In re Amanda S. CA2/3

Filed 8/18/21 In re Amanda S. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re Amanda S., a Person B310425
Coming Under the Juvenile
Court Law. Los Angeles County
Super. Ct. No. 18CCJP07515B
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.H.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Craig S. Barnes, Judge. Conditionally
reversed with directions.
Jacob I. Olson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
_________________________
 Father appeals from the juvenile court’s order terminating
his parental rights to Amanda, now ten years old, under
Welfare and Institutions Code1 section 366.26. He does not
contest the merits of that decision. Rather, father challenges
the court’s finding that it had no reason to know Amanda was
an Indian child before ordering his parental rights terminated.
Father contends the finding was in error because the juvenile
court and Los Angeles County Department of Children and
Family Services (Department) failed to comply with their duty
of initial and continual inquiry into whether Amanda was
an Indian child under the Indian Child Welfare Act of 1978
(25 U.S.C. § 1901 et seq.) (ICWA). We agree the Department
failed to complete its inquiry into the potential application
of ICWA through mother’s parentage, and the juvenile court
failed to ensure the Department made its required inquiry
before implicitly finding ICWA did not apply. We therefore
conditionally reverse the order terminating father’s parental
rights and remand for further proceedings.
BACKGROUND
Because father’s appeal raises only the issue of ICWA
compliance, our summary of the factual and procedural history
is brief. Amanda is father’s only child. Her older maternal
half-sister, Faith, is also involved in this dependency case. Only
Amanda is the subject of this appeal; mother did not appeal.
Amanda and Faith each were subject to the juvenile
court’s jurisdiction in earlier, separate dependency proceedings.
Amanda became a dependent of the juvenile court in July 2013.

1 Statutory references are to the Welfare and Institutions
Code.

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In June 2015, the court terminated its jurisdiction and released
Amanda to home of parents.
1. Summary of current dependency proceeding
The family again came to the attention of the Department
in August 2018 when it received a report alleging mother
and father had engaged in domestic violence while Amanda
was home.2 Mother left the home.
The record shows the Department was unable to reach
mother until October 19, 2018, when she called Amanda
on her iPad and a social worker briefly spoke to her. The
Department’s next contact with mother was by telephone
on November 7 and 8, 2018. The social worker explained why
the Department had been trying to reach mother (since August).
Mother told the social worker she was in Sacramento looking
for work and would not be back “for quite some time.”
In November 2018, the Department filed a section 300
petition on behalf of Amanda and Faith based on parents’ history
of domestic violence and mother’s history of substance abuse,
amended in January 2019 to add allegations about father’s
substance abuse and criminal history. The court detained
Amanda from both parents on November 26, 2018.
The Department could not reach mother or father in
January 2019. In its January 14, 2019 jurisdiction/disposition

2 Faith was living with maternal grandmother. In 2007,
the juvenile court declared Faith a dependent (along with
another child of mother’s). Maternal grandmother became
Faith’s legal guardian in 2008, but the court terminated the
legal guardianship in October 2015 and ordered Faith home
of mother. It is unclear when Faith returned to maternal
grandmother’s care.

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report, the Department reported mother’s whereabouts
were unknown and she had not maintained contact with
the Department.
The juvenile court partially sustained the amended
petition on February 4, 2019, placing Amanda with maternal
grandmother.3 After that hearing, the Department had contact
with mother twice in February 2019 and twice in June 2019.
The social worker attempted to explain the reunification
process to mother, but each time mother said she did not want
to participate in any court ordered services. The Department
reported mother “refused to answer any questions, sign consent
forms for the minors or participate with any court orders at
this time.” Father also refused to meet with the Department
or participate in any court ordered services.
The court terminated father’s and mother’s reunification
services on September 25, 2019, and January 22, 2020,
respectively. Neither parent was present at those hearings or
at an earlier review hearing in August 2019. By the January 22,
2020 hearing, mother “ha[d] . . . gone missing.” The Department
had conducted a due diligence search for her for two months
to no avail. Mother’s whereabouts remained unknown until
May 2020, when maternal grandmother reported mother had
moved to Oklahoma.
Due to the pandemic, the matter was continued until
February 2021. (Mother returned to California at some point
before then.) The juvenile court held a section 366.26 hearing

3 Although parents did not attend the February 4, 2019
combined jurisdiction and disposition hearing, maternal
grandmother did.

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on February 1, 2021, that it continued to February 8. At the
February 1 hearing, counsel entered a special appearance on
mother’s behalf to request a continuance to assess whether any
Ansley issues existed.4 That brief hearing was held over Webex;
mother made no statements, but the court’s minute order states
she and father were present.
Neither parent appeared at the continued February 8
hearing, however. The court found the children adoptable,
terminated mother’s and father’s parental rights, and designated
maternal grandmother as the prospective adoptive parent.
2. Facts relating to ICWA inquiry
The Department’s November 21, 2018 detention report
states ICWA does not apply. The Department reported father
denied Amanda had any Native American heritage, and, based
on the Department’s September 2006 jurisdiction report (relating
to the earlier dependency involving Faith), mother signed a
“DCFS 5649” stating her children did not have Indian ancestry.
The Department also attached to its section 300 petition two
ICWA-010(A) forms with the social worker’s declarations that
Amanda and Faith had no known Indian ancestry based on
the Department’s questioning of father on September 27, 2018,
and of mother in 2006, respectively.
Father, the children, paternal grandmother, and maternal
grandmother were present at the November 26, 2018 detention
hearing; mother was not. That same day, father signed and filed

4 Counsel was referring to the discussion in Ansley v.
Superior Court (1986) 185 Cal.App.3d 477, 480 concerning
the absence of due process as undermining the court’s initial
jurisdiction. At the February 8, 2021 hearing, counsel confirmed
mother was not raising any Ansley issues.

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an ICWA-020 form stating he had no Indian ancestry. The court
acknowledged father’s denial of American Indian heritage
on the record. The court then asked maternal grandmother
if mother had “any American Indian heritage?” She responded,
“My grandmother. But it has not been documented.” When
the court asked, “Was a tribe ever mentioned,” she said, “No.”
The court then made the following order:
“Okay. So I’m going to order the Department
to contact you, grandma, and they’re going to
ask you some additional questions. If a tribe is
identified[,] I’ll order notice to the Tribe Bureau
of Indian Affairs, Department of the Interior.
If no tribe is identified, no notice is required.”
The court’s minute order entered after the hearing states,
“The Court does not have a reason to know [Amanda] is an
Indian Child, as defined under ICWA.” The court ordered
parents to keep the Department, their attorneys, and the court
“aware of any new information relating to possible ICWA status.”
The Department’s jurisdiction/disposition report notes that,
on November 26, 2018, the court found ICWA does not apply.
The Department’s status review reports filed July 24, 2019 and
December 30, 2019, state ICWA “does or may apply.” Thereafter,
the Department’s reports, including its section 366.26 reports,
reiterate that, on November 26, 2018, the court found ICWA
did not apply.
DISCUSSION
Father contends the juvenile court’s order terminating his
parental rights must be conditionally reversed because the court
and Department failed to comply with ICWA’s “initial inquiry
and continual duty of inquiry requirements.” He argues his

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“sole challenge” to the court’s ICWA finding is that “the court had
no reason to know whether Amanda was an Indian child before
ordering parental rights terminated because . . . the court fail[ed]
to comply with the ICWA initial inquiry.”
1. ICWA inquiry requirements
“ICWA reflects ‘a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards that a state court . . . must follow before removing
an Indian child from his or her family.’ [Citation.] Both ICWA
and the Welfare and Institutions Code define an ‘Indian child’ as
‘any unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of
an Indian tribe.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565,
fn. omitted (D.F.).) “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 juvenile court and the
Department have “an affirmative and continuing duty to inquire”
whether a child subject to a section 300 petition “may be an
Indian child.” (§ 224.2, subd. (a); D.F., supra, 55 Cal.App.5th at
p. 566.)5 “This continuing duty can be divided into three phases:

5 As the Department notes, the Legislature enacted changes
to the state’s ICWA-related statutes, including section 224.2,
effective January 1, 2019. (See Austin J., supra, 47 Cal.App.5th
at p. 884.) Because father challenges the court’s implicit finding
that it had no reason to know Amanda was an Indian child

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the initial duty to inquire, the duty of further inquiry, and the
duty to provide formal ICWA notice.” (D.F., at p. 566.) The
Department’s initial duty to inquire “includes, but is not limited
to, asking the child, parents, legal guardian, Indian custodian,
extended family members, others who have an interest in the
child, and the party reporting child abuse or neglect, whether
the child is, or may be, an Indian child . . . .” (§ 224.2, subd. (b).)
The juvenile court, in turn, must make a similar inquiry when
each parent first appears in court: “[T]he court shall ask each
participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child.” (Id.,
subd. (c); D.F., at p. 566; Cal. Rules of Court, rule 5.481(a)(2)(A).)6
A duty of further inquiry arises when the Department
or the juvenile court “has reason to believe that an Indian child
is involved in a proceeding.” (§ 224.2, subd (e).) This further
inquiry “includes: 1) interviewing the parents and extended
family members to gather required information; 2) contacting the
Bureau of Indian Affairs and State Department of Social Services
for assistance in identifying the tribes in which the child may

underlying its February 8, 2021 order terminating his parental
rights, the current statute—as amended in 2020—applies. (See
In re A.M. (2020) 47 Cal.App.5th 303, 320 (A.M.) [juvenile court
had duty to determine whether children were Indian children
based on facts and law that existed at time of § 366.26 hearing].)
6 The court also must “require each parent to complete
Judicial Council form ICWA-020, Parental Notification of Indian
Status” and instruct the parties “to inform the court ‘if they
subsequently receive information that provides reason to know
the child is an Indian child.’ ” (D.F., supra, 55 Cal.App.5th
at p. 566; Cal. Rules of Court, rule 5.481(a)(2)(B)-(C).)

8
be a member or eligible for membership in; and 3) contacting the
tribes and any other person that may reasonably be expected to
have information regarding the child’s membership or eligibility.”
(D.F., supra, 55 Cal.App.5th at pp. 566-567, fn. omitted; § 224.2,
subd. (e)(2)(A)-(C); Cal. Rules of Court, rule 5.481(a)(4).)
The Legislature amended section 224.2, subdivision (e),
effective September 18, 2020, to add, “There is reason to believe
a child involved in a proceeding is an Indian child whenever
the court, social worker, or probation officer has information
suggesting that either the parent of the child or the child is a
member or may be eligible for membership in an Indian tribe.
Information suggesting membership or eligibility for membership
includes, but is not limited to, information that indicates, but
does not establish, the existence of one or more of the grounds
for reason to know [that a child is an Indian child] enumerated
in paragraphs (1) to (6), inclusive, of subdivision (d).” (§ 224.2,
subd. (e)(1); see Stats. 2020, ch. 104, § 15, eff. Sept. 18, 2020.)
Among those grounds relevant here giving rise to a “reason
to know a child . . . is an Indian child,” are: “[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”; and “[a]ny participant 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.” (§ 224.2, subd.
(d)(1), (3).) Once the Department or juvenile court has “reason
to know” an Indian child is involved, notice under ICWA must be
given to the child’s “parents or legal guardian, Indian custodian,

9
if any, and the child’s tribe.” (§ 224.3, subd. (a); Cal. Rules
of Court, rule 5.481(c)(1).) Notice is not at issue here.
2. Standard of review
When the facts are undisputed, we independently review
whether the requirements of ICWA have been satisfied. (D.F.,
supra, 55 Cal.App.5th at p. 565.) We review the juvenile
court’s ICWA findings under the substantial evidence test
and determine whether the juvenile court’s order is supported
by “ ‘reasonable, credible evidence of solid value.’ ” (Ibid.) We
must uphold the juvenile court’s orders and findings “ ‘if any
substantial evidence, contradicted or uncontradicted, supports
them, and we resolve all conflicts in favor of affirmance.’ ” (Ibid.)
3. The Department did not complete its ICWA inquiry
as to mother
The court did not explicitly find ICWA did not apply in
its February 8, 2021 order terminating father’s parental rights.
As father notes, however, the court implicitly found ICWA
inapplicable based on its November 26, 2018 finding that it had
no reason to know Amanda was an Indian child and statement
it would not order notice to any tribe or the Bureau of Indian
Affairs. (See A.M., supra, 47 Cal.App.5th at p. 314, fn. 4 [order
terminating parental rights that did not mention ICWA was
“ ‘necessarily premised on a current finding by the juvenile court
that it had no reason to know’ ” children were Indian children
and ICWA notice thus was not required]; In re Michael V. (2016)
3 Cal.App.5th 225, 234 [essential finding implicit in order
terminating parental rights grounded on earlier ICWA rulings];
In re Asia L. (2003) 107 Cal.App.4th 498, 506 [court implicitly
found ICWA did not apply based on finding notice had been given
under ICWA].) Father contends the court’s finding was in error

10
because it never fulfilled its initial duty of inquiry—or ensured
the Department fulfilled its duty—under section 224.2.
The evidence established the juvenile court and the
Department satisfied their duty of initial inquiry under ICWA
as to father. The Department attached ICWA-010(A) to its
section 300 petition with the social worker’s declaration that,
on September 27, 2018, father denied Amanda had any known
Indian ancestry. And, on November 26, 2018, father completed
ICWA-020 similarly attesting he had no known Indian ancestry.
The court acknowledged father’s denial of Native American
heritage at the detention hearing. Based on that inquiry, there
was no reason to believe Amanda was an Indian child through
father’s parentage to trigger a duty to make “further inquiry”
as to his side of the family, including paternal grandmother,
as father seems to suggest. (See Austin J., supra, 47 Cal.App.5th
at p. 888 [no duty to make further inquiry of father’s side of the
family based on his in-court statement and parental notification
of Indian status declaration indicating no Indian ancestry].)
Mother, on the other hand, did not appear at any court
hearing, except for her special appearance through counsel at
the brief February 1, 2021 section 366.26 hearing. Mother made
no statements at that hearing; her specially appearing counsel
simply asked for a continuance. Mother never made a true first
appearance, therefore, at which the court could ask her about
her Indian ancestry or direct her to file an ICWA-020 form.
The court had the social worker’s declaration that in 2006—
before Amanda was born—mother confirmed Faith had no known
Indian ancestry. Naturally, if Faith did not have Indian ancestry
through mother’s parentage neither would Amanda. Due to

11
mother’s own conduct in failing to attend the hearings,7 the court
never had an opportunity to ask mother if her 2006 denial
of Native American heritage remained true or to ask her
to complete an ICWA-020 form.
Father also argues the Department never made an initial
inquiry of mother about whether Amanda may be an Indian
child despite having repeated contact with her. The evidence
shows that, like the court, the Department did not have that
opportunity. The Department had limited phone contact with
mother—who was in Sacramento—before the detention hearing.
Moreover, the Department knew mother already had denied
Indian parentage in the earlier dependency proceeding.
The Department’s contact with mother after the children
were declared dependents was equally limited. Mother did not
wish to participate in any court ordered services, refused to
answer any questions, would not sign any consent forms for the
children, and went missing. Given mother’s lack of cooperation,
the Department had no real opportunity to ask mother about
her or Amanda’s potential Native American heritage. Because
mother’s own conduct prevented the Department from inquiring
of her, we do not agree it failed in its initial inquiry when it
did not ask mother about Amanda’s Indian ancestry.
The same cannot be said for the Department’s contact with
maternal grandmother. Father argues no initial ICWA inquiry
was made of the maternal relatives, but that is not entirely true.
At the November 2018 detention hearing, the court directly
asked maternal grandmother if mother had any American Indian
heritage. Maternal grandmother responded, “My grandmother,”

7 The court found notice was proper for all hearings.

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but said no tribe ever had been mentioned and admitted
her grandmother’s Native American ancestry had not been
documented. But, while the court made an initial inquiry of
maternal grandmother, the Department did not. Nor did
the court ensure the Department fulfilled its duty to inquire
of maternal grandmother.
We agree with the Department that maternal
grandmother’s statements are too vague to establish a
reason to know Amanda had Native American ancestry. Nor
do they demonstrate mother or Amanda had an affiliation with
a federally recognized tribe. Nevertheless, we cannot conclude
the court and Department satisfied their duty of inquiry.
Maternal grandmother may not have known of any specific
tribal connection or documentation supporting her grandmother’s
tribal status, but her statement that mother had American
Indian heritage through her grandmother is information
“suggesting” mother “may be eligible for membership in
an Indian tribe.” (§ 224.2, subd. (e)(1).)8 The juvenile court
apparently thought so too—it ordered the Department to ask
maternal grandmother “additional questions” presumably to
see if she had other information relevant to its initial ICWA
inquiry. As the court said at the hearing, if a tribe were
identified, it would order notice, but if no tribe were identified,
no notice would be required.

8 Although the statute did not include this definition at the
time the juvenile court made its initial finding, as we discussed,
that finding was subsumed in its February 2021 order
terminating father’s parental rights. At that time, the definition
applied.

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 The Department relies on Austin J.’s holding that “Indian
ancestry, without more, does not provide a reason to believe
that a child is a member of a tribe or is the biological child of
a member.” (Austin J., supra, 47 Cal.App.5th at p. 889.) The
appellate court there concluded sufficient evidence supported
the trial court’s implied finding that the duty of inquiry under
ICWA had been satisfied. (Id. at p. 887.) The mother, at her
first appearance in court, said she had been told maternal
grandmother, who was deceased, may have had Cherokee
ancestry and filed an ICWA-020 form stating her children may
have Indian ancestry. (Id. at p. 878.) A Department social
worker called mother after the hearing to question her further,
and mother told the social worker her aunt may have more
information. (Ibid.) The social worker called the aunt, but
the aunt could say only that mother’s maternal grandmother
“ ‘may have had Cherokee heritage,’ ” and mother’s maternal
grandfather “ ‘possibly had heritage,’ ” but she did not know
the tribe. (Ibid.) The court concluded mother’s statements that
she “ ‘may have Indian ancestry’ ” and had been told her mother
had Cherokee ancestry did not support “a reason to believe”
the children were Indian children under ICWA. (Id. at p. 888.)
The information was “ ‘too vague, attenuated and speculative’ ”
to indicate a possible tribal connection. (Id. at pp. 888–889.)
The Department notes maternal grandmother’s
information about potential Indian ancestry was “even more
speculative and attenuated” than the information in Austin J.
where mother and her aunt named a potential tribe. We do
not disagree. But, the Department here never followed up with
maternal grandmother as it did with the mother and her aunt
in Austin J. It never determined, therefore, that no additional

14
information existed to give it a reason to believe Amanda was
an Indian child to trigger a duty to investigate further.
Although maternal grandmother herself could not provide
the name of a tribe to the Department, had it questioned her, the
Department could have learned, for example, whether maternal
grandmother’s grandmother was still living. If she were, the
Department could have asked her about her Native American
ancestry. Maternal grandmother also could have given the
Department her mother’s contact information (maternal great-
grandmother). She told the social worker mother sometimes
stayed with maternal great-grandmother. Maternal great-
grandmother may have had more information about whether
her own mother had ever mentioned having an affiliation with
a specific tribe, or could have confirmed there was no tribal
information to give.
And, unlike with mother, the Department was in regular
contact with maternal grandmother. She was Faith’s caregiver
and became Amanda’s caregiver in February 2019 after the court
sustained the section 300 petition. If the Department asked
her for additional information or for the contact information of
other maternal relatives, the record does not reflect it. Nor does
the record reflect the court asked the Department about what
it learned from—or whether it completed—the questioning
of maternal grandmother that the court had ordered. Yet, the
Department’s July and December 2019 status review reports
state, ICWA “does or may apply.” By its own admission,
therefore, the Department had a reason to believe Amanda
may be an Indian child.
Moreover, Austin J. was decided before the Legislature
amended section 224.2, subdivision (e) to include language that

15
the court or Department has a “reason to believe” a child is an
Indian child when the court or social worker “has information
suggesting” one of the parents or child “may be eligible for
membership in an Indian tribe.” (See In re T.G. (2020) 58
Cal.App.5th 275, 290, fn. 14 [noting Austin J. observed the
Legislature did not define phrase “reason to believe” in version
of statute enacted in 2018, effective January 1, 2019].) The
Department nevertheless contends there was no evidence
suggesting Amanda was an Indian child under the amended
statute to trigger a duty of further inquiry. But, as father
asserts, the Department never completed its initial inquiry
as ordered by the court.
Whether we characterize the Department’s questioning of
maternal grandmother as part of its initial duty to inquire or its
duty of further inquiry, in these circumstances—given maternal
grandmother’s statements and the court’s order—the Department
had a duty to question her to find out if any other relatives may
have had information relevant to its ICWA inquiry.9 The record
is clear the Department did not fulfill that duty.
Accordingly, we agree with father substantial evidence does
not support the trial court’s implied finding that ICWA does not
apply. We therefore conditionally reverse the order terminating
father’s parental rights and remand the matter to the juvenile
court with directions to order the Department to complete its
ICWA inquiry of maternal relatives, and if they can reach her,

9 The Department also argues there is no evidence in the
record that Amanda was found to be an Indian child in the
earlier dependency proceeding. But, the record also does not
reflect the Department questioned maternal grandmother as
part of that earlier dependency.

16
mother. If the Department’s inquiry leads to the identification
of a tribe, then it should make further inquiry, including sending
ICWA notices, as appropriate. However, if the Department’s
inquiry does not lead to information—such as the identification
of a tribe—giving it a reason to believe Amanda is an Indian
child, then no further inquiry is necessary. (See § 224.2,
subd. (e).)
The court must then determine, on the record, whether
the ICWA inquiry, and notice requirements if applicable, have
been satisfied and whether Amanda is an Indian child as defined
by ICWA. If the court finds she is, it must conduct new section
366.26 hearings in compliance with ICWA and related California
law. If not, the court is to reinstate immediately its original
section 366.26 order. (See In re S.R. (2021) 64 Cal.App.5th 303,
317.)

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 DISPOSITION
We conditionally reverse the section 366.26 order and
remand to the juvenile court to direct the Department to comply
with the inquiry—and if applicable, notice—provisions of ICWA
and related California law and for further proceedings consistent
with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

HILL, J.*

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

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