Filed 10/18/21 In re Lea S. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

In re LEA S. et al., Persons Coming 

Under the Juvenile Court Law.

 B309813

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.K.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. 19CCJP04944A–B)

APPEAL from orders of the Superior Court of Los Angeles 

County. Brett Bianco, Judge. Affirmed in part, reversed in part 

and remanded.

Anne E. Fragasso, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Sally Son, Deputy County 

Counsel, for Plaintiff and Respondent. 
2

The juvenile court exercised dependency jurisdiction over 

Lea S. (born 2016) and Naomi S. (born 2018) after parents K.K. 

(mother) and K.S. (father) were arrested for leaving the children 

alone in a locked vehicle with an outside temperature of 99 

degrees and an interior temperature of 111 degrees. The court 

also sustained allegations both parents abused marijuana while 

caring for the children. After the parents failed to reunify with 

the children, the court terminated their parental rights and 

approved the children for adoption. 

Mother appeals, contending the court erred by 

(1) summarily denying her Welfare and Institutions Code section 

3881 petition requesting further reunification services; 

(2) denying the application of the beneficial parental relationship 

exception to adoption; and (3) failing to conduct adequate inquiry 

under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; 

ICWA). We reject the first two contentions. Respondent Los 

Angeles County Department of Children and Family Services 

(DCFS) concedes the ICWA error, so we conditionally reverse the 

order terminating parental rights and remand with directions to 

comply with ICWA inquiry requirements.

BACKGROUND

Jurisdiction and Disposition

The family came to the attention of DCFS when, on August 

1, 2019, the parents left the children in a vehicle alone on a hot 

day with the windows open three inches while the parents went 

into a store to buy beer. The children were red and sweating 

profusely, with temperatures outside at 98 degrees and inside at 

111 degrees. Naomi was banging on the window and crying. 

1 Statutory citations refer to the Welfare and Institutions 

Code.
3

Bystanders had to break out the vehicle’s window to remove the 

children. 

Police responded and arrested the parents for child 

endangerment. Security video from the store showed the parents 

inside the store for around 10 minutes. The inside of the parents’ 

vehicle was dirty, with trash and clothes strewn about. 

The parents appeared disheveled, and the children were dirty. 

Police suspected the family was living in the vehicle.

A social worker interviewed mother. She reported the 

parents had gone into the store to buy beer, claiming they had 

only been gone “two to five minutes.” She called her lapse in 

judgment a “mistake” and said the children were fine. She 

reported she and father drank beer and smoked marijuana, but 

not while caring for the children.

The social worker also interviewed father. He claimed he 

and mother were in the store for about two and a half minutes. 

He admitted he and mother drank beer on the weekends and he 

had smoked marijuana two days earlier.

DCFS filed a petition alleging three counts of neglect 

pursuant to section 300, subdivision (b). Count b-1 alleged the 

parents placed the children in a detrimental and endangering 

situation when they left the children alone in a vehicle with the 

temperature outside at 98 degrees and the temperature inside at 

111 degrees. Counts b-2 and b-3 alleged the parents were current 

marijuana abusers and were under the influence while caring for 

the young children. 

The court ordered the children detained from the parents 

and granted the parents monitored visitation. However, the 

criminal court had issued a protective order in favor of the 
4

children and against the parents, so visits could not begin until 

that order was modified.

The children were initially placed with a paternal great 

aunt, but she could not care for them, so they were moved. 

The paternal grandparents lived in Delaware; they expressed 

interest in moving to California and caring for the children.

At the adjudication hearing held on September 10, 2019, 

the juvenile court sustained the section 300 petition and set the 

matter for disposition.

In August and September 2019, mother had three positive 

drug tests and failed to show for two tests. Father had two 

positive drug tests and failed to show for two tests. In October 

2019, mother had three negative weekly drug tests and father 

had four negative weekly drug tests.

During the parents’ criminal proceeding, the criminal court 

ordered them to complete a year of parenting classes. The 

protective order was also modified to allow the parents peaceful 

contact with the children, enabling monitored visitation. DCFS 

reported in October 2019 the parents consistently attended 

monitored visitation with the children. The children were 

hesitant to engage with the parents and appeared unfamiliar 

with them, although the children were getting more comfortable.

At the disposition hearing on November 5, 2019, the court 

declared the children dependents and removed them from the 

parents. The court ordered reunification services for the parents, 

including a full drug program, drug testing, aftercare, a 12-step 

program, Alanon, a parenting program, and individual 

counseling. The court granted monitored visitation as permitted 

by the criminal court.
5

Reunification Period

The criminal court convicted the parents of child 

endangerment. It granted them probation and community 

service; it ordered them to complete a 52-week parenting 

program, to comply with DCFS, and not to leave the children 

unattended; and it issued a protective order in favor of the 

children through 2022. 

The paternal grandparents had not moved to California, 

so the children remained with their foster parents, who were 

designated as foster-adopt caregivers. The children were 

thriving. The foster parents fulfilled the children’s basic needs; 

they advocated for specialized medical, mental health, and 

academic needs; and they facilitated visitation. The children 

received in-home individual counseling. Naomi received speech 

services. Lea was potty-trained. The children appeared happy 

and attached to the foster parents.

During this period, the parents missed a few monitored 

visits and nearly half of their weekly drug tests. Father had not 

enrolled in any court-ordered programs. Mother had enrolled in 

an outpatient substance abuse program but declined two 

drug/alcohol tests for the program and missed eight of her weekly 

tests for DCFS. During early visits with the children, the 

parents did not interact much with them but improved during 

later visits. Between December 2019 and March 2020, the 

parents engaged well with the children during visits, playing 

games, looking at picture books, and bringing snacks. When 

visits switched to video calls in March 2020 due to the COVID-19 

pandemic, the children initially had trouble engaging, but they 

improved.
6

The court ultimately terminated reunification services on 

August 31, 2020, finding the parents failed to make substantial 

progress in their case plans. Mother objected to the termination 

of services. The court set a hearing under section 366.26.

Permanency Planning Period

The children began preschool in September 2020. 

Naomi continued in-home speech and occupational therapy 

services. The parents continued drug testing with negative test 

results. Mother tested positive for alcohol through her substance 

abuse treatment program on September 30, 2020. 

The parents continued in-person and virtual visits. 

The foster parents reported the children did not engage with the 

parents and became irritable after a few minutes. During one 

visit, the children said they did not want to engage with the 

parents and the parents did not speak for most of the visit. 

Afterward, the children had elevated emotions and struggled to 

sit for dinner or calm down for bedtime. The next week, Naomi 

did not engage with the parents, but Lea remained engaged for 

the full 30 minutes. Afterward, Naomi was irritable and 

struggled to fall asleep. 

During virtual visits in December 2020, the children varied 

between engagement and screaming and running off screen. 

After each visit, they were dysregulated. Without prompting, 

Lea said she did not want to have visits with the parents 

anymore. The visitation monitor noted during in-person visits at 

this time the parents were unable to redirect the children and 

had trouble engaging them outside of playing with a phone. 

Naomi experienced downward spirals after visits, including 

anger, hitting, nightmares, and screaming at nighttime. She was 

having accidents and refusing food. Lea appeared sadder and 
7

clung to the foster parents, telling them she did not want to see 

the parents. When the paternal grandparents appeared 

unexpectedly for a virtual visit, Naomi cried for food and was 

inconsolable. She spent the rest of the visit off screen cuddling 

with her foster mother.

The parents missed three virtual visits in September 2020, 

three in October 2020, one in November 2020, and three in 

December 2020.

By November 2020, the paternal grandparents still had not 

moved to California, but continued to express their wish to 

become legal guardians over the children.

The children’s therapist reported they were participating in 

psychotherapy with the foster parents and were progressing 

toward their objectives. Naomi improved her reflexes and 

sensory processing issues. The foster parents had been 

instrumental in implementing the therapist’s suggestions during 

the week. 

DCFS recommended the court terminate parental rights. 

The foster parents wanted to adopt the children, and their home 

study was approved. In the view of DCFS, the foster parents had 

“demonstrated their ongoing love for the children and their 

unwavering commitment to provide the children with a stable 

home through adoption.” The children called them “mom” and 

“dad.”

Mother’s Section 388 Petition and Termination of Parental 

Rights

On January 5, 2021, mother filed a petition pursuant to 

section 388 to modify the order terminating reunification services 

and to grant her additional services. She reported, “I have 

completed a full drug program during which I tested clean, a 
8

parenting program, I have a sponsor, I have participated in the 

12 Step Program, AA/NA Zoom meetings. I would be starting an 

aftercare program. I have also participated in individual 

counseling.” She claimed the modification was in the children’s 

best interests because she had “maintained a strong bond with 

my children and it would be in their best interests to be raised by 

their mother. I would like an opportunity to reunify with them 

and to raise them, in a loving nurturing home. I have learned a 

lot from my classes and realize I made a terrible mistake that 

I would never repeat.” 

The petition included supporting documentation. As 

reflected in the test results mother submitted, she tested positive 

for cocaine on August 4, 2020 and tested positive for alcohol on 

September 30, 2020.

At the combined hearing on mother’s section 388 petition 

and termination of parental rights pursuant to section 366.26, 

mother’s counsel noted the section 388 petition was late and 

requested a continuance. DCFS’s counsel did not oppose the 

continuance and noted it was not ready to argue. Nevertheless, 

the court accepted the late-filed petition and denied the 

continuance. The court noted a late-filed petition is “taken with a 

dose of skepticism and is not a good cause for a continuance. 

We’re concerned here with expedience hearing of cases to provide 

stability and permanency for children and a continuance on these 

facts would not be consistent with those objectives.” 

The court denied the section 388 motion, reasoning: 

“It may be true that mother is now having a wake up moment 

that circumstances are beginning to change—and hopefully that 

is the case that she will for the sake of herself and those around 

her take these issues seriously and continue to work on her path 
9

towards recovery, but it cannot be said that there’s a change in 

circumstances.

“Nor could it be said it would be in the minor’s best interest 

to delay permanency and stability any further. So for those 

reasons and the fact that the 388 was untimely—for all of those 

reason[s], the 388 is denied.”

The court found the children were adoptable and no 

exception to adoption applied. It reasoned the parents did not 

maintain regular visitation, so they did not establish a bond with 

the children. Further, the benefits of adoption outweighed the 

benefits from their parental relationship, so adoption was in their 

best interests. And returning the children to the parents would 

be detrimental to them. The court terminated the parents’ rights 

and designated the current foster parents as the prospective 

adoptive parents.

DISCUSSION

I. The Court Properly Denied the Section 388 Petition

Mother contends the juvenile court improperly denied her 

section 388 petition without holding a hearing. We review the 

denial of a section 388 petition for abuse of discretion. (In re 

Anthony W. (2001) 87 Cal.App.4th 246, 250.) We find none.

Section 388 allows a parent to petition the court to modify 

or set aside a previous order due to changed circumstances or 

new evidence. The petition must be verified and “shall set forth 

in concise language any change of circumstances or new evidence 

which are alleged to require such change of order or termination 

of jurisdiction.” (§ 388, subd. (a)(1).) 

A parent seeking to modify an order must “ ‘make a prima 

facie showing to trigger the right to proceed by way of a full 

hearing.’ ” (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) 
10

That showing has two parts: “(1) a genuine change of 

circumstances or new evidence” and “(2) revoking the previous 

order would be in the best interests of the children.” (Ibid.) 

“If the liberally construed allegations of the petition do not show 

changed circumstances such that the child’s best interests will be 

promoted by the proposed change of order, the dependency court 

need not order a hearing.” (Ibid.)

The juvenile court acted within its discretion in concluding 

mother’s petition did not set forth a prima facie showing of 

changed circumstances. Mother’s progress in her programs since 

termination of reunification services was commendable, but 

incomplete. Although she claimed she completed a drug program 

and tested clean, her own supporting documentation showed she 

tested positive for cocaine on August 5, 2020—just a few weeks 

before the court terminated reunification services on August 31, 

2020—and she tested positive for alcohol on September 30, 2020. 

There is indication in the record she had not completed her 

substance abuse program. She said she “would be starting an 

aftercare program,” indicating she had not started the program, 

let alone made progress in it. Nor had she progressed beyond 

monitored visitation with the children.

Mother’s progress came only after the court terminated 

reunification services, suggesting she did, in fact, have a “wake 

up moment,” as the juvenile court noted. But at that point it was 

too late. “Once reunification services are ordered terminated, the 

focus shifts to the needs of the child for permanency and 

stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Mother 

had more than 12 months after the children’s removal to address 

the issues that brought them into the dependency system. Her 

efforts were lackluster. She missed visits and missed eight drug 
11

tests. At the visits she did attend, the children had trouble 

engaging, although they improved over time.

After reunification services were terminated, the quality of 

the visits degraded. The children did not want to engage with 

the parents and became dysregulated after the visits, causing 

trouble for them at dinner and bedtime. Unprompted, Lea 

expressed she did not want to visit with the parents anymore. 

Naomi experienced downward spirals after visits, including 

anger, hitting, nightmares, and screaming at nighttime. She was 

having accidents and refusing food. Lea appeared sadder and 

clung to the foster parents, telling them she did not want to see 

the parents. For mother’s part, she missed 10 virtual visits 

between September and December 2020.

Mother argues she showed changed circumstances because 

“substantial compliance is compliance” with her reunification 

plan, citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 

1322, 1341. That case did not involve a section 388 petition, so it 

has little bearing on the issue here. In any case, even if that 

were the standard, the juvenile court did not abuse its discretion 

in finding no prima facie case of even “substantial compliance” 

based on the record here.

Nor did the juvenile court abuse its discretion in finding 

mother failed to show an extension of reunification served the 

children’s best interests. The children were thriving with their 

foster-to-adopt parents, who were dedicated to supporting them 

and helping them progress in their therapy and other services. 

The children viewed them as their parents, calling them “mom” 

and “dad.” In her petition, mother claimed she had established a 

bond with the children, but she offered no evidence to support 

that conclusory claim. The record shows the contrary. “At this 
12

point in the proceedings, on the eve of the selection and 

implementation hearing, the children’s interest in stability was 

the court’s foremost concern, outweighing any interest mother 

may have in reunification.” (In re Anthony W., supra, 87 

Cal.App.4th at pp. 251–252.) 

Mother argues the following “best interest” factors set forth 

in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 supported 

modifying the order terminating reunification: “(1) the 

seriousness of the problem which led to the dependency, and the 

reason for any continuation of the problem; (2) the strength of 

relative bonds between the dependent children to both parent 

and caretakers; and (3) the degree to which the problem may be 

easily removed or ameliorated, and the degree to which it 

actually has been.” These factors have been criticized for failing 

to account for the focus on the children’s interest in stability after 

reunification services have been terminated. (See In re J.C. 

(2014) 226 Cal.App.4th 503, 527.) In any case, the factors 

supported denial of mother’s section 388 petition here. 

The parents’ neglect was serious—they left their young children 

alone in a locked, dangerously hot vehicle so they could buy beer. 

They struggled with drug and alcohol abuse. These problems 

were undoubtedly challenging, and mother had only begun to 

address them. In contrast, the children’s bond with their foster 

parents was strong while their bond with mother was weak and 

appeared to be getting weaker. We cannot say the juvenile court 

abused its discretion in summarily denying the section 388 

petition without a hearing.2

2 Mother finds it troubling the juvenile court viewed her latefiled section 388 petition with “a dose of skepticism.” We cannot 

be sure what exactly the court meant by that comment. 
13

II. The Parental Bond Exception to Adoption Did Not 

Apply

Mother contends the juvenile court should have applied the 

beneficial parental relationship exception to adoption found in 

section 366.26, subdivision (c)(1)(B)(i). This exception requires a 

parent to establish by a preponderance of the evidence “the 

parent has regularly visited with the child, that the child would 

benefit from continuing the relationship, and that terminating 

the relationship would be detrimental to the child.” (In re Caden 

C. (2021) 11 Cal.5th 614, 629.) As our high court recently 

clarified, the statute sets out three elements: “(1) regular 

visitation and contact and (2) a relationship, the continuation of 

which would benefit the child such that (3) the termination of 

parental rights would be detrimental to the child.” (Id. at p. 631.)

The first element looks to whether the parents visit 

consistently, to the extent permitted by court orders. (In re 

Caden C., supra, 11 Cal.5th at p. 632.) Courts must consider this 

element through the lens of the best interests of the child, that is, 

how visits facilitate the development of significant and positive 

emotional attachment between the parent and child. (Ibid.)

The second element looks to whether the child would 

benefit from continuing the parental relationship. (In re Caden 

C., supra, 11 Cal.5th at p. 632.) “[T]he relationship may be 

shaped by a slew of factors, such as ‘[t]he age of the child, the 

portion of the child’s life spent in the parent’s custody, the 

Nevertheless, whether or not viewed with “a dose of skepticism,”

mother’s petition did not set forth a prima facie case to justify 

holding a hearing so the court acted within its discretion in 

summarily denying it.
14

“positive” or “negative” effect of interaction between the parent 

and child, and the child’s particular needs.’ ” (Ibid.)

Finally, the third element requires the court to decide 

“whether it would be harmful to the child to sever the 

relationship and choose adoption.” (In re Caden C., supra, 11 

Cal.5th at p. 633.) The court must look to “how the child would 

be affected by losing the parental relationship—in effect, what 

life would be like for the child in an adoptive home without the 

parent in the child’s life.” (Ibid.) For this element, the court 

must examine “whether the harm of severing the relationship 

outweighs ‘the security and the sense of belonging a new family 

would confer.’ [Citation.] ‘If severing the natural parent/child 

relationship would deprive the child of a substantial, positive 

emotional attachment such that,’ even considering the benefits of 

a new adoptive home, termination would ‘harm[]’ the child, the 

court should not terminate parental rights.” (Id. at p. 633.) 

Our review combines both substantial evidence and abuse 

of discretion standards. We review the factual findings on the 

first two elements for substantial evidence. (In re Caden C., 

supra, 11 Cal.5th at p. 639.) We review the juvenile court’s 

determination of the third element—the detriment to the child 

from the termination of parental rights—for abuse of discretion. 

(Id. at p. 640.) Although two standards are involved, this 

“hybrid” standard of review “simply embodies the principle that 

‘[t]he statutory scheme does not authorize a reviewing court to 

substitute its own judgment as to what is in the child’s best 

interests for the trial court’s determination in that regard, 

reached pursuant to the statutory scheme’s comprehensive and 

controlling provisions.’ ” (Id. at p. 641.) 
15

Although mother missed a few monitored visits during the 

reunification period and missed 10 virtual visits during the 

permanency placement period, DCFS does not press the 

visitation element on appeal. Following DCFS’s lead, we will 

assume mother satisfied the first element of consistent visitation. 

She has failed to demonstrate the other two elements. 

Substantial evidence supported the juvenile court’s finding 

the children would not benefit from a continuing relationship 

with mother. The children were relatively young when they were 

removed from the parents’ custody—ages 3 and 18 months. After 

they were removed, they never appeared entirely comfortable 

visiting with the parents, let alone bonded with them. As early 

as October 2019, the children were hesitant to engage with the 

parents and appeared unfamiliar with them. At the outset of the 

reunification period, the parents did not interact much with them 

during visits. When visits switched to video calls in March 2020 

due to the COVID-19 pandemic—which assuredly presented 

challenges to both the parents and children—the children again 

had trouble engaging. The children and parents were both 

improving during visits over this period, although that 

improvement did not prevent the juvenile court from terminated 

reunification services in August 2020. 

Then, as outlined in the previous section, the parents’ 

relationship with the children deteriorated. Clearly, the parents’ 

visits were negatively affecting them. Lea went so far as to say 

she did not want to visit the parents anymore. Mother’s 10 

missed virtual visits near the end of 2020 deprived the family of 

more opportunities to create a bond. Rather than creating 

beneficial parent-child relationship, mother’s interaction with the 

children appeared to have a detrimental effect on them.
16

For similar reasons, the juvenile court acted within its 

discretion in finding no harm to the children from severing their 

relationship with mother. The children were clearly bonded with 

the foster parents, calling them “mom” and “dad” and seeking 

their comfort during and after visits with the parents. The foster 

parents were dedicated to supporting the children’s development 

and ensuring they received the services they needed. The 

children were thriving in their care. Weighed against the 

evidence that mother lacked a strong bond with the children, this 

evidence supported the juvenile court’s finding that severing the 

parent/child relationship would not “ ‘deprive the child of a 

substantial, positive emotional attachment such that,’ even 

considering the benefits of a new adoptive home, termination 

would ‘harm[]’ the child.” (In re Caden C., supra, 11 Cal.5th at 

p. 633.)

III. DCFS’s ICWA Inquiry Was Inadequate

Mother contends DCFS did not conduct sufficient inquiry 

under ICWA regarding father’s possible Native American 

heritage before the juvenile court found the children were not 

Indian children.3 DCFS concedes its inquiry was inadequate. 

We will therefore conditionally reverse the order terminating 

parental rights and remand for further proceedings consistent 

with ICWA requirements.

ICWA Proceedings

When the children were detained, mother denied any 

Native American heritage. Father reported he had Native 

American heritage with the “Natico Tribe.” He was not 

3 Although mother does not claim any Indian ancestry, she 

may raise ICWA notice errors on appeal related to father. (In re 

A.W. (2019) 38 Cal.App.5th 655, 663.) 
17

registered and did not know if the paternal grandparents were 

registered.

Mother filed an ICWA-020 form indicating she had no 

known Indian ancestry. The juvenile court found it had no 

reason to know ICWA applied as to mother.

Father filed an ICWA-020 form claiming he was a member 

of or eligible for membership with the “Nanticoke” tribe. 

He claimed his great-great grandmother Nancy S. was a member 

of the tribe. The juvenile court ordered DCFS to investigate the 

claim.

DCFS submitted ICWA notices to the Bureau of Indian 

Affairs, the Secretary of the Interior, and three Cherokee tribes. 

They indicated the children’s possible membership in the 

Cherokee and “Naticoke” tribes. “Naticoke” was an apparent 

misspelling of the Nanticoke tribe. The notices listed father’s 

parents and grandparents, but not father’s great-great 

grandmother Nancy S. For father’s mother, the notices listed a 

phone number and potential membership in the Cherokee and 

“Naticoke” tribes. For father’s father, the notices listed only a 

birthplace of Maryland or Atlantic City. For one set of father’s 

grandparents, the notices listed a birth date, a birth location of 

Delaware, and membership in the “Naticoke” tribe for father’s 

grandmother, and listed a partial birth date, date of death, and 

membership in the Cherokee tribe for father’s grandfather. For 

father’s other set of grandparents, the notices listed only their 

names.

In October 2019, DCFS reported it had contacted the 

Eastern Band of Cherokee Indians, the United Keetoowah Band 

of Cherokee Indians, and the Cherokee nation for updates on the 

ICWA notices. The Eastern Band of Cherokee Indians responded 
18

in a letter that the children were not Indian children. At that 

point, DCFS had received no response from the other tribes. 

DCFS reported the “Naticoke” tribe was not a federally 

recognized tribe, so it sent notices to the Bureau of Indian Affairs

and the Department of the Interior.

Based on this record, at the November 5, 2019 disposition 

hearing, the juvenile court found it had no reason to know the 

children were Indian children. 

Current ICWA Law

ICWA applies to “ ‘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 A.M. (2020) 47 Cal.App.5th 303, 315; see § 224.1, subd. (b).) 

Throughout dependency proceedings, an agency has “an 

affirmative and continuing duty to inquire whether a child for 

whom a petition under section 300 . . . may be or has been filed, 

is or may be an Indian child. The duty of inquiry begins with the 

initial contact, including, but not limited to, asking the party 

reporting the child abuse or neglect whether he or she has any 

information that the child may be an Indian child.” (§ 224.2, 

subd. (a); see Cal. Rules of Court, rule 5.481(a).)

If the child is placed in custody of the agency, the agency 

“has a duty to inquire whether that child is an Indian child. 

Inquiry 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 parents, or Indian custodian is 

domiciled.” (§ 224.2, subd. (b).) 
19

At the first court appearance of the parties, “the court shall 

ask each participant present in the hearing whether the 

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

Indian child. The court shall instruct the parties to inform the 

court if they subsequently receive information that provides 

reason to know the child is an Indian child.” (§ 224.2, subd. (c).)

As of recent amendments effective January 2019, state law 

dictates that a court or agency has “reason to know” a child is an 

Indian child if, inter alia, “[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,” or “[a]ny participant in the proceeding, 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.” (§ 224.2, subds. (d)(1), (3).) 

If the court or social worker has “reason to believe” that an 

Indian child is involved in the proceeding, the court or social 

worker “shall make further inquiry regarding the possible Indian 

status of the child.” (§ 224.2, subd. (e).) The phrase “reason to 

believe” was not statutorily defined in the 2019 amendments, 

although it is now.4 Once there is a “reason to believe” a child 

4 Section 224.2, subdivision (e) was amended effective 

September 18, 2020 to define information triggering a “reason to 

believe” as “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. Information suggesting membership or 

eligibility for membership includes, but is not limited to, 

information that indicates, but does not establish, the existence 

of one or more of the grounds for reason to know enumerated in 

paragraphs (1) to (6), inclusive, of subdivision (d).” (Stats. 2020, 
20

may be an Indian child, the new law sets out the steps for the 

agency’s inquiry, including, “(A) Interviewing the parents, 

Indian custodian, and extended family members to gather the 

information required in paragraph (5) of subdivision (a) of Section 

224.3 [information required in ICWA notice]. [¶] (B) Contacting 

the Bureau of Indian Affairs and the State Department of Social 

Services for assistance in identifying the names and contact 

information of the tribes in which the child may be a member, or 

eligible for membership in, and contacting the tribes and any 

other person that may reasonably be expected to have 

information regarding the child’s membership status or 

eligibility. [¶] (C) 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. . . . Contact with a tribe shall include sharing 

information identified by the tribe as necessary for the tribe to 

make a membership or eligibility determination, as well as 

information on the current status of the child and the case.” 

(§ 224.2, subd. (e).)

Once ICWA notice is triggered, “the notice to the tribe must 

include a wide range of information about relatives, including 

grandparents and great-grandparents, to enable the tribe to 

properly identify the children’s Indian ancestry.” (In re A.M., 

supra, 47 Cal.App.4th at p. 317.) That information includes “ 

‘[a]ll names known of the Indian child’s biological parents, 

grandparents, and great-grandparents, or Indian custodians, 

ch. 104, § 15.) The court in this case made the ICWA 

determination prior to this amendment, so the version in effect at 

that time applies. (See In re T.G. (2020) 58 Cal.App.5th 275, 290, 

fn. 14.)
21

including maiden, married, and former names or aliases, as well 

as their current and former addresses, birth dates, places of birth 

and death, tribal enrollment information of other direct lineal 

ancestors of the child, and any other identifying information, if 

known.’ ” (Ibid., quoting § 224.3, subd. (a)(5)(C).) “ ‘Any violation 

of this policy requires the appellate court to vacate the offending 

order and remand the matter for further proceedings consistent 

with ICWA requirements.’ ” (In re A.M., supra, at p. 317.)

We review the juvenile court’s finding that sufficient 

inquiry was made under ICWA for substantial evidence. (In re 

D.N. (2013) 218 Cal.App.4th 1246, 1251.) 

ICWA Inquiry

DCFS concedes it did not follow the statutory dictates for 

sufficient ICWA inquiry in this case. Father’s ICWA-020 form 

listed the Nanticoke tribe and identified his great-great 

grandmother as a member. There is no dispute that created a 

“reason to believe” the children might have been Indian children, 

triggering an obligation for further inquiry. DCFS was required 

to interview “the parents, Indian custodian, and extended family 

members to gather the information” for ICWA notices. (§ 224.2, 

subd. (e).) The record does not disclose DCFS interviewed any 

paternal family members to gather information related to the 

children’s Indian status, even though a paternal great aunt and 

the paternal grandparents were both involved in the case and 

available to DCFS. 

The notices sent to the Cherokee tribes, the Bureau of 

Indian Affairs, and the Department of the Interior were also 

deficient. The notices misspelled the Nanticoke tribe, and 

provided little to no information on father’s parents and 

grandparents beyond their names. At a minimum, the notices 
22

should have identified father’s relatives’ “ ‘maiden, married, and 

former names or aliases, as well as their current and former 

addresses, birth dates, places of birth and death, tribal 

enrollment information of other direct lineal ancestors of the 

child, and any other identifying information, if known.’ ” 

(In re A.M., supra, 47 Cal.App.4th at p. 317, quoting § 224.3, 

subd. (a)(5)(C).)

Mother argues DCFS failed to include father’s great-great 

grandmother Nancy S. in the ICWA notices. She would be the 

children’s great-great-great grandmother. Such a distant relative 

is not listed in section 224.3 alongside the relatives who must be 

included in ICWA notices. (§ 224.3, subd. (a)(5)(C) [listing the 

Indian child’s biological parents, grandparents, and greatgrandparents for ICWA notices]; see In re D.N., supra, 218 

Cal.App.4th at p. 1252 [information about children’s great-great 

grandmother not required for ICWA notices].) 

Nevertheless, “[n]otice given by DCFS pursuant to ICWA 

must contain enough information to permit the tribe to conduct a 

meaningful review of its records to determine the child’s 

eligibility for membership.” (In re S.E. (2013) 217 Cal.App.4th 

610, 615.) When DCFS has been given specific information that a 

more distant relative is a member of an Indian tribe, the 

inclusion of that information in ICWA notices is “required 

regardless of the lack of a preprinted line on the Judicial Council 

form asking for it.” (Id. at pp. 615–616 [requiring ICWA notices 

to include child’s great-great grandfather, whom mother claimed 

was Native American]; see In re E.H. (2018) 26 Cal.App.5th 1058, 

1073 [interpreting federal ICWA regulations to require notice to 

include child’s great-great grandparent’s information].) Father 

specifically informed DCFS his great-great grandmother was a 
23

member of the Nanticoke tribe, and he provided her name. 

DCFS should have included that information in the ICWA notices 

it sent. 

Mother also asserts in her brief on appeal that no notice 

was sent to the Delaware Tribe of Indians, Oklahoma, which she 

claims is federally recognized and includes the Nanticoke tribe. 

She is right there is no such notice in the record, but she cites no 

evidence to support her assertions that (1) the Delaware Tribe of 

Indians, Oklahoma is federally recognized and (2) the Nanticoke 

tribe is part of it. She may be right on both points; DCFS 

concedes in passing that notice must be sent to the Delaware 

Tribe of Indians. However, without more thorough briefing or 

evidentiary support, we will not direct notice to be given to the 

Delaware Tribe of Indians. The juvenile court may do so if 

appropriate when it addresses these issues on remand. 

To summarize, on remand, DCFS must interview the 

paternal great aunt and paternal grandparents, as well as any 

other relatives who may have relevant information about the 

children’s Indian status. Once DCFS conducts this further 

inquiry, it must send new notices to the relevant tribes and 

entities containing the biographical information it has collected 

regarding father’s relatives. The notices must include father’s 

great-great grandmother Nancy S. and any of her identifying 

information DCFS has collected. The juvenile court should 

address on remand whether notice to the Delaware Tribe of 

Indians is required.
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DISPOSITION

The order denying mother’s section 388 petition is affirmed. 

The order terminating parental rights is conditionally reversed. 

The matter is remanded for further proceedings to satisfy ICWA 

requirements. Should the juvenile court conclude ICWA does not 

apply and the children are not Indian children, it should 

reinstate the order terminating parental rights. If a tribe 

indicates the children are Indian children, the juvenile court 

should conduct further proceedings in compliance with ICWA.

In all other respects, the order terminating parental rights 

is affirmed.

OHTA, J. *

We Concur:

GRIMES, Acting P. J.

STRATTON, J.

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

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

Constitution.