In re M.C. CA2/5

Filed 9/16/20 In re M.C. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re M.C., a Person Coming B303482
Under the Juvenile Court
Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP00576A)
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and
Respondent,

v.

LOUIE C.,

Defendant and
Appellant.

APPEAL from orders of the Superior Court of Los
Angeles County, Sabina A. Helton, Judge. Conditionally
affirmed and remanded.
 John L. Dodd, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Peter Ferrera, Principal Deputy
County Counsel for Plaintiff and Respondent.
________________________________

Louie C. (father) challenges the juvenile court’s order
placing M.C. (minor) in a legal guardianship under Welfare
and Institutions Code section 366.26.1 Father contends
there was insufficient evidence to support the juvenile
court’s determination that the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) did not apply. Respondent
Los Angeles County Department of Children and Family
Services (Department) contends father has not shown
prejudicial error, and alternatively requests that any
remand be limited. We conditionally affirm and remand the
case for the limited purpose of compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Because the sole issue raised in father’s appeal is
ICWA compliance, we focus primarily on the facts and
procedural background relevant to that issue. Minor was
detained in January 2018, based on a history of domestic
violence between A.B. (mother) and father, and substance

1 All statutory references are to the Welfare and
Institutions Code, unless stated otherwise.

2
abuse. At the detention hearing, mother signed and filed a
Parental Notification of Indian Status (ICWA-020) form,
claiming possible Cherokee Indian ancestry through her
grandfather, Ernest B. During the hearing, mother
explained that her possible Cherokee ancestry was on her
paternal grandfather’s side of the family. After the court
gave a brief explanation of ICWA, it asked mother to identify
anyone the Department could speak with who might have
information about mother’s claim of Indian ancestry.
Mother identified her paternal grandfather, confirming that
he was still alive. The court directed mother to provide her
paternal grandfather’s phone number to the social worker,
and ordered the Department to investigate. Minor’s counsel
asked the court to consider maternal aunt as a relative
placement.
The Department’s February 2018 jurisdiction and
disposition report notes mother’s claim of Cherokee ancestry
and that mother stated that she would provide the social
worker with information. The Department stated it would
“continue to assess for ICWA eligibility and send out notices
as required.” On the question of relative placement, the
Department had been in contact with both maternal aunt
Alisha B. and F.P., who identified herself as mother’s first
cousin.
According to a September 2018 last minute information
report, mother was unable to provide a name or date of birth
for her paternal grandfather, and claimed he had recently
passed away. The Department reported it would “continue

3
to collaborate with mother in an effort to appropriately
address ICWA.” Mother also asked the Department to
consider placing minor with her brother, A.B, or a maternal
aunt, N.B., who lives in New Orleans. On September 25,
2018, after father filed a motion under Code of Civil
Procedure section 170.6 and the case was transferred, the
newly-assigned judge noted that mother “at one point
indicated that her recently deceased grandfather was
Cherokee Indian, and it was not followed up on in the other
court.” The court then ordered notices for the Cherokee
Nation and the Bureau of Indian Affairs.
In a November 2018 last minute information report,
the Department reported that mother claimed possible
Cherokee ancestry, but she was unable to provide a name or
date of birth for the relative that might have Indian history.
Nevertheless, the Department reported it “sent notice to the
following tribes/agencies in an effort to assess for ICWA:” the
Cherokee Nation, the United Keetoowah Band of Cherokee
Indians, the Eastern Band of Cherokee Indians, the Bureau
of Indian Affairs (“BIA”), and the Secretary of the Interior.
The Department attached return receipts and the one
response denying minor was ICWA eligible, but it did not
attach a copy of the ICWA-030 notice.
The Department’s January 7, 2019 last minute
information report included the same information and
attachments. At the January 7, 2019 disposition hearing,
father filed a Parental Notification of Indian Status (ICWA-
020) denying any Indian ancestry. After minor’s counsel

4
noted that mother had claimed Indian ancestry, the court
confirmed that enough time had lapsed since the
Department mailed the ICWA notices, and determined that
there was no reason to know that minor was an Indian child
and ICWA did not apply to the case. The court’s written
minute order instructed the parents “to keep the
Department, their Attorney and the Court aware of any new
information relating to possible ICWA status.” During the
hearing, minor’s counsel sought an order to prevent the
Department from removing minor from maternal cousin’s
home, absent exigent circumstances, stating, “He has been
there for quite some time and I believe that placement is the
most appropriate for him now.” The Department objected,
noting there had been some family conflict and mother had
expressed some concerns to the social worker. After noting
that the Department could respond to any concerns, it
ordered that minor not be removed “absent an emergency or
prior court order.”
On May 10, 2019, minor was placed in the home of
maternal aunt Alisha B. The Department’s section 366.26
report recommended that minor’s permanent plan should be
a legal guardianship with maternal aunt Alisha B., as she
wanted to be appointed legal guardian, but was not ready to
pursue adoption. On December 20, 2019, after the court
found that minor was living with a relative who was not
willing to adopt, but was willing to provide a stable and
permanent environment through legal guardianship, it

5
appointed Alisha B. as minor’s legal guardian and
terminated jurisdiction. Father filed a notice of appeal.

DISCUSSION

Father contends there was insufficient evidence to
support the court’s finding that ICWA was inapplicable, and
so the December 2019 order placing minor in a legal
guardianship should be reversed. The Department argues
that mother’s statements were inadequate to require either
notice or further inquiry into her claims of Indian ancestry.
The Department also argues that any error was harmless,
and to the extent we find prejudicial error, our remand
should be limited, solely directing the juvenile court to order
the Department to conduct additional inquiry into mother’s
claim of Indian heritage and report the results to the court
for such additional findings and orders required under
ICWA. In his reply brief, father urges us to find prejudicial
error and reject the Department’s argument that a limited
remand is warranted.

Overview of governing law

“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large
numbers of Indian children from their families and tribes

6
through adoption or foster care placement, usually in non-
Indian homes.’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th
1, 7–8 (Isaiah W.).) “In California, . . . persistent
noncompliance with ICWA led the Legislature in 2006 to
‘incorporate[] ICWA’s requirements into California statutory
law.’ [Citations.]” (In re Abbigail A. (2016) 1 Cal.5th 83, 91;
see also In re Breanna S. (2017) 8 Cal.App.5th 636, 650
(Breanna S.) [California law “incorporates and enhances
ICWA’s requirements”].) Both ICWA and California 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); § 224.1, subds. (a) & (b); see also
In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783 (Elizabeth
M.).)
Noncompliance with ICWA inquiry or notice
requirements may be raised by either parent on appeal from
an order terminating parental rights, even if the parent did
not appeal an earlier order finding the ICWA inapplicable,
and even if the appealed order did not contain an express
ICWA finding. (Isaiah W., supra, 1 Cal.5th at pp. 9–15
[continuing duty under ICWA]; In re A.M. (2020) 47
Cal.App.5th 303, 314, fn. 4 [absence of express finding does
not diminish requirement of a current ICWA finding]; In re
A.W. (2019) 38 Cal.App.5th 655, 665 [a non-Indian parent
has standing to raise an ICWA violation on appeal].)
Because father is appealing from the court’s December
2019 order, and the juvenile court has a continuing duty to

7
determine whether ICWA applies, we apply the federal and
state statutes in effect on the date of the hearing. (§§ 224.2,
224.3 [Stats. 2018, ch. 833, §§ 4–7]; In re A.M., supra, 47
Cal.App.5th at p. 315.)
We review the trial court’s ICWA findings for
substantial evidence. (In re Hunter W. (2011) 200
Cal.App.4th 1454, 1467.) We must uphold the court’s orders
and findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts
in favor of affirmance. (In re Alexzander C. (2017) 18
Cal.App.5th 438, 446.)

Duty of inquiry

The court and the Department have an affirmative and
continuing duty under ICWA and related California law to
inquire whether a child who is the subject of a dependency
proceeding is or may be an Indian child. (Isaiah W., supra, 1
Cal.5th at pp. 7–8.) The scope of the duty of inquiry is
defined in regulations promulgated under ICWA (see 25
C.F.R. § 23.107 et seq. (2018)) and sections 224.2 and 224.3.
As discussed in two recent cases, California law imposes a
duty of initial inquiry in every case, and a duty of further
inquiry when there is reason to believe a minor may be an
Indian child under ICWA. (In re Austin J. (2020) 47
Cal.App.5th 870, 883 (Austin J.); In re D.S. (2020) 46
Cal.App.5th 1041, 1048–1049.)

8
 The Department’s initial duty of inquiry at the
beginning of a child welfare proceeding includes “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.” (§ 224.2, subd. (b).)
The court must inquire at each party’s first appearance,
whether any participant in the proceeding “knows or has
reason to know that the child is an Indian child.” (§ 224.2,
subd. (c).) Part of the initial inquiry also includes requiring
each party to complete California Judicial Council form
ICWA-020, Parental Notification of Indian Status. (Former
Cal. Rules of Court, rule 5.481(a)(2).)
When there is reason to believe that an Indian child is
involved in a proceeding, further inquiry is required. (Austin
J., supra, 47 Cal.App.5th at p. 883; In re D.S., supra, 46
Cal.App.5th at pp. 1048–1049.) As relevant here, further
inquiry includes interviewing parents and extended family
members to obtain information such as the names of the
child’s “biological parents, grandparents, and great-
grandparents . . . 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.”
(§ 224.2, subd. (e)(1); 224.3, subd. (a)(5)(C).) The agency
engaging in further inquiry is also required to contact the
BIA, the State Department of Social Services and any tribes
the child may be affiliated with, and anyone else that might

9
have information regarding the child’s membership or
eligibility in a tribe. (§ 224.2, subd. (e)(2) & (e)(3).) Before
the January 1, 2019 amendments to the Welfare and
Institutions Code took effect, the Department was still under
a duty of further inquiry, described as follows: “If the court
or social worker ‘knows or has reason to know’ the child is or
may be an Indian child, the social worker ‘is required to
make further inquiry regarding the possible Indian status of
the child, and to do so as soon as practicable, by interviewing
the parents, Indian custodian, and extended family
members’ and ‘any other person that reasonably can be
expected to have information regarding the child’s
membership status or eligibility’ in order to ‘gather the
information required.’ . . . [Citations.]” (In re N.G. (2018)
27 Cal.App.5th 474, 481.)

Duty to notify Indian tribes

If the court “knows or has reason to know that an
Indian child is involved” in a dependency proceeding, the
Department must notify the Indian child’s tribe of the
pending proceedings and of their right of intervention. (25
U.S.C. § 1912(a); 25 C.F.R. § 23.111(a)–(c) (2018); see also
§ 224.3, subd. (a).) Statutory amendments that took effect in
2019 conformed California law to the federal regulations
that define “reason to know” as existing when one of six
criteria are met. (§ 224.2, subd. (d); In re A.M., supra, 47
Cal.App.5th at pp. 315–316.) Under the criterion most

10
relevant here, a court has “reason to know” the child is an
Indian child 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) (2018); § 224.2, subd. (d)(1);
In re A.M., at p. 315.) A mere claim of tribal ancestry,
without more, does not give rise to a “reason to know” that
would trigger the duty to provide notice. (See, e.g., In re
A.M., at p. 315 [reason to know is a limited definition, and
the duty to provide notice is narrower than the duty of
inquiry].)
When ICWA notice is required, it must be sent by
registered or certified mail with return receipt requested.
(25 C.F.R. § 23.111(c) (2018); § 224.3, subd. (a)(1).) Copies of
the notice and any return receipts or other proof of service
must be filed with the court. (25 C.F.R. § 23.111(a)(2)
(2018); § 224.3, subd. (c); Cal. Rules of Court, rule 5.482(b).)

Analysis of father’s arguments

Father contends the Department fell short on its
inquiry and notice obligations under ICWA. The
Department does not dispute that its ICWA notices were
never filed with, or reviewed by, the juvenile court. Rather,
the Department argues that father cannot show prejudicial
error because the information mother provided was

11
insufficient to require either further inquiry or notice under
ICWA.
We first conclude that the juvenile court erred when it
found ICWA inapplicable without first reviewing copies of
the ICWA notices. (In re Louis S. (2004) 117 Cal.App.4th
622, 629 (Louis S.) [when an agency sends ICWA notices to
one or more tribes but fails to file copies of the notices or the
return receipts, the juvenile court lacks sufficient
information to determine whether there was compliance
with ICWA’s notice requirements]; see also In re Karla C.
(2003) 113 Cal.App.4th 166, 175–179; 25 C.F.R.
§ 23.111(a)(2) (2018); § 224.3, subd. (c) [requiring notice to be
filed].) In Louis S., the agency sent ICWA notices to one
tribe and the BIA. (Louis S., supra, at p. 627.) The agency
filed the negative response received from the tribe, but did
not include copies of the notices or any return receipts. (Id.
at p. 629.) The appellate court found error, reasoning that
responses filed without copies of the notices sent “are
insufficient because it is impossible to determine from the
responses alone whether the notices provided the tribe with
relevant information and therefore with a meaningful
opportunity to evaluate whether the dependent minor is an
Indian child within the meaning of the ICWA.” (Ibid.) Here
too, the juvenile court had no way to know what information
the Department included in the notice, because no copy had
been filed. The court therefore lacked adequate information
to make a determination that minor was not an Indian child
under ICWA.

12
 The Department argues that any error was harmless
because the information mother provided was inadequate to
create a duty of further inquiry under section 224.2,
subdivision (e)(1) or a duty to give notice under section
224.3, subdivision (a). We reject the Department’s
argument. While it is true that errors in ICWA notices may
be found harmless in certain situations, here, the
Department cannot rely on its own failures to argue that
father has not demonstrated prejudicial error. (In re K.R.
(2018) 20 Cal.App.5th 701, 708–710 [agency cannot rely on
absence of documentation to argue that appellant’s claim of
ICWA error must fail on appeal]; In re N.G., supra, 27
Cal.App.5th at p. 483 [deficiencies in ICWA notices may be
harmless in some circumstances]; In re Andrew S. (2016) 2
Cal.App.5th 536, 548 [Department had duty to conduct
further inquiry on remand, where it was aware that father
had siblings].)
The record lacks evidence that the Department even
met the initial duty of inquiry under section 224.2,
subdivision (b), and later reports demonstrate that the
Department either ignored or lost track of the relevant
information it already possessed. California law tasks the
agency conducting initial inquiry to obtain information not
only from parents, but also the minor, extended family
members, and the party reporting child abuse or neglect.
(§ 224.2, subd. (b).) At the beginning of the case in January
2018, mother informed the court that she believed she had
possible Cherokee ancestry through her paternal

13
grandfather, identifying him by name, Ernest B. She
confirmed he was still alive and agreed to provide his contact
information to the social worker. In February 2018, the
Department was in contact not only with mother, but also
with two of mother’s relatives, including the maternal aunt
who later became minor’s legal guardian. But there is no
evidence in the record that the Department asked any of
mother’s relatives about mother’s claim of Cherokee
ancestry, even though the Department remained in contact
with the relatives and with mother throughout the course of
the proceeding. The record shows that the Department was
also aware that mother had additional relatives, including a
brother and a maternal aunt, both of whom mother had
identified as additional placement options, but there is no
evidence that those relatives were ever contacted.
Making matters worse, on two separate occasions, the
Department gave reports that contradicted the information
mother had already provided. Even though mother had
already provided her grandfather’s name at the hearing in
January 2018, the Department reported in September 2018
that mother was unable to provide her grandfather’s name
and that she claimed he had recently passed away. In
November 2018, in the same report that provided the court
with copies of return receipts and a response to the ICWA
notice, it reported mother “has been unable to provide a
name or date of birth for the relative(s) that might have
Indian history.” These later reports inexplicably ignore the
information mother had already provided.

14
 Based on the absence of any evidence that the
Department made efforts to satisfy even its initial inquiry
duties under ICWA and related state law, we are unable to
determine whether further inquiry or notice would have
been required in this case. The Department’s failure to file
the ICWA notices it did send also made it impossible for
juvenile court or this court to determine whether any
relevant info, even mother’s grandfather’s name, was
included in the notices. On the record before us, we conclude
the juvenile court lacked sufficient evidence to make any
determination about whether ICWA applied, and we cannot
find the error to be harmless. We remand the matter for the
limited purpose of having the juvenile court order the
Department to provide a more complete report of its inquiry
and notice efforts. Based on the information provided, the
juvenile court must then determine whether further actions
are necessary to satisfy the duties under ICWA and related
California law. (In re K.R., supra, 20 Cal.App.5th at p. 709
[limited remand]; Elizabeth M., supra, 19 Cal.App.5th at
p. 788 [same].)

15
 DISPOSITION

The December 2019 order of legal guardianship under
section 366.26 is conditionally affirmed. The matter is
remanded to the juvenile court, with directions that the
juvenile court order the Department to file copies of the
ICWA notices previously sent, as well as a report detailing
its inquiry efforts. The juvenile court may then decide
whether additional inquiry or notice is required under ICWA
and related California law. If nothing further is required,
the court shall reinstate the guardianship order. If notice is
required and a tribe responds that M.C. is an Indian child,
then further proceedings shall be conducted under ICWA.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.

16