Filed 10/18/21 In re J.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 J.S., et al., Persons Coming 

Under the Juvenile Court Law.

B310457

(Los Angeles County

Super. Ct. No. 

CK74786B-D)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

C.B. et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles 

County, Brett Bianco, Judge. Conditionally affirmed.

Megan Turkat Schirn, under appointment by the Court of 

Appeal, for Defendant and Appellant C.B.
2

Christopher Blake, under appointment by the Court of 

Appeal, for Defendant and Appellant R.S.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Brian Mahler, Deputy County 

Counsel, for Plaintiff and Respondent.
3

C.B. (Mother) and R.S., Sr. (Father) appeal juvenile court 

orders concerning three of their children: J.S., D.S., and S.S.

(collectively, the Minors). We are asked to decide whether the 

juvenile court abused its discretion in denying Mother and 

Father’s petitions seeking additional reunification services even 

though, in the years since the Minors were removed from their 

care due to substance abuse, they relapsed several times. We 

also consider whether the appellate record shows there was full 

compliance with the Indian Child Welfare Act (ICWA) and 

related provisions of California law, particularly in light of our 

disposition of a prior appeal requiring further inquiry into ICWA 

issues.

I. BACKGROUND

A. Overview of Dependency Proceedings Through This 

Court’s Resolution of a Prior Appeal

Mother and Father have four children together: J.S. (born 

in 2011), D.S. (born in 2013), S.S. (born in 2015), and R.S., Jr. 

(born in 2016). Mother’s fifth child, J.D. (born in 2007), has a 

different father. This appeal concerns only the Minors (J.S., D.S., 

and S.S.).

In November 2014, the Los Angeles County Department of 

Children and Family Services (the Department) received a 

referral alleging Mother and Father use drugs, their home was 

unsanitary and lacked utilities, and the children were “filthy” 

and begged neighbors for food. The Department filed a petition 

alleging J.S. and D.S. were at substantial risk of suffering 

physical harm attributable to Mother and Father’s substance 

abuse (cocaine), which rendered them incapable of providing 

regular care for the children.
4

The juvenile court removed J.S. and D.S. from Mother and 

Father’s custody. When S.S. was born a few months later, the 

Department filed a petition based on the same allegations of 

substance abuse. S.S. was also detained.

At a combined jurisdiction and disposition hearing in 

December 2015, the juvenile court assumed jurisdiction over the 

Minors and ordered family reunification services. Mother and 

Father’s case plans included drug and alcohol treatment with 

weekly testing, individual counseling, parenting classes, and 

monitored visitation.

Prior to a status review hearing in January 2017, the 

Department reported Mother tested positive for cocaine and 

opiates once in July 2016, but she and Father had otherwise 

tested negative. Both parents had been terminated from a drug 

and alcohol treatment program, however, for failing to actively 

participate in treatment. Visitation by the parents with the 

Minors was inconsistent, and the parents were not forthcoming 

with the Department regarding Mother’s recent arrest for petty 

theft and Father’s recent arrest for domestic violence.

The juvenile court found Mother and Father to be in 

“moderate” compliance with their case plans. The juvenile court 

further found the Department had not provided reasonable 

services to the parents and ordered further reunification services.

Prior to another status review hearing in October 2017, the 

Department reported Mother missed several drug tests and 

tested positive for hydrocodone in April 2017. Father tested 

positive for cocaine five times between February 2017 and May 

2017 and again in October 2017. Mother was arrested twice in 

2017, including an arrest for assault with a firearm, and Father 

was arrested four times, including an arrest for robbery. Both 
5

parents were participating in a substance abuse treatment 

program, but the Department emphasized this was the third 

program in which they had enrolled within the last year. 

Visitation remained inconsistent. The juvenile court terminated 

reunification services and set the matter for a Welfare and 

Institutions Code section 366.26 permanency planning hearing.1

The Department later reported Mother and Father 

successfully completed an outpatient program addressing drug 

and alcohol abuse, parenting skills, and domestic violence. 

During treatment, however, Mother tested positive for cocaine 

and opiates and Father tested positive for cocaine.2 The 

Department recommended a permanent plan of legal 

guardianship with T.W., a non-relative extended family member 

with whom the Minors had been placed for more than two years. 

The juvenile court appointed T.W. the Minors’ legal guardian and 

granted Mother and Father monitored visitation.

Mother and Father appealed the section 366.26 orders, 

contending, among other things, the Department did not satisfy 

its duty of inquiry under ICWA and related California law. As 

we shall later discuss in more detail, this court conditionally 

affirmed the juvenile court’s orders and remanded to permit the 

juvenile court to consider additional evidence of ICWA 

compliance or, if none existed, to order further inquiry. (In re 

R.S. (Dec. 19, 2018, B290032, B290033) [nonpub. opn.] (R.S. I).)

1 Undesignated statutory references that follow are to the 

Welfare and Institutions Code.

2 Mother and Father submitted to drug testing through their 

treatment program as well as an outside laboratory. All of the 

positive results were reported by the outside laboratory. Both 

parents denied ever using cocaine.
6

B. Proceedings on Remand Leading to This Appeal

In April 2019, the juvenile court reinstated jurisdiction over 

the Minors to address ICWA compliance.3 In late 2019, the legal 

guardian and Father filed opposing section 388 petitions: T.W. 

sought to change the Minors’ permanent plan from legal 

guardianship to adoption and Father sought further reunification 

services.

The Department initially recommended the juvenile court 

grant T.W.’s petition because the Minors were doing well in 

T.W.’s care and stated they wanted “Mama T.” to adopt them. A 

few months later, based on Mother and Father’s enrollment in 

individual counseling, negative drug tests, and successful 

visitation, the Department recommended reinstating 

reunification services contingent upon Mother and Father 

submitting to regular drug testing and services.

In February 2020, the juvenile court denied Father’s 

section 388 petition, granted T.W.’s petition, and set another 

section 366.26 hearing.4 In May 2020, the Department reported 

Mother and Father were visiting the Minors on a regular basis 

and the Minors looked forward to the visits. J.S. and D.S. 

indicated they wanted to remain living with T.W., however, 

which is where they had been placed since 2015. S.S. was too 

3 On the same date, Father filed section 388 petitions 

seeking reinstatement of his parental rights and reunification 

services. The juvenile court summarily denied the petitions.

4 Mother and Father filed notices of appeal from these 

orders, which this court deemed notices of intent to file petitions 

for extraordinary writ. No petitions were filed, and we 

subsequently dismissed the appeals.
7

young to make a meaningful statement about where she wanted 

to live. The Department recommended the Minors remain placed 

with T.W. and the juvenile court set a date to finalize adoption.

In November 2020, the Department reported the Minors 

“usually shrug or say ‘I don’t know’” when asked whether they 

wanted to continue visiting Mother and Father but appeared 

excited when Mother and Father arrived for visits. The 

Department’s recommendations were unchanged.

The following month, Mother and Father filed section 388 

petitions requesting further reunification services (it is these 

petitions that are the subject of this appeal). They argued their 

circumstances had changed because, among other things, they 

completed six months of clean drug tests, consistently visited the 

Minors, obtained adequate housing, and had a steady income. 

Mother and Father argued granting additional reunification 

services would be in the Minors’ best interest because “[i]t is 

better for children to have [two] parents,” T.W. had other 

children in her home, and Mother and Father were uniquely 

aware of potential hereditary health issues. The juvenile court 

set a hearing on the petitions.

Prior to the combined section 388 and section 366.26 

hearing in February 2021, the Department submitted a report 

recommending the juvenile court deny the parents’ section 388 

petitions, terminate their parental rights, and “move forward 

with adoption.” Between January and July 2020, Mother and 

Father failed to appear for several drug tests. In May 2020,

Mother tested positive for cocaine twice and Father tested 

positive for cocaine once. The Department had also been “made 

aware” of a video in which Father appeared to smoke marijuana. 

The Minors continued to enjoy regular visits with Mother and 
8

Father, but the Department noted J.S. and D.S. gave 

“indifferent” responses when asked whether they wanted to 

continue the visits. (S.S., by contrast, stated she “ha[s] fun” with 

Mother and Father during visits.) The Department emphasized 

D.S. and S.S. “have only ever[ ] truly lived in the home of [T.W.] 

while [J.S.] was raised in the home of [Father] and [Mother] for 

her first few years of life.”

The juvenile court denied Mother and Father’s section 388 

petitions, finding both a lack of changed circumstances and that 

further reunification efforts would not be in the best interest of 

the Minors. The juvenile court emphasized that although Mother 

and Father had obtained adequate housing and “some stability 

and employment as well,” these facts were “something of a red 

herring because the issue here . . . was substance abuse.” The 

parents demonstrated “paper compliance” with their case plans, 

“but clearly not much was learned especially since we would 

expect at this point parents to be really fighting and doing 

remarkably well if they really were serious about having a 388 

granted. [¶] And yet we still see substance use by both Mother 

and Father at a time when they know the Department’s going to 

be scrutinizing all their moves to see if they are truly serious.”

Both Mother and Father addressed the juvenile court 

during the section 366.26 hearing and requested another chance 

to reunify with the Minors. In addition to highlighting their 

changed living situation, they suggested the Department 

fabricated their positive drug tests. The juvenile court 

acknowledged “[t]here is always a side—just the human side of 

the court that, of course, would love to give people more chances 

because we’re all deserving of more chances and to correct past 

mistakes. But in dependency proceedings, the focus is always on
9

the permanency and stability for the children. And this case has 

been around for a very, very long time. There is no more time left 

under the law for further chances.” The juvenile court found the 

Minors to be adoptable, found no exceptions to adoption applied,

and terminated Mother and Father’s parental rights.

II. DISCUSSION

Mother and Father5contend the juvenile court abused its 

discretion in denying their changed circumstances petitions and, 

in any case, the section 366.26 orders should be reversed because 

the Department did not informally contact the Indian tribes to 

which it sent formal ICWA notice. Neither argument has merit.

Mother and Father’s most recent period of sobriety did not 

demonstrate changed circumstances in light of their history of 

relapse. Moreover, it was within the juvenile court’s discretion to 

conclude adoption by the caregiver with whom the Minors have 

spent most of their lives is in their best interest. As for the ICWA 

contentions, the purpose of pre-notice communication between 

the Department and Indian tribes is primarily to determine 

whether formal notice is necessary. Because the Department 

actually sent ICWA notices to the relevant tribes and there is no 

indication the notices were deficient in a manner that would have 

been remedied by such pre-notice contact, any error in failing to 

make pre-notice contact was harmless.

5 Father joins Mother’s arguments. Apart from suggesting 

specific questions the Department should have discussed with the 

relevant Indian tribes as part of its pre-notice ICWA inquiry—

which we shall address—he does not present any separate issues

on appeal.
10

There is, on the other hand, no documentation in the 

appellate record of efforts by the Department to contact two of 

the three relatives we previously held it should attempt to 

contact as part of an adequate ICWA inquiry. Thus, and similar 

to our disposition of the previous appeal, we will conditionally 

affirm the juvenile court’s section 366.26 orders and remand for 

the juvenile court to ensure the Department has correctly 

documented compliance with its inquiry and notice obligations 

under ICWA and related California law.

A. Denial of Mother and Father’s Section 388 Petitions 

Was Not an Abuse of Discretion

A section 388 petitioner “has the burden of showing by a 

preponderance of the evidence (1) that there is new evidence or a 

change of circumstances and (2) that the proposed modification 

would be in the best interests of the child.” (In re Mickel O.

(2011) 197 Cal.App.4th 586, 615 (Mickel O.).) We review the 

juvenile court’s denial of a section 388 petition for abuse of 

discretion. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478-479; In

re J.T. (2014) 228 Cal.App.4th 953, 965.)

As a preliminary matter, Mother’s contention that the 

juvenile court’s remark that there was “no more time left . . . for 

further chances” indicates it did not recognize the scope of its 

discretion to grant the section 388 petitions is baseless. In 

context, however, these remarks merely summarize the 

consequences of the juvenile court’s finding that Mother and 

Father did not satisfy their burden under section 388. The 

juvenile court held a hearing on the petitions and expressly found 

that circumstances had not changed and further reunification 

efforts would not be in the best interest of the Minors. As we 
11

shall explain, that conclusion was within the juvenile court’s 

discretion to draw.

1. Changed circumstances

A change in circumstances warranting the reinstatement of 

reunification services must be “substantial.” (In re Ernesto R.

(2014) 230 Cal.App.4th 219, 223.) Changing—as opposed to 

changed—circumstances will not suffice. (Mickel O., supra, 197 

Cal.App.4th at 615, citing In re Casey D. (1999) 70 Cal.App.4th 

38, 47, disapproved on another ground in In re Caden C. (2021) 

11 Cal.5th 614, 636, fn. 5 (Caden C.).)

Mother and Father contend they demonstrated changed 

circumstances because they were no longer “living the lifestyle of 

a drug addict.” They emphasize their improved housing and 

career stability and they argue positive tests in May 2020 do not 

undermine their showing that they were “free from drug 

addiction.”

In our view, the positive tests in May 2020 were not 

isolated events. In addition to missed drug tests throughout the 

dependency proceedings, Mother tested positive for cocaine and 

opiates in July 2016, hydrocodone in April 2017, cocaine in 

October and November 2017, opiates in February 2018, and 

cocaine in May 2020. Father tested positive for cocaine several 

times in 2017, again in February 2018, and again in May 2020. 

These positive drug tests coincided with Mother’s pregnancy with 

the Minors’ younger sibling and the parents’ participation in at 

least one of several treatment programs. The fact that Mother 

and Father were able to improve their living situation and have 

successful monitored visits with the Minors despite fairly recent
12

drug use does not demonstrate they addressed the substance 

abuse issues that gave rise to jurisdiction.

Mother’s counterargument relies on In re J.M. (2020) 50 

Cal.App.5th 833 (J.M.), a case in which the petitioner 

“ameliorated all concerns leading to dependency court 

jurisdiction” by avoiding contact with her abusive former partner 

for more than a year. (Id. at 837, 846.) The petitioner in J.M.

prevailed notwithstanding her violation of a no-contact order as 

to her abuser on only one occasion (id. at 840-841), but that

circumstance is not comparable to Mother and Father’s repeated 

cycles of recovery and relapse here. The juvenile court could 

reasonably conclude nine months of sobriety (at best) following 

several years of recurring drug use under the scrutiny of the 

Department and treatment programs demonstrated changing—

but not changed—circumstances. (In re Clifton B. (2000) 81 

Cal.App.4th 415, 423-424 (Clifton B.) [holding seven months of 

sobriety insufficient to demonstrate changed circumstances 

where petitioner’s lengthy history of drug abuse included “periods 

of sobriety alternated with recurring drug use”]; see also In re 

Amber M. (2002) 103 Cal.App.4th 681, 685-686 [affirming denial 

of section 388 petition where the petitioner “had been clean for 

372 days, [but] she had previously relapsed twice during the 

course of th[e] case”] (Amber M.).)

2. Best interest

Even assuming Mother and Father refrained from 

substance abuse between May 2020 and February 2021 and this 

was sufficient to demonstrate changed circumstances, they still 

did not carry their burden to demonstrate further reunification 

services would be in the Minors’ best interest. In making this 
13

determination, courts consider “the seriousness of the problem 

leading to the dependency and the reason for its continuation; the 

strength of the parent-child and child-caretaker bonds and the 

time the child has been in the system; and the nature of the 

change of circumstance, the ease by which it could be achieved, 

and the reason it did not occur sooner.” (Amber M., supra, 103 

Cal.App.4th at 685.)

The first and third factors do not support Mother and 

Father’s position. Mother and Father’s drug abuse came to the 

attention of the Department due to reports that they were 

seriously neglecting J.S. (then three years old) and D.S. (then one 

year old). (In re Christopher R. (2014) 225 Cal.App.4th 1210, 

1219 [highlighting the special problem of substance abuse in 

relation to children of “‘tender years’”].) As courts have 

recognized—and this case demonstrates—chronic substance 

abuse is not easily addressed. (Clifton B., supra, 81 Cal.App.4th 

at 423 [“relapses are all too common for a recovering drug user”].) 

Mother emphasizes she had a traumatic childhood and suffered 

several health crises during the dependency proceedings to 

explain her delay in addressing her drug abuse. These hardships

do not meaningfully distinguish the latest period of sobriety from 

earlier, unsuccessful efforts at recovery.

The relative strength of the Minors’ bonds to T.W. and their 

parents also weighs against further reunification services. 

Although “the bond to the caretaker cannot be 

dispositive . . . , lest it create its own self-fulfilling 

prophecy, . . . the disruption of an existing psychological bond 

between dependent children and their caretakers is an extremely 

important factor bearing on any section 388 motion.” (In re 

Kimberly F. (1997) 56 Cal.App.4th 519, 531.) Here, the Minors 
14

have been placed with T.W. since 2015—the majority of J.S. and 

D.S.’s lives, and nearly all of S.S.’s life—and referred to her as 

“Mama T.” By all accounts, they were thriving in her care. J.S. 

and D.S. wanted T.W. to adopt them, and S.S. was too young to 

express a preference. Although J.S. and D.S.’s stated indifference

to continued visits with Mother and Father was tempered by 

their anticipation and enjoyment of visits, it was within the 

juvenile court’s discretion to conclude the Minors’ interests were 

best served by ensuring permanency and stability with T.W.

B. Conditional Affirmance Is Appropriate Because the 

Record Does Not Show the Department Undertook 

Necessary ICWA Inquiry

1. Additional background

Father notified the Department early in dependency 

proceedings that he may have Cherokee or Seminole ancestry. In 

late 2016, the Department sent ICWA notices to the Cherokee 

Nation, the Eastern Band of Cherokee Indians, the United 

Keetoowah Band of Cherokee Indians in Oklahoma, the Seminole 

Nation of Oklahoma, the Seminole Tribe of Florida, the Bureau of 

Indian Affairs, and the U.S. Department of the Interior. As 

discussed in this court’s opinion conditionally affirming the 

juvenile court’s April 2018 section 366.26 orders, these ICWA 

notice forms provided scant information regarding Father’s 

family. (R.S. I, supra, B290032, B290033.) Among other things, 

the forms did not include the addresses or places of birth of the 

Minors’ paternal grandparents, the date and place of death of a 

paternal great grandmother, and the birthdate and tribal 

affiliation of a paternal great grandfather. (Ibid.)
15

This court concluded there was no substantial evidence to 

support a finding that the Department adequately investigated 

Father’s potential Indian ancestry. (R.S. I, supra, B290032, 

B290033.) There was no documentation suggesting the 

Department asked Father if he knew of other family members 

who might possess relevant information. (Ibid.) Moreover, 

although Department social workers spoke with the Minors’ 

paternal grandparents and a paternal great aunt while 

investigating the allegations against Mother and Father and 

assessing placement options, there was no indication the 

Department asked these relatives whether they possessed 

information relevant to the ICWA inquiry. (Ibid.) Our opinion 

did not identify these relatives by name, but the Department’s 

records reflect that social workers were in contact with Rory S. 

(the paternal grandfather), Charlene B. (the paternal 

grandmother), and Kimberly F. (a paternal great aunt) in 2015.

Recognizing that the Department may have discharged its 

duty of inquiry without providing documentation of its efforts, we 

remanded for the Department to submit any such documentation 

and, if none existed, for the juvenile court to order the 

Department to make the required inquiries. (R.S. I, supra, 

B290032, B290033.) We held that, “at a minimum,” the 

Department must “exhaust Father’s own knowledge of any 

Cherokee or Seminole ancestry” and make adequate efforts to 

interview paternal family members of which the Department was 

already aware “(such as paternal grandmother, grandfather, and 

great-aunt) or that Father is able to identify as possibly having 

pertinent information.” (Ibid.)

On remand, the juvenile court found there was “no 

documentation . . . to demonstrate the Department undertook 
16

meaningful inquiry in the beginning” and ordered the 

Department to further inquire as to the Minors’ potential Indian 

ancestry. In January 2019, Father told a Department social 

worker that a paternal great aunt, Janette S.Z. (Janette), and 

paternal great grandmother, Emma Jean S. (Emma Jean), are 

registered members of the Seminole tribe. He further stated that 

his “[g]reat, great, great [g]randfather, John Horse,” is on the 

cover of a book entitled Black Indians. Father’s older daughter, 

Meshawn S. (Meshawn), told the social worker that both Emma 

Jean and her husband, John S., were “associated with” the 

Seminole tribe, and suggested the Department contact her aunts 

Janette and Sadee H. (Sadee) for more information.

The Department was unable to find contact information for 

Sadee, but a social worker spoke with Janette in February 2019. 

Janette told the social worker she is estranged from Father and 

“did not want to be involved [ ]or assist in any way.” 

Nonetheless, Janette confirmed she is a member of the Seminole 

Nation. She did not have her tribal registration number with 

her, and she declined a follow-up call with the social worker. 

Janette could not identify any other relatives who might be able 

to provide additional information, but stated the Minors are 

descended from Chief John Moon of the Seminole tribe and 

named Irma Jones S., Sharna L.J., and John J. as others in this 

lineage.6

6 According to the social worker’s notes, Janette stated 

Father is the “son of Rorrick S., husband of Irma Jones S. (sister), 

daughter of Sharna L.J., daughter of John J., son of Chief John 

Moon of the Seminole tribe.” The family tree suggested in these 

notes, which identify Irma Jones S. as the Minors’ paternal 

grandmother, conflicts with the Department’s records identifying 

Charlene B. as the paternal grandmother. Indeed, Father 
17

Rory S., the paternal grandfather, told a Department social 

worker the Minors’ great great great great grandfather was 

named John Bear Blackfoot, but Janette “is the only other 

member of the family that he knows that has knowledge of [the] 

family’s Indian heritage.” The paternal grandfather ended the 

call abruptly because he was at work and did not answer followup calls and a text message.

Although the Department’s records commendably reflect 

multiple attempts to reach the Minors’ paternal great 

grandmother, Emma Jean, by phone, there is no record of any 

follow-up with the Minors’ paternal grandmother, Charlene B. 

(Notes summarizing the Department’s efforts to contact Emma 

Jean mistakenly describe her as the paternal grandmother.) 

There is also no mention of further attempts to contact Kimberly 

F., the paternal great aunt mentioned in our earlier opinion.

The Department sent ICWA notices to the Seminole Tribe 

of Florida, the Seminole Nation of Oklahoma, the Choctaw 

Nation of Oklahoma, the Mississippi Band of Choctaw Indians, 

the Jena Band of Choctaw Indians, and the Blackfeet Tribe of 

Montana in 2019.7 The ICWA notices identify Charlene B. as the 

Minors’ paternal grandmother, but form fields for her current 

and former addresses, birth date and place, and date and place of 

identified Emma Jean (a name the Department listed as an alias 

of Irma Jones in its ICWA notices) as the Minors’ paternal great

grandmother. It appears the notes of the social worker’s 

conversation with Janette misidentify Rorrick/Rory S., the son of 

Irma Jones/Emma Jean, as her husband.

7 The Minors’ potential Choctaw and Blackfeet ancestry is 

through Mother’s adoptive family and is not at issue in this 

appeal.
18

death are completed with the notation “FATHER UNABLE TO 

PROVIDE.” The notices identify Rory S. as the paternal 

grandfather and list his current address, but the remaining form 

fields all indicate “FATHER UNABLE TO PROVIDE.” The only 

information provided for the paternal great grandmother, Erma 

Jean J. AKA Emma Jean S. AKA Irma Jones S., is her birthdate 

and the fact that she is “REGISTERED WITH THE SEMINOLE 

TRIBE.” The only information provided for the paternal great 

grandfather, John S., is his date and place of birth and death.

Several form fields, including those relevant to whether 

any family members attended an Indian school, received medical 

treatment at an Indian health clinic, and “[o]ther relative 

information,” mention that “Father’s great, great, great 

grandfather is John Horse AKA John S[.] AKA John Moon AKA 

John Jefferson AKA John Caballo AKA Juan Cavallo AKA John 

Cowaya AKA Gopher John.”8 The “[o]ther relative information” 

section also mentions Janette and her Seminole affiliation (with 

fields for her address and date and place of birth indicating “[s]he 

refused to provide”) and Sharna L.J. (with all related fields 

indicating “[f]amily unable to provide”). Although Janette 

indicated Sharna L.J. was Emma Jean’s mother (making her the 

Minors’ great great grandmother), the notices list her as a cousin. 

The notices do not mention the paternal great aunts Kimberly F. 

or Sadee.

Each of the noticed tribes responded that the Minors are 

not enrolled members or eligible for membership. Five of the six 

8 The appellate record does not indicate the source of several 

of these aliases. Nor is it clear why the notices do not include the 

name John Bear Blackfoot, mentioned by the paternal 

grandfather, Rory S.
19

tribes responded by letter. A Department social worker obtained 

a response from the sixth tribe—the Seminole Nation of 

Oklahoma—by telephone.

At a September 25, 2019, progress hearing regarding ICWA 

notices, the Department represented it had complied with ICWA 

requirements. Counsel for the Minors and Mother submitted on 

the matter, and Father’s attorney did not address the matter 

when invited to do so. The juvenile court found the Department 

satisfied ICWA’s inquiry and notice requirements, citing “the 

Department’s exhaustive efforts to inquire of all persons with 

potential information,” and “reiterate[d] its previous findings that 

ICWA does not apply in this case.”

2. ICWA and related California statutes

ICWA reflects a congressional determination to protect 

American Indian children9and to promote the stability and 

security of Indian tribes and families. (25 U.S.C. § 1902; In re 

Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.).) “The minimum 

standards established by ICWA include the requirement of notice 

to Indian tribes in any involuntary proceeding in state court to 

place a child in foster care or to terminate parental rights ‘where 

the court knows or has reason to know that an Indian child is 

involved.’ (25 U.S.C. § 1912(a).)” (Isaiah W., supra, at 8

[explaining that ICWA’s notice requirement enables tribes to 

9 For purposes of ICWA and related state statutes, an Indian 

child is an unmarried person 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); § 224.1, subd. (a) [adopting federal definitions].)
20

determine whether the proceedings involve an Indian child and, 

if so, “to intervene in or, where appropriate, exercise jurisdiction 

over a child custody proceeding”].)

“ICWA itself does not impose a duty on courts or child 

welfare agencies to inquire as to whether a child in a dependency 

proceeding is an Indian child.” (In re Austin J. (2020) 47 

Cal.App.5th 870, 883.) Federal regulations implementing ICWA, 

however, require state courts to ask each participant in child 

custody proceedings whether they know or have reason to know 

that the child is an Indian child and to instruct the participants 

to inform the court if they if they subsequently receive 

information that provides reason to know the child is an Indian 

child. (25 C.F.R. § 23.107(a).) Additionally, pursuant to ICWA’s 

provision that states may provide “a higher standard of 

protection to the rights of the parent or Indian custodian of an 

Indian child than the rights provided under” ICWA (25 

U.S.C. § 1921), California statutory law “incorporates and 

enhances ICWA’s requirements.” (In re Breanna S. (2017) 8 

Cal.App.5th 636, 650 (Breanna S.), disapproved on another 

ground in Caden C., supra, 11 Cal.5th at 629.)

At the time that the juvenile court terminated Mother and 

Father’s parental rights, requirements regarding inquiry into 

whether a child is an Indian child were enumerated in section 

224.2.10 The statute requires a child services agency to, among 

10 Amendments to section 224.2 took effect on January 1, 

2020 (Stats. 2019, ch. 434, § 2) and September 18, 2020 (Stats. 

2020, ch. 104, § 15). Although the juvenile court determined 

ICWA did not apply in September 2019, the juvenile court has 

“affirmative and continuing duty” to ensure ICWA compliance 

(§ 224.2, subd. (a)) and we apply the law in effect when the 

juvenile court made the order from which the parents appeal. 
21

other things, “[c]ontact[ ] the tribe or tribes and any other person 

that may reasonably be expected to have information regarding 

the child’s membership, citizenship status, or eligibility.” 

(§ 224.2, subd. (e)(2)(C).) Contact with a tribe pursuant to section 

224.2, subdivision (e)(2)(C) “shall, at a minimum, include 

telephone, facsimile, or electronic mail contact to each tribe’s 

designated agent for receipt of notices under [ICWA]” and “shall 

include sharing information identified by the tribe as necessary 

for the tribe to make a membership or eligibility determination, 

as well as information on the current status of the child and the 

case.” (§ 224.2, subd. (e)(2)(C).)

The sharing of information with tribes at this inquiry stage 

is distinct from formal ICWA notice to tribes. (In re D.S. (2020) 

46 Cal.App.5th 1041, 1049 (D.S.).) Formal notice must include, 

among other things, biographical information regarding the child 

and their parents, grandparents, and great grandparents. 

(§ 224.3, subd. (a)(5).) The noticed tribes’ determinations of 

whether the child is a member, or eligible for membership, are 

conclusive. (§ 224.2, subd. (h); In re T.G. (2020) 58 Cal.App.5th 

275, 294.)

We review challenges to the juvenile court’s findings 

regarding ICWA inquiries for substantial evidence. (In re Hunter 

W. (2011) 200 Cal.App.4th 1454, 1467.) Although failure to 

comply with ICWA’s notice requirements ordinarily constitutes 

prejudicial error, violations of state statutes imposing higher 

(See In re A.M. (2020) 47 Cal.App.5th 303, 320 [“The 

determinative factor is not when the ICWA-030 notices were 

mailed to the relevant tribes, but when the section 366.26 

hearing was held” because the “termination order ‘necessarily 

subsume[s] a present determination’ of ICWA’s applicability”].)
22

inquiry and notice standards will be held harmless unless the 

appellant demonstrates a reasonable probability of a different 

result. (Breanna S., supra, 8 Cal.App.5th at 653; In re S.B. 

(2005) 130 Cal.App.4th 1148, 1162.)

3. Analysis

Mother and Father contend the Department failed to

discharge its duty of further inquiry because it did not make 

informal contact with the tribes before providing formal notice. 

Assuming without deciding the Department was required to 

make pre-notice contact with the tribes,

11 there is no basis to 

conclude pre-notice contact would have produced a different 

result.

Citing the paternal relatives’ lack of cooperation with 

Department social workers, Mother contends informal contact 

with the tribes would have provided “another way to obtain the 

necessary information as to whether the proceedings involved an 

Indian child.” In effect, Mother argues that if the Department 

had informally shared with the tribes the information that was 

ultimately included in the formal notice, the tribes might have 

provided additional information to include in the formal notice. 

The problem with this argument is that, with or without prenotice contact, the tribes’ membership determinations would be 

based on the same information. If, for example, a social worker 

had made a pre-notice phone call to the Seminole Tribe of Florida 

11 In at least one case, the Court of Appeal has suggested 

formal notice satisfies the pre-notice contact requirement. (In re 

D.F. (2020) 55 Cal.App.5th 558, 570 [characterizing formal notice 

as “correspondence” sufficient to satisfy pre-notice contact 

provision in former section 224.2, subdivision (e)(3)].)
23

and learned Janette’s tribal identification number, the only 

difference between the formal notice actually provided in this 

case and formal notice informed by pre-notice contact would be 

the addition of information already possessed by the tribe. Under 

these circumstances, there is no reasonable probability that prenotice contact would have resulted in a finding that the Minors 

are Indian children.

Joining Mother’s argument, Father suggests specific 

questions the Department might have posed to the Seminole 

Tribe of Florida in a pre-notice discussion: “(1) Is Aunt Janette a 

member? How does that affect the ability of her great-nieces and 

nephews to apply for membership? [¶] (2) Assuming . . . that 

[Father] is a direct descendant of Chief John Moon and that can 

be proven, are appellant and his children eligible for membership 

or is their blood quantum too dilute for membership or is there 

some other barrier, one that might be overcome, to obtaining 

membership in the tribe? [¶] (3) What are the basic criteria for 

membership in the tribe?” None of these questions would 

generate new information for the tribe to consider in determining 

whether the Minors are eligible for membership. As we have 

already said, the Seminole Tribe of Florida was issued a notice 

reflecting Janette’s tribal membership and the Minors’ purported 

descent from Chief John Moon. Father’s questions are geared 

toward collecting information from the tribe regarding its reasons 

for concluding the Minors are not eligible for membership. But 

we do not second guess the tribes’ conclusions. (§ 224.2, subd. 

(h).)

The Department’s efforts to investigate the Minors’ 

potential Indian ancestry were hampered by lack of cooperation 

from Father’s family and, as we shall discuss, its failure to 
24

contact all relatives who might possess pertinent information. 

But pre-notice contact with the tribes would have made no 

difference and any error in declining to make informal tribal 

contact was harmless.

Finding this particular asserted informal contact error 

harmless, on the other hand, does not mean that outright 

affirmance ought to be the result. The state of the record reveals 

another problem with the Department’s inquiry that requires 

remediation.

In our previous opinion, we held that a meaningful ICWA 

inquiry must include efforts to interview Rory S. (the paternal 

grandfather), Charlene B. (the paternal grandmother), and 

Kimberly F. (a paternal great aunt), with whom the Department 

was already in contact. The record in this appeal reflects followup with Rory S., but no further attempts to interview Charlene B. 

or Kimberly F. Instead, the Department documented its contact 

with a different great aunt (Janette) and efforts to contact the 

Minors’ great grandmother (Emma Jean), misidentified in a 

social worker’s notes as their grandmother.

The Department’s apparent failure to contact these 

relatives is reflected in the ICWA notices. For example, form 

fields for Charlene B.’s biographical information indicate 

“FATHER UNABLE TO PROVIDE.” Although the Minors’ 

purported Indian ancestry runs through Rory S. and Charlene B.

may accordingly be unlikely to provide information beyond that 

already shared by Rory S. and Janette, the appellate record does 

not disclose whether Kimberly F. is the sister of Charlene B. or 

Rory S. If the latter, it is reasonably probable that Kimberly F. 

may possess information regarding her family’s ancestry that 

Rory S. was unable (and Janette unwilling) to provide. For 
25

example, it is reasonably probable that a sister of Rory S. would 

be able to provide contact information for her mother (the Minors’ 

great grandmother), Emma Jean, who other relatives identified 

as a registered member of an Indian tribe, or Sadee, who another 

relative indicated might have more information about the Minors’ 

Indian ancestry.

We are mindful of the fact that no relatives suggested 

Kimberly F. was likely to possess relevant information. But 

following up with a paternal relative with whom social workers 

were already in contact—and a person we specifically held the 

Department must make efforts to interview—does not amount to 

“cast[ing] about” for relevant information. (See D.S., supra, 46 

Cal.App.5th at 1053 [“The [child welfare agency] is not required 

to ‘cast about’ for information or pursue unproductive 

investigative leads”].)

Under the circumstances, we believe it is appropriate to 

conditionally affirm the section 366.26 parental rights 

termination order and remand to the juvenile court with 

directions. (Breanna S., supra, 8 Cal.App.5th at 656; In re 

Michael V. (2016) 3 Cal.App.5th 225, 236; see also In re Elizabeth 

M. (2018) 19 Cal.App.5th 768, 788.) On remand, the juvenile 

court shall permit the Department to submit evidence of its 

attempts to interview the Minors’ paternal grandmother, 

Charlene B., and paternal aunt, Kimberly F., regarding the 

Minors’ potential Indian ancestry.

If additional evidence demonstrates the Department was

unable to reach these relatives or they indicated they had no 

pertinent information before the Department sent ICWA notices 

to the relevant tribes, the juvenile court need only make a finding 

to that effect on the record or in a minute order. If, however, 
26

there is no documentation demonstrating such an inquiry was 

undertaken by the Department, the juvenile court shall order the 

Department to conduct such an inquiry and to submit evidence of 

its efforts. If the Department’s inquiry produces additional 

material information regarding the Minors’ potential Indian 

ancestry, the Department must re-notice the pertinent tribe(s) 

with the additional information included in the notice. (If no 

additional material information is produced, re-noticing is not 

required.) Upon receipt of responses to any further ICWA notice 

that may be required, the juvenile court shall then determine 

whether ICWA-related inquiry and notice requirements have 

been satisfied and whether the Minors are Indian children. If the 

court finds the Minors are Indian children, the court shall vacate 

the parental rights termination orders and proceed in compliance 

with ICWA and related California law. If the court finds the 

Minors are not Indian children, the section 366.26 orders shall 

remain in effect.
27

DISPOSITION

The juvenile court’s February 10, 2021, orders denying 

Mother and Father’s section 388 petitions as to J.S., D.S., and 

S.S. are affirmed. The juvenile court’s February 10, 2021, section 

366.26 parental rights termination orders as to J.S., D.S., and 

S.S. are conditionally affirmed. The cause is remanded to the 

juvenile court for further proceedings consistent with this 

opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.