Filed 5/18/16 In re A.J. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ONE

In re A.J., a Person Coming Under the 

Juvenile Court Law.

 B267099

 (Los Angeles County

 Super. Ct. No. CK73523)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

HENRY J. et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Connie R. Quinones, Judge. Reversed and remanded with directions.

Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and 

Appellant Henry J.

Deborah Dentler, under appointment by the Court of Appeal, for Defendant and 

Appellant Sabrina M.

Mary C. Wickham, County Counsel, and Tracey Dodds, Principal Deputy County 

Counsel, for Plaintiff and Respondent.
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Henry J. (father) and Sabrina M. (mother) appeal from the termination of their 

parental rights over A.J. (A.J.). The sole issue raised by father and mother is that the Los 

Angeles Department of Children and Family Services (DCFS) failed to comply with the 

notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). 

DCFS concedes the inadequacy of its notices, and we reverse and remand for 

compliance.

BACKGROUND

A.J., born in early 2012, was the subject of a dependency petition filed February 8, 

2012. The Indian child inquiry attachment filed with the petition indicated that father 

told the social worker that his paternal great-grandmother was Cherokee, and his 

maternal great-grandmother was Choctaw Nation; he was unsure whether either was 

registered with the respective tribes. Nevertheless, on the same date both parents filed 

parental notification of Indian status stating that they knew of no Indian ancestry, and the 

trial court found that ICWA did not apply. The jurisdiction/disposition report, filed 

February 27, 2012, stated that on February 23, 2012, father indicated that his paternal 

great-grandmother possibly had Cherokee heritage, and a maternal great-grandmother 

possibly had Choctaw heritage.

The juvenile court declared A.J. a dependent under Welfare and Institutions Code 

section 300, subdivision (j) on July 31, 2012. A December 3, 2012 detention report and a 

January 23, 2013 jurisdiction/disposition report regarding a supplemental petition stated 

that ICWA did not apply, and DCFS stated in a January 29, 2013 status review report that 

the court had determined that this was not an ICWA case.

This court reversed the jurisdictional and dispositional orders on mother’s appeal 

on September 10, 2013, and directed the court to hold a new jurisdictional hearing. (Los 

Angeles County Department of Children and Family Servs. v. Sabrina M. (Sept. 7, 2012, 

B243398) [nonpub. opn.].) DCFS subsequently filed an amended petition on October 21, 

2013, representing that an ICWA inquiry had been made and A.J. had no known Indian 

ancestry. A jurisdiction/disposition report on the same date stated that on February 8, 

2012, the court found ICWA did not apply. Father filed an appeal from the findings on 
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the supplemental petition arguing that the juvenile court did not comply with ICWA, but 

we dismissed the appeal as moot in an order filed February 21, 2014. At the new 

jurisdictional hearing on April 29, 2014, the juvenile court again found A.J. to be a 

dependent under section 300, but was silent regarding ICWA.

In a status review report filed January 6, 2015, DCFS stated that ICWA “does or 

may apply,” while subsequent reports stated ICWA did not apply. At the contested 

section 366.26 hearing there was no mention of ICWA, although father and mother 

objected to termination of their parental rights. On September 16, 2015, the court found 

that A.J. was adoptable and that no exceptions to termination applied, and terminated 

mother’s and father’s parental rights over A.J. with no mention of ICWA.

Father and mother each timely appealed.

DISCUSSION

The only issue either parent raises on appeal is the failure of DCFS to comply with 

the mandatory notice requirements of ICWA. DCFS concedes the inadequacy of its 

compliance with ICWA, which gives Indian tribes the right to intervene at any time in 

state court dependency proceedings involving an Indian child. (In re Nikki R. (2003) 106 

Cal.App.4th 844, 848.)

We will reverse and remand as to both parents for compliance with the notice 

requirements of ICWA. After proper notice, a tribe with an interest in a child may assert 

its rights under ICWA and either intervene in the state court, or obtain jurisdiction over 

the proceedings by transfer to the tribal court. (In re Kahlen W. (1991) 233 Cal.App.3d 

1414, 1421.) As father and mother do not challenge the order terminating parental rights 

over A.J. on any other ground, if no tribe intervenes or asserts jurisdiction after proper 

notice, the juvenile court’s order is to be reinstated. (In re K.M. (2015) 242 Cal.App.4th 

450, 453.)
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DISPOSITION

The September 16, 2015 order terminating parental rights is reversed. The matter 

is remanded to the juvenile court with directions to comply with the notice requirements 

of Indian Child Welfare Act. If, after proper notice, a tribe asserts its right under Indian 

Child Welfare Act to intervene in the state court, or to obtain jurisdiction over the 

proceedings by transfer to the tribal court, the cause shall proceed in accordance with the 

tribe’s election. If there is no intervention or assertion of jurisdiction by any tribe after 

proper notice, then the juvenile court’s order shall be reinstated.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

LUI, J.