In re Savanah H. CA2/5

Filed 6/24/22 In re Savanah H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re SAVANAH H. et al., B316015
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No.
DK05739A–B)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

K.B.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Craig S. Barnes, Judge. Conditionally reversed
with directions.
 Maryann M. Goode, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Rodrigo A.
Castro-Silva, County Counsel, Kim Nemoy, Assistant County
Counsel, Peter Ferrera, Principal Deputy County Counsel, for
Plaintiff and Respondent.

_____________________________________

I. INTRODUCTION

K.B., mother of now nine-year-old Savanah H. and now six-
year-old Emma M., appeals from the juvenile court’s order
terminating her parental rights pursuant to Welfare and
Institutions Code section 366.26.1 Mother claims the court and
the Los Angeles County Department of Children and Family
Services (Department) failed to comply with their duties under
the federal Indian Child Welfare Act (ICWA) and related state
statutes and court rules. We conditionally reverse and remand
for the limited purpose of ensuring compliance with ICWA’s
requirements.

1 All statutory references are to the Welfare and Institutions
Code.

2
 II. BACKGROUND2

On July 11, 2014, the Department filed an amended section
300 petition that alleged, as later amended and sustained, that
father M.M.3 physically abused then two-year-old Savanah and
threatened to kill her, and mother failed to protect the child from
father’s abuse. The petition further alleged mother and father
had a history of engaging in violent altercations in Savanah’s
presence—all of the identified conduct concerned father’s
domestic abuse of mother—and mother failed to protect the child
from the domestic abuse. Finally, the petition alleged that father
had a history of mental and emotional problems that rendered
him incapable of providing Savanah with regular care and
supervision and mother knew of father’s condition but failed to
protect the child.
The Department’s May 27, 2014, Detention Report stated,
“The Indian Child Welfare Act does not apply per . . . mother . . .
on 05/09/14.” Mother had “mild retardation with complications of
a brain disorder.”
Maternal stepgrandmother C.B. told a social worker that
mother had special needs and had always been placed outside of
her parents’ home. Maternal great-grandparents raised mother
and had a guardianship over her to help her with her special

2 Because the sole issue mother raises on appeal concerns
the juvenile court’s and the Department’s compliance with ICWA
and related state statutes and court rules, we limit our recitation
of facts to those relevant to that compliance issue except as is
necessary for context.

3 Father is not a party to this appeal.

3
needs. When mother reach the age of majority, maternal great-
grandparents obtained a conservatorship over her. After
maternal great-grandparents died, maternal great-aunt A.B.
assumed the role of mother’s conservator.
According to maternal stepgrandmother, maternal
grandmother E.K. lived in another state and had mental health
issues—“‘she is crazy.’” Mother had several brothers and sisters,
“but none of them have contact with her.”
On June 13, 2014, mother filed a Parental Notification of
Indian Status form stating she might have Indian ancestry. She
wrote, “Tribe unknown, on my birth-mother’s side. I do not have
her contact number. She told me we have ‘Indian in me’.”
At a hearing on June 13, 2014, mother’s counsel stated that
mother knew someone who “might be able to get in touch with
[maternal grandmother].” The juvenile court ordered the
Department to investigate mother’s claimed Indian ancestry and
ordered mother to continue to provide the Department with
information to enable it to conduct an appropriate ICWA
investigation.
The same day, father filed a Parental Notification of Indian
Status form stating he had no Indian ancestry as far as he knew.
The juvenile court found ICWA did not apply as to father.
The Department’s June 13, 2014, Jurisdiction/Disposition
Report stated that ICWA did not apply. It reported that “[o]n
06/04/2014, [a dependency investigator] inquired with . . . mother
as to any American Indian [h]eritage. [M]other denied American
Indian heritage.”
On June 21, 2014, the dependency investigator contacted
maternal stepgrandmother in her effort to speak with maternal
grandfather R.B. about the family’s Indian ancestry. Maternal

4
grandfather was not home. Maternal stepgrandmother stated
that maternal grandfather was German and English and had no
“‘Indian blood from his mom or dad’s side of the family.’”
Maternal stepgrandmother was unsure, but believed
maternal grandmother’s family did not have Indian ancestry.
Maternal stepgrandmother reported that she had Indian ancestry
and suggested that mother might have gotten confused because
she considered maternal stepgrandmother to be a mother figure.
Maternal stepgrandmother was not a blood relation to mother or
Savannah.
On June 21, 2014, the dependency investigator contacted
maternal great-aunt A.B. to inquire about mother or Samantha’s
Indian ancestry. Maternal great-aunt stated that she could
“confirm with certainty that there [was] ‘no blood line of
American Indian on either side of [mother’s] family.’”
At the July 10, 2014, jurisdiction hearing, the juvenile
court found it did not have a reason to know that Savanah was
an Indian child. It ordered mother and father to keep the
Department and their attorneys aware of any new information
relating to possible ICWA status.
The Department’s September 15, 2015, Status Review
Report stated that mother and father “continued to deny any
American Indian [h]eritage.”
On June 13, 2016, the Department filed a section 300
petition on behalf of three-week-old Emma that alleged, as later
amended and sustained,4 that mother and father had a history of
domestic disputes and physical altercations in Savanah’s
presence; father had struck mother, inflicting injuries; and
mother demonstrated an inability to protect Savanah.

4 Mother and father pleaded no contest to the petition.

5
 The Department’s June 10, 2016, Detention Report stated
that during interviews on May 19, 2016, mother and father
denied having American Indian ancestry.
On June 13, 2016, mother and father filed Parental
Notification of Indian Status forms stating that they did not have
Indian ancestry as far as they knew. At the June 13, 2016,
detention hearing, the juvenile court found ICWA did not apply.
On August 10, 2016, mother and father informed the
dependency investigator in Emma’s case that they did not have
American Indian ancestry.
On August 31, 2016, father filed a Parental Notification of
Indian Status form with respect to Savanah and Emma stating
that he might have Indian ancestry. Father wrote, “Cherokee,
my cousin [B.C.] just informed me . . . it is through my mother
who is deceased.” Father provided B.C.’s telephone number.
In its August 31, 2016, Jurisdiction/Disposition Report, the
Department stated that maternal grandmother and maternal
grandfather separated when mother was a baby. Maternal
grandfather married maternal stepgrandmother when mother
was three years old. Maternal grandmother remarried and
currently resided in Arkansas. Mother had eight half siblings,
seven of whom were alive. Mother stated she had a distant
relationship with maternal grandmother and her half siblings.
She had not spoken to maternal grandmother since 2012 or 2013.
Father reported paternal grandfather cheated on paternal
grandmother multiple times and, as a result, father had 11 half
siblings. Father did not have a relationship with his half siblings
and did not know their names.
In its August 31, 2016, minute order, the juvenile court
noted that father was “claiming possible Native American

6
heritage.” (Emphasis omitted.) It found that it had no reason to
know that “the child [Emma]” fell under ICWA. (Emphasis
omitted.) It ordered the Department to investigate father’s claim
and provide the court with a report on its investigation that
included the persons interviewed and dates and places of birth of
relatives as far back as could be ascertained. The court would
then determine whether that information triggered notice
requirements.
In its October 27, 2016, Addendum Report in response to
the juvenile court’s order that it further investigate father’s
claimed Indian ancestry, the Department reported that father
told a dependency investigator on September 7, 2016, “‘I don’t
have any information to give you. My cousin told me that I was
1/2 German, 1/2 Italian, and 65% Cherokee.’” Father did not
know if his Cherokee ancestry was his father’s or mother’s side.
Father told the dependency investigator that because
paternal grandmother passed away in December 2015 and
paternal grandfather passed away in 1993, he was unable to
obtain any further information. Father said he recently came
into contact with his cousin B.C. who said he had Cherokee
ancestry. Father provided B.C.’s telephone number to the
Department. Father did not have contact information for any
other relatives.
The same day, the dependency investigator spoke with B.C.
B.C. stated that his mother, S.J., and father’s mother were
sisters. S.J. was born in 1959—B.C. did not know the exact date.
He believed she was born in Fontana, California. B.C. had not
had contact with S.J. in about 12 years and did not know her
contact information or whereabouts. B.C. was unsure if his
family had Indian ancestry, but had been told his mother was

7
Cherokee, Irish, and Italian. He did not know if his family was
registered with the Cherokee tribe. B.C. provided the names of
his deceased maternal grandparents. He did not know their
dates of birth. He was not close to his family and did not have
contact information for any other relatives.
The dependency investigator asked father if he had S.J.’s
contact information. He did not, but said he would notify the
investigator if he obtained further information.
On June 5, 2017, the Department filed a section 342
petition that alleged, as later amended and sustained, that father
physically abused Savanah and mother and father had an
unresolved history of engaging in physical altercations. At the
November 1, 2017, adjudication and review hearing, the juvenile
court set the matter for a section 366.26 permanency planning
hearing on February 28, 2018, as to Savanah and Emma.
In its February 13, 2018, section 366.26 report, the
Department reviewed the ICWA information previously
presented to the juvenile court. As to father’s claimed Indian
ancestry, it stated, “[F]ather was unable to provide concrete
information regarding his American Indian heritage. Thus, no
additional notices were required by the [c]ourt.”
At the February 28, 2018, section 366.26 hearing, the
juvenile court noted that the information concerning father’s
claimed Indian ancestry was “pretty vague,” but “in [an]
abundance of caution,” it ordered the Department to send ICWA
notices to the Cherokee tribes, the Bureau of Indian Affairs, and
the Secretary of the Interior concerning father’s claimed Indian
ancestry. The Department was to submit all notices, return
receipts, and any responses to the court. The court continued the
matter to May 30, 2018.

8
 On May 2, 2018, the juvenile court ordered all counsel to
“to investigate any previous ICWA findings in this matter.”
At the May 30, 2018, section 366.26 hearing, the juvenile
court continued the matter to September 24, 2018, because the
Department had not yet sent the ICWA notices.
In a Last Minute Information for the Court for a hearing on
September 24, 2018, the Department reported that it mailed
ICWA notices to mother, father, and the Eastern Band of
Cherokee Indians on May 24, 2018. The Eastern Band of
Cherokee Indians responded that neither Savanah nor Emma
was registered or eligible to register as a member of the tribe.
The same day, the Department mailed ICWA notices to the
United Keetoowah Band of Cherokee Indians, the Cherokee
Nation, the Secretary of the Interior, and the Bureau of Indian
Affairs. The Department received signed proofs of service for
each of these notices, but no responses as to Savanah’s or Emma’s
ICWA eligibility or possible registration.
The Department’s ICWA notices are not contained in the
juvenile court’s file.
On September 7, 2018, a social worker sent e-mails to the
United Keetoowah Band of Cherokee Indians and the Cherokee
Nation following up on the Department’s earlier IWCA notices.
The Department did not receive responses to the e-mails and
concluded that it was “probable that neither child is ICWA
eligible” as more than 90 days had passed since the tribes
received the ICWA notices.
At the September 24, 2018, section 366.26 hearing, the
juvenile court found that ICWA notice was proper and that ICWA
did not apply with respect to either child.

9
 At the August 28, 2019, permanency planning review
hearing, mother’s counsel stated that maternal grandmother,
who lived in Arkansas, expressed a desire to have Samantha and
Emma placed with her and asked that maternal grandmother be
assessed for placement.
On October 15, 2021, the juvenile court terminated
mother’s and father’s parental rights to Savanah and Emma.

III. DISCUSSION

A. Inquiry Duties Under ICWA

“Pursuant to ICWA, ‘[i]n any involuntary proceeding in a
State court, where the court knows or has reason to know that an
Indian child is involved, the party seeking . . . termination of
parental rights to[ ] an Indian child shall notify the parent or
Indian custodian and the Indian child’s tribe’ of the pending
proceedings and its right to intervene. (25 U.S.C. § 1912(a); see
In re Isaiah W. (2016) 1 Cal.5th 1, 8 . . . (Isaiah W.).) ‘As the
Supreme Court recently explained, notice to Indian tribes is
central to effectuating ICWA’s purpose, enabling a tribe to
determine whether the child involved in a dependency proceeding
is an Indian child and, if so, whether to intervene in or exercise
jurisdiction over the matter. (Isaiah W., supra, 1 Cal.5th at
pp. 8[–]9.)’ (In re Michael V. (2016) 3 Cal.App.5th 225, 232 . . . .)
“‘ICWA defines 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.” (25
U.S.C. § 1903(4); see § 224.1, subd. (a).) The trial court and

10
[Department] have an affirmative and continuing duty in every
dependency proceeding to determine whether ICWA applies.
(§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a);[fn. omitted.]
Isaiah W., supra, 1 Cal.5th at pp. 10–11.) In cases “where the
court knows or has reason to know that an Indian child is
involved,” ICWA requires the [Department], or other party
seeking adoption or foster care placement, to notify “the Indian
child’s tribe, by registered mail with return receipt requested, of
the pending proceedings and of their right of intervention.” (25
U.S.C. § 1912(a); see Isaiah W., supra, [1 Cal.5th] at p. 5.)
“‘Following changes to the federal regulations concerning
ICWA compliance, California made conforming amendments to
its statutory scheme regarding ICWA, effective in 2019. (In re
D.S. (2020) 46 Cal.App.5th 1041, 1048 . . . (D.S.).) In D.S., the
court explained that the resulting clarification of law, found in
part in section 224.2, “creates three distinct duties regarding
ICWA in dependency proceedings. First, from the [Department]’s
initial contact with a minor and his family, the statute imposes a
duty of inquiry to ask all involved persons whether the child may
be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that
initial inquiry creates a ‘reason to believe’ the child is an Indian
child, then the [Department] ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make
that inquiry as soon as practicable.’ (Id., subd. (e), italics added.)
Third, if that further inquiry results in a reason to know the child
is an Indian child, then the formal notice requirements of section
224.3 apply. [Citations.]” (D.S., supra, [46 Cal.App.5th] at
p. 1052.)
“‘At the first step, “[s]ection 224.2, subdivision (b) specifies
that once a child is placed into the temporary custody of a county

11
welfare department, such as the [Department], the 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.’” (D.S., supra, 46 Cal.App.5th at pp. 1048–1049.)’ (In re
Charles W. (2021) 66 Cal.App.5th 483, 489 . . . (Charles W.).)
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence. (In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1430 . . . (Rebecca R.).)” (In re H.V. (2022)
75 Cal.App.5th 433, 436–438.)

B. Analysis

1. ICWA Compliance As to Mother’s Family

Mother contends the juvenile court and the Department
failed to comply with their initial ICWA inquiry duties as to her
family because the Department failed to interview maternal
grandfather, maternal grandmother, and her siblings.
In its investigation of the children’s possible Indian
ancestry, the Department spoke with mother, great aunt A.B.,
and maternal stepgrandmother. It did not speak with maternal
grandmother—the source of mother’s claimed Indian ancestry—
even though mother’s counsel indicated at the August 28, 2019,
permanency planning review hearing that she or mother had
maternal grandmother’s contact information;5 maternal

5 Although the August 28, 2019, revelation that mother’s
counsel or mother apparently had maternal grandmother’s
contact information occurred over five years after mother first

12
grandfather—although it spoke to maternal stepgrandmother
who reported that maternal grandfather was of Irish and
German ancestry and did not have any Indian ancestry—or any
of mother’s siblings. The Department’s first-step inquiry ICWA
duty under state law was broader, requiring it to interview at
least maternal grandmother.6 (§ 224.2, subd. (b); Charles W.,
supra, 66 Cal.App.5th at p. 489; D.S., supra, 46 Cal.App.5th at
pp. 1048–1049.)

2. ICWA Compliance As to Father’s Family

As mother largely concedes, the Department satisfied its
duty of further inquiry by interviewing father and B.C. and
attempting to obtain from them contact information for other
paternal relatives and by sending notices and emails to the
Cherokee tribes and notices to the Bureau of Indian Affairs.
(§ 224.2, subd. (e).) Mother’s apparent complaint concerning the
Department’s further inquiry is the same complaint she makes
concerning her claim that the Department did not satisfy ICWA’s

identified maternal grandmother as the source of her claimed
Indian ancestry, “[j]uvenile courts and child protective agencies
have ‘“an affirmative and continuing duty to inquire whether a
[dependent] child . . . is or may be an Indian child.”’ [Citations.]”
(In re M.R. (2017) 7 Cal.App.5th 886, 904.)

6 There is no suggestion in the record that maternal
grandfather or any of mother’s half siblings has any information
concerning mother’s ICWA claim. Accordingly, on remand, the
Department’s IWCA inquiry is not required to include maternal
grandfather or mother’s half siblings.

13
formal notice requirements—the Department did not file copies of
the notices in the juvenile court.
Although section 224.3, subdivision (c) requires a child
welfare agency to file copies of ICWA notices sent and return
receipts and responses received when there is a reason to know a
child is an Indian child, there is no similar provision when there
is a reason to believe a child is an Indian child. (D.S., supra, 46
Cal.App.5th at p. 1049 [“The sharing of information with tribes at
[the further] inquiry stage is distinct from formal ICWA notice,
which requires a ‘reason to know’—rather than a ‘reason to
believe’—that the child is an Indian child . . . [fn. omitted]”].)
Accordingly, when a child welfare agency complies with its duty
of further inquiry and learns of no new information that gives it a
“reason to know”7 a child is an Indian child, the juvenile court

7 “(d) 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 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.

14
properly may rule that ICWA does not apply. (In re D.F. (2020)
55 Cal.App.5th 558, 570–571 (D.F.); § 224.2, subd. (i)(2) [“If the
court makes a finding that proper and adequate further inquiry
and due diligence as required in this section have been conducted
and there is no reason to know whether the child is an Indian
child, the court may make a finding that [ICWA] does not apply
to the proceedings . . .”].) Here, when the Department satisfied
its duty of further inquiry and obtained no new information
establishing a reason to know the children are Indian children by
virtue of father’s claimed Indian ancestry, the court did not err in
ruling that ICWA did not apply (D.F., supra, 55 Cal.App.5th at
pp. 570–571; § 224.2, subd. (i)(2)) and the Department was not
obligated either to send ICWA notices or to file those notices in
the juvenile court (§ 224.3, subds. (a) & (c); In re Jeremiah G.
(2009) 172 Cal.App.4th 1514, 1520 [“‘if there is insufficient
reason to believe a child is an Indian child, notice need not be
given’”]).

“(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).)

15
 IV. DISPOSITION

The order terminating mother’s parental rights is
conditionally reversed. The case is remanded to the juvenile
court to order the Department to interview maternal
grandmother—to the extent she is still available—about the
possibility of Indian ancestry through mother and to report on
the results of the Department’s investigation. Based on the
information presented, if the juvenile court determines that no
additional inquiry or notice to tribes is necessary, the order
terminating mother’s parental rights is to be reinstated. If
additional inquiry or notice is warranted, the court shall make
orders consistent with ensuring compliance with ICWA and
related California law.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

I concur:

RUBIN, P. J.

16
In re Savanah H.
B316015

BAKER, J., Dissenting

Today’s decision is a particularly stark example of how our
Indian Child Welfare Act (ICWA) jurisprudence continues to be
in disarray. (See, e.g., In re Dezi C. (June 14, 2022, B317935)
___ Cal.App.5th ___ [2022 WL 2128670]; In re Q.M. (May 18,
2022, B313171) ___ Cal.App.5th ___ [2022 WL 2168367, at *6]; In
re H.V. (2022) 75 Cal.App.5th 433, 441 (dis. opn. of Baker, J.).)
The dependency proceedings that generated this appeal have
been pending now for over eight years, and yet the majority
decides we must prolong these proceedings—and the overdue
finality to which Savanah and her adoptive family are entitled—
even further. Specifically, the majority holds there is no
substantial evidence the juvenile court oversaw an adequate
inquiry to determine whether Savanah is an Indian child.
That is a gross misapplication of the undisputed standard
of review. (See, e.g., In re J.N. (2021) 62 Cal.App.5th 767, 774
[“‘[W]e do not consider whether there is evidence from which the
dependency court could have drawn a different conclusion but
whether there is substantial evidence to support the conclusion
that the court did draw’”].) The record reveals the juvenile court
was well aware of its ICWA obligations and conscientious in its
approach to discharging them. The court ordered appropriate
investigation and notice by the parties, and the Department
interviewed several maternal family members about ICWA
issues—all of whom reported no Indian heritage. That is more
than adequate to affirm the parental rights termination order
under the governing standard of review, and that is what we
should do.
Lurking behind the majority’s misapplication of the
standard of review, however, is a more fundamental statutory
interpretation question. The majority reverses and remands
because it believes Welfare and Institutions Code section 224.2
(section 224.2) compels a leave-no-stone-unturned approach to
ICWA inquiry. That, however, has undesirable and often absurd
practical implications (see, e.g., In re H.V., supra, 75 Cal.App.5th
at 441–442 (dis. opn. of Baker, J.)), and I do not believe the
statute must be read that way. Rather, examination of section
224.2, subdivisions (b) and (e) (including the repeated “including
but not limited to” formulations) along with section 224.2’s focus
on whether there is sufficient evidence an appropriate inquiry
was undertaken (§ 224.2, subd. (i)(2)) reveals the inquiry
described in those subdivisions is sensibly read as a list of
categorical examples to guide juvenile courts charged with
managing an adequate inquiry, not a long (and, indeed,
theoretically never-ending) to-do list that (ultimately futile)
attempts must be made to exhaust.1

1
This understanding of the pertinent statutory provisions is
reinforced when considering the purpose of the statute as defined
by the federal authority it is ostensibly intended to implement.
(25 U.S.C. § 1903(4); 25 C.F.R. § 23.107; 80 Fed. Reg. 14880 (Mar.
20, 2015) [proposed rule]; 81 Fed. Reg. 38778 (June 14, 2016)
[final rule].)

2
 Sooner or later (and hopefully sooner), our Supreme Court
is going to have to step in and bring some much needed clarity
and predictability to this area of the law.

BAKER, J.

3