Filed 5/24/23 In re A.R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re A.R., a Person Coming 

Under the Juvenile Court 

Law.

 B316221

 (Los Angeles County

Super. Ct. Nos. 

20CCJP01563,

 20CCJP01563A)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and 

Respondent,

v.

A.R.,

Defendant and 

Appellant.
2

APPEAL from an order of the Superior Court of 

Los Angeles County, Mary E. Kelly, Judge. Affirmed in part and 

remanded with instructions.

Konrad S. Lee, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, Navid Nakhjavani, Principal Deputy 

County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Father A.R. appeals from a juvenile court order terminating 

his reunification services with his son, A. He contends the 

matter must be remanded for further proceedings because the 

Los Angeles County Department of Children and Family Services 

(DCFS) and the court failed to comply with the inquiry and notice 

requirements of the Indian Child Welfare Act (25 U.S.C. § 1901, 

et seq.) (ICWA). DCFS agrees, as do we, that the legal 

requirements imposed under ICWA were not satisfied. 

Accordingly, we remand the matter solely to ensure compliance 

with ICWA and related state statutes. The remainder of the 

order is conditionally affirmed.

BACKGROUND

Because the sole issue on appeal is compliance with ICWA, 

we limit our summary of the facts to those relevant to that issue

except as necessary for context.

A. was born in September 2019. In March 2020, DCFS 

filed a dependency petition on behalf of A. under Welfare and 

Institutions Code section 300, subdivisions (a) and (b)(1).

1 The 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
3

petition alleged that A. was at risk of harm due to violent 

altercations between father and A.’s mother, S.M., while they 

were caring for A., as well as mother’s abuse of marijuana.2 A. 

was detained from both parents and placed with maternal 

grandmother. 

In the Indian Child Inquiry Attachment (ICWA-010(A)), 

DCFS checked the box indicating that A. “may have Indian 

ancestry.” Father completed a Parental Notification of Indian 

Status form (ICWA-020) on March 20, 2020. He checked the box 

stating, “The child is or may be a member of, or eligible for 

membership in, a federally recognized Indian tribe.” He 

identified Cherokee as a possible tribe and listed paternal greatgrandmother as the individual with potential heritage, but 

provided no further details. Mother also completed the same 

form, indicating that she had no Indian ancestry as far as she 

knew. 

At the detention hearing in March 2020, the court found 

father to be A.’s presumed father. The court asked father to 

confirm his statement that paternal great-grandmother “may 

have Cherokee in her background”; father stated that was 

correct. The court continued, “I will need the department to 

conduct further investigation and follow up and potentially send 

notices - - I will need the department to send notices as such.” 

Father also informed the court that paternal great-grandmother 

was deceased. The court ordered DCFS to “ask for any potential 

collaterals to provide any information.” The court found it had no 

reason to believe ICWA applied with respect to mother. 

According to the April 2020 jurisdiction/disposition report, 

father said he had heard through his family that they might have 

2 Mother is not a party to this appeal.
4

Native American heritage but he did not have any details. 

Father told DCFS that he would “ask around.” The record 

contains no further information from father.

DCFS sent ICWA notices on April 9, 2020 to mother, 

father, the Bureau of Indian Affairs, and the Secretary of the 

Interior. The notice contained A.’s name and date of birth, 

mother’s and father’s names, addresses, and date and place of 

birth, the name and current address of paternal grandmother,

and the name of paternal grandfather. It did not contain any 

information for paternal great-grandparents. Regarding claimed 

eligibility, the form stated “Native American Ancestry Claimed –

Tribe Unknown”; it did not list Cherokee as a possible tribal 

affiliation. DCFS did not send an ICWA notice to any Cherokee 

tribes.

DCFS received a response letter from the United States 

Department of the Interior on April 21, 2020. The letter stated 

that DCFS’s notice “contains insufficient information to 

determine Tribal affiliation.” 

At the adjudication hearing in June 2020, the court 

sustained the petition as to mother and father, found jurisdiction 

over A. under section 300, subdivisions (a) and (b), and found that 

removing the child was necessary. The court ordered 

reunification services and monitored visitation for mother and 

father. With respect to ICWA, the court noted that father 

“thought he might have ancestry based on folklore and never 

identified a national tribe.” The court then found that “there is 

no reason to believe that there is membership in a tribe” and thus 

that it had no reason to know that A. was an Indian child under 

ICWA. 
5

DCFS’s subsequent reports referred to the court’s June 

2020 finding that ICWA did not apply. There is no record of any 

further ICWA investigation by DCFS.

In December 2020, DCFS reported that father was not

complying with his case plan, including failing to show up for 

drug testing, continuing to engage in arguments with mother, 

and failing to enroll in counseling. DCFS concluded that A. 

remained at high risk of harm if returned to father. 

In a July 2021 report, DCFS reported that father had not 

been participating in any services, although he continued to 

sporadically visit A. Father was not present for the 12-month 

review hearing in August 2021. The court found father was not 

in compliance with his case plan and terminated his reunification 

services. The court continued mother’s services over DCFS’s 

objection. 

Father timely appealed from the court’s order terminating 

his services. The court terminated mother’s reunification 

services in May 2022, while this appeal was pending.3 In 

December 2022, the court terminated jurisdiction and established 

A.’s caretakers as his legal guardians. 

DISCUSSION

The only issue in this case is whether DCFS and the court 

properly complied with ICWA and related state statutes. Father 

contends that the court’s finding that ICWA did not apply is 

invalid due to DCFS’s failure to discharge its duty of inquiry into 

A.’s possible Native American heritage and its failure to provide 

notice to any Cherokee tribes. DCFS concedes that further 

3 We granted DCFS’s request for judicial notice of the court’s 

minute orders from the May and December 2022 hearings. 
6

inquiry into father’s claim of possible Native American ancestry 

is necessary. 

A. Requirements

“In any given case, ICWA applies or not depending on 

whether the child who is the subject of the custody proceeding is 

an Indian child.” (In re Abbigail A. (2016) 1 Cal.5th 83, 90.) Both 

ICWA and state statutory law define an “Indian child” as a child 

who is either a member of an Indian tribe or 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); accord, § 224.1, 

subds. (a)-(b).)

“‘“Federal regulations implementing ICWA [ ] require that 

state courts ‘ask each participant in an emergency or voluntary 

or involuntary child-custody proceeding whether the participant 

knows or has reason to know that the child is an Indian child.’ 

[Citation.] The court must also ‘instruct the parties to inform the 

court if they subsequently receive information that provides 

reason to know the child is an Indian child.’”’” (In re Y.W. (2021) 

70 Cal.App.5th 542, 551; see 25 C.F.R. § 23.107(a) (2021).)

Additionally, state law “more broadly imposes on social 

services agencies and juvenile courts (but not parents) an 

‘affirmative and continuing duty to inquire’ whether a child in 

the dependency proceeding ‘is or may be an Indian child.’” (In re 

Benjamin M. (2021) 70 Cal.App.5th 735, 741-742; see § 224.2, 

subd. (a); In re Y.W., supra, 70 Cal.App.5th at p. 551.)

DCFS’s 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 and where the child, the 
7

parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).) If 

this initial inquiry creates a “reason to believe” a child is an 

Indian child, DCFS is required to “make further inquiry 

regarding the possible Indian status of the child, and shall make 

that inquiry as soon as practicable.” (§ 224.2, subd. (e); In re D.S. 

(2020) 46 Cal.App.5th 1041, 1052.) If the further inquiry gives 

DCFS a “‘reason to know’” the child is an Indian child, then the 

formal notice requirements set forth in section 224.3 apply. 

(§§ 224.2, subd. (d), 224.3, subd. (a); In re D.S., supra, 46 

Cal.App.5th at p. 1052.) Alternatively, the juvenile court may 

find that a child is not an Indian child if the agency’s “proper and 

adequate” inquiry and due diligence reveals no “reason to know” 

the child is an Indian child. (§ 224.2, subd. (i)(2); In re D.S.,

supra, 46 Cal.App.5th at p. 1050.)

“We review claims of inadequate inquiry into a child’s 

Indian ancestry for substantial evidence.” (In re H.V. (2022) 75 

Cal.App.5th 433, 438; see also In re D.S., supra, 46 Cal.App.5th 

at p. 1051; § 224.2, subd. (i)(2).) If an inquiry is inadequate, we 

“must assess whether it is reasonably probable that the juvenile 

court would have made the same ICWA finding had the inquiry 

been done properly.” (In re Dezi. C. (2022) 79 Cal.App.5th 769, 

777, review granted Sept. 21, 2022, S275578 (Dezi C.).) “If so, the 

error is harmless and we should affirm; otherwise, we must send 

it back for the Department to conduct a more comprehensive 

inquiry.” (Ibid.)

B. Analysis

Father contends that DCFS failed to fulfill its duty of 

initial inquiry required by ICWA and related state law. DCFS 

concedes its inquiry efforts as to father’s heritage were 

insufficient, and we agree. Despite its statutory obligations and 
8

direct orders from the court, DCFS failed to discuss father’s 

heritage claim with any paternal relatives other than father. The 

duty of inquiry required that DCFS interview, among others, 

extended family members and others with an interest in the 

child. (§ 224.2, subd. (b); see In re A.M. (2020) 47 Cal.App.5th 

303, 322.) DCFS further concedes that its inquiry error was 

prejudicial. We agree and accordingly remand the matter for 

DCFS and the juvenile court to conduct further investigation into 

father’s claims of Native American ancestry. We need not reach 

father’s additional claim that the ICWA notices DCFS sent were 

inadequate. Given our finding of inquiry error, that claim is 

moot.
9

DISPOSITION

The order terminating father’s reunification services is 

conditionally affirmed. The matter is remanded with instructions 

to DCFS and the juvenile court to conduct further ICWA inquiry 

as soon as practicable. If that inquiry reveals evidence of Native 

American heritage, then DCFS and the court must comply with 

the additional ICWA requirements, including, if applicable, the 

notice requirements of section 224.3. If it does not, then the 

order shall stand.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, ACTING, P.J.

DAUM, J.*





Judge of the Los Angeles County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.