In re Rayshon G. CA2/7

Filed 6/23/21 In re Rayshon G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re RAYSHON G., JR., a B308043
Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No.
20CCJP03785A)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

NIKEL H.,

Defendant and Appellant.

APPEAL from order of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Conditionally reversed, remanded
with directions.
 Elena S. Min, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
________________________________
Nikel H., the mother of now-four-year-old Rayshon G., Jr.,
appeals the juvenile court’s jurisdiction findings and disposition
order declaring Rayshon a dependent of the juvenile court and
removing him from Nikel’s custody. The sole issue on appeal is
whether the juvenile court and the Los Angeles County
Department of Children and Family Services (Department)
complied with their duties of inquiry and notice under the Indian
Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and
related California law. We agree the Department failed to
adequately investigate Nikel’s claim of Indian ancestry and the
juvenile court failed to ensure an appropriate inquiry had been
conducted. Accordingly, we conditionally reverse the court’s
jurisdiction findings and disposition order and remand the
matter to allow the Department and the juvenile court to rectify
their errors and to take all other necessary corrective actions.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
In July 2020 the Department received a referral stating
Nikel had been screaming and breaking dishes in her apartment,
which was located within a transitional housing complex. When
building staff entered the apartment, they found Rayshon hiding
from his mother. After police and a social worker were called,
Nikel was placed on a temporary psychiatric hold. The family

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already had an open referral regarding Nikel’s treatment of
Rayshon, which included reports Nikel repeatedly talked to
herself, screamed at Rayshon and threw things in the apartment.
It was reported that on two occasions Nikel had fallen asleep
with the bath water running, resulting in water flooding out of
her apartment. During one of these incidents, Rayshon was
found sitting on the wet floor of the apartment at 11:00 p.m.
On July 16, 2020 the Department filed a petition pursuant
to Welfare and Institutions Code section 300, subdivision (b),1
alleging Nikel had a history of mental and emotional problems,
including a diagnosis of bipolar disorder, and had placed Rayshon
in a detrimental and endangering home environment by twice
flooding the home.2 At the detention hearing on July 21, 2020
the court found a prima facie case for detaining Rayshon.3
The court sustained the petition as to Nikel at the
jurisdiction/disposition hearing on August 18, 2020. Rayshon
was declared a dependent of the juvenile court and suitably

1 Statutory references are to this code unless otherwise
stated.
2 The petition also alleged Rayshon’s alleged father,
Rayshon G., Sr., had an extensive criminal history, including a
conviction for voluntary manslaughter, that placed Rayshon at
risk of serious physical harm. The juvenile court dismissed this
allegation at the jurisdiction hearing upon a motion from the
Department.
3 Rayshon, Sr., was incarcerated at the time of the detention
hearing and did not appear. Based on Nikel’s representations to
the juvenile court during the hearing, Rayshon, Sr., was found to
be an alleged father and Anthony M. was found to be Rayshon’s
biological father. Anthony could not be located during the
pendency of the matter.

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placed under the supervision of the Department. Nikel was
provided family reunification services.
2. The ICWA Issues
At the time of the detention hearing Nikel’s attorney filed
an unsigned Judicial Council form ICWA-020 on which the box
was checked for the option, “I am or may be a member of, or
eligible for membership in, a federally recognized Indian tribe.”
Inserted for the name of the tribe was “Blackfoot and Cherokee.”
The form also indicated Nikel’s deceased grandfather Sie H. was
a member of the Blackfoot tribe.
During the detention hearing the juvenile court noted Nikel
believed she had “some connection with the Blackfoot and
Cherokee tribes” and asked if she was registered with any tribe.
Nikel replied she had “just recently asked to be registered” but
did not state with which tribe. She told the court she had not
registered Rayshon with any tribe. The court stated, “So right
now, you’re not registered and the child is not registered. So this
is not an ICWA case at the moment. But you believe that you
may be eligible through the Blackfoot and/or Cherokee tribe or
tribes.” The court asked Nikel, “Is there anybody else in your
family that is alive where you have their phone number and
address so they can be contacted about your connection to the
tribes? Anybody else?” Nikel replied, “No.” The court stated,
“Well, we’ll do the best we can about getting information about
ICWA. And the Department is ordered to notify tribes, bands,
[the Bureau of Indian Affairs] and the Department of the
Interior. So we will check that out. It could be an American
Indian case.” The minute order for the hearing stated, “The
Court is informed that there may be some Blackfoot and
Cherokee Native American/Indian heritage in the mother’s

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background. The Department of Children and Family Services is
ordered to investigate said claim and notify all appropriate
tribes.”
The jurisdiction/disposition report, filed on August 6, 2020,
stated, “Mother reported that she has Cherokee Indian and
Blackfeet Indian heritage through [maternal great grandfather].”
Attached to the report were copies of ICWA notices that had been
mailed to the Bureau of Indian Affairs, the Secretary of the
Interior, the Blackfeet Tribe of Montana, the Cherokee Nation of
Oklahoma, the Eastern Band of Cherokee Indians and the United
Keetoowah Band of Cherokee Indians. The notices included the
names, addresses and birth dates for Nikel’s mother, father,
grandmother, cousin and three brothers, all of whom live in
southern California, as well as the date and place of birth of
Nikel’s deceased grandfather through whom Nikel claimed
Indian ancestry. The Department’s report contained no
indication of any effort to contact Nikel’s family to develop
additional information concerning Indian ancestry. Neither the
reporter’s transcript nor the minute order for the
jurisdiction/disposition hearing contains any mention of ICWA.
A status review report filed with the court on
February 4, 2021 after the jurisdiction/disposition hearing
attached responses from the Blackfeet Tribe of Montana, the
Eastern Band of Cherokee Indians and the United Keetoowah
Band of Cherokee Indians stating there was no evidence of
Indian ancestry.4 There was no response attached from the
Cherokee Nation.

4 We granted the Department’s motion for judicial notice of
the status review report, which attached the tribes’ responses, as
well as for minute orders dated February 5 and 16, 2021. The

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 DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
“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 a state court must follow before removing an Indian
child from his or her family.”5 (In re T.G. (2020) 58 Cal.App.5th
275, 287; see 25 U.S.C. § 1902.) “ICWA and the controlling
federal regulations (see 25 C.F.R. § 23 (2020)) simply set a floor
for minimal procedural protections for Indian children, their
families and their tribes; the statute authorizes states to provide
‘a higher standard of protection to the rights of the parent or
Indian custodian of an Indian child than the rights provided
under’ ICWA.” (In re T.G., at pp. 287-288; see 25 U.S.C. § 1921.)

report contained no information evidencing any effort by the
Department since the jurisdiction/disposition hearing to contact
Nikel’s family regarding possible Indian ancestry, including no
indication the issue had been discussed with Nikel’s aunt who
had recently come forward seeking to have Rayshon placed with
her. The minute order for the six-month status review hearing
on February 16, 2021 stated, “ICWA issues remain open. DCFS
to report on all relatives who may have contact information as to
ICWA issues.”
5 “For purposes of ICWA, an ‘Indian child’ is an unmarried
individual under age 18 who is either a member of a federally
recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe.” (In re T.G., supra, 58 Cal.App.5th
at p. 287, fn. 10; see 25 U.S.C. § 1903(4) [definition of “‘Indian
child’”] & (8) [definition of “‘Indian tribe’”]; see also Welf. & Inst.
Code, § 224.1, subd. (a) [adopting federal definitions].)

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In addition to significantly limiting state court actions concerning
out-of-family placements for Indian children (see In re T.G., at
pp. 287-288), ICWA permits an Indian child’s tribe to intervene
in or, where appropriate, exercise jurisdiction over a child
custody proceeding (see 25 U.S.C. § 1911(c); In re Isaiah W.
(2016) 1 Cal.5th 1, 8).
To ensure Indian tribes have the opportunity to intervene
in or exercise jurisdiction over a dependency proceeding,
investigation of a family member’s belief a child may have Indian
ancestry must be undertaken and notice must be provided to the
appropriate tribes. The investigation requirement is found in
section 224.2, subdivision (a), which imposes on the court and
child protective services agencies “an affirmative and continuing
duty to inquire whether a child . . . is or may be an Indian child.”
“That duty to inquire begins with initial contact (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child.” (In re T.G., supra, 58 Cal.App.5th
at p. 290; see § 224.2, subds. (a)-(c).) In addition, section 224.2,
subdivision (e), imposes a further duty of inquiry regarding the
possible Indian status of the child if, as it read at the time of the
jurisdiction/disposition hearing in this case, “the court, social
worker, or probation officer has reason to believe that an Indian
child is involved in a proceeding.”6 (See also Cal. Rules of Court,

6 Effective September 18, 2020, section 224.2, subdivision (e),
was amended to include a definition of the phrase “reason to
believe.” The statute now states, “If the court, social worker, or
probation officer has reason to believe that an Indian child is
involved in a proceeding, but does not have sufficient information
to determine that there is reason to know that the child is an
Indian child, the court, social worker, or probation officer shall

7
rule 5.481(a)(4).)7 That further inquiry requires interviewing, “as
soon as practicable,” extended family members, contacting the
Bureau of Indian Affairs and contacting “the tribe or tribes and
any other person that may reasonably be expected to have
information regarding the child’s membership, citizenship status,
or eligibility.” (Former § 224.2, subd. (e)(1)-(3); see also current
§ 224.2, subd. (e) & (e)(2).)
The notice requirement under California law is found in
section 224.3 and requires notice to the parent, legal guardian or
Indian custodian and the Indian child’s tribe if the child
protective agency or court “knows or has reason to know . . . that
an Indian child is involved” in the proceedings. (Welf & Inst.
Code, § 224.3, subd. (a); see also 25 U.S.C. § 1912(a);
rule 5.481(c)(1).) “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,

make further inquiry regarding the possible Indian status of the
child, and shall make that inquiry as soon as practicable. [¶]
(1) 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.” (§ 224.2, subd. (e).)
7 References to rules are to the California Rules of Court.

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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. [¶] (6) The court is
informed that either parent or the child possess an identification
card indicating membership or citizenship in an Indian tribe.”
(Welf. & Inst. Code, § 224.2, subd. (d); see also rule 5.481(b)(1);
25 C.F.R. § 23.107(c) (2020).)
2. The Department Did Not Adequately Investigate Nikel’s
Claim of Indian Ancestry
The ICWA-020 form filed by Nikel’s counsel at the time of
the detention hearing indicated Nikel’s belief she had Cherokee
and Blackfoot ancestry through her maternal grandfather, Sie H.
That belief was confirmed by Nikel during the detention hearing;
and she additionally informed the court she had recently
requested to be registered with a tribe, although she did not
specify which one. These preliminary responses from Nikel
unquestionably provided reason to believe an Indian child might
be involved in the proceeding and triggered the Department’s
duty to make further inquiry pursuant to section 224.2,
subdivision (e), and rule 5.481(a)(4). (See In re T.G., supra,
58 Cal.App.5th at p. 292 [mother’s statement she believed she
had Indian ancestry and identification of her grandfather as
having possible Indian ancestry were sufficient to require further
inquiry]; In re A.M. (2020) 47 Cal.App.5th 303, 322 [mother’s
statement she had been told she may have Blackfeet or Cherokee
ancestry and identifying her grandfather as having possible
Indian ancestry sufficient to require further inquiry].) However

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there is no indication in the record the Department interviewed
Nikel regarding her belief of Indian ancestry or made any
attempt to reach any of the extended family members for whom
the Department had contact information.
The Department argues it was relieved of its statutory duty
to investigate Rayshon’s possible Indian ancestry because Nikel
had informed the juvenile court there were no living relatives
who could provide additional information. It also contends
Nikel’s failure to identify any extended family members
precludes her from arguing the Department breached its duty to
investigate. These arguments reflect a troubling indifference to
the importance of ICWA and the Department’s responsibilities
for its good faith implementation.
It is true, as the Department argues, that ICWA does not
obligate the Department to “cast about for Indian connections”
when there is no basis to do so. (In re C.Y. (2012)
208 Cal.App.4th 34, 42.) However, once the duty to investigate
has been triggered, as it was here, “a social services agency has
the obligation to make a meaningful effort to locate and interview
extended family members to obtain whatever information they
may have as to the child’s possible Indian status.” (In re K.R.
(2018) 20 Cal.App.5th 701, 709.) “ICWA and state law place the
duty with the child protective agency in the first instance, not the
child or his or her parent, to determine whether additional
information exists that may link a child with Indian ancestry to a
federally recognized tribe.” (In re Elizabeth M. (2018)
19 Cal.App.5th 768, 787; accord, In re T.G., supra, 58 Cal.App.5th
at p. 293 [“‘[t]he burden of coming forward with information to
determine whether an Indian child may be involved and ICWA
notice required in a dependency proceeding does not rest

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entirely—or even primarily—on the child and his or her
family’”].) In addition, the Department “must act upon
information received from any source, not just the parent.”
(In re K.R., at p. 706.)
Nikel’s inability to provide contact information for her
family members during the detention hearing did not relieve the
Department of its affirmative duty to make a meaningful effort to
locate such family members and interview them about possible
Indian ancestry, let alone justify the Department’s disregard of
the juvenile court’s order to investigate Rayshon’s possible Indian
ancestry. The Department’s argument that Nikel’s lack of
knowledge negated its obligations is particularly disingenuous
since it was able to obtain biographical and contact information
for seven maternal relatives by the time of the jurisdiction
hearing, plus an eighth by the time of the six-month review
hearing, including the daughter and widow of the relative
through whom Indian ancestry was claimed. Yet the Department
failed to request information from these relatives regarding
possible Indian ancestry. Once the Department had located these
individuals, it was required to make a meaningful effort to obtain
information from them. There is no excuse for its failure to do so.
The Department’s breach of its duty of inquiry was
compounded in this case by the juvenile court’s failure to ensure
compliance with ICWA’s requirements or even with its own order
at the detention hearing to investigate Nikel’s claim. Together,
these errors require a conditional reversal of the jurisdiction
findings and disposition order and a remand for an adequate
investigation into Rayshon’s possible Indian ancestry. If a proper
investigation develops additional information regarding possible

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Indian ancestry, new or amended notices must be provided to the
appropriate tribes.
3. Any Deficiencies in the ICWA Notices Are Harmless
Nikel identifies several errors and deficiencies in the ICWA
notices sent by the Department. First, she argues the copies of
the notices filed with the juvenile court did not attach a copy of
the petition as required by section 224.3, subdivision (a)(5)(D).
However, the notice itself states the petition is attached, and the
certificate of mailing filed with the court specifies that a copy of
the petition was mailed with the notice. Nothing in the record
suggests the petition was not included with each notice, and the
three tribes that responded to the notice did not indicate failure
to receive the petition. In the absence of any evidence to the
contrary, we presume the Department social worker included the
petition in the notice as required and represented. (See Evid.
Code, § 664 [“[i]t is presumed that official duty has been regularly
performed”].)
Nikel next argues the Department failed to file return
receipts for the notices as required by section 224.3,
subdivision (c), and the court failed to wait the requisite 10 days
after receipt of notices by the tribes to hold the
jurisdiction/disposition hearing as required by subdivision (d).
The Department concedes these errors but argues they are
harmless because three tribes have since responded stating
Rayshon is not an Indian child and there is still an opportunity
for the fourth tribe to respond. On remand, if the Department’s
investigation results in additional identifying information for the
family or reveals potential membership in a tribe not yet notified,
then the Department must send new or updated notices to those
tribes. If the investigation does not reveal any additional

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information, then the initial notices will have been sufficient, and
the Department will have an opportunity to file return receipts.
Accordingly, any error is harmless. (See In re T.G., supra,
58 Cal.App.5th at p. 298 [failure to provide notice harmless
where further inquiry to be done on remand]; In re E.H. (2018)
26 Cal.App.5th 1058, 1072 [violation of state law notice
requirements are harmless unless appellant can show a
reasonable probability that he or she would have enjoyed a more
favorable result in the absence of the error]; see also In re
Christopher I. (2003) 106 Cal.App.4th 533, 566 [“[s]ubstantial
compliance with the notice requirements of ICWA is sufficient”].)
DISPOSITION
The jurisdiction findings and disposition order are
conditionally reversed. On remand the juvenile court must
promptly direct the Department to make a meaningful and
thorough inquiry regarding Rayshon’s possible Indian ancestry,
including interviews with the maternal grandmother, extended
family members and any other persons who may reasonably be
expected to have information regarding Rayshon’s tribal
membership or eligibility for membership, and contact with any
tribes that may have such information.
If the Department’s further investigation develops any
information not previously provided to the contacted tribes or
results in reason to know of membership in any additional tribes,
notice or amended notice in accordance with section 224.3 must
be provided. The Department shall thereafter notify the court of
its actions and file certified mail return receipts for any ICWA
notices sent, together with any responses received. The court
must determine, on the record, whether the ICWA inquiry and
notice requirements have been satisfied and whether Rayshon is

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an Indian child. If the court finds he is an Indian child, it is to
vacate all affected orders and conduct a new
jurisdiction/disposition hearing, as well as all further
proceedings, in compliance with ICWA and related California
law. If not, the court’s original jurisdiction findings and
disposition order may be reinstated.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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