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Filed 11/22/21 In re L.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re L.L., a Person Coming Under the 

Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.E. et al.,

Defendants and Appellants.

E077242

(Super.Ct.No. J285195)

OPINION

APPEAL from the Superior Court of San Bernardino County. Annemarie G. 

Pace, Judge. Conditionally reversed and remanded.

Robert McLauglin, by appointment of the Court of Appeal, for Defendant and 

Appellant, S.E.

Amy Z. Tobin, by appointment of the Court of Appeal, for Defendant and 

Appellant, M.L.
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Michelle D. Blakemore, County Counsel, and Kaleigh Ragon, Deputy County 

Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants and appellants S.E. (Mother) and M.L. (Father) are the parents of L.L. 

On June 11, 2021, the juvenile court issued an order terminating their parental rights 

following a hearing pursuant to Welfare and Institutions Code1section 366.26. Both 

parents appeal, arguing the matter must be conditionally reversed and remanded to permit 

further inquiry into L.L.’s Native American ancestry as required under the Indian Child 

Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and corresponding provisions of 

the Welfare and Institutions Code. Plaintiff and respondent San Bernardino County 

Children and Family Services (CFS) concedes that the record does not contain sufficient 

evidence to show that it complied with its statutory duties of inquiry and notice under 

ICWA. We agree and conditionally reverse the matter and remand to permit CFS and the 

juvenile court to take the necessary steps to achieve ICWA compliance.

II. FACTS AND PROCEDURAL HISTORY

At the time of L.L.’s birth in 2020, eight of L.L.’s siblings had already been 

removed from Mother and Father; Mother’s and Father’s parental rights had been 

terminated as to two of those siblings; and legal guardianships had been established with 

respect to the remaining six siblings. On May 26, 2020, CFS filed a juvenile dependency 

petition on behalf of L.L., pursuant to section 300 et seq., alleging Mother’s and Father’s 

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 Undesignated statutory references are to the Welfare and Institutions Code.
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failure to protect, the lack of provision for support, and the abuse of siblings as a basis for 

jurisdiction.

On June 17, 2020, the juvenile court held a joint jurisdictional and dispositional 

hearing. Prior to the hearing, both parents had completed an ICWA inquiry form,

representing they did not have Native American ancestry. However, on the date of the 

hearing, Father filled out a second form indicating potential eligibility for membership in 

a federally recognized Indian tribe, without identifying any specific tribe. As a result, at 

the time of hearing, the juvenile court inquired whether Father had any additional 

information to provide; Father identified a relative who would have more detailed 

knowledge; and Father provided the name of that relative. Based upon this 

representation, the juvenile court continued the hearing to permit further investigation. 

CFS filed two subsequent declarations of due diligence regarding ICWA compliance, but 

both declarations noted only that CFS had provided notice of the proceedings to the 

Bureau of Indian Affairs.

On September 2, 2020, the juvenile court held a continued jurisdictional and 

dispositional hearing. Father reaffirmed his belief that he may be eligible for 

membership in a federally recognized Indian tribe and specifically identified two tribes. 

In response, CFS requested a further continuance to permit it to conduct an additional 

inquiry and investigation. However, the subsequent report filed by CFS did not indicate 
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that it sent any notices to the identified tribes or otherwise attempted to contact these 

tribes.

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On October 15, 2020, the juvenile court held another continued jurisdictional and 

dispositional hearing. Father was again questioned regarding his potential Native 

American ancestry; he again expressed his belief that he may be eligible for membership 

in the previously identified tribes; and he identified additional relatives as persons who 

may have more detailed information regarding his potential Native American ancestry. 

At the conclusion of the hearing, the juvenile court: found that ICWA did not apply 

because it did not have reason to know that L.L. had Native American ancestry; sustained 

the allegations of the petition; bypassed reunification services; and set the matter for a 

hearing pursuant to section 366.26.

On June 11, 2021, the juvenile court held a permanency planning hearing pursuant 

to section 366.26, ordered termination of Mother’s and Father’s parental rights, and 

selected a permanent plan of adoption for L.L. Both parents appeal from this order.

III. DISCUSSION

On appeal, the only issue raised by both parents is the failure of CFS and the 

juvenile court to comply with their duties of inquiry and notice as required under ICWA 

and relevant California statutes. CFS concedes that the record contains insufficient 

evidence to show that it complied with its duties of inquiry. We agree, and we 

conditionally reverse and remand the matter so that CFS and the juvenile court may 

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 Instead, the report stated only that social workers attempted to contact Father to 

discuss the matter further with him, but they were unsuccessful in those attempts.
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comply with their duties under ICWA and corresponding provisions of the Welfare and 

Institutions Code.

A. Legal Background and Standard of Review

“Congress enacted ICWA in 1978 to address concerns regarding the separation of 

Indian children from their tribes through adoption or foster care placement, usually in 

non-Indian homes. [Citation.] ICWA established minimum standards for state courts to 

follow before removing Indian children from their families and placing them in foster 

care or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) In turn, the 

Welfare and Institutions Code “creates three distinct duties regarding ICWA in 

dependency proceedings. First, from [CFS’s] initial contact with a minor and his family, 

the statute imposes a duty of inquiry to ask all involved persons whether the child may be 

an Indian child. [Citation.] Second, if that initial inquiry creates a ‘reason to believe’ the 

child is an Indian child, then [CFS] ‘shall make further inquiry regarding the possible 

Indian status of the child, and shall make that inquiry as soon as practicable.’ [Citation.] 

Third, if that further inquiry results in a reason to know the child is an Indian child, then 

the formal notice requirements of section 224.3 apply.” (In re D.S., at p. 1052; see 

§ 224.2)

Following the inquiry stages, the juvenile court may make a finding that ICWA 

does not apply because CFS’s inquiry and due diligence was “ ‘proper and adequate’ but 

no ‘reason to know’ whether the child is an Indian child was discovered.” (In re D.S., 

supra, 46 Cal.App.5th at p. 1050.) However, the duty to inquire is “ ‘an affirmative and 

continuing duty,’ ” and the juvenile court “ ‘shall reverse its determination if it 
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subsequently receives information providing reason to believe that the child is an Indian 

child and order the social worker or probation officer to conduct further inquiry.’ ” (Id. at 

pp. 1048, 1050; see In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[T]he juvenile court has 

a continuing duty to conduct an inquiry when it has received information that a dependent 

child might be an Indian child, as defined by ICWA . . . .”].)

“[W]e review the juvenile court’s ICWA findings under the substantial evidence 

test, which requires us to determine if reasonable, credible evidence of solid value 

supports the court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; see In re 

Austin J. (2020) 47 Cal.App.5th 870, 885 [A trial court’s finding that ICWA does not 

apply includes an implicit finding that social workers fulfilled their duty of inquiry, and it 

is reviewed for substantial evidence.].)

B. Application

Here, Father informed the court he was potentially eligible for membership in a 

federally recognized Indian tribe when responding to a social worker’s questionnaire; 

specifically identified two tribes on two different occasions;

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members whom he believed might have additional information pertaining to potential 

Native American ancestry. The juvenile court and CFS both acknowledged that this 

information triggered a duty to conduct a further inquiry, and the juvenile court continued

the matter on at least two occasions for that very purpose. However, the record contains 

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 Father indicated he may have ancestry in the Choctaw and Blackfoot tribes.
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no indication that CFS took any further actions to contact the identified relatives, contact 

the identified tribal entities, or provide notice to the identified tribes.

CFS concedes, and we agree, that such a record is simply not sufficient to support 

the juvenile court’s finding that CFS complied with its statutory duties of inquiry and 

ICWA does not apply. Accordingly, we will remand the matter to permit the juvenile 

court and CFS the opportunity to comply with the requirements of ICWA and sections 

224.2 and 224.3.
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IV. DISPOSITION

The order terminating parental rights is conditionally reversed. The matter is 

remanded to the juvenile court with directions to comply with the inquiry and notice 

provisions of ICWA, sections 224.2 and 224.3, and any other statutory provisions that 

may become applicable as a result of further inquiry into L.L.’s potential status as a child 

falling within the provisions of ICWA. If, after the requirements of these statutory 

provisions have been fulfilled, the juvenile court continues to find that ICWA does not 

apply, the order terminating parental rights shall be immediately reinstated and further 

proceedings shall be conducted, as appropriate.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

MENETREZ

J.