Filed 8/11/22 In re A.E. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.E., a Person Coming Under B316626
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP05794)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SARA S. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Judge Pro Tempore.
Conditionally affirmed and remanded with directions.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant Sara S.
Shaylah Padgett-Weibel, under appointment by the Court
of Appeal, for Defendant and Appellant Michael E.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Jessica S. Mitchell, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________________
In these dependency proceedings Sara S. (mother) and
Michael E. (father) appeal from a juvenile court order
terminating their parental rights over A.E., their eight-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) to make
inquiries under ICWA requires reversal.
In a prior dependency case in 2014, mother and father both
submitted a signed ICWA 020 form in which they indicated they
had no American Indian ancestry. The juvenile court found there
was no reason to suspect A.E. was an Indian child as defined by
ICWA, and therefore found the child did not fall within the
provisions of ICWA. The court ordered the parents to keep the
department, their attorney and the court aware of any new
information relating to possible ICWA status.
2
On September 4, 2019, a tow-truck driver called in a
referral to DCFS alleging mother was intoxicated in a vehicle
with A.E. seated inside.
DCFS communicated with the maternal grandmother and
the maternal grandfather, and was given the name of mother’s
half brother, but made no inquiry about A.E.’s possible Indian
ancestry.
DCFS filed a petition under Welfare and Institutions Code
section 300, subdivision (b), on behalf of then- five-year-old A.E.
based on the parents’ history of substance abuse, their current
abuse of alcohol, mother being under the influence of alcohol
while the child was in her care and supervision, and the parents’
1
failure to protect the child from each other’s substance abuse.
The attached ICWA-010(A) form had a checked box next to “not
made” as to Indian child inquiry.
Father and mother filed ICWA-020 forms in which they
indicated, under penalty of perjury, “I have no Indian ancestry as
far as I know.”
The maternal grandfather, a maternal uncle, and the
paternal grandmother attended the detention hearing. The court
asked the maternal grandfather, “Do you have any reason to
believe that mother has any Native American Indian ancestry?”
He responded, “Not that I’m aware of.” The court found based on
this response and the parental notification of Indian status forms
that there was “no reason to believe that ICWA applies to this
case.” The minute order reflects that the court made no order for
notice to any tribe or the Bureau of Indian Affairs.
1
Undesignated statutory references will be to the Welfare
and Institutions Code.
3
A combined jurisdiction/disposition report reflected that
father wanted his brother to be approved as a monitor. The
record is silent on whether DCFS asked the brother whether he
had any American Indian ancestry.
A Multi-Disciplinary Assessment Team (MAT) report
stated that A.E.’s ethnicity was “White,” his assessor observing
that the child presented with “a pale peach tone complexion,
honey blond, straight and neatly trimmed hair with piercing
round grey eyes and long lashes.” Additionally, the parents’
arrest records indicated that father’s race was White, and he had
blue eyes and brown hair, and mother’s race was also White, and
her hair was brown and eyes were blue.
Mother pled no contest to the petition, and the court
sustained the petition, ordered that A.E. be suitably placed, and
ordered that the paternal grandmother be considered for further
placement.
At the 12-month review hearing, the court terminated
family reunification services for the parents and ordered A.E.
placed with the paternal grandmother in Arizona.
At the permanency hearing, the court found A.E. was
adoptable, deemed the paternal grandmother to be the child’s
prospective adoptive parent, and terminated parental rights.
The record is silent on whether anyone ever inquired of the
maternal or paternal grandmothers or the maternal or paternal
uncles whether they had Indian heritage.
The parents timely appealed.
DISCUSSION
Mother and father contend the juvenile court erred in
terminating their parental rights because no evidence in the
record indicates DCFS asked the maternal or paternal
4
grandmother or maternal or paternal uncle about A.E.’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(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, the parents argue, the juvenile
court lacked the power to terminate their 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.
For reasons stated in our recent opinion in In re A.C. (2022)
75 Cal.App.5th 1009, we disagree that the error was harmless.
The record reveals readily obtainable information that was likely
to bear meaningfully on whether A.E. is an Indian child. Both
grandmothers and both uncles may have information about A.E.’s
cultural heritage, but none of them was asked. “We thus cannot
assume that the parents’ mere denial of Indian ancestry on a
form was sufficient to dispel prejudice from DCFS’s failure to ask
A.[E].’s extended family members about potential Indian
ancestry.” (Id. at p. 1017.)
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
5
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 County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
6