Filed 9/16/20 In re M.C. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re M.C., a Person Coming 

Under the Juvenile Court 

Law.

 B303482

 (Los Angeles County

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and 

Respondent,

v.

LOUIE C.,

Defendant and 

Appellant.

 Super. Ct. No. 18CCJP00576A)

APPEAL from orders of the Superior Court of Los 

Angeles County, Sabina A. Helton, Judge. Conditionally 

affirmed and remanded.
2

John L. Dodd, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kristine P. Miles, 

Assistant County Counsel, Peter Ferrera, Principal Deputy 

County Counsel for Plaintiff and Respondent.

________________________________

Louie C. (father) challenges the juvenile court’s order 

placing M.C. (minor) in a legal guardianship under Welfare 

and Institutions Code section 366.26.1 Father contends 

there was insufficient evidence to support the juvenile 

court’s determination that the Indian Child Welfare Act 

(ICWA) (25 U.S.C. § 1901 et seq.) did not apply. Respondent 

Los Angeles County Department of Children and Family 

Services (Department) contends father has not shown 

prejudicial error, and alternatively requests that any 

remand be limited. We conditionally affirm and remand the 

case for the limited purpose of compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Because the sole issue raised in father’s appeal is 

ICWA compliance, we focus primarily on the facts and 

procedural background relevant to that issue. Minor was 

detained in January 2018, based on a history of domestic 

violence between A.B. (mother) and father, and substance 

1 All statutory references are to the Welfare and 

Institutions Code, unless stated otherwise.
3

abuse. At the detention hearing, mother signed and filed a

Parental Notification of Indian Status (ICWA-020) form, 

claiming possible Cherokee Indian ancestry through her 

grandfather, Ernest B. During the hearing, mother 

explained that her possible Cherokee ancestry was on her 

paternal grandfather’s side of the family. After the court 

gave a brief explanation of ICWA, it asked mother to identify 

anyone the Department could speak with who might have 

information about mother’s claim of Indian ancestry. 

Mother identified her paternal grandfather, confirming that 

he was still alive. The court directed mother to provide her 

paternal grandfather’s phone number to the social worker, 

and ordered the Department to investigate. Minor’s counsel 

asked the court to consider maternal aunt as a relative 

placement.

The Department’s February 2018 jurisdiction and 

disposition report notes mother’s claim of Cherokee ancestry

and that mother stated that she would provide the social 

worker with information. The Department stated it would 

“continue to assess for ICWA eligibility and send out notices 

as required.” On the question of relative placement, the 

Department had been in contact with both maternal aunt 

Alisha B. and F.P., who identified herself as mother’s first 

cousin.

According to a September 2018 last minute information 

report, mother was unable to provide a name or date of birth 

for her paternal grandfather, and claimed he had recently 

passed away. The Department reported it would “continue 
4

to collaborate with mother in an effort to appropriately 

address ICWA.” Mother also asked the Department to 

consider placing minor with her brother, A.B, or a maternal 

aunt, N.B., who lives in New Orleans. On September 25, 

2018, after father filed a motion under Code of Civil 

Procedure section 170.6 and the case was transferred, the 

newly-assigned judge noted that mother “at one point 

indicated that her recently deceased grandfather was 

Cherokee Indian, and it was not followed up on in the other 

court.” The court then ordered notices for the Cherokee 

Nation and the Bureau of Indian Affairs.

In a November 2018 last minute information report, 

the Department reported that mother claimed possible

Cherokee ancestry, but she was unable to provide a name or 

date of birth for the relative that might have Indian history. 

Nevertheless, the Department reported it “sent notice to the 

following tribes/agencies in an effort to assess for ICWA:” the 

Cherokee Nation, the United Keetoowah Band of Cherokee 

Indians, the Eastern Band of Cherokee Indians, the Bureau 

of Indian Affairs (“BIA”), and the Secretary of the Interior.

The Department attached return receipts and the one 

response denying minor was ICWA eligible, but it did not 

attach a copy of the ICWA-030 notice.

The Department’s January 7, 2019 last minute 

information report included the same information and 

attachments. At the January 7, 2019 disposition hearing, 

father filed a Parental Notification of Indian Status (ICWA020) denying any Indian ancestry. After minor’s counsel
5

noted that mother had claimed Indian ancestry, the court 

confirmed that enough time had lapsed since the 

Department mailed the ICWA notices, and determined that 

there was no reason to know that minor was an Indian child

and ICWA did not apply to the case. The court’s written 

minute order instructed the parents “to keep the 

Department, their Attorney and the Court aware of any new 

information relating to possible ICWA status.” During the 

hearing, minor’s counsel sought an order to prevent the 

Department from removing minor from maternal cousin’s 

home, absent exigent circumstances, stating, “He has been 

there for quite some time and I believe that placement is the 

most appropriate for him now.” The Department objected, 

noting there had been some family conflict and mother had 

expressed some concerns to the social worker. After noting 

that the Department could respond to any concerns, it 

ordered that minor not be removed “absent an emergency or 

prior court order.”

On May 10, 2019, minor was placed in the home of 

maternal aunt Alisha B. The Department’s section 366.26 

report recommended that minor’s permanent plan should be 

a legal guardianship with maternal aunt Alisha B., as she 

wanted to be appointed legal guardian, but was not ready to 

pursue adoption. On December 20, 2019, after the court 

found that minor was living with a relative who was not 

willing to adopt, but was willing to provide a stable and 

permanent environment through legal guardianship, it 
6

appointed Alisha B. as minor’s legal guardian and 

terminated jurisdiction. Father filed a notice of appeal.

DISCUSSION

Father contends there was insufficient evidence to 

support the court’s finding that ICWA was inapplicable, and 

so the December 2019 order placing minor in a legal 

guardianship should be reversed. The Department argues 

that mother’s statements were inadequate to require either 

notice or further inquiry into her claims of Indian ancestry.

The Department also argues that any error was harmless, 

and to the extent we find prejudicial error, our remand 

should be limited, solely directing the juvenile court to order 

the Department to conduct additional inquiry into mother’s 

claim of Indian heritage and report the results to the court 

for such additional findings and orders required under 

ICWA. In his reply brief, father urges us to find prejudicial 

error and reject the Department’s argument that a limited 

remand is warranted.

Overview of governing law

“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 
7

through adoption or foster care placement, usually in nonIndian homes.’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 

1, 7–8 (Isaiah W.).) “In California, . . . persistent 

noncompliance with ICWA led the Legislature in 2006 to 

‘incorporate[] ICWA’s requirements into California statutory 

law.’ [Citations.]” (In re Abbigail A. (2016) 1 Cal.5th 83, 91; 

see also In re Breanna S. (2017) 8 Cal.App.5th 636, 650 

(Breanna S.) [California law “incorporates and enhances 

ICWA’s requirements”].) 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 also 

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

M.).)

Noncompliance with ICWA inquiry or notice 

requirements may be raised by either parent on appeal from 

an order terminating parental rights, even if the parent did 

not appeal an earlier order finding the ICWA inapplicable, 

and even if the appealed order did not contain an express 

ICWA finding. (Isaiah W., supra, 1 Cal.5th at pp. 9–15

[continuing duty under ICWA]; In re A.M. (2020) 47 

Cal.App.5th 303, 314, fn. 4 [absence of express finding does 

not diminish requirement of a current ICWA finding]; In re 

A.W. (2019) 38 Cal.App.5th 655, 665 [a non-Indian parent 

has standing to raise an ICWA violation on appeal].)

Because father is appealing from the court’s December

2019 order, and the juvenile court has a continuing duty to 
8

determine whether ICWA applies, we apply the federal and 

state statutes in effect on the date of the hearing. (§§ 224.2, 

224.3 [Stats. 2018, ch. 833, §§ 4–7]; In re A.M., supra, 47 

Cal.App.5th at p. 315.)

We review the trial court’s ICWA findings for 

substantial evidence. (In re Hunter W. (2011) 200 

Cal.App.4th 1454, 1467.) We must uphold the court’s orders 

and findings if any substantial evidence, contradicted or 

uncontradicted, supports them, and we resolve all conflicts 

in favor of affirmance. (In re Alexzander C. (2017) 18 

Cal.App.5th 438, 446.)

Duty of inquiry

The court and the Department have an affirmative and 

continuing duty under ICWA and related California law to 

inquire whether a child who is the subject of a dependency 

proceeding is or may be an Indian child. (Isaiah W., supra, 1 

Cal.5th at pp. 7–8.) The scope of the duty of inquiry is 

defined in regulations promulgated under ICWA (see 25 

C.F.R. § 23.107 et seq. (2018)) and sections 224.2 and 224.3. 

As discussed in two recent cases, California law imposes a 

duty of initial inquiry in every case, and a duty of further 

inquiry when there is reason to believe a minor may be an 

Indian child under ICWA. (In re Austin J. (2020) 47 

Cal.App.5th 870, 883 (Austin J.); In re D.S. (2020) 46 

Cal.App.5th 1041, 1048–1049.)
9

The Department’s initial duty of inquiry at the 

beginning of a child welfare proceeding includes “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.” (§ 224.2, subd. (b).) 

The court must inquire at each party’s first appearance, 

whether any participant in the proceeding “knows or has 

reason to know that the child is an Indian child.” (§ 224.2, 

subd. (c).) Part of the initial inquiry also includes requiring 

each party to complete California Judicial Council form 

ICWA-020, Parental Notification of Indian Status. (Former 

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

When there is reason to believe that an Indian child is 

involved in a proceeding, further inquiry is required. (Austin 

J., supra, 47 Cal.App.5th at p. 883; In re D.S., supra, 46 

Cal.App.5th at pp. 1048–1049.) As relevant here, further 

inquiry includes interviewing parents and extended family 

members to obtain information such as the names of the 

child’s “biological parents, grandparents, and greatgrandparents . . . as well as their current and former 

addresses, birth dates, places of birth and death, tribal 

enrollment information of other direct lineal ancestors of the 

child, and any other identifying information, if known.” 

(§ 224.2, subd. (e)(1); 224.3, subd. (a)(5)(C).) The agency 

engaging in further inquiry is also required to contact the 

BIA, the State Department of Social Services and any tribes 

the child may be affiliated with, and anyone else that might 
10

have information regarding the child’s membership or 

eligibility in a tribe. (§ 224.2, subd. (e)(2) & (e)(3).) Before 

the January 1, 2019 amendments to the Welfare and 

Institutions Code took effect, the Department was still under 

a duty of further inquiry, described as follows: “If the court 

or social worker ‘knows or has reason to know’ the child is or 

may be an Indian child, the social worker ‘is required to 

make further inquiry regarding the possible Indian status of 

the child, and to do so as soon as practicable, by interviewing 

the parents, Indian custodian, and extended family 

members’ and ‘any other person that reasonably can be 

expected to have information regarding the child’s 

membership status or eligibility’ in order to ‘gather the 

information required.’ . . . [Citations.]” (In re N.G. (2018) 

27 Cal.App.5th 474, 481.)

Duty to notify Indian tribes

If the court “knows or has reason to know that an 

Indian child is involved” in a dependency proceeding, the 

Department must notify the Indian child’s tribe of the 

pending proceedings and of their right of intervention. (25 

U.S.C. § 1912(a); 25 C.F.R. § 23.111(a)–(c) (2018); see also 

§ 224.3, subd. (a).) Statutory amendments that took effect in 

2019 conformed California law to the federal regulations

that define “reason to know” as existing when one of six 

criteria are met. (§ 224.2, subd. (d); In re A.M., supra, 47 

Cal.App.5th at pp. 315–316.) Under the criterion most 
11

relevant here, 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) (2018); § 224.2, subd. (d)(1); 

In re A.M., at p. 315.) A mere claim of tribal ancestry, 

without more, does not give rise to a “reason to know” that 

would trigger the duty to provide notice. (See, e.g., In re 

A.M., at p. 315 [reason to know is a limited definition, and 

the duty to provide notice is narrower than the duty of 

inquiry].)

When ICWA notice is required, it must be sent by 

registered or certified mail with return receipt requested. 

(25 C.F.R. § 23.111(c) (2018); § 224.3, subd. (a)(1).) Copies of 

the notice and any return receipts or other proof of service 

must be filed with the court. (25 C.F.R. § 23.111(a)(2)

(2018); § 224.3, subd. (c); Cal. Rules of Court, rule 5.482(b).)

Analysis of father’s arguments

Father contends the Department fell short on its 

inquiry and notice obligations under ICWA. The 

Department does not dispute that its ICWA notices were 

never filed with, or reviewed by, the juvenile court. Rather, 

the Department argues that father cannot show prejudicial 

error because the information mother provided was 
12

insufficient to require either further inquiry or notice under 

ICWA.

We first conclude that the juvenile court erred when it 

found ICWA inapplicable without first reviewing copies of 

the ICWA notices. (In re Louis S. (2004) 117 Cal.App.4th 

622, 629 (Louis S.) [when an agency sends ICWA notices to 

one or more tribes but fails to file copies of the notices or the 

return receipts, the juvenile court lacks sufficient 

information to determine whether there was compliance 

with ICWA’s notice requirements]; see also In re Karla C.

(2003) 113 Cal.App.4th 166, 175–179; 25 C.F.R. 

§ 23.111(a)(2) (2018); § 224.3, subd. (c) [requiring notice to be 

filed].) In Louis S., the agency sent ICWA notices to one 

tribe and the BIA. (Louis S., supra, at p. 627.) The agency 

filed the negative response received from the tribe, but did 

not include copies of the notices or any return receipts. (Id. 

at p. 629.) The appellate court found error, reasoning that 

responses filed without copies of the notices sent “are 

insufficient because it is impossible to determine from the 

responses alone whether the notices provided the tribe with 

relevant information and therefore with a meaningful 

opportunity to evaluate whether the dependent minor is an 

Indian child within the meaning of the ICWA.” (Ibid.) Here 

too, the juvenile court had no way to know what information 

the Department included in the notice, because no copy had 

been filed. The court therefore lacked adequate information 

to make a determination that minor was not an Indian child 

under ICWA.
13

The Department argues that any error was harmless 

because the information mother provided was inadequate to 

create a duty of further inquiry under section 224.2, 

subdivision (e)(1) or a duty to give notice under section 

224.3, subdivision (a). We reject the Department’s 

argument. While it is true that errors in ICWA notices may 

be found harmless in certain situations, here, the 

Department cannot rely on its own failures to argue that 

father has not demonstrated prejudicial error. (In re K.R.

(2018) 20 Cal.App.5th 701, 708–710 [agency cannot rely on 

absence of documentation to argue that appellant’s claim of 

ICWA error must fail on appeal]; In re N.G., supra, 27 

Cal.App.5th at p. 483 [deficiencies in ICWA notices may be 

harmless in some circumstances]; In re Andrew S. (2016) 2 

Cal.App.5th 536, 548 [Department had duty to conduct 

further inquiry on remand, where it was aware that father 

had siblings].)

The record lacks evidence that the Department even 

met the initial duty of inquiry under section 224.2, 

subdivision (b), and later reports demonstrate that the 

Department either ignored or lost track of the relevant 

information it already possessed. California law tasks the 

agency conducting initial inquiry to obtain information not 

only from parents, but also the minor, extended family 

members, and the party reporting child abuse or neglect. 

(§ 224.2, subd. (b).) At the beginning of the case in January 

2018, mother informed the court that she believed she had 

possible Cherokee ancestry through her paternal 
14

grandfather, identifying him by name, Ernest B. She 

confirmed he was still alive and agreed to provide his contact 

information to the social worker. In February 2018, the 

Department was in contact not only with mother, but also 

with two of mother’s relatives, including the maternal aunt 

who later became minor’s legal guardian. But there is no 

evidence in the record that the Department asked any of 

mother’s relatives about mother’s claim of Cherokee 

ancestry, even though the Department remained in contact 

with the relatives and with mother throughout the course of 

the proceeding. The record shows that the Department was 

also aware that mother had additional relatives, including a 

brother and a maternal aunt, both of whom mother had 

identified as additional placement options, but there is no 

evidence that those relatives were ever contacted.

Making matters worse, on two separate occasions, the 

Department gave reports that contradicted the information 

mother had already provided. Even though mother had 

already provided her grandfather’s name at the hearing in 

January 2018, the Department reported in September 2018 

that mother was unable to provide her grandfather’s name

and that she claimed he had recently passed away. In 

November 2018, in the same report that provided the court 

with copies of return receipts and a response to the ICWA 

notice, it reported mother “has been unable to provide a 

name or date of birth for the relative(s) that might have 

Indian history.” These later reports inexplicably ignore the 

information mother had already provided.
15

Based on the absence of any evidence that the 

Department made efforts to satisfy even its initial inquiry 

duties under ICWA and related state law, we are unable to 

determine whether further inquiry or notice would have 

been required in this case. The Department’s failure to file 

the ICWA notices it did send also made it impossible for

juvenile court or this court to determine whether any 

relevant info, even mother’s grandfather’s name, was 

included in the notices. On the record before us, we conclude 

the juvenile court lacked sufficient evidence to make any 

determination about whether ICWA applied, and we cannot 

find the error to be harmless. We remand the matter for the 

limited purpose of having the juvenile court order the 

Department to provide a more complete report of its inquiry 

and notice efforts. Based on the information provided, the 

juvenile court must then determine whether further actions 

are necessary to satisfy the duties under ICWA and related 

California law. (In re K.R., supra, 20 Cal.App.5th at p. 709

[limited remand]; Elizabeth M., supra, 19 Cal.App.5th at 

p. 788 [same].)
16

DISPOSITION

The December 2019 order of legal guardianship under 

section 366.26 is conditionally affirmed. The matter is 

remanded to the juvenile court, with directions that the 

juvenile court order the Department to file copies of the 

ICWA notices previously sent, as well as a report detailing 

its inquiry efforts. The juvenile court may then decide 

whether additional inquiry or notice is required under ICWA 

and related California law. If nothing further is required, 

the court shall reinstate the guardianship order. If notice is 

required and a tribe responds that M.C. is an Indian child, 

then further proceedings shall be conducted under ICWA.

MOOR, J. 

We concur:

BAKER, Acting P. J.

KIM, J.