Filed 6/22/23 In re H.R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re H.R., a Person Coming 

Under the Juvenile Court Law.

 B325373

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

I.A.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct.

 No. 21CCJP01513A)

APPEAL from an order of the Superior Court of Los 

Angeles County, Hernan D. Vera, Judge. Conditionally reversed 

with directions.

William Hook, under appointment by the Court of Appeal, 

for Defendant and Appellant.
2

Dawyn R. Harrison, County Counsel, and Avedis 

Koutoujian, Deputy County Counsel, for Plaintiff and 

Respondent.

——————————

Mother1 appeals from the September 16, 2022 order 

terminating parental rights to her son (minor) under Welfare and 

Institutions Code section 366.26.

2 Mother’s sole contention on

appeal is that the juvenile court erroneously failed to ensure 

compliance with the inquiry and notice requirements of the 

Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et 

seq.) and related California statutes (Welf. & Inst. Code, § 224 et 

seq.). We conditionally reverse and remand the matter solely for 

the court to ensure compliance with ICWA and related California 

statutes. 

FACTUAL AND PROCEDURAL BACKGROUND

The Los Angeles County Department of Children and 

Family Services (Department) began investigating the family on 

March 30, 2021 after law enforcement found minor (then only 10

months old) with two unrelated individuals in a hotel room with 

narcotics in it. Mother and a paternal aunt spoke to a social 

worker, and both denied any Indian ancestry. The Department 

filed a petition alleging the child was at risk of harm based on 

1 Father is not a party to the current appeal. Mother also 

has another child, who is under a 2018 guardianship order. That 

child is not a party to this appeal.

2 All further statutory references are to the Welfare and 

Institutions Code unless otherwise specified.
3

mother and father’s substance abuse and their inability to make 

a plan for the child’s care and supervision. The child was placed 

with maternal grandmother after a short stay in foster care. 

Counsel for mother and counsel for father each filed an ICWA-20 

form indicating the form was “on behalf of” the client and denying 

any Indian ancestry; although neither mother’s form nor father’s 

form is signed by the parent, mother concedes on appeal that she 

and father filed the forms denying Indian ancestry. The juvenile 

court found that ICWA did not apply. 

Despite evidence that minor was placed with maternal 

grandmother, and Department employees were in contact with 

maternal grandmother, paternal grandmother, a paternal aunt, 

and a maternal aunt, and had information about a paternal 

uncle, there is no indication that any of minor’s extended 

relatives (with the exception of paternal aunt) were ever asked 

about the possibility that minor had any Indian ancestry. 

The court terminated the parents’ reunification services at 

the six-month review hearing and scheduled a permanency 

planning hearing. At the permanency planning hearing under 

section 366.26, the court ordered parental rights terminated. 

Mother appealed.

DISCUSSION

“Congress enacted ICWA in 1978 in response to ‘rising 

concern in the mid-1970’s over the consequences to Indian 

children, Indian families, and Indian tribes of abusive child 

welfare practices that resulted in the separation of large numbers 

of Indian children from their families and tribes through 

adoption or foster care placement, usually in non-Indian homes.’ ” 
4

(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California 

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); § 224.1, subds. (a) & (b); see In re 

Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)

California statutory law incorporates the requirements of 

ICWA, and imposes some additional requirements as well. (In re 

Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021) 

70 Cal.App.5th 735, 741–742.) State and federal law require the 

court to ask parties and participants at the outset of an 

involuntary child custody proceeding whether they have reason to 

know a minor is an Indian child, and to “instruct the parties 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); § 224.2, subd. (c); see Benjamin M., at p. 741.) Initial 

inquiry also includes requiring each party to complete the 

parental notification of Indian status (ICWA-020) form. (Cal. 

Rules of Court, rule 5.481(a)(2)(C).)

State law imposes on the Department a first-step inquiry 

duty to “interview, among others, extended family members and 

others who had an interest in the child.” (In re H.V. (2022) 

75 Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal 

regulations explain that the term “extended family member is 

defined by the law or custom of the Indian child’s Tribe or, in the 

absence of such law or custom, is a person who has reached 

age 18 and who is the Indian child’s grandparent, aunt or uncle, 

brother or sister, brother-in-law or sister-in-law, niece or nephew, 

first or second cousin, or stepparent.” (25 C.F.R. § 23.2 (2017).) 

When there is “reason to believe that an Indian child is involved 
5

in a proceeding,” further inquiry is also required. (§ 224.2, 

subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) “We 

review claims of inadequate inquiry into a child’s Indian ancestry 

for substantial evidence.” (In re H.V., at p. 438.) 

The Department concedes on appeal that the initial inquiry 

requirements of ICWA and related state law were not met in this 

case. The Department asks us to either conditionally affirm or 

reverse the juvenile court’s order terminating parental rights, 

with instructions limiting remand of the matter to ordering the 

juvenile court to ensure compliance with ICWA’s requirements. 

We agree that the court erred in finding ICWA 

inapplicable, as the court did not ask either parent whether they 

had any Indian ancestry, and proceeded in the absence of any 

evidence that the Department asked available extended family 

members about the possibility that minor has Indian ancestry. 

(See, e.g., In re H.V., supra, 75 Cal.App.5th at p. 438 [prejudicial 

error when Department fails to discharge its first step duty of 

inquiry]; In re Benjamin M., supra, 70 Cal.App.5th at p. 741 

[court must ask each participant in child custody proceeding].)
6

DISPOSITION

The juvenile court’s September 16, 2022 order terminating 

parental rights under Welfare and Institutions Code section 

366.26 is conditionally reversed and remanded for proceedings 

required by this opinion. To the extent mother or father is 

available, the court shall ask about possible Indian ancestry, and 

ensure mother and father sign and file the ICWA-020 form. The 

court shall also order the Department to make reasonable efforts 

to interview available extended relatives, including maternal 

grandmother, paternal grandmother, maternal aunt, paternal 

aunt, and paternal uncle about the possibility of the minor’s 

Indian ancestry and to report on the results of the Department’s 

investigation. Nothing in this disposition precludes the court 

from ordering additional inquiry of others having an interest in 

the children. Based on the information reported, if the court 

determines that no additional inquiry or notice to tribes is 

necessary, the order terminating parental rights is to be 

reinstated. If additional inquiry or notice is warranted, the court 

shall make all necessary orders to ensure compliance with ICWA 

and related California law.

NOT TO BE PUBLISHED.

MOOR, J.

I concur:

RUBIN, P. J.
In re H.R.

B325373

BAKER, J., Concurring

I agree that a conditional reversal of the parental rights 

termination order is required because the juvenile court did not 

comply with federal and state law that, together, require a 

juvenile court to ask participants in a child custody proceeding, 

at the commencement of the proceeding and on the record, 

whether the participant knows or has reason to know the minor 

in question is an Indian child. (25 C.F.R. § 23.107(a); Welf. & 

Inst. Code, § 224.2, subd. (c).) I do not agree, however, with the 

majority’s broadly worded remand instructions to interview 

available extended relatives. I would instead remand with 

directions that require the court to make an on the record inquiry 

of only the parents (assuming they appear in response to a 

hearing notice). The juvenile court would, however, still be free 

to make or order any additional inquiry it deems appropriate.

BAKER, J.