Filed 12/21/23 In re D.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 D.W., a Person Coming Under 

the Juvenile Court Law. B328675

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

Dav. W.,

Defendant and Appellant.

(Los Angeles County

Super. Ct. No.

21LJJP00070A)

APPEAL from an order of the Superior Court of Los 

Angeles County, Tara Newman, Judge. Conditionally reversed

and remanded with directions.

Paul A. Swiller, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, and Sally Son, Senior 

Deputy County Counsel, for Plaintiff and Respondent.
2

In this appeal from a parental rights termination order, 

Dav. W. (Father) asserts the dependency court and the Los 

Angeles County Department of Children and Family Services 

(the Department) did not comply with their obligations under the 

Indian Child Welfare Act (ICWA) and related California law. 

The Department confesses error and does not oppose conditional 

affirmance or reversal of the order to allow it to “conduct a 

complete inquiry and, if required by . . . ICWA, [to] proceed in 

accordance with . . . ICWA’s notice mandates.” On the facts here, 

which we will review briefly, we hold a remand for further ICWArelated process is required.

I. BACKGROUND

Father and A.S. (Mother) are the parents of D.W. (Minor). 

In 2021, the Department filed a dependency petition alleging 

Minor and his siblings (who are not parties to this appeal) were 

dependent children as defined in Welfare and Institutions Code 

section 300.1

During the ensuing dependency proceedings, Mother 

informed the Department and the juvenile court that she had no 

Indian ancestry as far as she knew. Mother also represented, 

however, that she had been the subject of dependency 

proceedings as a child herself and “was in foster care” for a period 

of time that the appellate record does not reveal. 

Father, by contrast, represented (although not in entirely

consistent fashion throughout the proceedings) that he did have 

Indian ancestry. On a Parental Notification of Indian Status 

1 Undesignated statutory references that follow are to the 

Welfare and Institutions Code.
3

form filed in June of 2021, Father declared he may have Indian 

ancestry and identified the source of that ancestry as “Cherokee.” 

Father identified his parents as people who would have 

information about Indian ancestry, and Father listed contact 

information for his father and his brother. 

The Department made ICWA-related inquiry of Father’s 

parents in February 2023 and submitted the results of that 

inquiry to the juvenile court in a supplemental report filed 

shortly before the permanency planning hearing. Father’s 

mother told the Department that her maternal grandmother, her 

maternal great grandmother, and her paternal great, great 

grandmother (all of whom she identified by name) all had Indian 

ancestry (though Father’s mother did not believe any of them 

were enrolled tribal members or lived on a reservation). Father’s 

mother stated all of these relatives were deceased and there were 

no other living relatives who would have more information about 

the family’s Indian ancestry. Father’s father, on the other hand,

reported he was not a member of an Indian tribe and did not 

believe there were any other family members who would know 

more about Indian ancestry on his side of the family. 

At the April 2023 permanency planning hearing from 

which this appeal is taken, the juvenile court stated it “previously 

found that [ICWA] does not apply in this case” and “reiterate[d] 

that finding.” 

II. DISCUSSION

Father challenges the juvenile court’s ICWA finding as to 

both his own side of the family and Mother’s. As to Mother’s side 

of the family, he believes the Department did not satisfy its 

ICWA-related obligations because the record does “not reflect 
4

that the Department ever asked Mother for the names and 

contact information of any relatives who could further discuss the 

family’s lineage.” As to Father’s own side of the family, he 

believes the Department should have made ICWA-related inquiry 

of Father’s brother (Minor’s paternal uncle) and should have 

contacted “the three federal Cherokee tribes and asked whether 

[Minor] was an Indian child.” The Department concedes a 

remand is required because it did not make “proper inquiry 

pursuant to . . . ICWA.” We hold conditional reversal of the 

parental rights termination order is required because the juvenile 

court’s ICWA finding is unsupported by substantial evidence.

Under ICWA and related California law, the Department 

and the juvenile court have “an affirmative and continuing duty 

to inquire whether a child . . . is or may be an Indian child.” 

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

Section 224.2, subdivision (b) states “[i]nquiry 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.” Subdivision 

(e)(1) of the same statute explains “[t]here is reason to believe a 

child involved in a proceeding is an Indian child whenever the 

court, social worker, or probation officer has 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.” 

Under section 224.2, subdivision (e)(2), when reason to believe a 

child is an Indian child exists, “further inquiry is necessary to 

help the court, social worker, or probation officer determine 

whether there is reason to know a child is an Indian child” and 
5

such further inquiry includes interviewing the parents and others 

to gather information and contacting (among others) the tribe or 

tribes in question. When there is reason to know a child is an 

Indian child, the Department must provide formal notice to the 

tribe or tribes in question as provided in section 224.3. (§§ 224.2, 

subd. (f), 224.3, subd. (a)(5).)

Under these statutory provisions, it was error for the 

juvenile court to conclude no further ICWA process was required 

on the state of the record— particularly in light of Father’s own 

statements and the statements his mother made to the 

Department about Cherokee ancestry. The error requires 

remand of the cause to permit the additional ICWA-related 

process that is required. (In re H.V. (2022) 75 Cal.App.5th 433, 

438; In re A.C. (2022) 86 Cal.App.5th 130, 140 (dis. opn. of Baker, 

J.).) Specifically, on remand, the juvenile court shall oversee 

ICWA-related inquiry of Minor’s paternal uncle and determine, 

at least in the first instance, whether to order ICWA-related 

inquiry of extended family members on the maternal side of 

Minor’s family, whether to order ICWA-related inquiry of others 

having an interest in Minor, and whether to require the 

Department to make contact with Cherokee tribes (§ 224.2, subd. 

(e)(2)(C)). The juvenile court shall also consider whether 

prudence counsels in favor of directing the Department to provide

formal notice to Cherokee tribes in light of the representations

made by Minor’s paternal grandmother regarding Indian 

ancestry and the unavailability of additional sources of inquiry.

If, after this additional process we have described, the 

juvenile court finds Minor is an Indian child, the juvenile court 

shall proceed in accordance with ICWA and related California 

law. If, on the other hand, the juvenile court again finds ICWA 
6

inapplicable, the court’s order terminating parental rights shall 

be reinstated.

DISPOSITION

The juvenile court’s parental rights termination order is 

conditionally reversed and the cause is remanded solely for 

further proceedings required by this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.