Filed 4/20/16 In re K.N. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re K.N., a Person Coming Under the 

Juvenile Court Law.

 B264242

 (Los Angeles County

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent.

v.

MICHAEL S.,

Defendant and Appellant.

 Super. Ct. No. DK09397)

APPEAL from an order of the Superior Court of Los Angeles County. Connie R. 

Quinones, Judge. Affirmed and remanded with directions.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mary C. Wickham, County Counsel, and Julia Roberson, Assistant County 

Counsel for Plaintiff and Respondent.
2

Appellant Michael S. (father), the presumed father of K.N. (born Nov. 2014), 

appeals from the juvenile court’s findings and orders establishing jurisdiction over K.N.

and removing him from father’s custody. Father’s sole contention on appeal is that the 

order must be reversed for failure to comply with the inquiry and notice requirements of 

the Indian Child Welfare Act (ICWA). The Los Angeles Department of Children and 

Family Services (the Department) concedes that the matter should be remanded to the 

juvenile court for compliance with ICWA.

We remand the matter to the juvenile court to allow compliance with the ICWA 

notice requirements, and otherwise affirm the juvenile court’s jurisdictional findings and 

dispositional orders.

BACKGROUND

On February 3, 2015, the Department filed a petition under Welfare and 

Institutions Code section 3001 on behalf of K.N. alleging that father had a criminal 

history involving domestic violence, that father and K.N.’s mother2 had a history of 

engaging in violent altercations, and that father had choked mother on two prior 

occasions. The petition further alleged that father had a history of illicit drug use and was 

a current user of Phencyclidine, rendering him incapable of providing regular care and 

supervision of K.N., and that father had been under the influence of drugs while K.N. was 

in his care.

The Department’s detention report stated that ICWA did not apply, and an ICWA010 form attached to the petition stated that K.N. had no known Indian ancestry. At the 

February 3, 2015 detention hearing, father and mother submitted ICWA-020 forms 

indicating they did not have Indian ancestry. During the hearing, the juvenile court asked 

both parents on the record about their Indian ancestry. Mother denied any Indian 

heritage, but father responded, “I have ancestry; I am just not registered.” The juvenile 

court then found that ICWA did not apply and ordered K.N. detained from both parents.

 

1 All further statutory references are to the Welfare and Institutions Code.

2 Mother is not a party to this appeal.
3

On February 26, 2015, the juvenile court sustained an amended petition and set the 

matter for a contested dispositional hearing to be held on April 7, 2015. At the April 7, 

2015 dispositional hearing, the juvenile court sustained a subsequent section 342 petition 

filed on March 11, 2015,

3 ordered K.N. removed from his parents’ custody, and accorded 

both parents monitored visitation.

This appeal followed.

DISCUSSION

ICWA accords Indian tribes the right to intervene at any point in a state court 

dependency proceeding involving an Indian child. (In re Karla C. (2003) 113 

Cal.App.4th 166, 173-174.) To ensure the tribe will be afforded the opportunity to 

intervene and assert its rights in the action, the statute requires that notice be given to the 

appropriate tribe in any dependency proceeding involving an Indian child.4

In California, section 224.2 governs ICWA notice in dependency proceedings. 

Subdivision (a) of that statute provides in relevant part: “If the court, a social worker, or 

probation officer knows or has reason to know that an Indian child is involved, any notice 

 

3 The section 342 petition, filed on behalf of K.N. and his older non-detained halfsiblings, alleged that father had physically abused the half-siblings by striking them with 

belts and with his hands and that on a prior occasion father had choked one of the older 

half-siblings.

4 The ICWA notice provision states: “In any involuntary proceeding in a State 

court, where the court knows or has reason to know that an Indian child is involved, the 

party seeking the foster care placement of, or termination of parental rights to, an Indian 

child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered 

mail with return receipt requested, of the pending proceedings and of their right of 

intervention. If the identity or location of the parent or Indian custodian and the tribe 

cannot be determined, such notice shall be given to the Secretary in like manner, who 

shall have fifteen days after receipt to provide the requisite notice to the parent or Indian 

custodian and the tribe. No foster care placement or termination of parental rights 

proceeding shall be held until at least ten days after receipt of notice by the parent or 

Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian 

custodian or the tribe shall, upon request, be granted up to twenty additional days to 

prepare for such proceeding.” (25 U.S.C. § 1912(a).)
4

sent in an Indian child custody proceeding under this code shall . . . comply with all of 

the following requirements: [¶] (1) Notice shall be sent by registered or certified mail 

with return receipt requested. Additional notice by first-class mail is recommended, but 

not required. [¶] (2) Notice to the tribe shall be to the tribal chairperson, unless the tribe 

has designated another agent for service. [¶] (3) Notice shall be sent to all tribes of which 

the child may be a member or eligible for membership, until the court makes a 

determination as to which tribe is the child’s tribe in accordance with subdivision (d) of 

Section 224.1, after which notice need only be sent to the tribe determined to be the 

Indian child’s tribe.”

California law also imposes an “affirmative and continuing duty” on the court and 

the Department “to inquire whether a child for whom a petition . . . is to be, or has been, 

filed is or may be an Indian child in all dependency proceedings.” (§ 224.3, subd. (a).) 

Subdivision (c) of section 224.3 sets forth the steps to be taken when making further 

inquiry regarding a child’s Indian status:

“If the court, social worker, or probation officer knows or has reason 

to know that an Indian child is involved, the social worker or probation 

officer is required to make further inquiry regarding the possible Indian 

status of the child, and to do so as soon as practicable, by interviewing the 

parents, Indian custodian, and extended family members to gather the 

information required in paragraph (5) of subdivision (a) of Section 224.2, 

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 reasonably can be 

expected to have information regarding the child’s membership status or 

eligibility.”

5

 

5 The statutory inquiry requirements are implemented by rule 5.481(a) of the 

California Rules of Court. Subdivision (a)(4)(A) of rule 5.481 provides that inquiry 

regarding a child’s Indian heritage shall include “[i]nterviewing the parents, Indian 

custodian, and ‘extended family members’ as defined in 25 United States Code section 

1901 and 1903(2), to gather the information listed in Welfare and Institutions Code 

section 224.2(a)(5) . . . which is required to complete the Notice of Child Custody 

Proceeding for Indian Child (form ICWA-030).”
5

Father contends, and the Department concedes, that the inquiry and notice 

requirements of ICWA were not met in this case and that the juvenile court erred by 

holding the adjudication and dispositional hearings without ensuring compliance with 

those requirements. Failure to comply with the inquiry and notice requirements of ICWA 

does not require reversal of the juvenile court’s dispositional order. (In re Brooke C. 

(2005) 127 Cal.App.4th 377, 384-385 (Brook C.).) As we noted in Brooke C., “the only 

order which would be subject to reversal for failure to give notice would be an order 

terminating parental rights” (id. at p. 385), and such an order is not at issue in these 

proceedings.

Father cites Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, in which the 

Third Appellate District disagreed with our holding in Brooke C., as support for the 

argument that failure to provide ICWA notice was prejudicial error requiring reversal of 

the juvenile court’s order. We are not bound by Nicole K., and we disagree with the 

court’s decision in that case. (Los Angeles Police Protective League v. City of Los 

Angeles (1985) 163 Cal.App.3d 1141, 1147.) Moreover, as father himself points out, a 

majority of courts have followed the approach taken in Brooke C. rather than the one 

adopted by the court in Nicole K. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1388-

1389; In re Christian P. (2012) 208 Cal.App.4th 437, 452-453; In re Damian C. (2009) 

178 Cal.App.4th 192, 199-200; In re Veronica G. (2007) 157 Cal.App.4th 179, 187-188; 

In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) We see no reason to depart from 

that approach in this case.

DISPOSITION

The matter is remanded to the juvenile court for compliance with ICWA and 

applicable related California law. If, after proper inquiry and notice, a tribe claims that 

K.N. is an Indian child, or if other information is presented to the juvenile court that 

suggests K.N. is an Indian child, the juvenile court is ordered to conduct a new hearing in 

conformity with the provisions of ICWA relating to child custody proceedings involving 

Indian children, and K.N., the tribe, and father may petition the juvenile court to 
6

invalidate any orders that violate ICWA. In all other respects, the juvenile court’s 

jurisdictional findings and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

ASHMANN-GERST