F089231_20250827

Filed 8/27/25 In re I.V. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT¹

APPEAL from an order of the Superior Court of Stanislaus County. Annette Rees, Judge.

Lelah S. Forrey-Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

Gordon-Creed, Kelley, Holl & Sugerman, LLP, Jeremy Sugerman and Anne H. Nguyen, for Plaintiff and Respondent.

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Appellant L.R. (father) is the father of I.V. (the child), who is the subject of this dependency case. Father challenges the juvenile court’s order issued at a disposition hearing that resulted in the child being placed in out-of-home care. Father argued the court erred when it denied his request for custody at disposition. He also asserted the court and Stanislaus County Community Services Agency (agency) failed to comply with their duty of inquiry under the Indian Child Welfare Act (ICWA).

The agency concedes error regarding ICWA, and the parties have stipulated to an immediate limited remand for the purpose of complying with the inquiry provisions of ICWA. By the stipulation, father has also agreed to withdraw his challenge to the juvenile court’s order denying his request for custody at disposition without prejudice to his ability to request placement at future hearings. For the reasons discussed herein, we accept the agency’s concession of ICWA error. Accordingly, we accept the stipulation, conditionally affirm the court’s disposition orders, and remand with directions to ensure ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND²

In October 2024, the agency filed a dependency petition alleging the child and her younger sibling were described by Welfare and Institutions Code section 300, subdivisions (b)(1), (d), and (g).³ The petition alleged the child was sexually abused by her mother’s partner, and that her mother, J.G. (mother), failed to protect the child after learning of the abuse. The petition further alleged that father’s whereabouts were unknown.

At the detention hearing held on October 18, 2024, mother was present and appointed counsel. Mother denied having any knowledge of Indian ancestry.⁴ During the parentage inquiry, she informed the juvenile court that she had been married to M.S. since before the child’s birth, but she identified father as the child’s biological father. The juvenile court found there was no reason to believe ICWA was applicable to the child, detained the child from mother’s custody, and set a combined jurisdiction and disposition hearing for November 15, 2024.

On October 21, 2024, the agency made contact with father, and he provided his location in Mexico. A Parental Notification of Indian Status form was completed on behalf of father, which provided no reason to believe the child was an Indian child. Father appeared via video call for a hearing on the agency’s motion to appoint father counsel. The juvenile court appointed counsel for father, and he was ordered to appear remotely for the jurisdiction and disposition hearing.

The agency’s report for the jurisdiction and disposition hearing recommended the allegations in an amended petition be found true, the child remain in out-of-home care, and family reunification services be provided to mother. Family reunification services were not recommended for father due to his status as an alleged father. The amended petition struck allegations that father’s whereabouts were unknown. There was a new allegation that the child’s relationship with father was limited, and she did not feel comfortable with father.

The Indian Child Inquiry Attachment for the amended petition indicated the agency completed an inquiry of mother and father, and neither parent provided any reason to believe the child was an Indian child. The ICWA status section of the report stated there was no reason to know the child was an Indian child after completion of the agency’s inquiry. The report referred to an ICWA compliance report for further details of its inquiry.

The agency’s family assessment indicated mother was raised in Mexico, and she had two brothers and two sisters. Mother’s parents were deceased, but she remained in contact with her siblings. Father was born and raised in Mexico, and he regularly saw his parents and three siblings. Father’s relationship with mother ended approximately six years earlier.

Mother initially brought the child to the United States without father’s consent, but father eventually agreed for her to remain there. He maintained long distance communication with the child while she lived in the United States. Father informed the agency that he wanted the child returned to his custody. He understood that the child may not know or remember him, and he did not intend to pressure her. Visitation had not occurred between father and the child because the child was not comfortable visiting at the time. Father’s cousin, C.G., expressed interest in being assessed for placement of the child.

The agency’s ICWA compliance report, filed November 13, 2024, recommended the juvenile court find ICWA was not applicable. A letter was sent to all the child’s identified relatives, which requested the family members provide any information about possible Indian ancestry to the agency. Responses from mother, father, and maternal aunt indicated that there was no known Indian ancestry in the child’s family. The report documented no inquiries of the parents’ other siblings or father’s cousin.

The initial jurisdiction and disposition hearing was continued to December 17, 2024, at the request of father. In an addendum report, filed December 12, 2024, the agency provided updated information on its assessment of father. A socioeconomic study and evaluation of father’s home by a social worker in Mexico indicated that father lived with his parents.

At the continued jurisdiction and disposition hearing held on December 17, 2024, father was present and elevated to presumed father status. The juvenile court found there was no reason to know the child was an Indian child after considering the agency’s ICWA compliance report. Father’s counsel requested the new allegation in the amended petition be stricken and the child be placed in father’s custody as the “non-offending” parent. The request to strike the new allegation regarding father’s limited relationship with the child was granted. The court sustained the allegations in the amended petition, denied father’s request for placement, and ordered family reunification services for mother and father. A six-month review hearing was set for June 3, 2025.⁵

DISCUSSION

Father contends the juvenile court and agency failed to adequately discharge their duty of initial inquiry by failing to inquire of the children’s extended family regarding possible Indian ancestry. The agency concedes this point, and we accept its concession.

1. Applicable Law

ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe … have a right to intervene” (25 U.S.C. § 1911(c)) and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)). An “ ‘Indian child’ ” is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) 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), (8); see § 224.1, subd. (a) [adopting federal definitions].)

In every dependency proceeding, the agency and the juvenile court have an “affirmative and continuing duty to inquire whether a child is or may be an Indian child .…” (Cal. Rules of Court, rule 5.481(a);⁶ see § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child “can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)

The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has “any information that the child may be an Indian child.” (§ 224.2, subd. (b)(1).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether they “know or have reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete form ICWA-020. (Rule 5.481(a)(2)(C).)

Next, a duty of further inquiry arises when the agency or the juvenile court has “reason to believe” the proceedings involve an Indian child but “does not have sufficient information to determine that there is reason to know that the child is an Indian child .…” (§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists when the court or agency “has information suggesting that either the parent of the child or the child is a member or citizen, or may be eligible for membership or citizenship, in an Indian tribe.” (Id., subd. (e)(1).)

If there is a reason to believe an Indian child is involved, the juvenile court or the agency “shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).) Further inquiry includes, but is not limited to, “[i]nterviewing the parents, Indian custodian, and extended family members,” and contacting the Bureau of Indian Affairs (BIA), the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)–(C).)

The final duty component arises when the juvenile court or agency has “ ‘reason to know’ ” the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A “reason to know” exists if one of the following circumstances is present: “(1) A person having an interest in the child … informs the court that the child is an Indian child[;] [¶] (2) The residence … of the child [or] the child’s parents … is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child … gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[; or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)–(6).)

If the juvenile court makes a finding that proper and adequate further inquiry and due diligence have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that ICWA does not apply, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).) ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W., supra, 1 Cal.5th at pp. 7–8.) In any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)). An “ ‘Indian child’ ” is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) 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), (8); see § 224.1, subd. (a) [adopting federal definitions].)

Under ICWA’s state analogue, the California Indian Child Welfare Act (§ 224 et seq.) (Cal-ICWA), “courts and child welfare agencies are charged with ‘an affirmative and continuing duty to inquire whether a child … is or may be an Indian child’ in dependency cases.” (Dezi C., supra,16 Cal.5th at p. 1125; § 224.2, subd. (a); rule 5.481(a).) The continuing duty to inquire whether a child is or may be an Indian child “can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)

The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has “any information that the child may be an Indian child.” (§ 224.2, subd. (b)(1).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§§ 224.2, subd. (b)(2), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether they “know or have reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete form ICWA-020. (Rule 5.481(a)(2)(C).)

Next, a duty of further inquiry arises when the department or the juvenile court has “reason to believe” the proceedings involve an Indian child but “does not have sufficient information to determine that there is reason to know that the child is an Indian child.” (§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists when the juvenile court or department “has information suggesting that either the parent of the child or the child is a member or citizen, or may be eligible for membership or citizenship, in an Indian tribe.” (Id., subd. (e)(1).)

If there is a reason to believe an Indian child is involved, the juvenile court or the department “shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).) Further inquiry includes, but is not limited to, “[i]nterviewing the parents, Indian custodian, and extended family members,” and contacting the BIA, the State Department of Social Services, and the tribes and any other person who may have information. (Id., subd. (e)(2)(A)–(C).)

The final duty component arises when the juvenile court or agency has “ ‘reason to know’ ” the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A “reason to know” exists if one of the following circumstances is present: “(1) A person having an interest in the child … informs the court that the child is an Indian child[;] [¶] (2) The residence … of the child [or] the child’s parents … is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child … gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[; or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)–(6).)

If the juvenile court makes a finding that proper and adequate further inquiry and due diligence have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that ICWA does not apply, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)

2. Standard of Review

We review the juvenile court’s finding that there is no reason to know whether a child is an Indian child under a substantial evidence standard, and the court’s finding that the agency has conducted a proper and adequate inquiry and due diligence for abuse of discretion. (In re K.H. (2022) 84 Cal.App.5th 566, 600–601; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004–1005.)

Regarding the juvenile court’s discretion in evaluating the agency’s inquiry efforts, this court explained in K.H., “so long as the agency conducts a reasonable inquiry and documents its results, the juvenile court will have the room to exercise its discretion in determining whether the agency’s efforts are sufficient to satisfy the mandates of ICWA and related California law.” (In re K.H., supra, 84 Cal.App.5th at p. 604.) “The agency’s inquiry must extend far enough to reasonably ensure that if there is information the child is or may be an Indian child, that information is gathered.” (Ibid.)

3. Analysis

Pursuant to its duty under section 224.2, the agency asked mother, father, and a maternal aunt whether they had Indian ancestry. Each of the individuals denied having any Indian ancestry. However, there is no documentation of any inquiry of father’s extended family. The agency had established contact with a paternal cousin that was interested in taking placement of the child. In addition, father lived with his biological parents, and he remained in contact with his three siblings. Based upon this information, the juvenile court found ICWA was not applicable for the child. However, the agency was required under section 224.2, subdivision (b) to ask available extended family members about the child’s possible Indian ancestry.

Extended family members include adults who are the child’s stepparents, grandparents, siblings, brothers‑ or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) Given the agency’s concession, we accept that the child’s paternal relatives were readily available for an inquiry. Under the circumstances, we conclude the agency did not fulfill its statutory duty of inquiry. (§ 224.2, subd. (b).)

As a result, the juvenile court’s finding that ICWA did not apply was not supported by substantial evidence that the agency conducted an adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of discretion. Thus, we conditionally reverse and remand “with directions for the child welfare agency to comply with the inquiry requirement of section 224.2, document its inquiry in compliance with rule 5.481(a)(5), and when necessary, comply with the notice provision of section 224.3.” (Dezi C., supra, 16 Cal.5th at p. 1136.)

DISPOSITION

The juvenile court’s disposition order is conditionally affirmed. The matter is remanded to the court for the limited purpose of ensuring compliance with the inquiry and documentation provisions set forth in section 224.2 and rule 5.481. If the court finds the child is an Indian child, it shall conduct a new disposition hearing, as well as all further proceedings, in compliance with ICWA and Cal-ICWA. If not, the court’s original disposition order will remain in effect.