Filed 6/17/26 In re A.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re A.W. et al., Persons Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F090849
SERVICES,
(Super. Ct. Nos. JD143993-00,
Plaintiff and Respondent, JD143994-00)
v.
OPINION
K.W.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kendra L. Graham, County Counsel, and Judith M. Denny, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Snauffer, J.
Appellant K.W. (mother) is the mother of A.W., and Z.W. (collectively “the
children”),1 who are the subjects of this dependency case. Mother challenges the juvenile
court’s order issued at a Welfare and Institutions Code section 366.262 hearing that
resulted in her parental rights being terminated. Mother contends the juvenile court and
the Kern County Department of Human Services (department) failed to comply with their
duty of inquiry under the Indian Child Welfare Act (ICWA). The department concedes
that it failed to conduct an adequate inquiry into the potential Indian ancestry of the
children, and it does not oppose remand for the limited purpose of conducting further
ICWA inquiry.3 We agree with the parties and conditionally reverse the juvenile court’s
order terminating parental rights and remand for proceedings to ensure ICWA
compliance.
FACTUAL AND PROCEDURAL BACKGROUND4
In October 2022, the children were taken into protective custody after mother was
arrested for drug possession and child endangerment. The department filed juvenile
dependency petitions alleging the children were described by section 300,
subdivision (b)(1). The allegations involved mother’s ongoing substance abuse. Mother
reported possible Cherokee ancestry from her grandmother when the social worker
first made contact with her at the jail. G.W. (father) was identified as the children’s
1 The children’s sibling, M.W., was also removed from mother, but M.W. is not a
subject of this appeal.
2 All further undesignated statutory references are to the Welfare and Institutions
Code.
3 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
4 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts
to those bearing on that issue.
2.
father. He claimed possible Cherokee ancestry, but he was not eligible to be an enrolled
member of the tribe.
At the detention hearing held on October 26, 2022, mother was present and father
was not present. The juvenile court inquired of mother regarding potential tribal
membership of her family members, and she responded, “[n]ot that I am aware of. A lot
of my family I actually don’t know because someone’s either died or they’ve moved
away and we don’t have communication.” Mother identified the maternal grandfather
and maternal great-grandmother, D.D., as living family members that may have
additional information on her claim of Cherokee ancestry, and she agreed to provide
contact information for both of them to the department. Mother was not aware of Indian
ancestry in father’s family, and she was not familiar with the paternal family members.
The children were detained from mother’s custody, and a combined jurisdiction
and disposition hearing was set for December 13, 2022. The juvenile court ordered the
department to conduct further inquiry regarding the children’s possible Indian ancestry.
Mother also completed a Parental Notification of Indian Status form (form ICWA-020),
which indicated she had Cherokee ancestry through her paternal grandmother, D.D.
The department’s jurisdiction reports recommended that the allegations in both
petitions be found true. The disposition reports recommended that the children remain in
out-of-home care with family reunification services provided to mother and father. The
ICWA section of the report indicated the results of the inquiry were still pending.
In October 2022 and November 2022, a family finding social worker contacted
several maternal and paternal family members to discuss placement consideration, obtain
family information, and inquire of any Indian ancestry in the family. Father claimed
Indian ancestry, but he did not know the information related to his family’s ancestry. The
paternal grandmother, paternal aunt, and paternal uncle each denied there was any Indian
ancestry in their family.
3.
The maternal grandmother and maternal great-grandmother, D.D., reported
Cherokee ancestry in their family. The maternal grandfather and a maternal great-aunt
denied having Indian ancestry in their family. Attempts were made to contact
two additional maternal great-aunts, but the social worker had to leave voice messages.
On November 16, 2022, the department sent a Notice of Child Custody
Proceeding for Indian Child form (ICWA-030) to the Cherokee tribes. The biological
family information included the full names, address, and birthdays for mother, father,
maternal grandparents, and paternal grandparents. The children’s grandparents and
maternal great-grandmothers were identified as living family members, but the maternal
great-grandfathers and paternal great-grandparents were either deceased or their
whereabouts were unknown. The identities for one set of paternal great-grandparents
were listed as unknown. Responses from the bands of the Cherokee tribe indicated that
the children were neither members nor eligible for membership in their tribe.
On February 7, 2023, the allegations of the petition were found true, and family
reunification services were ordered for mother and father. The juvenile court found there
was no reason to know or believe the children were Indian children, and the department
had a continuing duty to inquire in compliance with ICWA. During the family
reunification period, mother failed to participate in the components of her case plan.
Family reunification services were terminated for mother and father at the
combined six-month and 12-month review hearing held on February 27, 2024. A
section 366.26 hearing was not set because the children were not proper subjects for
adoption and there was no one willing to accept guardianship. The juvenile court ordered
the children to remain in foster care with a permanent plan of placement with a fit and
willing relative. A review hearing pursuant to section 366.3 was set for August 27, 2024.
At a subsequent postpermanency review hearing held on February 11, 2025, the
juvenile court set a section 366.26 hearing. The department’s section 366.26 reports,
dated May 30, 2025, recommended that the juvenile court terminate the parental rights of
4.
mother and father and order a permanent plan of adoption for the children. The ICWA
status section of the report detailed the juvenile court’s previous finding regarding ICWA
without any additional information.
After multiple continuances, a contested section 366.26 hearing was set for
November 20, 2025, at the request of mother. On November 18, 2025, mother filed a
section 388 petition requesting an order that either family maintenance or family
reunification services be provided to her. At the combined and contested section 388 and
section 366.26 hearing, the juvenile court denied mother’s section 388 petition,
terminated parental rights, and selected a plan of adoption for the children.
DISCUSSION
Mother contends the juvenile court and the department failed to adequately
discharge their duty of inquiry regarding the parent’s claims of possible Indian ancestry.
The department concedes this point, and we accept their concession.
A. 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].)
5.
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.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125 (Dezi C.); § 224.2,
subd. (a); Cal. Rules of Court, rule 5.481(a).)5 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 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 juvenile 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).)
5 All further references to rules are to the California Rules of Court.
6.
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, the 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 to
conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. 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
7.
the department 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.) An inadequate inquiry requires conditional reversal of
the juvenile court’s order terminating parental rights with directions to the child welfare
department to conduct an adequate inquiry, supported by record documentation.
(Dezi C., supra, 16 Cal.5th at p. 1136.)
C. Analysis
Pursuant to its duty under section 224.2, the department asked mother and father
whether they had any Indian heritage. Both mother and father reported having Cherokee
ancestry in their family. Mother identified the maternal grandfather and maternal
great-grandmother, D.D., as individuals with additional information on her family’s
ancestry. Father did not have any information on his family’s Cherokee ancestry, and the
paternal grandmother, paternal aunt, and paternal uncle each denied knowledge of Indian
ancestry in their family. The department sent notice to the Cherokee tribes, and none of
the tribes responded that the children were eligible for membership in their tribe.
There was at least one additional family member that could have provided
meaningful information on the children’s ancestry. The paternal grandfather’s current
address was listed on the notice provided to the tribes, but there is no indication the
department attempted to contact him regarding the children’s potential Cherokee
ancestry. Father’s reported ancestry was not specific to his maternal or paternal family,
which made an attempt to contact the paternal grandfather a necessary step in the
department’s inquiry efforts. An inquiry of the paternal grandfather could have also
provided the department with the missing names of the paternal great-grandparents on its
notice to the tribes.
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
8.
department’s concession, we accept that the children’s paternal grandfather was 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 [department] 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 orders terminating parental rights are conditionally reversed.
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,
after determining that a proper, adequate, and duly diligent inquiry was made, the court
concludes that ICWA does not apply, then the court shall reinstate its orders terminating
parental rights. If, instead, the court concludes that ICWA applies, then the court shall
proceed in conformity with ICWA and Cal-ICWA.
9.