Filed 7/29/22 In re M.A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.A., a Person Coming Under B318030
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18LJJP00318)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHELLE M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Davis, Judge Pro Tempore.
Conditionally affirmed and remanded with directions.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Aileen Wong, Deputy County Counsel,
for Plaintiff and Respondent.
__________________________________
In these dependency proceedings Michelle M. (mother)
appeals from a juvenile court order terminating her parental
rights over M.A., her two-year-old son, contending the court erred
in finding the lack of a complete inquiry under the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) to be
nonprejudicial. We agree, and thus reverse with directions to
order a further ICWA inquiry.
BACKGROUND
We will limit the presentation of facts to those pertinent to
the only disputed issue on appeal: Whether the failure of the
Department of Children and Family Services (DCFS or the
department) to make inquiries under ICWA requires reversal.
Mother was involved in two prior dependency cases
pertaining to M.A.’s half siblings, the second of which was open
when the instant proceeding was filed. In the second proceeding
mother filed Parental Notification of Indian Status forms (ICWA-
020) stating she had no Indian ancestry as far as she knew. At
the May 21, 2018, detention hearing in the second proceeding,
the juvenile court found it had no reason to know the children
were Indian children as defined under ICWA, and ordered the
parents to keep DCFS, their counsel, and the juvenile court
aware of any new information relating to possible ICWA status.
On May 27, 2020, the department filed a petition alleging
mother’s newborn son, M.A., was at substantial risk of harm
2
pursuant to Welfare and Institutions Code section 300,
1
subdivisions (a), (b)(1) and (j). The petition alleged M.A. was at
risk of harm due to (1) mother’s open dependency case with his
half siblings, (2) mother’s history of substance abuse and current
abuse of methamphetamine, (3) mother’s “mental and emotional
problems,” (4) M.A.’s father’s (father’s) history of substance abuse
and current abuse of substances, (5) mother’s prior inappropriate
discipline of M.A.’s half siblings, and (6) mother’s failure to
protect the half siblings from the physical abuse by an unrelated
adult. (Father is not a party to this appeal.) Attached to the
petition was an ICWA-010 form stating M.A. had no known
Indian ancestry.
Mother reported that she received support from father’s
parents, i.e., the paternal grandparents, and her cousin, and the
maternal grandfather monitored her visits with M.A.’s half
siblings. Father reported he was adopted by his aunt at the age
of 14.
On April 28, 2020, mother and father denied knowledge of
any Native American ancestry.
On June 2, 2020, mother filed an ICWA-020 form stating
she had no Indian ancestry as far as she knew. Father never
filed an ICWA-20 and declined to participate in the hearings,
post.
At the detention hearing on June 2, 2020, the juvenile court
found there was no reason to know the ICWA applied as to
mother. At the permanency hearing on December 21, 2020, the
court made the same finding as to father.
1
Undesignated statutory references will be to the Welfare
and Institutions Code.
3
The matter proceeded through detention hearings,
jurisdiction and disposition hearings, and review and
permanency hearings, at the last of which the juvenile court
terminated mother’s parental rights.
Mother timely appealed.
DISCUSSION
Mother contends the juvenile court erred in terminating
her parental rights because no evidence in the record indicates
DCFS asked any maternal or paternal relatives about M.A.’s
possible Indian child status, in derogation of state law (§ 224.2)
implementing ICWA and contrary to the requirement that the
department make and document such inquiries and any
responses. (See Cal. Rules of Court, rule 5.481, subd. (a)(5)
[burden on child welfare agency to provide detailed requirements
of the ICWA have been satisfied is appropriate]; In re A.M. (2020)
47 Cal.App.5th 303, 314.) Therefore, mother argues, the juvenile
court lacked the power to terminate her parental rights.
Respondent essentially concedes that section 224.2 was not
followed but argues any error was harmless because the parents
denied any Native American ancestry.
Our prior decisions make clear that the department’s error
in failing to make required ICWA inquiries does not result in per
se reversal. (See In re S.S. (2022) 75 Cal.App.5th 575, 581; In re
Darian R. (2022) 75 Cal.App.5th 502; In re A.C. (2022) 75
Cal.App.5th 1009.) Instead, we must examine the record and
reverse or remand only if that review shows prejudice because
“there was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.” (S.S. at
p. 582.) Applying that test here, we find the error was prejudicial
and thus will remand for further inquiry.
4
Father may not be aware of Indian ancestry because he
was removed from his biological mother and placed in foster care
when he was three, and thus “may not . . . know[] [his] cultural
heritage.” (In re A.C., supra 75 Cal.App.5th at p. 1016.) Because
other family members are likely to have information bearing
meaningfully on whether M.A. was an Indian child, we conclude
that the department’s failure to make inquiries of them was
prejudicial.
We will therefore remand the matter for a further ICWA
inquiry.
DISPOSITION
The order terminating parental rights is conditionally
affirmed. We remand to the juvenile court for DCFS and the
court to comply with the inquiry and notice provisions of ICWA
and California law consistent with this opinion. If the court finds
the minor is an Indian child, it shall conduct further proceedings
in compliance with ICWA and related California law. If not, the
court’s original order terminating parental rights will remain in
effect.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
*
ROTHSCHILD, P. J. KELLEY, J.
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
5