Filed 3/1/21 In re R.M. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

In re R.M., a person Coming 

Under the Juvenile Court Law.

 B308812

 (Los Angeles County Super. 

 Ct. No. 19LJJP00474B)

 

NICOLE L.,

Petitioner,

v.

THE SUPERIOR COURT OF

LOS ANGELES COUNTY,

Respondent;

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

 Real Party in Interest.
2

ORIGINAL PROCEEDING. Petition for extraordinary 

writ. (Cal. Rules of Court, rule 8.456.) Michael Kelley, Judge. 

Petition denied.

Los Angeles Dependency Lawyers, Law Office of Amy 

Einstein, Dominika Campbell, and Kelsey Moon for Petitioner.

No appearance for Respondent.

Office of the County Counsel, Rodrigo Castro-Silva, County 

Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly 

Roura, Senior Deputy County Counsel for Real Party in Interest.

* * * * * *

A mother petitions for extraordinary relief pursuant to 

California Rules of Court, rule 8.452. Specifically, she seeks 

review of the juvenile court’s order setting a permanency 

planning hearing under Welfare and Institutions Code section 

366.261and the juvenile court’s finding implied in that order that 

the Indian Child Welfare Act (id. at § 224 et seq.; 25 U.S.C. 

§ 1901 et seq.) (ICWA) does not apply. Because substantial 

evidence supports the court’s finding, we deny the petition and 

dissolve the stay of the permanency planning hearing.

FACTS AND PROCEDURAL HISTORY

Renesmee M. is the daughter of Nicole L. (mother). She 

was born in July 2020. Mother has a history of using 

methamphetamines and amphetamines, including during her 

pregnancy with Renesmee as indicated by positive tests for those 

substances a few days before Renesmee was born and on the day 

she was born.

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated. 
3

On August 4, 2020, the Los Angeles County Department of 

Children and Family Services (the Department) filed a petition 

asking the juvenile court to exert dependency jurisdiction over 

Renesmee on two grounds: (1) mother’s “history of substance 

abuse” and “current abuse[]” of amphetamine and 

methamphetamine “renders [mother] incapable of providing 

regular care for the child” and “places [Renesmee] at risk of 

serious physical harm . . .” (thereby rendering jurisdiction 

appropriate under section 300, subdivision (b)); and (2) mother’s 

other child (and Renesmee’s sibling) “is a current dependent of 

the Juvenile Court due to . . . mother’s substance abuse” (thereby 

rendering jurisdiction appropriate under section 300, subdivision 

(j)).2

During an interview with the Department on July 31, 2020,

and at the detention hearing before the juvenile court on August 

7, 2020, mother indicated that she has no known Native 

American heritage. She also turned in a blank Parental 

Notification of Indian Status form and the Department reported 

that ICWA was found inapplicable in the case of Renesmee’s 

sibling. The juvenile court determined at the detention hearing 

that it has no “reason to know that ICWA applies as to 

[m]other.”

3

2 The Department also alleged that dependency jurisdiction 

was warranted because Renesmee’s alleged father, Kenneth M. 

(father), knew or reasonably should have known of mother’s 

substance abuse and failed to protect Renesmee.

3 As for father, he indicated on his Parental Notification of 

Indian Status form that he may have Native American heritage 

because his paternal grandmother (that is, Renesmee’s paternal 

great-grandmother) is or was a member of the Cherokee and 
4

The next month, mother informed the Department that she 

believes she has Native American heritage. She did not know 

which tribe she may be affiliated with and the two family 

members who she believed may have more information—namely, 

her maternal grandmother and great-grandmother (that is, 

Renesmee’s maternal great-grandmother and great-greatgrandmother)—are both deceased. The Department requested 

that the juvenile court make an order as to whether notices under 

ICWA would be appropriate as to mother’s heritage.

The juvenile court did not make any further express ICWA 

findings. On October 27, 2020, the court sustained amended 

allegations of jurisdiction, and on November 4, 2020, the court 

bypassed reunification services for mother because reunification

services were terminated in the case of Renesmee’s sibling

(§ 361.5, subd. (b)(10)) and set a hearing for February 10, 2021, to 

select a permanent plan for Renesmee (§ 366.26).

Blackfoot or Blackfeet tribes. The juvenile court ordered the 

Department to investigate father’s claim. The Department 

followed up with father, but he had not spoken to his 

grandmother and then he failed to return the Department’s call. 

Father’s claim does not affect our analysis of mother’s petition 

because (1) as an alleged father of Renesmee, ICWA’s special 

protections are not triggered (25 U.S.C. § 1903(9) [requiring 

biological parentage]; In re E.G. (2009) 170 Cal.App.4th 1530, 

1533 [“an alleged father’s claims of Indian heritage” do not 

trigger ICWA’s protections because “absent a biological 

connection, [a] child cannot claim Indian heritage through [such 

a] father”]); (2) if he was determined Renesmee’s biological father, 

the juvenile court previously found, after inquiry and tribal 

notification, that ICWA was inapplicable in the case of father’s 

other child (that is, Renesmee’s sibling); and (3) mother does not 

challenge any ICWA findings as to father.
5

Mother filed this timely petition from the order setting the 

permanency planning hearing, and we issued a stay of that 

hearing pending disposition of mother’s petition.

DISCUSSION

Mother’s sole challenge to the order setting the permanency 

planning hearing is that the Department and juvenile court 

violated ICWA. We review a court’s ICWA findings for 

substantial evidence. (In re Austin J. (2020) 47 Cal.App.5th 870, 

885 (Austin J.); In re Hunter W. (2011) 200 Cal.App.4th 1454, 

1467 (Hunter W.).) 

ICWA was enacted to curtail “the separation of large 

numbers of Indian children from their families and tribes 

through adoption or foster care placement.” (Miss. Band of 

Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) Under the 

ICWA and California statutes our Legislature enacted to 

implement it (§§ 224-224.6), as recently amended, a juvenile 

court—and, as its delegate, the Department—have duties all 

aimed at assessing whether a child in a pending dependency case 

is an “Indian child” entitled to the special protections of ICWA. 

(§§ 224.2, 224.3; Stats. 2018, ch. 833 (Assem. Bill No. 3176); In re 

A.M. (2020) 47 Cal.App.5th 303, 320 [applying ICWA law in effect 

at time of order appealed from].) For these purposes, an ‘“Indian 

child”’ is a child who (1) is “a member of an Indian tribe,” or (2) 

“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), italics 

added; § 224.1, subd. (a) [adopting federal law definition].) By its 

terms, this definition turns “‘on the child’s political affiliation 

with a federally recognized Indian Tribe,’” not “necessarily” “the 

child’s race, ancestry or ‘blood quantum.’” (Austin J., supra, 47 
6

Cal.App.5th at p. 882, quoting 81 Fed. Reg. 38801-38802 (June 

14, 2016).)

Under ICWA as amended, the Department and juvenile 

court have “three distinct duties.” (In re D.S. (2020) 46 

Cal.App.5th 1041, 1052 (D.S.) [noting amendment’s creation of 

three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884 

[same].) The first duty is the initial “duty” of the Department 

and the juvenile court “to inquire whether [a] child is an Indian 

child.” (§ 224.2, subds. (a) & (b).) The Department discharges 

this duty chiefly by “asking” family members “whether the child 

is, or may be, an Indian child.” (Id., subd. (b).) For its part, the 

juvenile court is required, “[a]t the first appearance” in a 

dependency case, to “ask each participant” “present” “whether the 

participant knows or has reason to know the child is an Indian 

child.” (Id., subd. (c).) The second duty is the duty of the 

Department or the juvenile court to “make further inquiry 

regarding the possible Indian status of the child.” (Id., subd. (e).) 

This duty is triggered if the Department or court “has reason to 

believe that an Indian child is involved” (ibid), and, once 

triggered, obligates the Department to conduct further interviews 

to gather information, to contact the Bureau of Indian Affairs and 

state Department of Social Services for assistance, and/or to 

contact relevant Indian tribe(s). (Id., subd. (e)(2).) The third 

duty is the duty to notify the relevant Indian tribe(s). (§ 224.3, 

subd. (a); 25 U.S.C. § 1912(a).) This duty is triggered if the 

Department or the court “knows or has reason to know . . . that 

an Indian child is involved.” (§ 224.3, subd. (a).) The 

Department or juvenile court has “reason to know a child 

involved in a proceeding is an Indian child” in one of six 

statutorily defined circumstances—namely, when (1) “[a] person 
7

having an interest in the child . . . informs the court that the 

child is an Indian child” (§ 224.2, subd. (d)(1)), (2) “[a]ny 

participant in the proceeding . . . informs the court that it has 

discovered information indicating that the child is an Indian 

child” (id., subd. (d)(3)), (3) “[t]he child . . . gives the court reason 

to know that the child is an Indian child” (id., subd. (d)(4)), (4) 

the child or the parents reside, or are domiciled, “on a reservation 

or in an Alaskan Native village” (id., subd. (d)(2)), (5) “the child is 

or has been a ward of a tribal court” (id., subd. (d)(5)), or (6) 

“either parent or the child possess an identification card 

indicating membership or citizenship in an Indian tribe” (id., 

subd. (d)(6)).4

Mother is effectively arguing that the Department and 

juvenile court did not properly discharge the second and third 

ICWA duties—that is, the duty to conduct further inquiry and 

the duty to notify the Indian tribes. By statute, however, those 

duties apply only if there is a “reason to believe” (as to the duty of 

further inquiry) or a “reason to know” (as to the duty to notify) 

that the child at issue is an Indian child. (§§ 224.2, subd. (e), 

224.3, subd. (a).) We conclude that substantial evidence supports 

4 In amendments which post-date the express ICWA finding 

made by the juvenile court at the detention hearing in this case, 

our Legislature clarified that the Department or juvenile court 

“has reason to believe that an Indian child is involved” for 

purposes of the duty of further inquiry if the Department or court 

“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,” including information “indicat[ing]” but not 

“establish[ing]” the existence of any of the above-enumerated six 

circumstances. (§ 224.2, subd. (e)(1); Stats. 2020, ch. 104, § 15, 

eff. Sept. 18, 2020.)
8

a finding that there is no reason to believe or reason to know that 

Renesmee is an Indian child, and we do so for two reasons.

First, when the juvenile court made an express finding at 

the detention hearing that ICWA did not apply, mother had 

informed the Department and the court that Renesmee was not 

an Indian child. What is more, it was previously determined that 

Renesmee’s full sibling was not an Indian child. Based on this 

information, the Department and the court had no “reason to 

believe an Indian child was involved” and, therefore, the duty of 

further inquiry and, by extension, the duty to notify were not 

triggered.

Second, mother’s later representation to the Department 

that she may have Native American heritage did not trigger any 

duty of further inquiry or duty to notify. To be sure, these are 

“continuing” duties and, though silent on the issue of ICWA’s 

applicability, the juvenile court’s order setting a permanency 

planning hearing necessarily subsumed its earlier express 

determination that ICWA does not apply. (§ 224.2, subd. (a); In 

re Isaiah W. (2016) 1 Cal.5th 1, 15; see also In re Asia L. (2003) 

107 Cal.App.4th 498, 506 [express ICWA finding not required]; In 

re Levi U. (2000) 78 Cal.App.4th 191, 199 (Levi U.) [same],

superseded on other ground by statute as stated in In re B.E.

(2020) 46 Cal.App.5th 932, 940.)

However, the information mother provided to the 

Department did not trigger those continuing duties for two 

reasons. 

To begin, mother’s statement that she may have Native 

American “ancestry” or “heritage” was insufficient by itself to 

trigger further investigation. “Indian ancestry, without more, 

does not provide a reason to believe”—and thus does not provide 
9

a ‘“reason to know”’—“that a child is a member of a tribe or is the 

biological child of a member.” (Austin J., supra, 47 Cal.App.5th 

at pp. 888-889; but see In re T.G. (2020) 58 Cal.App.5th 275, 294 

(In re T.G.) [bare statement of Indian ancestry can sometimes 

trigger a duty to inquire further].) Here, there was nothing more.

Further, even if mother’s claim of possible Indian heritage 

did trigger a duty to investigate, the Department discharged that 

duty. ICWA does not obligate the Department or court “to cast 

about” for investigate leads. (Levi U., supra, 78 Cal.App.4th at p.

199.) As a result, the Department and the court satisfied their 

duties here where mother “fail[ed] to provide any information 

requiring followup” (In re S.B. (2005) 130 Cal.App.4th 1148, 

1161; In re C.Y. (2012) 208 Cal.App.4th 34, 42) and the only

persons mother identified as having additional information were

deceased (In re J.D. (2010) 189 Cal.App.4th 118, 123). (See also

Hunter W., supra, 200 Cal.App.4th at p. 1468 [parent’s inability

to identify tribe and failure to provide contact information to 

substantiate unsupported belief insufficient to trigger ICWA duty

of further inquiry; family lore alone insufficient].) Only when 

there is a viable lead does the Department have “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; cf. In re T.G., supra, 58 Cal.App.5th at p. 292 [mother’s 

identification of specific tribe on ICWA form and at detention 

hearing “unquestionably provided reason to believe Indian 

children might be involved”].) There was no viable lead in this 

case and, therefore, the Department’s duty to conduct further

inquiry and to notify were not triggered. (See D.S., supra, 46 

Cal.App.5th at p. 1050 [“The juvenile court may . . . make a 
10

finding that ICWA does not apply because the agency’s further

inquiry and due diligence was ‘proper and adequate’ but no 

‘reason to know’ whether the child is an Indian child was 

discovered”].)

DISPOSITION

Mother’s petition for extraordinary relief is denied. This 

opinion shall become final immediately upon filing. (Cal. Rules of 

Court, rule 8.490(b)(2)(A).) The stay of the February 10, 2021 

hearing set pursuant to section 366.26 is hereby dissolved. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J. 

HOFFSTADT

We concur:

_____________________, Acting P.J.

ASHMANN-GERST

_____________________, J.

CHAVEZ