and effectuate
proper ICWA notice. In May 2018, in compliance with this
Court’s directions on remand, the juvenile court again ordered
the Department to investigate mother’s claim of Cherokee
heritage; to notify all designated tribes, the Bureau of Indian
Affairs (BIA), and the Secretary of the Interior; and to submit all
notices, signed return receipts, and responses to the juvenile
court.
Soon after, in June 2018, the Department spoke with both
mother and father regarding their potential Indian heritage.
Mother was uncooperative and refused to provide any further
information, stating the Department “does not need to know this
information.” On the other hand, father spoke with a
Department social worker and reported his grandmother and
grandfather, both of whom were deceased, were from Houston,
Texas, and both had Indian heritage. Father stated his other
grandmother could provide information regarding Indian
heritage in her family. That same day, the social worker spoke
with father’s grandmother, who reported her family originally
was from Georgia and had Cherokee heritage. Both father and
his grandmother provided the social worker with family names
and birth dates. On June 15, 2018, the Department mailed form

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ICWA-030 to both mother and father and asked them to complete
the form.
The following month, the Department sent by certified mail
notice of an upcoming hearing to mother and father as well as to
the Eastern Band of Cherokee Indians, Cherokee Nation, the
United Keetoowah Band of Cherokee Indians in Oklahoma, and
the BIA. Mother, father, the tribes, and the BIA sent back to the
Department signed certified mail return receipts.
Although the record on appeal includes signed return
receipts from the tribes and the BIA, the record does not include
the actual ICWA notices sent to the tribes or the BIA.
Nonetheless, in July 2018, the Department received letters from
the Eastern Band of Cherokee Indians stating daughter and son
were neither registered nor eligible to register as members of the
tribe. Similarly, in August 2018, the Department received letters
from the United Keetoowah Band of Cherokee Indians in
Oklahoma stating daughter and son were not eligible for
enrollment in the tribe or were not recognized as citizens of the
tribe.
In January and March 2019, the Department filed reports
with the court reiterating the Department had mailed ICWA
notices to the three tribes and to the BIA and had received
responses in return.
At the permanency planning hearing in August 2019
(which was later rescheduled for a contested hearing), the
juvenile court and counsel discussed whether the ICWA applied
to the case. Counsel for the Department referred to the
Department’s March 2019 report, noting it included “quite a bit of
detail” as to the Department’s ICWA notices. The court indicated
it was reviewing the ICWA notices, stating, “I have before me the

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ICWA notices.” The court further stated, “The response from the
Indian tribes would not support ICWA findings. The tribes have
been identified as Cherokee, and there’s also been a response
from the Bureau of Indian Affairs, as well.” Based on the
information provided by the Department in its March 2019 report
and the court’s own review of the ICWA notices and responses to
those notices, the juvenile court held the ICWA did not apply to
either daughter or son.
Counsel for mother indicated he was not prepared to state
a position on the court’s ICWA ruling but would “look everything
over before the next court date.” Mother’s counsel assured the
court, “If I have any new information or note anything as I look
through the record, I will raise that at the trial setting
conference.” The court encouraged counsel, stating, “Please do it.
If there’s more information, by all means, I want to make sure we
address it,” and, “The court will revisit ICWA any time it comes
up in advance of the .26.” After the August 2019 hearing, no
ICWA challenges were raised below.
As previously noted, the contested permanency planning
hearing was held in February 2020, at which time the juvenile
court terminated mother’s and father’s parental rights to
daughter and son. These appeals followed.
DISCUSSION
1. Applicable Law
The ICWA seeks “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families.” (25 U.S.C. § 1902.) When the juvenile court knows
or has reason to know that an Indian child is involved in the
proceedings before the court, the ICWA requires that notice of the
proceedings and the right to intervene be given to the Indian

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child’s tribe. (25 U.S.C. § 1912(a).) California law requires notice
under the same circumstances. (Welf. & Inst. Code, § 224.3,
subd. (a).)
“Central to the protections ICWA provides is the
determination that an Indian child is involved. For purposes of
ICWA, an ‘Indian child’ is an unmarried individual under 18
years of age who is either (1) a member of a federally recognized
Indian tribe, or (2) is eligible for membership in a federally
recognized tribe and is the biological child of a member of a
federally recognized tribe. [Citations.] Being an ‘Indian child’ is
thus not necessarily determined by the child’s race, ancestry, or
‘blood quantum,’ but depends rather ‘on the child’s political
affiliation with a federally recognized Indian Tribe.’ ” (In re
Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.).)
“Under California law, the court and county child welfare
department ‘have an affirmative and continuing duty to inquire
whether a child,’ who is the subject of a juvenile dependency
petition, ‘is or may be an Indian child.’ ” (Austin J., supra, 47
Cal.App.5th at p. 883.) “California law also requires ‘further
inquiry regarding the possible Indian status of the child’ when
‘the court, social worker, or probation officer has reason to believe
that an Indian child is involved in a proceeding.’ (§ 224.2,
subd. (e).)” (Austin J., at p. 883.)
“In addition to the inquiry that is required in every
dependency case from the outset and the ‘further inquiry’
required under California law when there is a ‘reason to believe’
an Indian child is involved, a third step—notice to Indian tribes—
is required under ICWA and California law if and when ‘the court
knows or has reason to know that an Indian child is involved.’ ”
(Austin J., supra, 47 Cal.App.5th at pp. 883–884.) “The duty to

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provide notice is narrower than the duty of inquiry. Although the
duty of inquiry applies to every ‘child for whom a petition under
Section 300, 601, or 602 may be or has been filed’ (§ 224.2,
subd. (a)), and the duty of further inquiry applies when there is a
‘reason to believe that an Indian child is involved in a proceeding’
(§ 224.2, subd. (e)), the duty to provide notice to Indian tribes
applies only when one knows or has a ‘reason to know . . . an
Indian child is involved,’ and only ‘for hearings that may
culminate in an order for foster care placement, termination of
parental rights, preadoptive placement, or adoptive placement.’
(§ 224.3, subd. (a).)” (Austin J., p. 884.)
In 2018, our Legislature redefined “the ‘reason to know’
requirement that triggers the duty to give notice of the
proceedings to Indian tribes.” (Austin J., supra, 47 Cal.App.5th
at p. 884.) These changes took effect on January 1, 2019 (In re
A.M. (2020) 47 Cal.App.5th 303, 316) and mirrored existing
federal regulations, which expressly rejected broader or more
inclusive language “such as, ‘ “is or could be an Indian child” ’ or
‘ “may be an Indian child” ’ ” (Austin J., at p. 885). California and
federal regulations list the same six circumstances that
constitute “reason to know” a child involved in a proceeding is an
Indian child. Section 224.2, subdivision (d) provides: “There is
reason to know a child involved in a proceeding is an Indian child
under any of the following circumstances: [¶] (1) 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. [¶] (2) The residence or domicile of
the child, the child’s parents, or Indian custodian is on a
reservation or in an Alaska Native village. [¶] (3) Any participant

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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. [¶]
(4) The child who is the subject of the proceeding gives the court
reason to know that the child is an Indian child. [¶] (5) The court
is informed that the child is or has been a ward of a tribal court.
[¶] (6) The court is informed that either parent or the child
possess an identification card indicating membership or
citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)–(6); see also
25 C.F.R. § 23.107(c) (2020); Cal. Rules of Court, rule
5.481(b)(1)(A)–(F).) “[T]ribal ancestry is not among the criteria
for having a reason to know the child is an Indian child.” (Austin
J., at p. 885.)
2. Standard of Review
“ ‘The juvenile court must determine whether proper notice
was given under ICWA and whether ICWA applies to the
proceedings. [Citation.]’ [Citation.] When, as is the case here,
the facts are undisputed, we review independently whether the
requirements of ICWA have been satisfied. [Citation.] However,
we review the juvenile court’s ICWA findings under the
substantial evidence test, which requires us to determine if
reasonable, credible evidence of solid value supports the court’s
order.” (In re A.M., supra, 47 Cal.App.5th at p. 314.) Under this
standard, we uphold the juvenile court’s findings if any
substantial evidence, contradicted or uncontradicted, supports
them. We must resolve all conflicts in favor of the court’s
determination and indulge all legitimate inferences in favor of
affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
“A notice violation under ICWA is subject to harmless error
analysis. [Citation.] ‘An appellant seeking reversal for lack of

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proper ICWA notice must show a reasonable probability that he
or she would have obtained a more favorable result in the
absence of the error.’ ” (In re Autumn K. (2013) 221 Cal.App.4th
674, 715.)
3. No Reversible Error
Father challenges the juvenile court’s August 2019 finding
that the ICWA does not apply.3 Father claims the record does
not contain substantial evidence to support the court’s finding
because the ICWA notices sent to the tribes are not in the record
on appeal. As discussed below, we conclude ICWA notice was not
required and, assuming it was required, reasonable inferences
adequately support the juvenile court’s finding.
As noted above, ICWA notice is required when it is known
or there is “reason to know” a child is an Indian child. Here,
there is no indication anyone knew daughter and son were Indian
children. Thus, the relevant inquiry is whether there was
“reason to know” they were Indian children.
The record does not support a finding that any one of the
six “reason to know” criteria enumerated above was present. No
one informed the court that daughter or son was an Indian child;
neither the children nor their parents lived on a reservation or in
an Alaska Native village; no one informed the court that it had
discovered information indicating daughter or son was an Indian

3 The Department distinguishes between the juvenile
court’s explicit ICWA ruling at the August 2019 hearing and its
identical but implicit ICWA ruling at the final permanency
planning hearing in February 2020. For present purposes,
however, this is a distinction without consequence. The
applicable law and analysis is the same whether we consider the
August 2019 ruling or the February 2020 ruling.

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child; neither daughter nor son gave the court reason to know
they were Indian children; neither daughter nor son was or had
been a ward of a tribal court; there was no evidence mother,
father, or the children possessed an identification card indicating
membership or citizenship in an Indian tribe. (§ 224.2,
subd. (d)(1)–(6); 25 C.F.R. § 23.107(c) (2020).) Although early in
the proceedings, mother indicated she may have Cherokee
ancestry and, later, father and his grandmother stated there was
Indian heritage on his side of the family, a suggestion or
statement of Indian ancestry is insufficient to trigger the ICWA
notice requirement. “[T]ribal ancestry is not among the criteria
for having a reason to know the child is an Indian child.” (Austin
J., supra, 47 Cal.App.5th at p. 885.)
Thus, even if we assume the Department’s ICWA notices
were insufficient, any error was harmless because notice was not
required. Moreover, it is undisputed the Department sent ICWA
notices to the Cherokee tribes and the BIA, the Department
received responses to those notices, and the juvenile court
reviewed the notices and responses in court at the August 2019
permanency planning hearing. Contrary to father’s contention on
appeal, the juvenile court did not rely solely on representations
made by the Department. Rather the court stated, “I have before
me the ICWA notices,” then determined the notices were
sufficient and the ICWA did not apply. No one objected to the
court’s ruling. Although counsel for mother stated he took no
position on the matter and would review the evidence and advise
the court if he found anything objectionable or discovered new
information, he never raised any objections or new evidence with
the juvenile court. Thus, had ICWA notice been required, the

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record supports the reasonable inference that the Department’s
notices were sufficient.
4. Father’s Reply Brief
For the first time in his reply brief on appeal, father argues
we must issue a limited remand so that the Department can
conduct “further inquiry” under the ICWA. Although father did
not brief this issue in his opening brief, mother confusingly
expressed in her opening brief her intent to join in father’s brief
“for the purpose of acquiring a remand of the matter for proper
inquiry and notice pursuant to the Indian Child Welfare Act.”
Because mother mentioned further inquiry, the Department
addressed the issue briefly in its respondent’s brief, noting father
had not argued the point. Nonetheless, in his reply brief father
argues strenuously we must remand to allow the Department to
conduct further inquiry consistent with the ICWA. Father makes
statutory construction arguments and contends In re Austin J.,
supra, 47 Cal.App.5th 870 was incorrectly decided. We decline to
address father’s arguments made for the first time in his reply
brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
Although given ample opportunity to do so below, the
parties did not challenge the juvenile court’s August 2019 finding
that ICWA did not apply. Mother’s counsel indicated that if he
found any issues concerning ICWA compliance he would raise
them with the court. He never raised any such issues below.
Now on appeal, aside from ICWA compliance, neither father nor
mother challenges the juvenile court’s orders terminating their
parental rights to daughter and son. It is time to give the
children the permanency they deserve.4

4 It is worth mentioning it has not escaped our attention
that this appeal and the consequent delay to daughter’s and son’s

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 DISPOSITION
The February 27, 2020 orders are affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.

adoptions likely could have been avoided had the ICWA notices
been included in the record. Moreover, any perceived deficiency
in the notices is purely speculative and could have been, but was
not, challenged below by the parents. As discussed ante at pages
13–14, it is reasonable to infer the notices were sufficient.

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