Filed 8/20/26 In re G.F. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re G.F., a Person Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent, G066623
v. (Super. Ct. No. 25DP0338)
K.D., OPINION
Defendant and Appellant.
Appeal from orders of the Superior Court of Orange County,
Jennifer McCartney and Benjamin Azar, Judges. Affirmed in part, reversed
in part, and remanded.
Jamie A. Moran, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Debbie Torrez and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
K.D. (Father) appeals from the juvenile court’s finding at the
time of disposition that the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.) (ICWA) does not apply. Father contends the Orange County
Social Services Agency (the Agency) and the court failed to comply with their
inquiry duties under ICWA and the California Indian Child Welfare Act (Cal-
ICWA) (Welf. & Inst. Code, § 224 et seq.; all undesignated statutory
references are to this code).1 Based on the limited inquiry conducted as to
Father prior to the disposition hearing and order, we agree the court erred in
finding ICWA did not apply. We vacate the ICWA finding and remand for the
court and the Agency to conduct the required ICWA inquiry. In all other
respects, the jurisdiction and disposition orders are affirmed.
FACTS AND PROCEDURAL HISTORY
Days after G.F. (the child) was born, the Agency sought a
protective custody warrant pursuant to section 340 to remove the child from
the care of L.F. (Mother) and J.F., who the Agency initially thought was the
child’s father. The basis for the Agency’s request was its contention both
Mother and J.F. had unresolved mental health and substance abuse issues,
as well as extensive criminal arrest histories. The Agency alleged a nurse
reported the child’s preliminary urine screen was positive for amphetamines
and fentanyl and the child showed mild signs of withdrawal. While Mother
had been given fentanyl during surgical delivery of the child, there was no
apparent medical explanation for the amphetamine. The child also had two
1 Because ICWA and section 224.2 use the term “Indian,” we will
do the same for consistency. But “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.)
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half siblings; both of whom were removed from Mother’s care and parental
rights previously terminated.
At the detention hearing on the initial child welfare petition in
March 2025, the juvenile court ordered the child “detained under the
protective custody of [the Agency].” The court reserved the issue of parentage
and authorized paternity testing for J.F. As to ICWA, Mother’s counsel
indicated that in the sibling cases, there was a prior finding that ICWA did
not apply. The court deferred a finding on the applicability of ICWA and
ordered the parties to inform the court as to any additional ICWA
information.
At the jurisdiction hearing in July 2025, the juvenile court denied
J.F.’s request for a continuance to allow time for paternity testing. The court
found the allegations of the petition to be true by a preponderance of the
evidence. As to ICWA, the court found it did not apply but noted the Agency
had an affirmative and continuing duty of inquiry.
Paternity test results received after the jurisdiction hearing
indicated J.F. was not G.F.’s biological father and he was ordered excluded
from all further proceedings. Mother then named K.D. (Father) as the
biological father, and the Agency set about locating him. Father was located
and first appeared in juvenile court in September 2025. Father indicated no
Indian ancestry. The court ordered paternity testing which confirmed
Father’s paternity. Father expressed an interest in the child and having the
child in his care.
At the disposition hearing in January 2026, the juvenile court
found by clear and convincing evidence section 361, subdivision (c)(1) applied
and declared the child a dependent child pursuant to section 360, subdivision
(d). The court ordered the child removed from the custody of the parents and
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vested authority with the Agency to find a suitable placement. Although the
court did not find Father to be a presumed parent pursuant to section 7611,
the court found it would still be in the best interests of the child to order
reunification services for Father.
As to ICWA, the juvenile court asked Father whether he was
aware of “any Native American ancestry” to which Father responded, “Not
that I know of, no.” Father added, “I have one aunt in Palm Desert that may
know something, but I don’t.” The court then stated it was “going to find that
ICWA [did] not apply at [that] time.” The court said to Father, “If you reach
out to your aunt or give her contact information to the social worker and you
find out that there is Native American ancestry, please let the [c]ourt know
as soon as possible.”
The juvenile court’s minute order indicated, “Father denie[d] that
the child is or may be an Indian child” and found “there is no additional
information that was previously available to the [A]gency or the court, and
that . . . ICWA . . . [did] not apply.” The court also noted, “[The Agency] has
an affirmative and continuing duty of inquiry” and that it was to “inquire of
[F]ather as to ICWA.”
Based on the record before us, no ICWA inquiry was made as to
any of the child’s known extended paternal family members. The record
reflects only that in February 2026, the Agency requested from Father
“additional family members to contact regarding Native American heritage”
and Father “stated he has family on his paternal side” but “prefers to keep
his dependency case private.” He provided contact information for a cousin,
who the Agency subsequently contacted, but had not yet received a response.
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DISCUSSION
Father challenges the adequacy of the juvenile court’s and
Agency’s ICWA inquiry as it did not include any of the child’s paternal
extended family, including the aunt Father mentioned, and he argues the
court placed the burden on him to come forward with information relevant to
the inquiry. The Agency concedes “none of Father’s extended family members
had been questioned” at the time of the disposition hearing.
I.
ICWA DUTY TO INVESTIGATE
“In 1978, Congress enacted . . . ICWA . . . to ‘formalize[] federal
policy relating to the placement of Indian children outside the family home.’
[Citation.] Under ICWA’s state analogue, . . . 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, 1124–1125 (Dezi C.).)
“Child welfare agencies discharge this state law duty by ‘asking
the child, parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party reporting
child abuse or neglect, whether the child is, or may be, an Indian child and
where the child, the parents, or Indian custodian is domiciled.’” (Dezi C.,
supra, 16 Cal.5th at p. 1125.) “‘Extended family member’” is defined to have
“the same meaning as defined by the law or custom of the Indian child’s tribe
or, in the absence of such law or custom, shall be a person who has reached
18 years of age and who is the Indian child’s grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (§ 224.1, subd. (c)(1).)
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“The duty to develop information concerning whether a child is
an Indian child rests with the court and the [child welfare agency], not the
parents or members of the parents’ families.” (In re Antonio R. (2022)
76 Cal.App.5th 421, 430 (Antonio R.).) “Thus, a juvenile court errs in making
a finding ICWA does not apply to the proceedings without first ensuring that
the [child welfare agency] has made an adequate inquiry under ICWA and
California law, and if necessary, the court must continue the proceedings and
order the [child welfare agency] to fulfill its responsibilities.” (Id. at p. 431.)
“A juvenile court’s finding that ICWA does not apply implies ‘that social
workers had fulfilled their duty of inquiry.’” (In re Dominick D. (2022)
82 Cal.App.5th 560, 567 (Dominick D.).)
Courts have reviewed “whether the child welfare agency has
engaged in a ‘proper and adequate further inquiry and due diligence as
required’ . . . for an abuse of discretion.” (In re C.L. (2025) 116 Cal.App.5th
53, 66.) “The juvenile court’s factual finding that ICWA does not apply is
‘subject to reversal based on sufficiency of the evidence.’” (Dezi C., supra,
16 Cal.5th at p. 1134.)
II.
THE JUVENILE COURT ERRED IN FINDING ICWA DID NOT APPLY
The parties agree “none of Father’s extended family members had
been questioned” at the time the juvenile court found ICWA did not apply.
The Agency did not have sufficient time to conduct an ICWA inquiry as to
Father. (See Dominick D., supra, 82 Cal.App.5th at p. 567 [“juvenile court’s
finding that ICWA does not apply implies ‘that social workers had fulfilled
their duty of inquiry’”].) Moreover, inasmuch as the court implied the burden
was on Father to provide information that might change this conclusion, this
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was a misstatement. The duty “rests with the court and the [child welfare
agency], not the parents.” (Antonio R., supra, 76 Cal.App.5th at p. 430.)2
We infer the juvenile court’s finding was based on Father’s
individual denial of any knowledge of Indian heritage, but parental denial
alone is insufficient. As is well established, “‘[t]he parents or Indian
custodian may be fearful to self-identify, and social workers are ill-equipped
to overcome that by explaining the rights a parent or Indian custodian has
under the law.’” (Antonio R., supra, 76 Cal.App.5th at p. 432.) Indeed,
“‘[p]arents may even wish to avoid the tribe’s participation or assumption of
jurisdiction.’” (Ibid.) Moreover, “parents may not know their possible
relationship with or connection to an Indian tribe.” (In re Y.W. (2021)
70 Cal.App.5th 542, 554.) It is important for any ICWA inquiry to address
“the realities of generational loss of information.” (C.L., supra, 116
Cal.App.5th at p. 70.) Consequently, the court’s finding was not a proper
exercise of its discretion or “supported by sufficient evidence.” (Dezi C., supra,
16 Cal.5th at p. 1141.)
Father does not request a remedy other than a remand with
instructions to the juvenile court to ensure full compliance with ICWA. As an
alternative request, the Agency acknowledges we can vacate the ICWA
2 This does not absolve Father of any responsibility to assist with
the inquiry. Inasmuch as there is some indication in the record Father has
not been entirely forthcoming in providing contact information for extended
family members, stating he wished to keep the proceedings private, this may
limit the Agency’s ability to conduct an extensive inquiry. (See In re Q.M.
(2022) 79 Cal.App.5th 1068, 1082 [where “a parent largely fails to cooperate
with [the child welfare agency] or to provide names and contact information
for extended family members, [the child welfare agency]’s ability to conduct
an exhaustive ICWA inquiry necessarily is constrained”].)
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finding but asks us to otherwise affirm the dispositional orders. We conclude
the Agency’s request is the appropriate result.
Where, as here, proceedings are at the dispositional phase, an
error regarding ICWA inquiry or notice “is not jurisdictional.” (In re Veronica
G. (2007) 157 Cal.App.4th 179, 187.) As such, “ICWA inquiry and notice
errors do not warrant reversal of the juvenile court’s jurisdictional or
dispositional findings and orders other than the ICWA finding itself.”
(Dominick D., supra, 82 Cal.App.5th at p. 567.)3 Thus, in Dominick D., which
like this appeal did not raise any substantive challenges to the dispositional
order, the court vacated the “finding that ICWA does not apply” but affirmed
“the dispositional findings and orders.” (Id. at p. 568.) This is consistent with
our Supreme Court’s rationale supporting conditional reversal, as opposed to
outright reversal, of an order terminating parental rights as likely to “inject
far less delay.” (Dezi C., supra, 16 Cal.5th at p. 1143.) Accordingly, we vacate
the juvenile court’s finding ICWA did not apply and affirm the court’s other
orders. We remand for further proceedings and for a complete ICWA inquiry.
3 By contrast, when the juvenile court has made no finding as to
the applicability of ICWA at the dispositional stage, “ICWA issues are not
ripe for review.” (J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 461.)
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DISPOSITION
The juvenile court’s finding ICWA did not apply is vacated. We
remand and the court is directed to ensure the Agency has made an adequate
inquiry under ICWA and Cal-ICWA. In all other respects, the disposition
findings and orders are affirmed.
MOTOIKE, P. J.
WE CONCUR:
SERVINO, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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