Filed 5/6/22 In re J.D. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

In re J.D. et al., Persons Coming 

Under the Juvenile Court Law.

B314343

Los Angeles County

Super. Ct. Nos. DK19673A,

DK19673B

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

Veronica D.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County, Diane C. Reyes, Judge Pro Tempore of the Juvenile 

Court. Conditionally affirmed and remanded with directions.

Jesse F. Rodriguez, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Tarkian & Associates and Arezoo Pichvai for Plaintiff 

and Respondent.

_________________________
2

Mother Veronica D. appeals from the juvenile court’s orders 

terminating her parental rights to her children J.D. (born July 

2014) and R.D. (born July 2016). Mother contends the orders 

must be reversed because the Los Angeles County Department 

of Children and Family Services (Department) failed to comply 

with its duty of initial inquiry under state law (Welf. & Inst. 

Code, § 224 et seq.) implementing the Indian Child Welfare Act 

of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) when it did not ask 

extended family members if the children had Indian ancestry.1 

We agree with mother that section 224.2, subdivision (b)

(section 224.2(b)) required the Department to interview identified

and available maternal extended family members. It did not.

Accordingly, we conditionally affirm the orders terminating 

mother’s and father’s parental rights and remand the matter 

for the limited purpose of requiring the Department to comply

with section 224.2 and, if necessary, the notice provisions of 

ICWA and related California law.

BACKGROUND

1. Proceedings leading to termination of parental rights

The Department became involved with the family in 

September 2016 when it responded to an allegation that J.D.’s

and R.D.’s father had sexually abused then-two-year-old J.D., 

and that then-two-month-old R.D. was at risk of abuse. At 

the time, another dependency case was pending against father 

concerning his alleged sexual abuse of his daughter—J.D. 

1 Undesignated statutory references are to the Welfare 

and Institutions Code. Because ICWA uses the term “Indian,” 

we do the same for consistency. (In re Benjamin M. (2021) 

70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
3

and R.D.’s half-sister.

2 Parents also reportedly had a domestic 

violence encounter in July 2016. The Department obtained 

a removal order and detained the children from father.

The Department filed a section 300 petition, and in 

February 2017 the juvenile court sustained allegations that 

J.D. and R.D. were at substantial risk of serious physical harm 

due to parents’ history of domestic violence; father’s history of 

and current illicit drug use and mother’s failure to protect the 

children; father’s mental and emotional problems; and father’s

criminal history and registration as a sex offender.3 The court

declared the children dependents of the juvenile court, removed 

them from father, awarded father monitored visits (but not 

by mother), and released the children to mother’s custody under 

Department supervision with family maintenance services. 

Mother was to participate in individual counseling, parenting 

classes, and a sexual abuse awareness program.

In January 2018, mother and father had a third child,

A.D. The Department received reports alleging general neglect 

by parents after A.D.’s birth and again in March 2018. A.D. 

also was detained from father.

2 Another child of father’s, by a different mother, was 

declared a juvenile dependent in 2013 and released to the child’s 

maternal grandparents under a legal guardianship in 2015.

3 Father is not a party to this appeal. At the detention 

hearing, the court found he was J.D.’s and R.D.’s presumed 

father. Mother met father, who was then 33 years old, after she

moved in with a friend and the friend’s family at the age of 16.

She gave birth to their first son J.D. at age 17; she and father 

married about a year and a half later in 2016.
4

In May 2018, the Department detained J.D. and R.D., 

as well as A.D., from mother,4 and filed a supplemental section 

387 dependency petition on J.D.’s and R.D.’s behalf,5 alleging 

mother had violated the juvenile court’s earlier orders by 

allowing father unmonitored contact with the children. In July 

2018, the court sustained the petition and ordered J.D. and R.D. 

removed from mother with family reunification services to be 

provided to her, but not to father. Mother was to have monitored 

visits and to participate in programs for parenting and domestic 

violence for victims, sexual abuse awareness counseling, and 

individual counseling.

At the six-month review hearing in January 2019, the court 

awarded mother another six months of reunification services 

to give her time to enroll in and complete her court-ordered 

programs, as the Department had recommended.

In June 2019, mother gave birth to a fourth child with 

father (while she was in custody). The baby (E.D.) was detained 

and placed in foster care.6 J.D., R.D., and their brother A.D., 

remained together in the foster home where they had been placed 

in February 2019.

In August 2019, the court found mother, who had received 

12 months of reunification services, had not made substantial 

4 The children were placed in foster care.

5 In March 2018, the Department filed a separate 

dependency petition on behalf of A.D., followed by an amended 

petition in June 2018. The court appears to have partially 

sustained the amended petition on July 20, 2018.

6 The Department filed a dependency petition on E.D.’s 

behalf that the court sustained on August 7, 2019.
5

progress toward alleviating or mitigating the causes that led 

to the children’s placement. It terminated her reunification 

services and set the case for a section 366.26 permanency 

planning hearing. In February 2020, the court ordered adoption 

as the children’s permanent plan.

On August 5, 2021, the court convened a combined section 

388 and section 366.26 hearing.7 The court denied mother’s 

earlier-filed section 388 petition asking for further reunification 

services and unmonitored visits. The court then found J.D. and 

R.D. were adoptable by clear and convincing evidence and no 

exception to adoption applied, terminated mother’s and father’s 

parental rights, and designated the children’s current caretakers 

as their prospective adoptive parents. Mother appealed from 

the orders terminating her parental rights as to J.D. and R.D.8

2. Facts relevant to ICWA inquiry

When the Department initiated its investigation in 

September 2016, mother—who recently had left father—was 

temporarily living with the children at maternal grandmother’s 

home. (Mother’s father, maternal grandfather, died when mother 

was two years old.) A Department social worker interviewed 

maternal grandmother, but the record does not indicate the 

social worker asked maternal grandmother about the children’s 

7 The court had to continue the permanency planning review 

hearings several times due to the COVID-19 pandemic and for 

the Department to give proper notice.

8 At that same August 5, 2021 hearing, the juvenile court 

also terminated mother’s and father’s parental rights as to A.D. 

and E.D. Mother’s appeal from those orders currently is pending 

under appellate case number B314404.
6

possible Indian ancestry. Two days later, the social worker 

interviewed mother, who denied having American Indian 

ancestry. The detention report states both parents denied 

any American Indian ancestry, and ICWA does not apply.

On September 28, 2016, mother and father each filled 

out a Parental Notification of Indian Status form (ICWA-020), 

and each checked the box, “I have no Indian ancestry as far as 

I know.” At the detention hearing that same day, the juvenile 

court noted parents had filled out the ICWA-020 forms indicating 

“no known Indian ancestry,” and declared it had “no reason 

to know” the children were Indian children under ICWA.

The Department’s jurisdiction/disposition report prepared 

October 26, 2016, states, “There is no known American Indian 

ancestry based upon inquiries” by the dependency investigator. 

According to the report, on October 19, 2016, mother again said 

she did not have any Indian ancestry. Father apparently denied 

any American Indian ancestry on September 9, 2016, to the 

social worker in the children’s half-sibling’s case. The report 

notes the investigator also interviewed maternal grandmother 

on October 19, 2016, at “mother’s residence,”

9 but does not state 

the investigator asked her about Indian ancestry. (Maternal 

grandmother was monitoring father’s visits with the children.)

According to subsequent reports filed with the court, the 

Department spoke with maternal grandmother on several more 

9 Based on the address provided in the report, mother still

was living with maternal grandmother at this point. At some 

point, mother moved out of maternal grandmother’s home. The 

Department’s August 15, 2017 status review report states mother 

and the children were residing at a motel, and notes maternal 

grandmother said she never told mother to move out.
7

occasions—both before and after the children were removed 

from mother—including in July 2017, March 2018,10 June 2018, 

December 2018, and August 2019. She visited the children 

with mother and, at one point, was seeking to have the children 

placed in her care. Maternal grandmother also received notice 

of the scheduled section 366.26 hearings. There is no indication 

that the Department asked maternal grandmother about the 

children’s possible Indian ancestry during any of its encounters 

with her.

The Department had contact with maternal great aunt

in April, May, and June 2018 about an April 2018 visit parents

and the children made to her house, and whether she would 

be willing to have the children placed with her. In June 2018, 

maternal great aunt told the Department social worker she 

was willing to provide a home for the children.

11 There is no 

indication that the Department asked the maternal great aunt 

about the children’s possible Indian ancestry during any of 

its contacts with her.

According to Department reports, on March 21, 2018 

and June 5, 2018, the juvenile court found that it did “not have 

a reason to know that ICWA applies” to mother and father, 

respectively.

10 During that interview, maternal grandmother informed 

the social worker she temporarily was living with mother and 

the children.

11 The Department’s June 14, 2018 jurisdiction/disposition 

report notes the dependency investigator also interviewed 

maternal second cousin—presumably, maternal great aunt’s 

daughter, with whom she lived.
8

At the January 22, 2021 section 366.26 hearing, the court 

asked mother if she had any American Indian ancestry as far 

as she knew. Mother responded, “No.” The court ordered, “[T]he 

prior no-ICWA finding as to mother remains.” In response to 

questioning, mother also said she was not aware of father having 

any American Indian ancestry. The court then found its prior 

finding “of no reason to know ICWA applies” remained.

DISCUSSION

1. Applicable law and standard of review

Congress enacted ICWA “ ‘to protect the best interests 

of Indian children and to promote the stability and security 

of Indian tribes and families by the establishment of minimum 

Federal standards for the removal of Indian children from their 

families and the placement of such children in foster or adoptive 

homes which will reflect the unique values of Indian culture.’ ” 

(In re Isaiah W. (2016) 1 Cal.5th 1, 7–8 (Isaiah W.); see 25 U.S.C. 

§ 1902.) Both ICWA and state law define an “ ‘Indian child’ ”

as “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 Indian tribe and is the biological child of a member of

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

[adopting federal definition].)

“Because it typically is not self-evident whether a child 

is an Indian child, both federal and state law mandate certain 

inquiries to be made in each case. These requirements are 

sometimes collectively referred to as the duty of initial inquiry.” 

(Benjamin M., supra, 70 Cal.App.5th at p. 741.) Federal 

regulations implementing ICWA require courts to ask

participants in a dependency case whether they know or have 

reason to know the child is an Indian child and to instruct 
9

the parties to inform the court “ ‘if they subsequently receive 

information that provides reason to know the child is an Indian 

child.’ ” (Ibid.) 

California law, however, “more broadly imposes” on 

the Department and the juvenile court, “(but not parents)[,]

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

in the dependency proceeding ‘is[,] or may be[,] an Indian child.’ ” 

(Benjamin M., supra, 70 Cal.App.5th at pp. 741–742, quoting

§ 224.2, subd. (a).) That duty to inquire “begins with [the] initial 

contact . . . 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. (2020) 58 Cal.App.5th

275, 290, citing § 224.2, subd. (a).)

Under the statute, when the Department takes a child 

into its temporary custody, its duty of initial 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.” 

(§ 224.2(b); Benjamin M., supra, 70 Cal.App.5th at p. 742;

see also In re Darian R. (2022) 75 Cal.App.5th 502, 507

(Darian R.).)

12

 The juvenile court, in turn, at a party’s first 

appearance, must ask “each participant present in the hearing 

whether the participant knows or has reason to know that the 

child is an Indian child” (§ 224.2, subd. (c)) and require each 

12 Extended family members include adults who are the 

child’s “grandparent, aunt or uncle, brother or sister, brotherin-law or sister-in-law, niece or nephew, first or second cousin, 

or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting 

federal definition].)
10

party to complete an ICWA-020 form (Cal. Rules of Court, 

rule 5.481(a)(2)(C)). “The parties are instructed to inform the 

court ‘if they subsequently receive information that provides 

reason to know the child is an Indian child.’ (25 C.F.R. 

§ 23.107(a) (2020); § 224.2, subd. (c).)” (In re Dominic F. 

(2020) 55 Cal.App.5th 558, 566 (Dominic F.).)

If that initial inquiry gives the juvenile court or 

Department a “reason to believe that an Indian child is involved,” 

then their duty to “make further inquiry regarding the possible 

Indian status of the child” is triggered. (§ 224.2, subd. (e); 

Benjamin M., supra, 70 Cal.App.5th at p. 742.) And, once 

there is a “reason to know” an Indian child is involved, formal 

notice under ICWA must be given to the children’s “parents or 

legal guardian, Indian custodian, if any, and the child’s tribe.” 

(§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1); 25 U.S.C. 

§ 1912(a).)13

We review the juvenile court’s ICWA findings for 

substantial evidence, but independently determine whether

the requirements of ICWA have been satisfied when the facts 

are undisputed. (Dominic F., supra, 55 Cal.App.5th at p. 565; 

In re D.S. (2020) 46 Cal.App.5th 1041, 1051.) 

2. The Department failed to conduct an adequate 

inquiry under section 224.2(b)

It is undisputed the Department did not ask maternal 

grandmother or maternal great aunt about the children’s possible 

Indian ancestry despite having repeated opportunities to do so. 

13 As mother contends only that the Department failed to

discharge its duty of initial inquiry, neither the duty of further 

inquiry nor notice requirements are at issue.
11

The Department argues “there was no need to question [parents’] 

extended family members about the children’s Indian status” 

because mother and father were available to answer questions 

about their Indian ancestry. It thus asserts it fulfilled its duty 

of initial inquiry.14

We disagree. Maternal grandmother was known and 

available to the Department. Indeed, it spoke with her at least 

six times. It also had several contacts with maternal great aunt. 

All it had to do was ask these two women about any Indian 

ancestry. But it didn’t. (See In re A.C. (2022) 75 Cal.App.5th

1009, 1013, 1015–1016 [Department did not comply with its 

“ ‘obligation to make a meaningful effort’ ” to ask extended family 

members—who “were readily available to consult”—about child’s 

possible Indian ancestry, despite parents’ denial of any, noting 

mother was “the product of foster care”]; Darian R., supra, 75 

Cal.App.5th at pp. 505, 509–510 [mother, who denied Indian 

ancestry, demonstrated Department erred in failing to ask aunt 

and grandfather, with whom the Department had contact, about 

children’s potential Indian ancestry, but error was harmless]; 

In re H.V. (2022) 75 Cal.App.5th 433, 436, 438 [Department 

failed to discharge its “first-step inquiry duty,” even though 

mother denied Indian ancestry, when it did not ask extended 

family members—whom it had interviewed—about child’s 

possible Indian ancestry].) We thus agree with mother that 

the Department did not fulfill its initial duty of inquiry.

14 Although mother argues the Department’s error was 

prejudicial, the Department does not contend that any inquiry 

error on its part was harmless. Rather, it contends only that 

it satisfied its duty of inquiry, and that substantial evidence 

supports the court’s finding that ICWA does not apply.
12

In light of that conclusion, we also must reject the 

Department’s contention that parents’ denials of Indian ancestry

provide substantial evidence supporting the juvenile court’s 

finding that ICWA did not apply. (See In re Josiah T. (2021) 71 

Cal.App.5th 388, 397–401, 408 [some indication of Cherokee and 

Choctaw heritage; juvenile court “may not find that ICWA does 

not apply when the absence of evidence that a child is an Indian 

child results from a [Department] inquiry that is not proper, 

adequate, or demonstrative of due diligence”]; see also In re N.G.

(2018) 27 Cal.App.5th 474, 484 [in absence of appellate record 

“affirmatively showing the court’s and the agency’s efforts 

to comply with ICWA’s inquiry and notice requirements, we 

will not, as a general rule, conclude that substantial evidence 

supports the court’s finding that . . . ICWA did not apply”].)

We acknowledge that remanding the matter to comply 

with ICWA will delay the children’s permanent plan of adoption. 

We are mindful that this case has been pending for more than 

five years. Nevertheless, our high court has explained that 

the federal and state statutes implementing ICWA “were clearly 

written to protect the integrity and stability of Indian tribes 

despite the potential for delay in placing a child.” (Isaiah W., 

supra, 1 Cal.5th at p. 12.) And, as the Department easily can 

contact maternal relatives, any delay here should be minimal.15

15 Mother identifies no relatives—maternal or paternal—

other than maternal grandmother and maternal great aunt 

as extended family members the Department must question 

under section 224.2(b). On remand, the Department thus may 

limit its initial inquiry of extended family members to maternal 

grandmother and maternal great aunt. 
13

DISPOSITION

We conditionally affirm the court’s orders terminating 

mother’s and father’s parental rights to J.D. and R.D. The case 

is remanded to the juvenile court to order the Department 

immediately to comply with the inquiry provisions of Welfare 

and Institutions Code section 224.2, consistent with this 

opinion, and update the court on its investigation within 30 days 

of the remittitur. 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 orders terminating mother’s and father’s parental 

rights shall remain in effect. If the court determines ICWA 

does apply, it shall vacate its orders terminating parental rights 

and proceed in conformity with ICWA and related state law.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J. KALRA, J.*

* Judge of the Los Angeles County Superior Court, assigned 

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

California Constitution.