Filed 1/22/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ELIZABETH M., a Person 

Coming Under the Juvenile Court 

Law.

 B284123

 (Los Angeles County

 Super. Ct. No. CK95071)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

SHAWN M., SR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Daniel Zeke Zeidler, Judge. Conditionally 

affirmed. 

Jamie A. Moran, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Mary C. Wickham, County Counsel, R. Keith Davis, 

Assistant County Counsel, Kim Nemoy, Principal Deputy 

Counsel, for Plaintiff and Respondent. 
Shawn M., Sr., the father of seven-year-old Shawn M., Jr., 

six-year-old Michael M., five-year-old Elizabeth M. and four-yearold Gail M., appeals from the order terminating his parental 

rights to Elizabeth and Gail under Welfare and Institutions Code 

section 366.26.1 Shawn contends the court abused its discretion 

in denying the request of the children’s mother, Crystal T., in 

which he joined, to continue the selection and implementation 

hearing for Elizabeth and Gail to the new date scheduled for 

their brothers’ hearing; erred in ruling the sibling relationship 

exception to the legislative preference for adoption (§ 366.26, 

subd. (c)(1)(B)(v)) did not apply; and failed to comply with the 

inquiry and notice requirements of the Indian Child Welfare Act 

of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree there was an 

inadequate investigation of Crystal’s claim of Indian ancestry. 

Specifically, although the name of the tribe Crystal identified did 

not directly correspond to that of a federally recognized Indian 

tribe, the Los Angeles County Department of Children and 

Family Services failed to satisfy its affirmative obligation to 

interview family members and others who could be expected to 

have relevant information concerning the children’s status, and 

the juvenile court failed to ensure an appropriate inquiry had 

been conducted before concluding ICWA did not apply to these 

proceedings. Accordingly, we remand the matter to allow the 

Department and the juvenile court to remedy that violation of 

federal and state law and otherwise conditionally affirm the 

order. 

1 Statutory references are to this code unless otherwise 

stated.

2

 
FACTUAL AND PROCEDURAL BACKGROUND

1. Dependency Proceedings Prior to the Selection and 

Implementation Hearing

The Department filed the original dependency petition in 

this case in August 2012, prior to Gail’s birth, alleging that 

Shawn had physically abused his older son, then only two years

old, by choking him when he failed to stop crying; Crystal had 

observed the abuse and failed to protect her son; and the two 

younger children were at substantial risk of suffering physical

and emotional harm because of Shawn’s abusive behavior and 

Crystal’s fear of Shawn. (§ 300, subds. (a), (b) & (j).) An 

amended petition added the allegation that Shawn’s mental 

health condition and criminal history also created a risk of harm 

to the children, and a second amended petition added the 

allegation that Shawn had struck his younger son with sufficient 

force to cause bruising. The juvenile court sustained the second 

amended petition in substantial part, removed the children from 

the care and custody of their parents, ordered them suitably 

placed under the supervision of the Department and directed the 

Department to provide family reunification services to Shawn 

and Crystal. We affirmed the jurisdiction findings and 

disposition order in a nonpublished opinion. (In re Shawn M.

(Sept. 23, 2013, B245323).)

At the six-month review hearing (§ 366.21, subd. (f)) in 

April 2013, the Department reported the children were placed 

together in foster care. Several weeks later, following Gail’s 

birth, the Department filed a new dependency petition alleging 

Gail was at risk because of Shawn’s physical abuse of his two 

sons, Shawn’s unresolved mental health issues and Crystal’s 

substance abuse. (Crystal had tested positive for opioids at the 

3
time of Gail’s birth.) The petition was sustained in late July 2013 

and Gail was removed from the custody of her parents. The 

Department was not able to place Gail in the same foster home as 

her three siblings at that time. The four children were placed 

together by April 2014. 

Reunification services were terminated for the three older 

children in July 2014. Reunification services for Gail were 

terminated in December 2014, and the case was set for a

February 2015 selection and implementation hearing under 

section 366.26. In May 2015 the court granted Crystal’s petition 

for modification (§ 388) and returned all four children to Crystal’s 

home under the supervision of the Department.

In February 2016 the Department filed a subsequent

petition (§ 342) alleging, in part, that Crystal had physically 

abused the children. The children were detained from Crystal, 

and ultimately the court sustained an amended version of the 

subsequent petition. Initially, the girls were placed together in a 

prospective adoptive home; the boys were placed together in a 

different home. By May 2016 the children were moved again. 

The boys were placed with a prospective adoptive parent, Ms. P. 

(their sixth placement); the girls were placed together with a

prospective adoptive family, Mr. and Mrs. M. (Gail’s sixth 

placement and Elizabeth’s eighth). The court ordered the 

Department to investigate the home of out-of-state relatives 

(paternal second cousins in Texas) as a potential placement 

option for all four children. The court again scheduled a 

section 366.26 selection and implementation hearing. 

2. The Selection and Implementation Hearing

The section 366.26 hearing, scheduled for September 13,

2016, was continued six months to March 9, 2017 for completion 

4
of a home study for Elizabeth and Gail in their current 

prospective adoptive placement and for identification of an 

appropriate placement for the two boys. In a last minute 

information report to the court submitted several days before the 

hearing, the Department explained the second cousins in Texas

had recently stated they were now uncertain whether they were 

prepared to go forward with adoption or legal guardianship for 

the children. The report also advised the court that the boys’ 

current caregiver was not interested in adoption.

The March 2017 hearing was continued to April 5, 2017 for 

an update on efforts to identify an adoptive home for the two boys 

and for a contested hearing as to the two girls. In its last minute 

information report the Department indicated the Texas cousins 

were now prepared to go forward with legal guardianship for all 

four children, but not adoption. The Department recommended 

legal guardianship as to the two boys, based on its lack of success 

in finding an adoptive home for all four children and behavioral 

issues with the boys. It also recommended that plans for 

adoption proceed as to the two girls.

At the hearing the Department reported it had located a 

potential adoptive placement for Shawn, Jr. and Michael. To 

pursue that possibility and to permit evaluation of the paternal 

cousins’ home in Texas through the Interstate Compact on the 

Placement of Children (ICPC), and because Shawn, Sr. was 

incarcerated and had not been transported to court, the court 

again continued the hearing—first to May 30, 2017 and then 

again to June 29, 2017. The court also ordered that Elizabeth 

and Gail were not to be re-placed absent an emergency.

In last minute reports for the June 29, 2017 hearing the 

Department notified the court that the Texas relatives remained 

5
interested in placement and permanence for the children, but the 

ICPC evaluation of their home was still pending. A different 

home with a prospective adoptive placement had been located for 

the boys; a tentative move to the new residence was scheduled for 

July 12, 2017. The prospective adoptive parent was aware of a

possible relative placement and had acknowledged the relative 

placement, if found appropriate and ordered by the court, would 

occur. The home study for the girls’ prospective adoptive parents 

had been approved. 

At the June 29, 2017 hearing the Department 

recommended terminating parental rights for all four children. 

In response, minors’ counsel, who represented all four children,

requested a continuance of the hearing as to the two boys because

they were not yet in an adoptive placement. She explained, “I do 

not feel comfortable with making them legal orphans when there 

is—when their current placement does not have any intent in 

providing permanence.”

At this point one of the paternal cousins, who had come to 

the hearing from Texas, addressed the court and said he and his 

wife wanted to adopt all four children and were doing their best 

to complete the procedures required for them to do so. Counsel 

for Crystal then requested the court continue the entire matter, 

so that the ICPC issues could be resolved and the court could 

address all four children’s permanent plan on the same date. 

Counsel for Shawn, Sr. joined the request.

The court granted the request for a continuance as to 

Shawn, Jr. and Michael but denied the parents’ request to 

continue the hearing for Elizabeth and Gail, noting they were in 

a home with an approved adoptive home study and had been in 

that placement for more than a year. The court stated, “Even if 

6
the ICPC were approved for placement at this time with the 

relatives in Texas, the court would not be inclined to have the 

children replaced. While the court has continued to consider 

those relatives for placement, the minors’ counsel has already 

had the court make an order that the children not be replaced.”

Then, responding to Shawn, Sr.’s comment that he would like all 

four children placed together with a relative, the court added, “I 

do understand that. And it’s difficult that it’s been—that we 

haven’t been successful in getting them placed together at this 

point. But the girls now have been in this home for over a year, 

and I think that people need to take that into consideration, too, 

in terms of their stability and bonding and emotional issues.”

2

Turning to the permanent plan for Elizabeth and Gail, the 

court stated it was considering the entire contents of its file, with 

specific reference to the section 366.26 report prepared for the 

September 2016 hearing and the last minute information report 

for the court filed earlier that day. No party submitted any 

additional evidence. Counsel for Crystal argued the court should 

apply both the parent-child relationship exception (§ 366.26, 

subd. (c)(1)(B)(i)) and sibling relationship exception (§ 366.26, 

subd. (c)(1)(B)(v)) to the preference for termination of parental 

2 After continuing the section 366.26 hearing for Shawn, Jr. 

and Michael to August 14, 2017, the court gave the Department 

authority to place the two boys with their relatives in Texas if 

ICPC approval was received prior to the continued court date. 

On August 14, 2017 the boys’ selection and implementation 

hearing was continued to December 5, 2017. It appears 

Shawn, Jr. and Michael were placed with their paternal cousins 

by that date. On December 5, 2017 the section 366.26 hearing 

was continued to April 19, 2018 to stabilize their placement.

7

 
rights if a child is likely to be adopted within a reasonable time. 

Shawn, Sr.’s counsel joined both arguments. Counsel for the 

Department and minors’ counsel argued neither exception 

applied and urged the court to terminate parental rights as to 

Elizabeth and Gail. The Department’s counsel added it was the 

Department’s position that the four children “should potentially 

be with the relatives in Texas.” 

The court found the children adoptable and ruled neither 

statutory exception to adoption had been established, expressly 

stating it could not find the sibling relationship outweighed the 

benefit of permanence in adoption. The court terminated 

parental rights and directed their counsel to refer Elizabeth and 

Gail to the Alliance for Children’s Rights for finalization of the 

adoption.

3. ICWA Notice and Inquiry

The original dependency petition, filed August 17, 2012, 

included an Indian Child Inquiry Attachment, Judicial Council 

form ICWA-010(A), for Shawn, Jr., Michael and Elizabeth, 

prepared by the Department’s social worker, reporting that each 

child may have Indian ancestry. In addition, on the same date 

both Shawn, Sr. and Crystal submitted a Judicial Council form 

ICWA-020, Parental Notification of Indian Status, checking the 

box stating, “I may have Indian ancestry” and inserting “Redtail” 

as the tribe’s name.

3 In its detention report the Department 

noted ICWA’s potential application to the case but incorrectly 

asserted, “[M]other indicated that there is no Indian Heritage in 

3

 California Rules of Court, rule 5.481(a)(2) requires the 

court, at the first appearance of a parent in any dependency case, 

to order the parent to complete Judicial Council form ICWA-020.

8

 
her family, however, father indicated that [his] family is part Red 

Tail.” At the detention hearing, however, the court correctly 

observed that both Shawn and Crystal had identified their

possible Indian ancestry and ordered the Department to give 

notice to the “Redtail Tribe,” the Bureau of Indian Affairs and the 

Secretary of the Interior. 

On September 7, 2012 the Department sent ICWA notices 

to the Secretary of the Interior and to the Sacramento Area 

Director of the Bureau of Indian Affairs (BIA). As it had done in 

its detention report, the Department’s ICWA notices erred in 

asserting that Crystal was “NOT Indian,” while indicating Shawn 

may be affiliated with the Red Tail tribe. The notices contained 

no names or other biographical information for any of the 

children’s paternal or maternal relatives other than Crystal and 

Shawn. No notice was sent directly to a tribe identified as “Red 

Tail.”

The BIA responded on October 9, 2012 that the 

Department’s notice contained insufficient information to 

determine a tribal affiliation. In a last minute information report 

to the court for a November 2, 2012 progress hearing, the 

Department submitted the BIA’s response and stated a 

dependency investigator had reviewed the list of federally 

recognized tribes, which did not include a Red Tail tribe.4

4 The Department’s last minute information report stated, 

“On 10/29/2012, DI Wilson received a correspondence from the 

United States of America Department of Interior stating the 

notice received contains insufficient information or limited 

information to determine Tribal Affiliation. On 10/29/2012, 

DI Wilson reviewed the list of Indian tribes which did not include 

a ‘Red Tail’ tribe.” 

9

 
At the November 2, 2012 progress hearing the court found 

there was no reason to know Shawn, Jr., Michael and Elizabeth 

were Indian children as defined by ICWA and ruled ICWA did 

not apply to the case.

When Gail was detained in May 2013 Crystal filed another 

ICWA-020 form, again stating she may have Indian ancestry, 

naming the tribe as “Red Tail Indians.”5 At the detention 

hearing the court ordered the Department to investigate Crystal’s 

claim but nonetheless found ICWA did not apply at that time, 

apparently based on the November 2, 2012 ICWA finding as to 

the other three children, which the Department had noted in its 

detention report along with its assertion that ICWA did not apply 

to the case.

Interviewed on June 3, 2013 Crystal reported “she had Red 

Tail Indian on her father’s side of the family but she did not know 

who it was.” Mother told the social worker she had received this 

information from “grandmother Ms. Boursarrd.” (Although not 

entirely clear from the record, it appears the relative identified is 

Crystal’s grandmother, Gail’s great-grandmother.) Nothing in 

the record suggests the Department ever interviewed Ms. 

Boursarrd or any of Crystal’s other relatives regarding the 

family’s possible Indian ancestry.

6

 

5 The Indian Child Inquiry Attachment, included with the 

section 300 petition for Gail checked the box stated, “The child 

has no known Indian ancestry.” 

6 In its jurisdiction/disposition report for Gail, filed on 

July 22, 2013, the Department stated it had not yet interviewed 

Ms. Boursarrd concerning the child’s possible Indian ancestry 

through Crystal. 

10

 
On July 22, 2013, Shawn, Sr. who was incarcerated, filed 

his new ICWA-020 form in connection with the detention of Gail,

once again identifying his possible ancestry as a Red Tail Indian. 

Shawn added the tribe may have been located in Florida or 

Louisiana. At a progress hearing on that date, the court ordered 

the Department to interview Shawn, “including ICWA 

investigation addressing father’s Indian ancestry.” 

The record does not contain any supplemental report 

regarding investigation of Crystal or Shawn, Sr.’s possible Indian 

ancestry although both maternal and paternal relatives were 

present in court at various proceedings.7

 The section 366.26 

report submitted for the September 13, 2016 selection and 

implementation hearing simply recites that the court had found 

ICWA did not apply to Shawn, Jr., Michael and Elizabeth on 

November 2, 2012, and as to Gail on May 8, 2013. Similarly, no 

further ICWA findings or orders were made by the court at Gail’s 

jurisdiction hearing on July 29, 2013 or thereafter. The June 29, 

2017 order terminating Shawn, Sr.’s and Crystal’s parental 

rights as to Elizabeth and Gail does not refer to ICWA. 

7 Specifically, neither the status review report for Gail’s sixmonth review hearing (§ 366.21, subd. (e)) filed on January 13, 

2014—the first hearing for her following the disposition 

hearing—nor the October 17, 2013 and January 13, 2014 reports 

filed in connection with hearings for the three older children, 

reflect Shawn, Sr. had been interviewed concerning his Indian 

ancestry as had been ordered by the court on July 22, 2013. All 

three reports, however, stated ICWA did not apply. 

11

 
DISCUSSION

1. The Juvenile Court Did Not Abuse Its Discretion in 

Denying the Request To Continue Elizabeth and Gail’s 

Section 366.26 Hearing

The juvenile court has the power to “control all proceedings 

during the hearings with a view to the expeditious and effective 

ascertainment of the jurisdictional facts and the ascertainment of 

all information relative to the present condition and future 

welfare of the person upon whose behalf the petition is brought.” 

(§ 350, subd. (a)(1); see Renee S. v. Superior Court (1999) 

76 Cal.App.4th 187, 193.) Continuances are discouraged in 

dependency cases. (In re Emily D. (2015) 234 Cal.App.4th 438, 

448; In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) 

Nonetheless, the juvenile court may continue a dependency 

hearing upon a showing of good cause, provided the continuance 

is not contrary to the interest of the child. (See § 352, subd. (a) 

[“[N]o continuance shall be granted that is contrary to the 

interest of the minor. In considering the minor’s interests, the 

court shall give substantial weight to a minor’s need for prompt 

resolution of his or her custody status, the need to provide 

children with stable environments, and the damage to a minor of 

prolonged temporary placements.”]; In re A.M. (2008) 

164 Cal.App.4th 914, 925.) We review an order denying or 

granting a continuance for abuse of discretion. (See Giovanni F., 

at p. 605 [reviewing order denying continuance]; In re Mary B. 

(2013) 218 Cal.App.4th 1474, 1481 [reviewing order granting 

continuance].) “To show abuse of discretion, the appellant must 

demonstrate the juvenile court exercised its discretion in an 

arbitrary, capricious or patently absurd manner that resulted in 

12
a miscarriage of justice.” (In re Joey G. (2012) 206 Cal.App.4th 

343, 346.)

Here, the juvenile court acknowledged, as a general matter, 

it was desirable to try to place all four children together and, to 

that end, it would be preferable to decide the permanency options 

for all of them at the same time. However, as the court 

emphasized, the two young girls had been residing in an 

approved adoptive home for more than one year. Permanency 

plans for the boys, on the other hand, remained uncertain at the 

time of the June 29, 2017 selection and implementation hearing. 

Giving greater weight to the girls’ need for stability and 

maintenance of their emotional bond to their prospective adoptive 

parents than to the still-hypothetical possibility of placement 

together with their siblings in Texas, the court concluded 

delaying the section 366.26 hearing was not in the girls’ best 

interest. That decision was neither arbitrary nor irrational and

did not constitute an abuse of discretion.

2. The Juvenile Court Did Not Err in Ruling Shawn, Sr.

Had Not Established the Sibling Relationship Exception 

to Termination of Parental Rights 

a. Governing law and standard of review

The express purpose of a section 366.26 hearing is “to 

provide stable, permanent homes” for dependent children. 

(§ 366.26, subd. (b).) If the court has decided to end parent-child 

reunification services, the legislative preference is for adoption. 

(In re S.B. (2009) 46 Cal.4th 529, 532 [“[i]f adoption is likely, the 

court is required to terminate parental rights, unless specified 

circumstances compel a finding that termination would be 

detrimental to the child”]; In re Celine R. (2003) 31 Cal.4th 45, 53 

[“if the child is adoptable . . . adoption is the norm”]; see In re 

Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts 

13
have been found unsuccessful, the state has a “compelling” 

interest in “providing stable, permanent homes for children who 

have been removed from parental custody”].) When the court 

finds by clear and convincing evidence the child is likely to be 

adopted, the statute mandates judicial termination of parental 

rights unless the parent opposing termination can demonstrate 

one of six enumerated exceptions applies. (§ 366.26, 

subd. (c)(1)(B); see Celine R., at p. 53 [“court must order adoption 

and its necessary consequence, termination of parental rights, 

unless one of the specified circumstances provides a compelling 

reason for finding that termination of parental rights would be 

detrimental to the child”]; In re Matthew C. (1993) 6 Cal.4th 386, 

392 [when child adoptable and declining to apply one of the 

statutory exceptions would not cause detriment to the child, the 

decision to terminate parental rights is relatively automatic].)

The purpose of the sibling exception is to preserve 

longstanding sibling relationships that serve as “anchors for 

dependent children whose lives are in turmoil.” (In re Erik P.

(2002) 104 Cal.App.4th 395, 404.) “To show a substantial 

interference with a sibling relationship the parent [or sibling 

granted standing] must show the existence of a significant sibling 

relationship, the severance of which would be detrimental to the 

child. Many siblings have a relationship with each other, but 

would not suffer detriment if that relationship ended. If the 

relationship is not sufficiently significant to cause detriment on 

termination, there is no substantial interference with that 

relationship.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952, 

fn. omitted.) The court should consider “the nature and extent of 

the relationship, including whether the child and sibling were 

raised in the same house, shared significant common experiences 

14
or have existing close and strong bonds. [Citation.] If the court 

determines terminating parental rights would substantially 

interfere with the sibling relationship, the court is then directed 

to weigh the child’s best interest in continuing that sibling 

relationship against the benefit the child would receive by the 

permanency of adoption.” (Ibid.; accord, In re Celine R., supra,

31 Cal.4th at p. 61.) “[T]he concern is the best interests of the 

child being considered for adoption, not the interests of that 

child’s siblings.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 

822; see Celine R., at pp. 49-50.) “The court must balance the 

beneficial interest of the child in maintaining the sibling 

relationship, which might leave the child in a tenuous 

guardianship or foster home placement, against the sense of 

security and belonging adoption and a new home would confer.” 

(L.Y.L., at p. 951; accord, In re D.M. (2012) 205 Cal.App.4th 

283, 293.)

The parent has the burden of proving the statutory 

exception applies. (In re Breanna S. (2017) 8 Cal.App.5th 636, 

646; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re 

Derek W. (1999) 73 Cal.App.4th 823, 826.) The court’s decision a 

parent has not carried this burden may be based on either or both 

of two component determinations—whether a beneficial sibling 

relationship exists and whether the existence of that relationship 

constitutes “a compelling reason for determining that 

termination would be detrimental to the child . . . .” (§ 366.26, 

subd. (c)(1)(B); see In re K.P. (2012) 203 Cal.App.4th 614, 622; 

Bailey J., at p. 1314.) When the juvenile court finds the parent 

has not established the existence of the requisite beneficial 

relationship, our review is limited to determining whether the 

evidence compels a finding in favor of the parent on this issue as 

15
a matter of law. (Breanna S., at p. 647; In re I.W. (2009) 

180 Cal.App.4th 1517, 1527-1528.) When the juvenile court 

concludes the benefit to the child derived from preserving the 

sibling relationship is not sufficiently compelling to outweigh the 

benefit achieved by the permanency of adoption, we review that 

determination for abuse of discretion. (In re J.S. (2017) 

10 Cal.App.5th 1071, 1080; see K.P., at pp. 621-622; Bailey J.,

at pp. 1314-1315.)

b. Shawn, Sr. failed to demonstrate the girls’ 

relationship with their brothers outweighed the 

benefits of permanency through adoption

For the first several years of their lives, the girls were 

placed with their brothers in foster care. In May 2015—just after 

Elizabeth’s third birthday and Gail’s second—all four children 

were temporarily returned to the custody of their mother. 

However, from February 2016 until the section 366.26 hearing at 

the end of June 2017—16 months—the girls had not lived with 

their brothers.8

 Beyond this minimal information describing 

when the children had been living together, no evidence was 

presented concerning the nature or quality of the girls’ 

relationship with their brothers as of the June 2017 selection and 

8 As discussed, Elizabeth was detained from Crystal in 

August 2012 when she was three months old and placed in foster 

care with her brothers. Less than a year later Gail, a newborn, 

was removed from Crystal’s custody. Initially, Gail was not 

placed with her siblings, but the four children were together by 

April 2014. They remained together in foster care until May 

2015 when they were all returned to Crystal’s care under the 

supervision of the Department. When they were again removed 

from Crystal in February 2016, the two girls were not placed with 

their brothers. 

16

 
implementation hearing. Indeed, counsel for Crystal conceded 

while arguing for the sibling relationship exception, “[T]hey have 

been separated for quite some time, and I know, perhaps, there’s 

no existing bond at the moment . . . .” 

The evidence before the court certainly did not compel a 

finding that Elizabeth and Gail had a significant sibling bond

with Shawn, Jr. and Michael, let alone that termination of 

parental rights would substantially interfere with their

continuing relationship. To the contrary, nothing in the record 

suggested Elizabeth and Gail’s relationship with their brothers, 

whatever it may have been, would be severed if they were 

adopted by their current caregivers. (See In re Jacob S. (2002) 

104 Cal.App.4th 1011, 1019, disapproved on another ground in 

In re S.B., supra, 46 Cal.4th at 537, fn. 5 [absence of evidence 

that relationships among siblings would necessarily cease upon 

termination of parental rights supported juvenile court’s 

conclusion sibling bond exception did not apply].)

Without directly evaluating the extent of any sibling bond 

that may have existed between Elizabeth and Gail, on the one 

hand, and their brothers, on the other, the juvenile court

concluded, “While the children were placed in the same home as 

the boys up until 16 months ago, the court cannot find that . . . 

the sibling relationship outweighs the permanence in adoption.” 

That ruling, which was supported by minors’ counsel, was well 

within the court’s broad discretion. The evidence demonstrated 

the two girls, who had been in multiple foster placements during 

their short lives, were now thriving in a stable placement and 

had developed a strong emotional bond with their current 

caregivers, who had been approved to adopt them. In light of the 

girls’ significant interest in maintaining that home, the court was 

17
fully justified in finding the sense of security and belonging that 

adoption would bring outweighed any possible disruption in 

Elizabeth and Gail’s relationship with their brothers, Shawn, Jr. 

and Michael. (See In re Valerie A. (2007) 152 Cal.App.4th 987, 

1014 [application of the sibling relationship exception to 

termination of parental rights “will be rare, particularly when the 

proceedings concern young children whose needs for a competent, 

caring and stable parent are paramount”]; see also In re D.M., 

supra, 205 Cal.App.4th at p. 293; In re L.Y.L., supra,

101 Cal.App.4th at p. 951.)

3. The Department Failed To Comply With Its Affirmative 

Duty To Inquire Whether the Children May Be Indian 

Children Within the Meaning of ICWA

a. The ICWA inquiry and notice requirements

ICWA reflects a congressional determination to protect 

Indian children and to promote the stability and security of 

Indian tribes and families by establishing minimum federal 

standards a state court must follow before removing an Indian 

child from his or her family. (25 U.S.C. § 1902; see In re

Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.); In re W.B. (2012) 

55 Cal.4th 30, 47.) For purposes of ICWA, an “Indian child” is 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. (25 U.S.C. § 1903(4)

[definition of “‘Indian child’”] & (8) [definition of “‘Indian tribe’”]; 

see Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal 

definitions].)

As the California Supreme Court explained in Isaiah W., 

notice to Indian tribes is central to effectuating ICWA’s purpose, 

18
enabling a tribe to determine whether the child involved in a 

dependency proceeding is an Indian child and, if so, whether to 

intervene in or exercise jurisdiction over the matter. (Isaiah W., 

supra, 1 Cal.5th at p. 8.) Notice to the parent or Indian custodian 

and the Indian child’s tribe is required by ICWA in state court 

proceedings seeking foster care placement or termination of 

parental rights “where the court knows or has reason to know 

that an Indian child is involved.” (25 U.S.C. § 1912(a).) 

Similarly, California law requires notice to the parent, legal 

guardian or Indian custodian and the Indian child’s tribe in 

accordance with section 224.2, subdivision (a)(5), if the 

Department or court “knows or has reason to know that an 

Indian child is involved” in the proceedings. (§ 224.3, subd. (d); 

see In re Breanna S., supra, 8 Cal.App.5th at p. 649; In re 

Michael V. (2016) 3 Cal.App.5th 225, 232; Cal. Rules of Court, 

rule 5.481(b)(1) [notice is required “[i]f it is known or there is 

reason to know that an Indian child is involved in a proceeding 

listed in rule 5.480,” which includes all dependency cases filed 

under section 300].)9

As this court has discussed in several recent cases, 

although ICWA itself does not define “reason to know,” California 

9 If the court has reason to know an Indian child may be 

involved in the pending dependency proceeding but the identity 

of the child’s tribe cannot be determined, ICWA requires notice 

be given to the BIA. (25 U.S.C. §§ 1903(11), 1912(a); see 

Isaiah W., supra, 1 Cal.5th at p. 8; In re Breanna S., supra, 

8 Cal.App.5th at p. 650, fn. 7.) California has a similar notice 

requirement. (§ 224.2, subd. (a)(4); Isaiah W., at p. 9.) 

19

 
law, which incorporates and enhances ICWA’s requirements,10

identifies the circumstances that may constitute reason to know 

the child is an Indian child as including, without limitation, when 

a person having an interest in the child, including a member of 

the child’s extended family, “provides information suggesting the 

child is a member of a tribe or eligible for membership in a tribe 

or one or more of the child’s biological parents, grandparents or 

great-grandparents are or were a member of a tribe.” (§ 224.3, 

subd. (b)(1); see In re Breanna S., supra, 8 Cal.App.5th at p. 650; 

accord, In re Michael V., supra, 3 Cal.App.5th at p. 232.) 

In addition, new federal regulations to implement ICWA 

specify a court has “reason to know” the child is an Indian child if 

“[a]ny participant in the proceeding, officer of the court involved 

in the proceeding, Indian Tribe, Indian organization, or agency 

informs the court that it has discovered information indicating 

that the child is an Indian child.” (25 C.F.R. § 23.107(c)(2).)

These regulations apply to section 366.26 hearings to terminate 

parental rights initiated on or after December 12, 2016, even if 

the child has been involved in dependency proceedings prior to 

that date. (25 C.F.R. §§ 23.2, 23.143.)11 

10 “In 2006, with the passage of Senate Bill No. 678 (2005-

2006 Reg. Sess.) (Senate Bill No. 678), the Legislature 

incorporated ICWA’s requirements into California statutory law. 

(Stats. 2006, ch. 838, § 1, p. 6536.) The primary objective of 

Senate Bill No. 678 was to increase compliance with ICWA. . . . 

To accomplish this goal, Senate Bill No. 678 revised and recast

several provisions of the Family, Probate, and Welfare and 

Institutions Codes.” (In re W.B., supra, 55 Cal.4th at p. 52.)

11 The new federal regulations apply to any child custody 

proceeding initiated on or after December 12, 2016. (25 C.F.R. 

20

 
Judicial Council form ICWA-020, Parental Notification of 

Indian Status, which the juvenile court must order a parent to 

complete at his or her first appearance in the dependency 

proceeding (Cal. Rules of Court, rule 5.481(a)(2)), often provides 

the court and the child protective agency with the first 

information “suggesting” or “indicating” the child involved in the 

proceeding is or may be an Indian child. But the burden of 

developing that information does not rest primarily with the 

parents or other members of the child’s family. Juvenile courts 

and child protective agencies “have an affirmative and continuing 

duty to inquire whether a child for whom a petition under 

Section 300 . . . is to be, or has been, filed is or may be an Indian 

child in all dependency proceedings . . . .” (§ 224.3, subd. (a); see 

Isaiah W., supra, 1 Cal.5th at pp. 9, 10-11; In re Michael V., 

supra, 3 Cal.App.5th at p. 233.) And once the agency or its social 

worker has reason to know an Indian child may be involved, the 

social worker is required, as soon as practicable, to interview the 

child’s parents, extended family members, the Indian custodian, 

if any, and any other person who can reasonably be expected to 

have information concerning the child’s membership status or 

eligibility. (§ 224.3, subd. (c); Michael V., at p. 233: In re 

§ 23.143.) A “child-custody proceeding” includes any action, other 

than an emergency proceeding, that may culminate in foster care 

placement, termination of parental rights, a preadoptive 

placement or an adoptive placement. (25 U.S.C. § 1903(1); 

25 C.F.R. § 23.2.) “An action that may culminate in one of these 

four outcomes is considered a separate child-custody proceeding 

from an action that may culminate in a different one of these four 

outcomes. There may be several child-custody proceedings 

involving any given Indian child. Within each child-custody 

proceeding, there may be several hearings.” (25 C.F.R. § 23.2.) 

21

 
Kadence P. (2015) 241 Cal.App.4th 1376, 1386; see also Cal. 

Rules of Court, rule 5.481(a)(4)(A).) “[T]he duty to inquire is 

triggered by a lesser standard of certainty regarding the minor’s 

Indian child status . . . than is the duty to send formal notice to 

the Indian tribes.” (In re Alice M. (2008) 161 Cal.App.4th 1189, 

1200; see In re Breanna S., supra, 8 Cal.App.5th at p. 652.)

b. The Department did not adequately investigate 

Crystal’s claim of Indian ancestry

In the two ICWA-020’s she filed in August 2012 and May 

2013 and then again when she was interviewed in June 2013 

following Gail’s detention, Crystal reported her family was in 

part Red Tail Indian. Nonetheless, apparently based solely on 

the dependency investigator’s determination that Red Tail was 

not a federally recognized tribe, the Department conducted no 

further investigation of Crystal’s possible Indian ancestry; and 

the juvenile court found that ICWA did not apply to the case.

12 

Federal and state law require more.

12 As discussed, at the detention hearing for Shawn, Jr., 

Michael and Elizabeth, the juvenile court ordered the 

Department to give notice of both Shawn, Sr. and Crystal’s 

identification of Red Tail ancestry to the BIA. In violation of that 

order the Department stated in its notice that Crystal had no 

Indian ancestry. Moreover, without any showing that the 

information was not reasonably ascertainable, the notice sent to 

BIA omitted any biographical information concerning the 

children’s maternal and paternal grandparents and greatgrandparents, as required by federal and state law. (See 

25 C.F.R. former § 23.11(a), (d)(3) (2014); Welf. & Inst. Code,

§ 224.2, subd. (a)(5)(C); see also In re Breanna S., supra, 

8 Cal.App.5th at p. 651.) Under these circumstances it is hardly 

surprising the BIA responded that the notice contained 

insufficient information to determine a tribal affiliation.

22

 
To be sure, ICWA applies only to children with the required 

relationship to a federally recognized tribe.13 Absent information 

indicating a child may be a member of, or eligible for membership 

in, a federally recognized tribe, formal ICWA notice is not 

required. However, when a parent or other family member has 

informed a dependency investigator or the juvenile court of the 

child’s possible Indian ancestry, the use of a tribal name that 

does not correspond to that of a federally recognized tribe—or

saying “Indian” but providing no tribal name at all—does not, 

without more, relieve the child protective agency of its

affirmative obligation to interview family members and others 

who could be expected to have relevant information concerning 

the child’s status or the court of its duty to ensure an appropriate 

inquiry has been conducted before concluding ICWA does not 

apply to the case. (See In re Michael V., supra, 3 Cal.App.5th at

pp. 235-236 [statement by children’s mother that she had been 

told maternal grandmother was “full-blood Indian” with no 

reference to a specific tribe obligated Department to contact other 

relatives to inquire if they might have information regarding 

children’s possible Indian ancestry]; cf. In re Louis S. (2004) 

117 Cal.App.4th 622, 627, 632 [maternal grandmother told social 

worker she was eligible for membership in the Chiricahua Tribe, 

13 The BIA does not maintain a publicly available list of all 

federally recognized Indian tribes. It does publish in the Federal 

Register an internet address linking to a list of agents designated 

by federally recognized tribes for service of ICWA notices. (See 

82 Fed.Reg. 12986 et seq. (March 8, 2017) [Indian Child Welfare 

Act; Designated Tribal Agents for Service of Notice]; List of 

Designated Tribal Agents by Tribal Affiliation (updated 11/28/15) 

<https://www.bia.gov/bia/ois/dhs> [as of Jan. 22, 2018].) 

23

 
described as a branch of the Apache Tribe; Chiricahua is not a 

federally recognized tribe; social worker should have determined 

which branches of the Apache Tribe may have absorbed members 

of the Chiricahua Tribe].) 

Just as notice to Indian tribes is central to effectuating 

ICWA’s purpose, an adequate investigation of a family member’s 

belief a child may have Indian ancestry is essential to ensuring a 

tribe entitled to ICWA notice will receive it. Oral transmission of 

relevant information from generation to generation and the 

vagaries of translating from Indian languages to English combine 

to create the very real possibility that a parent’s identification of 

the family’s tribal affiliation is not accurate. ICWA and state law 

place the duty with the child protective agency in the first 

instance, not the child or his or her parent, to determine whether

additional information exists that may link a child with Indian 

ancestry to a federally recognized tribe. In this case, for example, 

although there is no federally recognized Red Tail tribe (or, 

apparently, any other tribe by that specific name), Red Tailed 

Hawk is one of the seven clans of the Cherokee Nation—a 

federally recognized tribe.14 Because the Department neither

14 See Cherokee Nation, Our Government <http:

//www.cherokee.org/Our-Government [as of Jan. 22, 2018]; 

Cherokee Heritage Documentation Center, Culture: Clans <http:

//cherokeeregistry.com/index.php?option=com_content&view=arti

cle&id=23&Itemid=398> [as of Jan. 22, 2018]; Native Americans 

of Georgia Cherokee Tribe <http://www.naogcherokee.com/birdclan.html> [as of Jan. 22, 2018].)

We advised the parties the court intended to take judicial 

notice that Red Tailed Hawk was one of the seven clans of the 

Cherokee Nation and provided them with internet addresses for 

websites documenting that fact. We now take judicial notice of 

24

 
interviewed the children’s great-grandmother concerning their 

possible Indian ancestry, even though Crystal had said she may 

have additional information, nor, as far as the record reveals, 

spoke to anyone else in the family who might have relevant 

information on this issue, we cannot know whether Elizabeth and 

Gail have Cherokee ancestry or the overlap between the names 

Red Tail and Red Tailed Hawk is simply a coincidence. 

We acknowledge the court in In re K.P. (2009) 

175 Cal.App.4th 1, 5 rejected the contention a child protective

agency “must investigate any possible affiliation with a tribe 

which is not federally recognized.” That may well be a correct 

statement of the law in situations in which the child’s only 

possible Indian ancestry relates to a specific tribe known not to 

be federally recognized (for example, a state-recognized tribe or 

one of Canada’s First Nations bands or communities). In other 

circumstances, however, when no tribal name has been provided 

or the name given, although not for a federally recognized tribe, 

cannot be definitely matched to any other known tribe, as was 

the case here, the agency must pursue all reasonable 

investigative leads. That is the teaching of Isaiah W., supra, 

1 Cal.5th 1, decided by the Supreme Court several years after 

In re K.P., which emphasized the affirmative and continuing 

nature of the child protective agencies’ duty to inquire whether a 

child in dependency proceedings may be an Indian child. 

(Isaiah W., at pp. 9, 10-11.) 

Because the Department did not adequately investigate 

Crystal’s claim of Indian ancestry—indeed, other than send a 

that information. (See Evid. Code, §§ 452, subd. (h), 459, 

subds. (a) & (c).) 

25

 
deficient notice to the Secretary of the Interior and the BIA, 

which incorrectly stated Crystal had no Indian ancestry, it did 

not investigate it at all—we remand the matter for the juvenile 

court to direct the Department to conduct a meaningful inquiry

into that claim, including making genuine efforts to locate family 

members who might have information bearing on Elizabeth and 

Gail’s possible Indian ancestry.15 If that investigation produces 

any additional information substantiating Crystal’s claim, notice 

must be provided to any tribe that is identified or, if the tribe 

cannot be determined, to the BIA. The Department thereafter is 

to notify the court of its actions and file certified mail return 

receipts for any ICWA notices sent, together with any responses 

received. The court shall then determine whether the ICWA 

inquiry and notice requirements have been satisfied and whether 

Elizabeth and Gail are Indian children. If the court finds they 

are Indian children, it shall conduct a new section

366.26 hearing, as well as all further proceedings, in compliance 

with ICWA and related California law. If not, the court’s 

original section 366.26 order remains in effect. (See In re

Michael V., supra, 3 Cal.App.5th at p. 236.)

15 Conscientious adherence to ICWA inquiry and notice 

requirements is in the best interest of all parties to a dependency 

case because a violation renders the proceedings, including an 

adoption following termination of parental rights, vulnerable to 

collateral attack if the dependent child is, in fact, an Indian child. 

(See 25 U.S.C. § 1914.) “‘To maintain stability in placements of 

children in juvenile proceedings, it is preferable to err on the side 

of giving notice and examining thoroughly whether the juvenile is 

an Indian child.’” (In re D.C. (2015) 243 Cal.App.4th 41, 63;

accord, In re Breanna S., supra, 8 Cal.App.5th at pp. 653-654.)

26

 
DISPOSITION

The section 366.26 order of the juvenile court is 

conditionally affirmed. The matter is remanded to the juvenile 

court for full compliance with the inquiry and notice provisions of 

ICWA and related California law and for further proceedings not 

inconsistent with this opinion.

PERLUSS, P. J. 

We concur:

ZELON, J.

SEGAL, J.

27