In re L.S. CA2/5

Filed 4/27/22 In re L.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re L.S., a Person Coming B314471
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP06102C)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

Y.S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Tamara E. Hall, Judge. Conditionally reversed
and remanded with instructions.
 Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel for Plaintiff and Respondent.
________________________________

Y.S. (mother) appeals from the order terminating parental
rights to her child, L.S. (minor), under Welfare and Institutions
Code section 366.26.1 Mother contends the Los Angeles County
Department of Children and Family Services (the Department)
and the juvenile court failed to comply with the inquiry
requirements of the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) and related California law. We
conditionally reverse, and remand for ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

Because the sole issue raised in mother’s appeal is ICWA
compliance, we focus primarily on the facts and procedural
background relevant to that issue.
Mother’s involvement with the juvenile dependency system
dates back to 1997, when the Department filed a petition
alleging mother (born in 1992) and her siblings were at risk of
abuse and neglect. Mother has a sixteen-year history of alcohol
and drug abuse, and parental rights to her two oldest children
(born 2007 and 2009) were terminated in 2012. Also in 2012,

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

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two of mother’s children, O.S. (born 2011) and Le.S. (born 2012),
were declared dependents based on mother’s substance abuse.
Those children subsequently returned to mother’s custody, and
the court terminated jurisdiction in August 2013; however, by
2019 they were residing in Mexico with their paternal
grandmother. The appellate record contains no information
about any ICWA findings or inquiry efforts related to these prior
dependency cases.
Minor was born in September 2019, and was detained from
mother after testing positive for amphetamine and
methamphetamine at birth. The detention report states minor
is not an Indian child and includes a judicial council form
(ICWA-10) stating the social worker made an Indian child
inquiry, and the child has no known Indian ancestry.
At the detention hearing, mother filed an ICWA-020 form
denying any Indian ancestry, as well as a relative information
sheet with the court providing the name and phone number for a
maternal aunt and the first name and phone number of a
maternal great-aunt. The reporter’s transcript of the detention
hearing indicates that a maternal uncle was present, but there is
no evidence that the Department or the court ever asked him
any questions. Mother indicated she did not know who minor’s
father was. The court found the father of O.S. and Le.S to be
minor’s alleged father. Based on mother’s ICWA-020 and her
responses in court, the court found no reason to know that minor
was an Indian child.2

2The reporter’s transcript does not reflect that the court
advised mother to notify the court or the social worker if she later
learned of any Indian ancestry. However, the ICWA-020 form,

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 The social worker spoke to maternal aunt in October 2019
about minor’s placement, but maternal aunt was not asked any
questions about possible Indian ancestry. There is no evidence
that the Department made any effort to contact the maternal
great aunt, or any other maternal family members, to inquire
whether minor has possible Indian heritage.
The Department’s six-month status review report stated
that mother had previously been living with her mother
(maternal grandmother) and her brother (maternal uncle), but
that she moved out in March 2019 when she was asked to leave
the home because she did not take her younger sister to school.
When asked why she started missing drug tests in February and
March 2020, she explained that she had been under maternal
grandmother’s phone plan, and now she lacked the funds to pay
for her own phone, so she could not call in for testing. In July
2020, maternal grandmother attended one of mother’s visits
with the minor. There is no evidence the Department ever
sought maternal grandmother’s contact information from
mother, or that the social worker interviewed maternal
grandmother for any purpose, including asking about potential
Indian heritage.
The juvenile court terminated mother’s reunification
services in November 2020, and terminated parental rights as to
minor at a hearing under section 366.26 in August 2021. The
order terminating parental rights did not mention ICWA, but

which mother signed, contains the following language: “If you get
new information that would change your answers, you must let
your attorney, all the attorneys on the case, and the social worker
or probation officer, or the court investigator know immediately
and an updated form must be filed with the court.”

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the order was “necessarily premised on a current finding by the
juvenile court that it had no reason to know [minor] was an
Indian child.” (In re Isaiah W. (2016) 1 Cal.5th 1, 10, italics
omitted (Isaiah W.).

DISCUSSION

ICWA Requirements and Standard of Review

“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 through
adoption or foster care placement, usually in non-Indian homes.’
[Citation.]” (Isaiah W., supra, 1 Cal.5th at p. 7.) 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.).)
California statutory law incorporates the requirements of
ICWA, and imposes some additional requirements as well. (In re
Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021) 70
Cal.App.5th 735, 741–742 (Benjamin M.).) State and federal law
require the court to ask parties and participants at the outset of
an involuntary child custody proceeding whether they have
reason to know a minor is an Indian child, and to “instruct the
parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian

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child.” (25 C.F.R. § 23.107(a); § 224.2, subd. (c); see also
Benjamin M., supra, 70 Cal.App.5th at p. 741.) Part of the initial
inquiry includes requiring each party to complete the ICWA-020
form. (Cal. Rules of Court, rule 5.481(a)(2)(C).) When a social
services agency takes a minor into temporary custody, state law
imposes on the agency a duty of initial inquiry, which “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); In re H.V. (2022) 75 Cal.App.5th 433, 439.)
When there is “reason to believe that an Indian child is involved
in a proceeding,” further inquiry is required. (§ 224.2, subd. (e);
In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.)
We review the juvenile court’s ICWA findings for
substantial evidence, and the appellant bears the burden of
showing insufficient evidence to support the ICWA finding. (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401 (Josiah T.).)

The Court and the Department Failed to Comply with ICWA’s
Requirements

We agree with mother’s contention that neither the
juvenile court nor the Department satisfied the inquiry duties set
forth in federal regulations adopted under ICWA and section
224.2, subdivision (b), and the court’s implicit finding that ICWA
did not apply at the section 366.26 hearing was error. First, even
though maternal uncle was present at the detention hearing, the
court neither asked nor directed the Department to ask maternal
uncle whether he had any information about minor’s potential

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Indian ancestry. (See 25 C.F.R. § 23.107(a); § 224.2, subd. (c)
[“the court shall ask each participant present in the hearing” if
they know or have reason to know the child is an Indian child].)
Second, the Department failed to carry out its initial
inquiry obligations under section 224.2, subdivision (b). (In re
Y.W. (2021) 70 Cal.App.5th 542, 554 (Y.W.) [parents’ denial of
Indian ancestry “did not end the Department’s duty of inquiry,
especially where relevant contact and identifying information
was readily available”]; Elizabeth M., supra, 19 Cal.App.5th at p.
786 [Department failed to interview family members that might
have information relevant to mother’s claim of Indian ancestry].)
Despite having phone contact with maternal aunt, the
Department did not ask her any questions about minor’s possible
Indian ancestry. The appellate record also lacks any evidence
that the Department made any effort to locate or contact
maternal grandmother, despite having a likely address for her, as
mother reported previously living with maternal grandmother
and maternal uncle. (See 25 U.S.C. § 1903(2) [“‘extended family
member’ shall be as defined by the law or custom of the Indian
child’s tribe or, in the absence of such law or custom, shall be a
person who has reached the age of eighteen and who is the Indian
child’s grandparent, aunt or uncle, brother or sister, brother-in-
law or sister-in-law, niece or nephew, first or second cousin, or
stepparent”]; § 224.1, subd. (c) [extended family member “shall be
defined as provided in Section 1903 of” ICWA].) Because state
law expressly requires the Department to ask extended family
members, the Department did not satisfy its duty of initial
inquiry. (See Benjamin M., supra, 70 Cal.App.5th at p. 744
[“CFS nevertheless failed its duty of inquiry by not asking
‘extended family members’”]; Y.W., supra, 70 Cal.App.5th at pp.

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552–553 [agency failed to satisfy its initial inquiry duty when it
did not make a meaningful effort to locate and interview
biological maternal grandparents, where mother had been
adopted but agency was made aware of biological grandparents’
identities].)
The Department emphasizes that mother denied any
Indian ancestry, and had been involved in earlier dependency
proceedings, both as a dependent and a parent, during which
Indian ancestry was not established. The Department contends
these facts alone constitute substantial evidence to support
affirmance of the juvenile court’s implied finding. We disagree,
and find the lack of inquiry here, which includes failures to
comply with federal and state law, undermines the reliability of
the juvenile court’s finding and requires reversal. While
conceding that we review ICWA findings for substantial evidence,
the Department, in an argument heading and without any
elaboration, states that any error based on the Department’s
failure to question maternal relatives should be deemed
harmless. We disagree that reframing our review here to look for
prejudice leads to any different result. (See Y.W., supra, 70
Cal.App.5th at pp. 553–556.)

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 DISPOSITION

The juvenile court’s order terminating parental rights
under section 366.26 is conditionally reversed. The case is
remanded to the juvenile court to ensure compliance with ICWA
and related California law by ordering the Department to ask
any available extended family members whether they have
reason to believe minor is an Indian child. Based on the
responses, if no additional inquiry is necessary, the court’s
original order may be reinstated.

MOOR, J.

I concur:

RUBIN, P. J.

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In re L.S.
B314471

RUBIN, P. J., Concurring

I have signed the majority opinion but write separately to
make one observation. DCFS’s repeated non-compliance with the
clear mandate of ICWA and related state law has been analyzed
in several recent appellate opinions and also in separate opinions
in those appeals. Those appeals are generally decided either on
substantial evidence grounds or harmless error principles. The
current opinion uses the substantial evidence formula, and I have
joined the majority in that analysis. Nevertheless, I believe that
the more analytically sound basis on which to judge ICWA errors
of this sort is to decide whether the agency’s failure to comply
with clear statutory directives was or was not prejudicial. In my
view the harmless error approach adopted by Division 7 of this
court is the correct one. (See In re Y.W. (2021) 70 Cal.App.5th
542; In re Antonio R. (2022) 76 Cal.App.5th 421; and In re J.C.
(2022) 77 Cal.App.5th 70.)

RUBIN, P. J.
In re L.S.
B314471

BAKER, J., Concurring

I agree conditional reversal and a remand to the juvenile
court is required because the court did not comply with federal
regulations that require the court to ask “each participant” in a
child custody proceeding—at the commencement of the
proceeding—whether the participant knows or has reason to
know the minor in question is an Indian child. (25 C.F.R.
§ 23.107(a).) L.S.’s maternal uncle was present in court at the
initial detention hearing, but the court did not make the required
inquiry. If, on remand, the maternal uncle has no information
suggesting L.S. may be an Indian child, I believe the juvenile
court would be entitled to find the Indian Child Welfare Act does
not apply (though the court would also be free to order any
further inquiry it deems appropriate). (In re H.V. (2022) 75
Cal.App.5th 433, 439-442 (dis. opn. of Baker, J.).)

BAKER, J.