Filed 8/16/22 In re D.S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

In re D.S., a Person Coming 

Under the Juvenile Court Law.

 B315828

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

JASMINE F.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct.

 No. 20CCJP01988A)

APPEAL from an order of the Superior Court of Los 

Angeles County, Gabriela H. Shapiro, Judge Pro Tempore. 

Conditionally affirmed and remanded with directions.

Gina Zaragoza, under appointment by the Court of Appeal, 

for Defendant and Appellant.
2

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Melania Vartanian, Deputy 

County Counsel, for Plaintiff and Respondent.

——————————

Mother appeals from orders denying her petition to change 

a court order and terminating her parental rights. On appeal, 

she contends the trial court erred in finding the Indian Child 

Welfare Act of 1978 (ICWA)(25 U.S.C. § 1901 et seq.) did not 

apply. Mother argues the Los Angeles County Department of

Children and Family Services (Department) failed to conduct a 

proper inquiry of her and maternal relatives to determine 

whether D.S. is or may be an Indian child. The Department 

concedes that it did not conduct a proper ICWA inquiry and does 

not oppose a conditional affirmance and remand for compliance 

with ICWA. We accept the Department’s concession and remand 

this matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In light of the limited issue raised on appeal, we provide 

only a brief summary of the background of this case. Mother 

tested positive for marijuana and methamphetamine when D.S. 

was born in April 2020. The Department detained D.S. two days 

later. On July 6, 2020, the juvenile court sustained a petition 

pursuant to Welfare and Institutions Code section 300, 

subdivision (b),1 based on the parents’ substance abuse, mother’s 

mental and emotional problems, and father’s mental health 

diagnosis. The court asserted dependency jurisdiction over then 

three-month-old D.S., removed her from both parents, ordered 

1 All undesignated statutory references are to the Welfare 

and Institutions Code.
3

her suitably placed, and ordered the Department to provide

reunification services to both parents. 

Father’s reunification services were terminated at the sixmonth review hearing.

2 A report for the twelve-month review 

hearing indicated mother had enrolled in four different substance 

abuse programs since the case was opened. Although she had 

recently completed a two-month inpatient program, she failed to 

attend an appointment to begin outpatient services. Mother had 

not submitted drug tests during the relevant review period and 

did not provide the social worker with information to confirm her

participation in mental health services. After completing the 

inpatient drug program in late April 2021, mother had not made 

herself available to the Department to schedule in-person visits 

with D.S., and she missed all scheduled virtual visits. At the 

June 8, 2021 hearing, the juvenile court terminated mother’s 

reunification services. The court set a hearing to select a 

permanent plan, pursuant to section 366.26 (.26 hearing), for 

October 20, 2021. 

The report for the .26 hearing indicated mother had 

consistent, monitored visits with D.S. Mother’s interactions with 

D.S. were appropriate when both she and D.S. were awake. 

However, mother had fallen asleep several times during the visits 

when D.S. was napping. The visitation monitor noted mother 

had almost rolled on top of D.S. while napping with her.

Mother’s virtual visits were inconsistent, and she had at times 

appeared to be under the influence. 

On October 6, 2021, mother submitted a request to change 

a court order pursuant to section 388, seeking six additional 

2 Father is not a party to this appeal.
4

months of reunification services. Mother declared she had 

enrolled in another substance abuse program as of mid-July 

2021; she had changed her way of thinking about substance 

abuse and how she coped with her addiction; and she was visiting 

D.S. regularly. The juvenile court denied the petition without a 

hearing. On October 20, 2021, the juvenile court terminated 

parental rights, rejecting mother’s argument that the beneficial 

parent-child relationship exception to adoption applied.

3 Mother 

timely appealed. 

ICWA background

The initial dependency petition indicated the social worker 

questioned both parents about Indian ancestry. Based on that 

questioning, the Indian Child Inquiry Attachment to the petition 

reported D.S. had no known Indian ancestry. However, the 

April 13, 2020 detention report indicated mother told the social 

worker she has Cherokee Indian ancestry. Mother did not know 

if her family is registered with the tribe. The social worker 

interviewed a maternal “great great aunt,” Josephine F., but the 

report did not indicate that the interview included questions 

regarding any ICWA-related issues. According to the report, 

Josephine F. adopted mother and the maternal uncle because of 

the maternal grandmother’s substance abuse problems. 

Josephine F. informed the Department that the maternal 

grandmother is deceased. Father “reported the [ICWA] does not 

apply.” 

At the April 13, 2020 detention hearing, both parents 

submitted parental notification of Indian status (ICWA-020) 

forms, each declaring under penalty of perjury that they had no 

3 Mother offered no evidence at the .26 hearing.
5

Indian ancestry as far as they knew. The court found it had no 

reason to know that ICWA applied to the case. The minute order 

stated the parents were to keep “the Department, their Attorney 

and the Court aware of any new information relating to possible 

ICWA status.” The record does not reflect that the Department 

or the court conducted any further ICWA-related inquiry or 

investigation.

DISCUSSION

On appeal, mother raises only a single issue: she contends 

the Department and the court failed to make a proper inquiry as 

to whether D.S. is or may be an Indian child.

4 The Department 

concedes that it failed to conduct a proper inquiry.

Section 224.2 sets forth the duties of a county welfare 

department and the juvenile court in determining whether a 

child is or may be an Indian child. An “ ‘Indian child’ ” is “any 

unmarried person who is under age eighteen and is either (a) a 

member of an Indian tribe or (b) is eligible for membership in an 

4 Mother’s appointed appellate counsel filed an opening 

brief raising ICWA error and asking this court to reverse the 

order terminating parental rights. However, the opening brief 

also sought leave to allow mother to personally file a brief, citing 

In re Phoenix H. (2009) 47 Cal.4th 835. We note the 

discretionary procedure described in In re Phoenix H. typically 

applies only when appellate counsel is unable to identify any 

arguable issues to present on appeal, which is not the case here. 

(Id. at p. 844 [when appointed counsel files brief concluding no 

arguable issues, court may allow parent to personally file brief].) 

Nonetheless, this court granted mother leave to file a 

supplemental letter brief. We have reviewed mother’s letter and 

conclude it does not raise any arguable issues. The Department’s

motion to dismiss as to that portion of the appeal is granted.
6

Indian tribe and is the biological child of a member of an Indian 

tribe.” (25 U.S.C. § 1903(4); § 224.1, subd. (a).) 

Section 224.2, subdivision (a), provides that both the court 

and the Department have an “affirmative and continuing duty” to 

inquire whether a child is or may be an Indian child, beginning 

with the “initial contact,” which includes asking the party 

reporting abuse or neglect if they have any information that the 

child may be an Indian child. Under section 224.2, 

subdivision (b), if a child is placed in the Department’s temporary 

custody, the agency must inquire whether the child is or may be 

an Indian child, by asking a nonexclusive group that includes the 

child, the parents, and extended family members. Under 

section 224.2, subdivision (c), at the first court appearance of 

each party, the juvenile court must ask whether the appearing 

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

child. In addition, the court must instruct the parties to inform 

the court if they subsequently receive information that provides 

reason to know the child is an Indian child.

There is “reason to know” a child is an Indian child when: a 

person having an interest in the child informs the court the child 

is an Indian child; the residence of the child, the child’s parents, 

or the child’s Indian custodian, is on a reservation or in an 

Alaskan Native village; a participant in the proceeding, officer of 

the court, Indian tribe or organization, or agency informs the 

court it has discovered information indicating the child is an 

Indian child; the child gives the court reason to know that the 

child is an Indian child; the court is informed that the child is or 

has been a ward of tribal court; or the court is informed either the 

parent or the child possesses an identification card indicating 

membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)
7

Under section 224.2, subdivision (e), if the court or social 

worker has reason to believe an Indian child is involved in the 

proceeding, but does not have enough information to determine 

there is a reason to know the child is an Indian child, the court or 

the social worker must make further inquiry, as soon as 

practicable. “[R]eason to believe” means the court or social 

worker 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)(1).) “Further inquiry”

includes actions such as “[i]nterviewing the parents, Indian 

custodian, and extended family members” to gather information 

that would be necessary to provide notice to any relevant tribes. 

(§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).) It also includes 

contacting the Bureau of Indian Affairs and State Department of 

Social Services for assistance in identifying contact information of 

relevant tribes, 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.” (§ 224.2, subd. (e)(2)(B)-(C).)

Section 224.2, subdivision (i)(2), provides that if “the court 

makes a finding that proper and adequate further inquiry and 

due diligence as required in this section have been conducted and 

there is no reason to know whether the child is an Indian child, 

the court may make a finding that [ICWA] does not apply to the 

proceedings, subject to reversal based on sufficiency of the 

evidence.”

In this case, mother contends the Department failed in its 

duty of inquiry by not asking mother’s relatives whether D.S. is 

or may be an Indian child as required under section 224.2, 

subdivision (b). Mother additionally argues that her statement 
8

that she had Cherokee Indian ancestry provided “reason to 

believe” D.S. is an Indian child, and the Department thus failed 

to conduct the mandatory further inquiry; it did not interview 

any relatives, attempt contact with any Cherokee tribe, or contact 

the Bureau of Indian Affairs, as required under section 224.2, 

subdivision (e)(2). The Department concedes it did not conduct a 

proper inquiry, and further concedes that it is appropriate for 

this court to remand this matter for compliance with ICWA. 

It is undisputed that the Department did not interview 

available maternal relatives about ICWA despite interviewing 

them about other case-related issues. It is also undisputed that 

mother told the Department her family had Cherokee Indian 

ancestry, but no additional inquiries were made to investigate 

that statement. Further, there was evidence that mother was 

raised by her extended relative due to the maternal 

grandmother’s substance abuse. On this record we find it 

appropriate to accept the Department’s concession. (In re Dezi C.

(2022) 79 Cal.App.5th 769, 779 [failure to conduct proper initial 

inquiry may be prejudicial if agency did not follow up on report of 

possible Indian heritage or where parent’s self-reporting may not 

be fully informed]; In re A.C. (2022) 75 Cal.App.5th 1009, 1015–

1016 [conditional affirmance where mother denied Indian 

ancestry, but report suggested without explanation that ICWA 

may apply, and mother had been raised in foster care].)

We therefore conditionally affirm the juvenile court order, 

remanding the matter for further inquiry and compliance with 

ICWA.

DISPOSITION

The juvenile court’s order terminating parental rights is

conditionally affirmed. The case is remanded to the juvenile 
9

court to order the Department to immediately comply with the 

inquiry provisions of Welfare and Institutions Code section 224.2

as to available maternal relatives. After ensuring the 

Department has complied with the inquiry, and, if applicable, 

notice provisions of ICWA and related California law, the juvenile 

court shall determine whether ICWA applies. If the court 

determines ICWA does not apply, the order terminating parental 

rights shall remain in effect. If the court determines ICWA does 

apply, it shall vacate its order terminating parental rights and 

proceed consistent with ICWA and related state law.

NOT TO BE PUBLISHED.

ADAMS, J.*

We concur:

EDMON, P. J.

LAVIN, J.

* Judge of the Los Angeles Superior Court, assigned by the 

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

Constitution.