Filed 9/18/26 In re A.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.S. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E087415
Plaintiff and Respondent, (Super.Ct.Nos. J296862, J300013,
J300014 & J300015)
v.
OPINION
S.S.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Caitlin E. Howard, under appointment by the Court of Appeal, for Defendant and
Appellant.
Laura Feingold, County Counsel, and David R. Guardado, Deputy County
Counsel, for Plaintiff and Respondent.
1
INTRODUCTION
S.S (Father) appeals from the juvenile court’s order terminating his reunification
services with respect to his four children after 18 months of services. He argues that
(1) the record does not support the finding that it would be detrimental to return the
children to his care, and (2) San Bernardino County Children and Family Services (CFS)
failed to discharge its duties of initial and further inquiry under the Indian Child Welfare
Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Removal of Am.S. from Mother
The subjects of this appeal are W.G. (Mother) and Father’s four children—twins
Ay.S. and S.S (born in May 2011), Ar.S. (born in August 2014), and Am.S. (born in
February 2023).1 In April 2023, about a month after Am.S. was born with a methadone
dependency, CFS received an allegation of severe neglect against Mother and Father
regarding the infant. The referral reported that, in the weeks following Am.S.’s birth, the
parents failed to bring her in for multiple medical appointments and were not responding
to the hospital’s phone calls. The referral also reported that Am.S. was currently being
treated at the hospital for severe symptoms consistent with methadone toxicity.
The parents brought Am.S. into the hospital because she was coughing and turning
purple. Shortly after being admitted, Am.S. experienced seizures and respiratory failure
1 Because Mother is not a party to this appeal, we mention her only when relevant
to Father’s claims.
2
and had to be intubated. A nurse who treated Am.S. informed the social worker that the
parents thought Am.S. might have colic and did not appear to be bothered by her medical
condition.
The doctor told the social worker that Am.S. tested positive for methadone and her
symptoms were consistent with methadone toxicity. The doctor informed the social
worker that because the drug could not be transmitted through breast milk, the only
explanation for the infant’s condition was that someone had given her methadone.
During their initial interviews, both parents denied giving Am.S. methadone and
denied using any controlled substances. Mother reported that, since family law
proceedings in 2019, the children had been residing with Father at the paternal
grandparents’ home. She said that she had been diagnosed with depression and bipolar
disorder in the past. A criminal records search revealed that Father had a substance abuse
charge from 2021.
CFS filed a dependency petition on behalf of Am.S., alleging that she fell under
section 300, subdivision (b), of the Welfare and Institutions Code due to Mother’s
untreated mental health issues, history of substance abuse, and the fact that Am.S.
ingested methadone while in her care.2 The petition also alleged that Father had a history
of substance abuse and that he knew or should have known about Mother’s drug use and
had failed to protect Am.S.
2 Unlabeled statutory citations refer to the Welfare and Institutions Code.
3
When the social worker interviewed the parents in preparation for the jurisdiction
and disposition hearing, Mother denied that she used controlled substances or had any
issues with mental health or substance abuse. She said that she used a low dose of
methadone in lieu of pain medication and that she kept it in the trunk of her car.
Father expressed his belief that the hospital had given Am.S. methadone because
he did not think that Mother would intentionally harm their child. He reported that he
used cocaine in the past but had been clean for two years.
A hospital social worker reported that Am.S. had no methadone in her system
when she was discharged from the hospital at birth but had very “toxic” levels of the drug
in her system when the parents brought her in.
At Am.S.’s jurisdiction hearing in August 2023, the juvenile court sustained the
petition’s allegations and took dependency jurisdiction over the child. In the months
leading up to the disposition hearing, father visited with Am.S. consistently and was
participating in a parenting course. Although CFS was concerned that Father continued
to believe that the hospital, not Mother, was responsible for Am.S.’s ingestion of
methadone, it recommended family maintenance services for him because “he has always
reported that he will follow the … rules and keep the child safe.”
At Am.S.’s disposition hearing in October 2023, the juvenile court removed the
child from Mother’s care and offered family reunification services to Mother and family
maintenance services to Father.
B. Removal of All Four Children from Both Parents
4
In January 2024, a little over a year later, CFS received a referral alleging that
Father was neglecting and physically abusing Am.S.’s older siblings. The reporting party
alleged that Father was using drugs in the home, leaving drug paraphernalia within the
children’s reach, hitting the children, and neglecting them.
The social worker interviewed the twins, then 12 years old, at their middle school.
Ay.S. said that Father had told her to tell lies about Mother to the court during the family
law proceedings. She said that Father smoked cigars and vaped and kept “ ‘white stuff’ ”
inside a black baggie in the bathroom. She believed the white substance was a drug
because she had learned about drugs in school. She said that Father would sleep for days
at a time and would get upset if she or her siblings tried to wake him. She denied any
recent physical abuse but said that Father had slapped her head the year before as a
punishment. She also said that she was afraid of Father finding out what she told the
social worker.
Like his twin sister, S.S. told the social worker that Father had coached him to tell
the court lies about Mother during the family law case. He said that Father smoked
marijuana and that he had a glass pipe with a “small cereal bowl” at the end that
contained “ ‘white stuff.’ ” He also said that Father slept most days and did not like to be
woken up. He reported that Father “ ‘whoop[ed]’ ” him as punishment and that, when
there was not enough food to eat at home, he tried to sell candy to be able to buy food for
himself and his sisters.
Father was in the garage when the social worker arrived at the home to interview
Ar.S., who was then nine years old. He agreed to let the social worker interview him, but
5
he refused to let her inside the house. During his interview, he said he smoked marijuana
occasionally and denied using methamphetamine. He also denied physically disciplining
the children. He refused to drug test that day, but the following day he tested positive for
methamphetamine. Asked about the test results, he said, “I used to use powder cocaine.
But nothing now.… I used the cough syrup and stuff. There must be a mistake.”
The following day, Mother contacted the social worker to report that Father was
currently using drugs. She said that he had been using for about 12 years and that she
recently saw him smoke “crystal meth.” She said that he smokes the drug in the home
and that his family is aware of his drug use. She said that the children had told her that
Father would leave the home at night to use drugs, leaving them alone to care for
themselves. She also reported that, two weeks before, Father had slapped one of the
children across the face.
On February 16, 2024, CFS filed a supplemental petition on Am.S.’s behalf
under section 387, alleging that the previous disposition of maintaining the child in
Father’s care was not effective because he had an untreated substance abuse problem and
was not making efforts to mitigate the problems that had led to the dependency
proceedings. CFS also filed dependency petitions on behalf of the three older children,
alleging, as relevant here, that the children fell under section 300, subdivisions (b) and (j),
because both parents had substance abuse issues and failed to protect the children from
the other parent’s drug use.
Later that month, the social worker interviewed the three older children. When
asked if he felt safe living in the paternal grandparents’ home with Father, S.S. said, “ ‘I
6
kind of do, and I kind of don’t.’ ” He said that one reason he did not feel safe was
because Father kept multiple guns at the home and had shown them to him and his
sisters. He also said that he had to remove a pipe from his bed that his Father had left
behind. He described the kind of pipe from the television show “ ‘Breaking Bad’ ” and
said that he had placed the pipe on a shelf. Another time, S.S. gave Father’s pipe to
Mother and she got angry and went outside to talk to Father. S.S. knew what alcohol and
controlled substances were, and he knew that Father used drugs.
Ay.S. reported feeling unsafe in the home due to the prevalence of sharp and
dangerous objects. She said, “ ‘We have stuff all over the floor, especially in the room
where [Am.S.] sleeps. There are razors, sharp stuff, screwdrivers, tools, and a hammer
everywhere. There are wires, clothes, random stuff all over the floor in the room where
[the baby] sleeps…. It’s just a lot of stuff around that [Am.S.] can get hurt with.’ ”
Ay.S. said she once found a bullet from a gun inside a basket. When she would express
her concerns to Father, he would simply pick up some of the objects off the floor and
move them to places that were still within reach of Am.S. Sometimes, Ay.S. would try to
deal with the objects herself by throwing them into the field next to her backyard. Asked
about drug use in the home, she responded, “ ‘my dad uses crack.’ ” She described an
incident where she and Father were bouncing and playing around on her bed and a pipe
fell out of his pocket along with a small baggie containing a white substance, which she
believed was “crack.”
All three children reported that the parents fought with each other. Ar.S. said that
Mother sometimes stayed at their home to help take care of Am.S. and that she and
7
Father often yelled at each other and fought. She saw Father punch Mother in the face
once. Another time, she injured her hand when she tried to intervene during one of their
fights.
When the social worker interviewed Father about a week after the children’s
interviews, he denied any drug use and sarcastically commented that he would not be
alive if the drug allegations against him were true. Mother reiterated that Father was
using drugs, and she said that he was aggressive toward her and the children when he was
coming down from a high. Father failed to submit to a drug test on April 16, 2024.
On April 22, 2024, the juvenile court held a combined jurisdiction and disposition
hearing on the petitions for all four of the children. Father testified and denied engaging
in the behavior the children had described to the social worker. He denied using
methamphetamine, having guns in the home, and sleeping for days at a time. He denied
that he failed to provide sufficient meals for the children and said that they had access to
food and water. He admitted that domestic violence incidents had led to the family law
proceedings in 2019, but he denied any recent incidents and specifically denied the
physical altercations Ar.S. had described to the social worker in her last interview. He
testified that he occasionally used marijuana to help him sleep but only when the children
were at school or he was not caring for them.
At the close of evidence, the juvenile court made credibility findings, concluding
that the children were credible and that Father was not. As relevant here, the court
sustained the petitions’ allegations regarding Father’s substance abuse, took dependency
8
jurisdiction over the three older children, removed all four children from Father’s care,
and ordered family reunification services for both parents.
C. Six-Month Review Period
Father’s case plan required individual counseling, parenting education, substance
abuse treatment and testing, and a 12-step program. During the six-month review period,
Father failed to submit to any drug tests. For the majority of his scheduled tests, he
simply failed to show; however, on July 24, 2024, he told the testing company that he
would not submit to the test because he was “ ‘dirty.’ ”
In an interview on August 29, 2024, Father admitted to the social worker that he
was actively using drugs and had last used a few days earlier. He said that the stress he
was under was making it difficult for him to stop using on his own, so he planned to
enroll in an inpatient program. When the social worker followed up with him a month
later, he said there were no beds available, so he was going to participate in an outpatient
program until a spot opened up. He did not complete any parenting education classes,
but he did attend six individual counseling sessions.
Pursuant to the court’s order, Father was allowed one supervised, two-hour visit
with the children per week. There were no concerns with Father’s visits; however, the
twins did not appear to be interested in interacting with him during visits, and they both
reported a desire to reduce the frequency of visits to every other week.
D. Twelve-Month Review Period
At the start of the 12-month review period, Father enrolled in an inpatient
treatment program and completed it on December 10, 2024. He completed an intake
9
form for an outpatient program but failed to participate in the program. He refused to
enroll in a 12-step program because he felt that group discussions about drugs were
“triggering.” He attended three parenting education classes but did not complete the
course.
Father continued to attend individual counseling, and his therapist reported that he
had a positive outlook about therapy and “ ‘really want[ed]’ ” to reunify with the
children. When it became clear that the therapist had not read the most recent jurisdiction
and disposition reports and did not know that Father was refusing to drug test, the social
worker provided her with the reports.
On March 3, 2025, Father told the social worker that he had relapsed and used
methamphetamine after his visit with the children on February 23. He also admitted that
he had tested positive at the outpatient program. He said that therapy was helpful for him
and that he was learning how to control his emotions because he had “ ‘to be in the right
state of mind in order to care for my children.’ ” He also said that he was learning tools
to prevent relapse and was “ ‘slowly implementing them.’ ”
The social worker had difficulty contacting Father during this period. When she
spoke with him a second time on March 7, 2025, he continued to deny that he or Mother
had given Am.S. methadone. He argued that the drug was probably in the infant’s system
because Mother had been taking it, by prescription, while pregnant. He also argued that
there was no “ ‘verified proof’ ” to justify the older children’s removal, claiming that
Mother had “ ‘coerced’ ” the twins to tell the social worker lies about him.
E. Eighteen-month Review Period and Termination of Father’s Services
10
On June 12, 2025, Father was terminated from the outpatient program for failure
to attend sessions and for continuing to test positive for methamphetamine. His case
manager told the social worker that when he confronted Father about his missed sessions,
Father told him that the program was “triggering” and “caused him to feel the urge to use
substances.” Father told the social worker that he was participating in the outpatient
program but had tested positive for methamphetamine four times—on May 18, May 22,
May 28, and June 5. He claimed that the first three positive tests were from “accidental
exposure when he used a coworker’s smoking device” and that the stress of those test
results caused him to relapse on June 5.
On June 25, 2025, Father completed a 16-class parenting education course. On
June 29, he was arrested for inflicting corporal injury on a spouse or cohabitant in
violation of Penal Code section 273.5.
When the social worker interviewed Father in early July 2025, he continued to
complain that there had not been enough evidence to justify removing the children from
his care. He told the social worker that the Supreme Court said that a positive drug test
alone does not justify removal. Asked why he was missing drug tests, he responded that
he would forget about them or was too busy with work. Asked about his recent
methamphetamine use, he said, “ ‘I’m not saying I won’t do it, I’m an addict. There is
always going to be a risk, I am not the only one, there’s a lot of people struggling with
drugs, [a] drug problem is going to be a problem regardless, I am trying to move forward,
yeah, I did relapse, I’m going to relapse, I don’t plan on it but again I am an addict.’ ”
11
Asked whether he thought his methamphetamine use impaired his ability to care
for his children, Father responded, “ ‘it’s not drugs that impair you.’ ” He said that he
believed methamphetamine helped him focus and that he was still able to care for his
children while under the influence of the drug, explaining, “ ‘I do not think meth changes
your train of thought, it depends how you are as a user.’ ” He said that after his children
were removed, he was “ ‘angry’ ” and used methamphetamine consistently but that he
knew he would have to quit eventually and that he was better at managing his emotions
now.
That same month, the social worker also spoke with Father’s therapist, who
requested that Father be referred for additional counseling sessions. The therapist
reported that, although he “initially denied allegations and expressed anger regarding the
investigation that led to the removal of [his] children,” Father was starting to attend
therapy more regularly and show an increased accountability regarding his past actions.
When they spoke again in September 2025, the therapist told the social worker that
Father was unwilling to continue counseling.
On September 12, 2025, after missing several drug tests, Father again tested
positive for methamphetamine. When the social worker asked him about the test results,
he denied using the drug, suggesting that the testing company had made a mistake. After
that positive test, Father continued to miss drug tests and continued to argue against the
children’s removal from his care when he spoke with the social worker.
Regarding visitation during this period, the social worker expressed concern that
Father would at times pay attention to Am.S. to the exclusion of the three older children
12
and would, at other times, leave Am.S. in the care of one of the older siblings for
extended periods of time. The older children sometimes wanted to leave visits early or
not attend the visit at all.
Before the 18-month status review hearing, CFS submitted a report recommending
that the juvenile court terminate Father’s reunification services, select a planned
permanent living arrangement (PPLA) as the children’s permanent plan, and authorize
discretionary services for both parents under the children’s permanent plan. The hearing
took place on November 12, 2025. Father objected to the termination of his services,
argued that he had “substantially complied” with his case plan, and asked that the
children be returned to his care. In support of its recommendation, CFS argued that
Father did not benefit from services, failed to remain sober during the reunification
period, and failed to participate in drug tests. CFS reiterated its request that the court
order discretionary services for both parents under the children’s permanent plan of
PPLA.
The juvenile court stated that it agreed with CFS’s argument that Father failed to
benefit from reunification services and that Father was not “in a position to have the
children returned to [him].” The court stated: “I will order reunification services
terminated, but order services for the parents under the children’s permanent plan, with
the case plan as highlighted by County Counsel.” The corrected minute orders for each
child state that the court “finds by preponderance of the evidence that custody by the
parents continues to be detrimental to the child ... and that return of the child to parents ...
at this time would create substantial risk of detriment to the safety, protection, or
13
physical/emotional well-being of the child.” At the end of the hearing, the court set a
permanent plan review hearing for May 2026.
Father filed a timely appeal.
DISCUSSION
A. Termination of Reunification Services
Father argues that the juvenile court erred by terminating his reunification services
because the record contains insufficient evidence to support a detriment finding.
Specifically, he argues that his drug use alone does not provide a sufficient basis for
detriment and that, at the very least, the court could have returned the three older children
to his care because there was insufficient evidence of detriment as to them. We disagree.
At the 18-month review hearing, the court must return the dependent child to the
parent’s custody unless it finds that return of the child “would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the child.”
(§ 366.22, subd. (a)(1).) CFS bears the burden of establishing detriment, and the juvenile
court must “review and consider the social worker’s report and recommendations” in
determining detriment. (Ibid.) We review the juvenile court’s detriment finding for
substantial evidence. (In re A.J. (2015) 239 Cal.App.4th 154, 160.)
The record contains substantial evidence to support the court’s conclusion that
returning the children to his care would be detrimental. When the court removed the
children from Father’s care in April 2024, it made detriment findings by clear and
convincing evidence based on Father’s unresolved substance abuse issues, and it ordered
a case plan that included substance abuse treatment and regular, on-demand drug testing.
14
During the 18 months of services that followed, Father failed to address the substance
abuse issues that led to the children’s removal. Although he did complete an inpatient
drug program, he failed to complete the unquestionably needed outpatient treatment
program; failed to regularly participate in drug testing; and—most importantly—he
continued to use methamphetamine throughout the entire reunification period.
Contrary to Father’s contention, his drug use is not the only evidence to support
the detriment finding. It was not just the fact that he continued to use methamphetamine
that put his children’s physical and emotional wellbeing at risk—it was also the fact that,
when he used, he engaged in unsafe or neglectful behavior like leaving drugs, drug
paraphernalia, and dangerous objects within reach of the children and sleeping for days at
a time. It was also the fact that he was defensive about his drug use and in denial about
the impact it had on his ability to safely care for the children.
Father points out that he was employed during the reunification period and
completed certain aspects of his case plan, but those facts are beside the point. The
danger Father posed to his children stemmed from his drug use, and he failed to make
progress on that part of his case plan during reunification. The handful of negative tests
that Father emphasized on appeal are not enough when viewed in light of his other
conduct during the reunification period. Not only did he fail to remain sober for a
meaningful period of time or take the testing and treatment aspects of his case plan
seriously (e.g., missing numerous drug tests), he also told the social worker that he
believed he could safely care for the children on methamphetamine and that, because he
was an addict, relapse was inevitable. Given his failure to address, let alone
15
acknowledge, the seriousness of his substance abuse issues, and the danger to his children
arising from his continued use of unlawful drugs, we conclude that the record amply
supports a detriment finding.
Father’s reliance on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322
(Jennifer A.) is misplaced because that case is readily distinguishable. In Jennifer A., the
juvenile court took jurisdiction over the mother’s two young sons after she, “a single
parent, left them alone in a motel room while she went to work.” (Id. at p. 1326.) During
18 months of services, the mother received a promotion at work, “substantially complied
with her reunification plan, … completed parenting courses and counseling, …
completed drug treatment, and [demonstrated that she] knows proper parenting
behavior.” (Ibid.) Despite her commendable conduct during the reunification period, the
juvenile court terminated her reunification services because she tested positive for
alcohol once and marijuana twice during those 18 months. (Id. at p. 1327.) The appellate
court reversed for insufficient evidence because nothing in the record indicated that the
mother had a substance abuse problem or that her “lapse of judgment in leaving the
children at home alone” had anything to do with substance use. (Ibid.) In fact, the lack
of evidence to support the juvenile court’s detriment finding prompted the appellate court
to observe that the “differences between” the mother’s circumstances and “the usual
dependency case that has reached the point of a permanency hearing” were “striking.”
(Id. at p. 1326.) The differences when contrasted with this case are also striking. Unlike
in Jennifer A., Father does have a substance abuse problem, it was the reason the children
were removed, and he failed to address it during reunification.
16
We also reject Father’s contention that the record does not support a detriment
finding for the three older children. Father argues that Ay.S., S.S., and Ar.S. could safely
return to his care because they all expressed a desire to live with one of the parents and,
at ages 14 and 11, they were able to advocate for themselves. This argument lacks merit.
Ay.S., S.S., and Ar.S. were old enough to advocate for themselves at the time of removal,
when the juvenile court found there was clear and convincing evidence that they could
not safely remain in Father’s care. Notably, when Ay.S. used her advocacy skills to ask
Father to remove the dangerous objects within Am.S.’s reach, Father failed to do so.
Because Father did not address his substance abuse problem during the reunification
period, the risk he posed to the children did not change.
As to Father’s argument that the children wished to return to his care, “ ‘[a] child’s
preference is not the deciding factor in a placement decision, even when that child is a
teenager.’ ” (In re K.B. (2015) 239 Cal.App.4th 972, 980, quoting In re Patrick S. (2013)
218 Cal.App.4th 1254, 1265.) And, in any event, the record is conflicting on that point,
at best. As support that the older children wanted to live with him, Father cites their
counsel’s statement to the court at a hearing in September 2025 that they “would like to
be placed in a relative home” and would like “the case ultimately [to] resolve in being
returned to one or both of their parents.” But counsel’s statements are not evidence, and
the record also contains evidence that the older children were aware of Father’s drug use,
did not feel safe in his care, and at times did not want to attend visits with him.
Finally, to the extent Father argues in his reply brief that reversal is required
because the court failed to “specify the factual basis for its conclusion that return to
17
Father would be detrimental,” as required by section 366.22, subdivision (a)(2), the
contention fails. The court adopted the factual basis for detriment that was offered by
County Counsel at the hearing—namely that Father did not benefit from services, failed
to remain sober during the reunification period, and failed to participate in drug tests.
But even if the court had not specified a factual basis, we would infer one from
substantial evidence in the record. Because even the detriment finding itself may be
implied, it necessarily follows that the factual basis supporting it may be as well. (E.g.,
In re Corienna G. (1989) 213 Cal.App.3d 73, 83 (Corienna G.) [detriment finding
required to terminate reunification services could be implied where supported by
substantial evidence]; see also In re G.P. (2014) 227 Cal.App.4th 1180, 1196 [holding
that a “finding of detriment” to support termination of parental rights “may be implied”];
In re A.S. (2009) 180 Cal.App.4th 351, 363 [same]; In re P.A. (2007) 155 Cal.App.4th
1197, 1212 [same].)
For all of these reasons, we reject Father’s challenge to the termination of his
reunification services.
B. ICWA
Over the course of the dependency proceedings, both parents denied having any
Indian ancestry, as did the paternal grandmother, the paternal aunt, and one of the
maternal cousins.3 At a hearing in April 2023, the maternal grandmother stated that her
3 Because ICWA uses the term “ ‘Indian,’ ” we use it as well “to reflect the
statutory language.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125, fn. 1 (Dezi C.).) No
disrespect is intended.
18
family had Cherokee ancestry and that her deceased great-grandmother had lived on a
reservation. At a hearing a month later, the maternal grandmother provided the name and
telephone number of a maternal great-aunt who might have more information about the
family’s Cherokee ancestry. At a hearing in February 2024, the maternal grandfather
said that his grandmother might have been a member of a Navajo tribe but he did not
know his grandmother’s name and would look into it. At a hearing in April 2024, the
juvenile court found that ICWA may apply and ordered CFS to continue to conduct its
ICWA investigation.
The record does not reflect that CFS took any steps to follow up on the maternal
grandparents claims of possible Indian ancestry or that it asked the maternal cousin who
had been the children’s caretaker for a period during the proceedings about the children’s
possible Indian ancestry. Father argues that these omissions in CFS’s duties of initial and
further inquiry under ICWA require us to conditionally reverse the order terminating his
reunification services and to remand with directions that the juvenile court order CFS to
complete its ICWA investigation. CFS concedes the omissions but argues that Father’s
claim is not ripe because the court found that ICWA may apply and the dependency
proceedings are ongoing. CFS states that it will complete its ICWA investigation as the
matters continue. We agree with CFS.
ICWA was enacted to curtail “abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.” (Miss. Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) “The issue of whether ICWA
19
applies in dependency proceedings turns on whether the minor is an Indian child.” (Dezi
C., supra, 16 Cal.5th at p. 1129.) To be an Indian child within the meaning of ICWA, a
child must be either (1) a member or citizen of a federally recognized Indian tribe or
(2) eligible for membership or citizenship in such a tribe and the biological child of a
member or citizen. (25 U.S.C. § 1903(4), (8); Welf. & Inst. Code, § 224.1, subd. (b)(1).)
To determine whether ICWA applies to a dependency proceeding, the juvenile
court and CFS have “an affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 ... may be or has been filed, is or may be an Indian
child.” (§ 224.2, subd. (a).) “This duty to inquire consists of two phases—the duty of
initial inquiry and the duty of further inquiry.” (In re Dominick D. (2022) 82 Cal.App.5th
560, 566 (Dominck D.).) The duty of initial inquiry begins at the referral stage when CFS
must ask the “party reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2, subd. (b)(1).) Once a child
is taken into temporary or protective custody, the duty of initial inquiry 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)(1).) In discharging this duty, CFS “has the obligation to make a meaningful
effort to locate and interview extended family members to obtain whatever information
they may have as to the child’s possible Indian status.” (In re K.R. (2018) 20
Cal.App.5th 701, 709.) “While this duty of inquiry is sometimes referred to as the initial
duty of inquiry, this is a bit of a misnomer, as the duty ‘continues throughout the
dependency proceedings.’ ” (Dezi C., supra, 16 Cal.5th at p. 1132.)
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In addition, the juvenile court must ask each participant at the first appearance
“whether they know or have reason to know that the child is an Indian child,” and the
court must “instruct the parties” to “inform the court if they subsequently receive
information that provides reason to know the child is … an Indian child.” (§ 224.2,
subd. (c).)
If the initial inquiry gives the juvenile court or CFS “reason to believe that an
Indian child is involved in a proceeding,” then “further inquiry regarding the possible
Indian status of the child” must be made. (§ 224.2, subd. (e).) Further inquiry “includes
(1) interviewing the parents and extended family members; (2) contacting the Bureau of
Indian Affairs (BIA) and State Department of Social Services; and (3) contacting tribes
the child may be affiliated with and anyone else that might have information regarding
the child's membership or eligibility in a tribe.” (Dezi C., supra, 16 Cal.5th at pp. 1132-
1133, citing § 224.2, subd. (e)(2)(A)–(C).)
In Dezi C., the California Supreme Court explained that a juvenile court may find
that ICWA does not apply to the proceedings if it finds “that an agency’s inquiry and due
diligence were ‘proper and adequate,’ and the resulting record provided no reason to
know the child is an Indian child.” (Dezi C., supra, 16 Cal.5th at p. 1134.) Dezi C. held
that when the court finds that ICWA does not apply and terminates parental rights, “error
resulting in an inadequate initial ... inquiry requires conditional reversal” of the order
because “ ‘[u]ntil an agency conducts a proper initial inquiry and makes that information
known, it is impossible to know what the inquiry might reveal.’ ” (Id. at p. 1136.)
21
Two of our court’s opinions are instructive here. In In re M.R. (2017)
7 Cal.App.5th 886 (M.R.), the juvenile court found, at the dispositional hearing, that
ICWA may apply. (Id. at p. 904.) The parents appealed from the dispositional findings
and orders and, as relevant here, argued that CFS failed to properly discharge its notice
obligations under ICWA. (Id. at p. 903.) We held that the parents’ claim of ICWA error
was “premature” and thus not ripe because the juvenile court had not made a final ruling
as to whether ICWA applied, the dependency proceedings were still ongoing, and the
duty to determine whether ICWA applies is “ ‘ “affirmative and continuing.” ’ ” (Id. at
p. 904; accord J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 461 [“Because the
dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and
noticing may still be resolved during the normal course of the ongoing dependency
proceedings.”]; In re T.R. (2023) 87 Cal.App.5th 1140, 1154 [same].)
Dominck D. also involved an appeal from the dispositional findings and orders,
but there the juvenile court found that ICWA did not apply at the dispositional hearing.
(Dominck D., supra, 82 Cal.App.5th at p. 565.) On appeal, we rejected the mother’s
argument that CFS’s inquiry and noticing errors required reversal of the dispositional
findings and orders. (Id. at p. 567.) We instead held that the only findings that required
reversal were the court’s express finding that ICWA did not apply and the necessarily
implied finding that CFS complied with ICWA’s inquiry and notice requirements. (Ibid.)
Like both M.R. and Dominick D., these dependency proceedings are still ongoing.
The juvenile court selected a PPLA for the children’s permanent plan, and Father will be
receiving discretionary services under that plan. However, this case is like M.R. and
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unlike Dominick D. in that there is no finding that ICWA does not apply for us to reverse.
Because the court found that ICWA may apply, as the court did in M.R., CFS is still
under an affirmative and continuing duty to investigate the children’s possible Indian
ancestry. (M.R., supra, 7 Cal.App.5th at p. 904.)
Relying on Dezi C., Father argues that we should imply a finding that ICWA does
not apply because, if ICWA did apply, then the juvenile court would have to extend his
reunification services for another six months unless it found that CFS made “active
efforts” to reunify the family. But Dezi C. does not support Father’s contention for two
reasons. First, Dezi C. involved an express finding that ICWA did not apply, made at the
section 366.26 hearing. (Dezi C., supra, 16 Cal.5th at p. 1141.) As such, the case does
not stand for the proposition that an ICWA finding can be implied at the 18-month
review hearing. Second, the appeal in Dezi C. was from an order terminating parental
rights. (Dezi C., supra, 16 Cal.5th at pp. 1137-1138.) Here, Father still maintains his
parental rights and thus maintain his ability to challenge “the juvenile court’s final rulings
with respect to ICWA matters, in a subsequent appeal.” (M.R., supra, 7 Cal.App.5th at
p. 904, fn. 9.) Moreover, while Dezi C. held that conditional reversal of an order
terminating parental rights is necessary when the court’s finding that ICWA does not
apply is based on an inadequate ICWA investigation, the opinion left intact the line of
cases that reversed only the court’s ICWA findings, refusing to conditionally reverse
dispositional findings and orders because the case was ongoing. (Id. at p. 1152, fn. 18;
see id. at p. 1169, fn. 5 (dis. opn. of Groban, J.) [noting that the majority opinion “neither
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present[s] nor decide[s]” whether reversal is required when there has been ICWA error
and the “dependency proceedings are still ongoing”].)
Contrary to Father’s contention, the fact that a different standard applies to
terminating reunification services in cases where ICWA applies is not a reason to reverse
the order terminating Father’s services. As Dezi C. explained in the context of an order
terminating parental rights, “[a]ppealing on the basis of ICWA or Cal-ICWA inquiry
error, however, does not change the fact that parental rights have been terminated even if
Indian ancestry is discovered.” (16 Cal.5th at 1148, fn. 16.)
As the court explained in In re S.H. (2022) 82 Cal.App.5th 166, a case cited by
Dezi. C.: “The [child welfare a]gency must comply with its broad duty to compete all
appropriate inquiries and apprise the court, and the court has a continuing duty to ensure
that the [a]gency provides the missing information. So long as proceedings are ongoing
and all parties recognize the continuing duty of ICWA inquiry, both the [a]gency and the
juvenile court have an adequate opportunity to fulfill those statutory duties.” (Id. at
p. 179.) Here, CFS recognizes its ongoing duty to comply with ICWA, and
“acknowledges that there exists a number of individuals and tribes for whom contact will
need to be made.” To be sure, the better practice would have been for CFS to discharge
its duties of inquiry during the “earliest stages” of the dependency proceedings, as our
Supreme Court, and the federal regulations implementing ICWA advise. (Dezi C., supra,
16 Cal.5th at p. 1140, citing 81 Fed.Reg. 38778, 38779 (June 14, 2016).) But because the
juvenile court did not find that ICWA does not apply based on CFS’s thus far inadequate
investigation, CFS will have the opportunity to interview extended family members and
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conduct further inquiry regarding the maternal grandparents’ claims of Cherokee and
Navajo ancestry as the proceedings progress.
DISPOSITION
The order terminating Father’s reunification services is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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