Filed 2/26/13 In re Jaida H. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


In re JAIDA H.,                                                                   B241947
                                                                                  (Los Angeles County
a Person Coming Under the Juvenile Court Law.                                      Super. Ct. No. CK85885)


LOS ANGELES COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

DESIREE H.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County,
Steven Klaif, Juvenile Court Referee. Reversed and remanded with directions.
         Karen B. Stalter, under appointment by the Court of Appeal, for Defendant
and Appellant.
         John F. Krattli, County Counsel, and Emery El Habiby, Deputy County
Counsel, for Plaintiff and Respondent.
                                 INTRODUCTION
      Mother, Desiree H., appeals from a dependency court order terminating
parental rights to her minor child, Jaida H. Her sole contention on appeal is that
the Department of Children and Family Services (DCFS) and the dependency court
failed to comply with the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901
et seq.) before terminating parental rights. DCFS concedes that the requirements
of ICWA were not satisfied, and we agree. The judgment is reversed and the case
remanded to the dependency court with directions to conduct further inquiry into
whether Jaida may have Cherokee ancestry. Should it be concluded that there is
not reason to believe Jaida is an Indian child, the order terminating parental rights
shall be reinstated.


               FACTUAL AND PROCEDURAL BACKGROUND
Background
      Because this appeal concerns only the adequacy of the ICWA notices, we
provide only a brief overview of the facts relating to the dependency.
      DCFS filed a petition seeking dependency jurisdiction over Jaida under
Welfare and Institutions Code section 300, subdivisions (a) and (b), based on
Desiree‟s mental and emotional problems and substance abuse, as well as alleged
domestic violence between Desiree and Jaida‟s father, Bryan P.1 Bryan completed
an ICWA-020 form on December 27, 2010, indicating that he had no Indian

1
      An amended petition was filed on February 9, 2011, listing Matthew A. as a
second alleged father, and including additional grounds for jurisdiction under
section 300, subdivision (b), based on alleged substance abuse issues on the part of
both Matthew and Bryan. Matthew completed an ICWA-020 form on March 21,
2011, denying any known Indian ancestry. Paternity testing determined that
Bryan, not Matthew, was Jaida‟s father, and the court subsequently found that
Bryan was the father.
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heritage. Desiree completed an ICWA-020 form on the same date indicating that
she had Cherokee heritage through her maternal grandfather.
      At the December 27, 2010 detention hearing, Desiree‟s counsel indicated
that Desiree may have Cherokee heritage through her maternal grandfather. The
court ordered DCFS to contact Desiree and her maternal relatives regarding their
possible American Indian heritage, to investigate the claim of Cherokee ancestry,
and to provide a supplemental report to the court regarding that investigation,
including details about who was interviewed and dates and places of birth of the
maternal relatives. The court indicated that, upon receiving this additional
information, it would determine whether the ICWA notice requirements were
triggered. The court found that the ICWA did not apply as to Bryan.
      In its report submitted prior to the jurisdiction and disposition hearing,
DCFS recommended that the court find that the ICWA did not apply, because on
February 2, 2011, Desiree “reported to DI Hernandez that she did not have any
Native American heritage.” The report does not reflect that the issue of Desiree‟s
potential Native American heritage was discussed with any of her relatives.
      At the May 16, 2011 adjudication hearing, the court amended and sustained
allegations in the dependency petition under Welfare and Institutions Code section
300, subdivision (b), as to Desiree and Bryan. The court made no ICWA findings.
      In subsequent supplemental reports, DCFS continued to recommend that the
court find that the ICWA did not apply as to Desiree. The court terminated
reunification services for both parents and subsequently terminated their parental
rights. No ICWA notices were sent to Cherokee tribes, and the court never made a
finding regarding ICWA applicability as to Desiree.
      Desiree timely appealed. Bryan is not a party to the appeal.


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                                     DISCUSSION
      Desiree contends that the order terminating parental rights must be reversed
due to the failure by DCFS and the dependency court to comply with the ICWA‟s
requirements triggered by her representations regarding her potential Cherokee
heritage. Desiree contends that limited remand is appropriate so that ICWA
notices may be sent to the Cherokee tribes. While DCFS concedes that both it and
the dependency court failed to satisfy the ICWA‟s requirement that they
investigate Desiree‟s potential Native American ancestry, it suggests that further
inquiry into her ancestry, short of sending ICWA notices to the Cherokee tribes,
may be sufficient on remand if that inquiry demonstrates that she was incorrect in
initially alleging Cherokee ancestry. We agree with DCFS.
      “In 1978, Congress passed the [ICWA], which is designed to promote the
stability and security of Indian tribes and families by establishing minimum
standards for removal of Indian children from their families and placement of such
children „in foster or adoptive homes which will reflect the unique values of Indian
culture, and by providing for assistance to Indian tribes in the operation of child
and family services programs.‟ [Citations.]” (In re Marinna J. (2001) 90
Cal.App.4th 731, 734.) “The ICWA presumes it is in the best interests of the child
to retain tribal ties and cultural heritage and in the interest of the tribe to preserve
its future generations, a most important resource.” (In re Desiree F. (2000) 83
Cal.App.4th 460, 469.)
      “The ICWA confers on tribes the right to intervene at any point in state court
dependency proceedings. [Citations.] „Of course, the tribe‟s right to assert
jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has
no notice that the action is pending.‟” (Dwayne P. v. Superior Court (2002) 103
Cal.App.4th 247, 253.) The ICWA thus sets forth specific notice requirements that

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apply when DCFS and the court have reason to know the proceeding involves an
Indian child, requiring that the tribe in which the child may have ancestry be
notified of the pending proceedings, and of the tribe‟s right to intervene. (25
U.S.C. § 1912, subd. (a); In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740,
fn. 4.)
          Circumstances that may provide reason to know the child is an Indian child
include where “a member of the child‟s extended family provides information
suggesting the child is a member of a tribe or eligible for membership in a tribe or
one or more of the child‟s biological parents, grandparents, or great-grandparents
are or were a member of a tribe.” (Welf. & Inst. Code, § 224.3, subd. (b)(1).)
“„The determination of a child‟s Indian status is up to the tribe; therefore, the
juvenile court needs only a suggestion of Indian ancestry to trigger the notice
requirement.‟ [Citations.]” (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165
(Gabriel G.); see In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 [father‟s
suggestion that child “might” be an Indian child because paternal great-
grandparents had unspecified Native American ancestry was sufficient to trigger
ICWA notice requirements].) Both the court and DCFS have “an affirmative duty
to inquire whether a dependent child is or may be an Indian child.” (In re Nikki R.
(2003) 106 Cal.App.4th 844, 848; see Welf. & Inst. Code, § 224.3, subd. (a) [court
and DCFS have “affirmative and continuing duty to inquire” whether minor may
be an Indian child]; Cal. Rules of Court, rule 5.481(a).)
          Gabriel G. is directly on point. In that case, the father argued that the ICWA
was triggered when he filed an ICWA-020 form indicating that the paternal
grandfather of the minor child “is or was a member” of a Cherokee tribe. (Gabriel
G., supra, 206 Cal.App.4th at p. 1167.) Subsequently, however, the social worker
reported that the father “stated that he did not have any Indian heritage.” (Ibid.; id.

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at p. 1164.) Based on this statement by the father, DCFS recommended that the
dependency court find that the ICWA did not apply. The court terminated parental
rights, without making specific ICWA findings as to the father. (Id. at p. 1164.)
      On appeal, our colleagues in Division Two rejected DCFS‟s argument that,
based on the father‟s statement to the social worker that he did not have Indian
heritage, the dependency court had no reason to know that the minor may be an
Indian child. The court found as follows: “[T]he social worker‟s representation in
the [DCFS] report did not provide any specifics regarding the inquiry he made of
father as to his Indian heritage. For example, the social worker did not state
whether he limited his inquiry to father‟s registration in a federally recognized
tribe or inquired about the registration status of father‟s relatives. Nor did the
social worker state whether he specifically asked father to elaborate on the
information provided in the ICWA-020 form or to explain any discrepancy
between its contents and father‟s statement to the social worker. On the record
before us, we cannot discern whether father meant to convey that while he was not
a registered member of a Cherokee tribe, his own father was registered. [¶] At a
minimum, a conflict in the evidence exists. Under these circumstances, the social
worker had a duty of further inquiry. ([Welf. & Inst. Code,] § 224.3, subd. (c).)
But there is nothing in the record to indicate the social worker interviewed anyone
besides father, such as the paternal grandmother . . . . [¶] Likewise, the court had
the same „affirmative and continuing duty‟ to inquire regarding the possible Indian
status of the child. [Citations.] Having received conflicting information, the
juvenile court had a duty to further inquire of father, who was present at the 12-
month hearing, about his Indian heritage, and certainly before terminating parental
rights. [Citation.] In the absence of further inquiry or information that reliably
rebutted father‟s representation that Gabriel has specific Cherokee heritage through

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the paternal grandfather, notice was required to be sent to the three federally-
recognized Cherokee tribes prior to the court considering termination of parental
rights, since father‟s claim gave the court „reason to know that an Indian child is
involved.‟ ([Welf. & Inst. Code,] § 224.3, subd. (d).)” (Gabriel G., supra, 206
Cal.App.4th at pp. 1167-1168, fn. omitted.) The court ordered a limited remand so
that such notice to Cherokee tribes could be effectuated. (Ibid.)
      In Jaida‟s case, Desiree completed an ICWA-020 form indicating that she
had Cherokee heritage through her maternal grandfather, and at the detention
hearing, her counsel repeated that she may have Cherokee heritage. As in Gabriel
G., DCFS‟s cursory report that Desiree subsequently denied Cherokee ancestry
does not document the nature of the questions asked of her. Nor does it explain the
discrepancy between her statement to a DCFS investigator and her statements on
the ICWA-020 form and through her counsel that she may have Cherokee heritage
through her maternal grandfather. Despite the dependency court‟s specific order
that DCFS interview Desiree‟s maternal relatives and prepare a report that included
details regarding their heritage and dates and places of birth, DCFS failed to
conduct any interviews of her maternal relatives regarding their potential Cherokee
ancestry, even though maternal relatives were interviewed on other subjects
relating to the proceeding. Further, at subsequent hearings, the trial court failed to
question Desiree regarding the discrepancies. Because Desiree‟s initial
representations gave DCFS and the court reason to know that an Indian child may
be involved, both were obligated under ICWA to make further inquiries. (Welf. &
Inst. Code, § 224.3, subd. (a).)
      As discussed above, Desiree and DCFS agree that further inquiry is required
in the dependency court, but they appear to disagree about the procedure on
remand. Desiree would have us follow Gabriel G., in which the appellate court

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ordered that notice be served to the Cherokee tribes, because no reliable
information had rebutted the father‟s representation that he had Cherokee heritage.
(Gabriel G., supra, 206 Cal.App.4th at p. 1168.) However, we agree with DCFS
that if interviews of maternal relatives credibly rebut the initial allegation that Jaida
may have Cherokee ancestry and support Jaida‟s subsequent statement to DCFS
that she does not have such ancestry, serving such notices would be unnecessary.
      Therefore, we remand the case so that DCFS may interview maternal
relatives concerning Jaida H.‟s potential Cherokee ancestry, as initially ordered by
the dependency court. If this inquiry required under ICWA produces evidence
rebutting Desiree‟s initial allegations of Cherokee ancestry, the court shall reinstate
the order terminating parental rights. Should that inquiry fail to rebut her initial
allegations that Jaida has Cherokee heritage, notice to the Cherokee tribes shall be
given. Should a Cherokee tribe determine Jaida is an Indian child, the juvenile
court shall proceed in conformity with the provisions of the ICWA. However, if
no tribe indicates Jaida is an Indian child within the meaning of the ICWA, the
court shall reinstate the order terminating parental rights.




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                                   DISPOSITION
             The judgment is reversed and the case remanded to the dependency
court with directions to conduct further inquiry into whether Jaida H. may have
Cherokee ancestry, including by ordering DCFS to interview maternal relatives
concerning her potential Cherokee ancestry. If this inquiry produces evidence
rebutting Desiree‟s initial allegations of such Cherokee heritage, the court shall
reinstate the order terminating parental rights. Should that inquiry fail to rebut her
initial allegations that Jaida has Cherokee heritage, notice to the Cherokee tribes
shall be given. If, after receiving proper notice, a tribe determines Jaida is an
Indian child as defined by the ICWA, the juvenile court shall proceed in
conformity with the provisions of the ICWA. If no tribe indicates Jaida is an
Indian child within the meaning of the ICWA, the court shall reinstate the order
terminating parental rights.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, J.




             We concur:




             EPSTEIN, P. J.                    SUZUKAWA, J.




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