In re B.M. CA2/1

Filed 9/28/20 In re B.M. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re B.M., B304289

a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 19CCJP07423)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

SYLVIA B.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Martha A. Matthews, Judge. Conditionally
affirmed and remanded with directions.
 Landon Villavaso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Tracey Dodds, Deputy County Counsel, for
Plaintiff and Respondent.

_____________________

Sylvia B. (Mother) appeals from the juvenile court’s
January 13, 2020 jurisdictional and dispositional orders
concerning her child, B.M. Mother contends the juvenile court
erred in entering the orders notwithstanding (1) the failure of the
Los Angeles County Department of Children and Family Services
(DCFS) to comply with the court’s prior order to interview B.M.’s
paternal aunt as to B.M.’s possible Indian heritage under the
Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and its
corresponding provisions under California law (see Welf. & Inst.
Code, § 224 et seq.), and (2) the juvenile court’s failure to first
determine the applicability of ICWA. Mother argues that we
should conditionally reverse the dispositional order removing
B.M. from her care and remand for DCFS and the court to comply
with ICWA.
DCFS concedes the matter should be remanded so that a
proper inquiry may be made into B.M.’s Indian heritage, but
argues reversal of the orders is not warranted. We agree.1

FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the facts to those relevant to the
ICWA issue on appeal.

1 Mother did not file an appellate reply brief.

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 In 2011, B.M. was born. In January 2014, a petition was
filed alleging Mother was unable to provide regular care of B.M.
due to substance abuse, and Antonio M. (Father) was unable to
provide regular care for B.M. due to substance and alcohol abuse.
Mother participated in substance abuse treatment. On June 27,
2014, the juvenile court dismissed the petition, and released B.M.
into Mother’s care.
On September 24, 2019, DCFS was advised of concerns
relating to Mother’s substance abuse and living conditions at
Father’s home.2 DCFS initiated an investigation. On
November 14, 2019, B.M. was detained and placed with her
paternal cousin.
On November 18, 2019, DCFS filed a petition under
Welfare and Institutions Code section 300 and a detention report.
Both documents indicated that B.M. may have Indian ancestry.
According to the report, during an October 30, 2019 interview
with Mother, she stated that the paternal aunt, Linda, wanted to
care for B.M. because “[B.M.] has Native American [a]ncestry and
[paternal aunt] wants the child for financial gain.” During a
November 4, 2019 interview with Father, he stated that he tries
“to remain connected to his ‘[s]piritual roots,’ has tribal
affiliation, and attends Pow Wows.”
On November 19, 2019, Mother and Father filed forms with
the juvenile court relating to B.M.’s status as an Indian child. On
her form, Mother checked the box “I have no Indian ancestry as
far as I know.” Father’s form includes a checked box that he
“may have Indian ancestry” and a handwritten notation of
“Yaqui; Arizona; Antonio M[.]”

2 Mother and B.M. stayed at Father’s home occasionally.

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 At the November 19, 2019 detention hearing, the juvenile
court and Father discussed his Indian status:
“The Court: . . . Do you, sir, have a tribal membership
number or card?
“The Father: No, ma’am.
“The Court: Is anyone in your family an actual member of
an Indian tribe?
“The Father: We don’t got no role number. I’ve been
working on that, though. [¶] . . .
“[Father’s Counsel]: My client does indicate that his
family, his mother and father, were enrolled members, but they
have both passed away.
“The Court: Okay. In your family—[DCFS] is going to
need to have information like their names, their dates of birth,
dates of death, place where they were born, things like that. Who
is the person in your family who would know the most about
that?
“The Father: Most likely would be my sister[, Linda].
She’s present. [¶] . . .
“The Court: I’m going to order that [DCFS] interview
paternal aunt, Linda, and any other knowledgeable paternal
family members. And once [DCFS] has obtained all available
information, [DCFS] is to provide notices as required by [ICWA].
This may actually be an [ICWA] case. And if so, we could later
consider transferring it to the [ICWA] court. Let’s get the
information first.”3

3 In its November 19, 2019 minute order, the juvenile court
ordered DCFS “to contact the Father’s side of the family for
Indian heritage and investigate that claim. DCFS is ordered to
notice the Indian tribes and the Bureau of Indian Affairs to

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 The juvenile court concluded that DCFS made a prima facie
showing that B.M. came within the court’s dependency
jurisdiction, ordered temporary placement and custody be vested
with DCFS pending disposition, and advised Mother and Father
that they should be present at the jurisdictional and dispositional
hearing, scheduled for January 13, 2020.
On December 30, 2019, DCFS filed a jurisdiction and
disposition report. As to B.M.’s Indian status, DCFS reported:
“On 11/19/19[,] the court found that it is believed the paternal
relatives have possible Indian heritage. [¶] On 12/18/19[,
dependency investigator] spoke with paternal cousin . . . who
indicated that no one in the family is enrolled in any tribes but
believes that there is Yawkey heritage in the family. [Paternal
cousin] was unable to provide much information but indicated
that she would contact her mother to obtain any information
possible. However, it should be noted that the Yawkey [t]ribe is
not federally recognized. It should also be noted that there is a
‘Pascua Yaqui Tribe.’ . . . Therefore, on 12/26/19[, dependency
investigator] submitted a notice to the Pascua Yaqui Tribe. [¶]
Please note that on 01/10/14[,] the court found that [ICWA] does
not apply.” (Bold omitted.) According to the same report, the
investigator had a telephonic conference with Linda, the paternal
aunt, and paternal cousin, together, that same day, December 18,
2019. The report does not disclose why DCFS did not pose
questions relating to B.M.’s possible Indian heritage directly to
paternal aunt.

determine if this case falls within [ICWA]. DCFS is ordered to
provide any notices and responses from the Indian tribe in the
jurisdictional report for the next court date.”

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 DCFS’s December 26, 2019 notice to the Pascua Yaqui
Indian Tribe included information for Father, Father’s biological
father, and Father’s biological grandmother. For Father, the
notice listed his name, birthdate, address, and tribe as Pascua
Yaqui. For both Father’s biological father and Father’s biological
grandmother, in the spaces provided for their names, the notice
again stated Father’s name: Antonio M[.] For Father’s father,
the notice also stated his birthdate, his tribe as Pascua Yaqui,
and his former address and place of death as “East Los Angeles,
CA.” It did not state his place of birth or the date of his death.
For Father’s grandmother, the notice stated her former address
and place of death as “Arizona” and her tribe as Pascua Yaqui. It
did not state her birthdate, death date, or place of birth.
According to the certificate of mailing, the notice was sent by
registered or certified mail, return receipt requested.
Neither Mother nor Father attended the January 13, 2020
jurisdictional and dispositional hearing. The court sustained
DCFS’s Welfare and Institutions Code section 300 petition as to
both parents and declared B.M. a dependent of the court. As to
disposition, Mother’s counsel stated, “Your honor, on behalf of . . .
Mother, I don’t have direction in terms of the case plan for . . .
Mother, so I will be submitting to the court.” The court ordered
B.M. removed from the custody of both parents and placed in the
care, custody and control of DCFS, and ordered DCFS to provide
family reunification services to Mother and Father. During the
hearing, the court noted that B.M. was currently living with her
paternal cousin.
At the conclusion of the hearing, DCFS’s counsel stated
that notice relating to possible Indian ancestry was sent, but that
DCFS did not receive any return receipts. Further, she stated

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that there may be an error as to names provided in the notice,
referred the court to Father’s biological grandmother’s purported
name stated as Antonio [M.] as evidence of the possible error, and
asked if DCFS could provide a progress report upon following up
on this issue. The court responded that, as to Father’s Indian
heritage, “It seems legit . . . Father actually attends tribal
events.” The court ordered that DCFS continue to follow up and
schedule a non-appearance progress review hearing regarding
ICWA compliance for April 14, 2020.
On January 13, 2020, Mother filed a notice of appeal
relating to the court’s jurisdictional and dispositional orders.
On March 24, 2020, the juvenile court continued the
April 14, 2020 non-appearance progress report hearing to
May 20, 2020 due to COVID-19. The juvenile court’s docket
indicates that the May 20, 2020 progress report hearing was also
cancelled, presumably again due to COVID-19.
On July 29, 2020, DCFS filed its report in advance of the
six-month review hearing scheduled for September 14, 2020.4 As
to B.M.’s status as an Indian child, the report states that “[o]n
01/10/2014, the [c]ourt found that [ICWA] does not apply as to
[B.M.]”

DISCUSSION
Mother argues that DCFS failed to interview paternal aunt
to obtain information concerning Father’s Indian heritage. She
further argues the juvenile court erred in issuing the

4 This hearing was also continued to September 14, 2020
due to COVID-19. According to a September 14, 2019 minute
order, the juvenile court again continued the matter to
October 19, 2020.

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dispositional order without first determining whether ICWA
applied and providing the tribe an opportunity to intervene if
necessary. Specifically, she contends B.M.’s placement with
paternal cousin is “foster care placement” under ICWA and that
ICWA imposes a heightened evidentiary standard if a child is to
be placed in foster care.5 Thus, she argues, the dispositional
order must be conditionally reversed to allow the Indian tribe to
intervene and the matter should be remanded to allow an
adequate inquiry to be made.
DCFS does not dispute “it failed to make an adequate
inquiry” and that the matter “needs to be remanded so that
proper inquiry is made, and then, if there is a reason to know the
child may be an Indian child, ICWA notices sent.” Accordingly,
we limit our opinion to the issue of whether the jurisdictional and
dispositional orders must be reversed.
When an Indian child is involved, both ICWA and Welfare
and Institutions Code section 224.3 require notice to the Indian
tribe before a foster care placement or termination of parental
rights proceeding may take place. (25 U.S.C. § 1912, subd. (a);
Welf. & Inst. Code, § 224.3, subd. (a).)
However, courts have held that failure to comply with
ICWA requirements is not a jurisdictional error, and does not
require the reversal of a juvenile court dispositional order. (In re
Brooke C. (2005) 127 Cal.App.4th 377, 385 [“the only order which

5 Although Mother does not state so explicitly, her
arguments suggest the dispositional order was erroneous because
ICWA provides that “No foster care placement or termination of
parental rights proceeding shall be held until at least ten days
after receipt of notice by the parent or Indian custodian and the
tribe or the Secretary . . . .” (25 U.S.C. § 1912, subd. (a).)

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would be subject to reversal for failure to give [ICWA] notice
would be an order terminating parental rights”]; accord, In re
Veronica G. (2007) 157 Cal.App.4th 179, 187 [holding
jurisdictional and dispositional orders did not warrant reversal
for failure to comply with ICWA].) Rather, the proper remedy is
to conditionally affirm the dispositional order and remand for the
limited purpose of ICWA compliance. (See In re Kadence P.
(2015) 241 Cal.App.4th 1376, 1379; In re Veronica G., supra, at
p. 188; In re Brooke C., supra, at p. 386.)

DISPOSITION
The juvenile court’s jurisdictional and dispositional orders
are conditionally affirmed, and the matter is remanded to the
juvenile court for the limited purpose of ICWA compliance. If the
court thereafter determines that B.M. is an Indian child and the
ICWA applies to these proceedings, the court is to vacate the
current order and proceed accordingly.
NOT TO BE PUBLISHED

SINANIAN, J.*

We concur:

ROTHSCHILD, P. J. BENDIX, J.

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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