Filed 9/30/26 In re I.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re I.M., a Person Coming Under the Juvenile
Court Law.
MADERA COUNTY DEPARTMENT OF F091291
SOCIAL SERVICES/CHILD WELFARE
SERVICES, (Super. Ct. No. MJP019058)
Plaintiff and Respondent,
OPINION
v.
J.S.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Madera County. Timothy A.
Kams, Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant
and Appellant.
Regina A. Garza, County Counsel, and Christopher B. Dorian, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., DeSantos, J. and Guerra, J.
INTRODUCTION
Father J.S. appeals from the juvenile court’s order terminating parental rights as to
his minor child I.M. (Welf. & Inst. Code,1 § 366.26). He contends the court erred by
finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA)2 did not
apply because the Madera County Department of Social Services/Child Welfare Services
(department) did not adequately comply with inquiry provisions of ICWA and the
California Indian Child Welfare Act (§ 224 et seq.) (Cal-ICWA). The department
concedes prejudicial error.
We accept the department’s concession. We conditionally reverse the order
terminating parental rights and remand for further proceedings for the limited purpose of
ensuring compliance with ICWA and Cal-ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
I.M., then an infant, was adjudged a dependent of the juvenile court under
section 300, subdivision (j) (abuse of siblings) and removed from the custody of his
mother, V.M. (mother). Father was identified as an alleged father and was later
determined to be I.M.’s biological father. He was not elevated to presumed status nor
offered reunification services. Mother participated in reunification services, and her
services were terminated at the 18-month status review hearing. At the section 366.26
hearing conducted on February 26, 2026, the court terminated parental rights and ordered
adoption as I.M.’s permanent plan.
Over the course of the dependency proceedings, the department reported the
following individuals were asked about whether I.M. might be an Indian child: mother,
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2 “The language of both federal and state law uses the term ‘Indian.’ California
courts have used alternative terms, such as ‘American Indian’ or ‘Native American’; we
use the term ‘Indian’ throughout to reflect the statutory language but keep the
terminology used by the various courts when quoting from their opinions. No disrespect
is intended.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125, fn. 1. (Dezi C.).)
2.
who also filled out a “PARENTAL NOTIFICATION OF INDIAN STATUS” (ICWA-
020) form; father; the paternal grandmother; and a paternal aunt. All who were asked
denied Indian ancestry. The paternal grandmother additionally reported the paternal
grandfather was deceased and had no Indian ancestry. Father was given an ICWA-020
form to fill out, but there is no documentation indicating he returned it.
The juvenile court found ICWA did not apply at several points throughout the
proceedings, including in written orders filed following the section 366.26 hearing.
DISCUSSION
I. The Parties’ Positions
Father contends the court erred by finding the department fulfilled its duty of
ICWA inquiry, and consequently, by finding ICWA did not apply to the proceedings.
Specifically, father asserts the department did not conduct an adequate inquiry by failing
to (1) interview any maternal family members besides mother, and (2) locate paternal
extended family members besides the paternal grandmother and paternal aunt.
The department concedes they did not adequately discharge their duty of inquiry
by failing to interview maternal family members and asserts that there was additional
error because father was never asked by the court on the record about whether I.M. was
an Indian child.
As we explain, we agree with the parties that conditional reversal and limited
remand is appropriate.
II. The Juvenile Court Erred by Finding the Department’s Inquiry with the
Maternal Side of the Family was Adequate
Under Cal-ICWA, the court and county child welfare department “have an
affirmative and continuing duty to inquire whether a child,” who is the subject of a
juvenile dependency petition, “is or may be an Indian child,”3 in order to determine
3 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
3.
whether the proceedings must be conducted within the provisions of ICWA. (§ 224.2,
subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9; Cal. Rules of Court,4 rule 5.481(a).)
As relevant here, the department’s duty of inquiry includes “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.” (§ 224.2, subd. (b)(2).) The department’s obligation to
contact extended family members and others includes those who are “reasonably
available.” (Dezi C., supra, 16 Cal.5th at p. 1140; In re Claudia R. (2025)
115 Cal.App.5th 76, 81; In re C.L. (2025) 116 Cal.App.5th 53, 68–69.)
Additionally, the department “must on an ongoing basis include in its filings a
detailed description of all inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status, as well as evidence of how
and when this information was provided to the relevant tribes.” (Rule 5.481(a)(5).)
Before finding ICWA inapplicable, the juvenile court must make a finding that the
department conducted “proper and adequate further inquiry” and exercised “due
diligence” in doing so, and that “there is no reason to know whether the child is an Indian
child.” (§ 224.2, subd. (i)(2).)
We review the juvenile court’s finding that there is no reason to know whether a
child is an Indian child for substantial evidence, and the court’s finding that 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.)
As a threshold matter, we note courts disagree about how much Cal-ICWA
requires the child welfare department to do to make contact with extended family
members for inquiry. (See e.g., In re Claudia R., supra, 115 Cal.App.5th at pp. 86–87
a federally recognized Indian tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a)
[adopting federal definitions].)
4 All further rule references are to the California Rules of Court.
4.
[department’s required scope of inquiry extends beyond the family members it encounters
during its investigation at least to those it is required to locate in accordance with its
family finding efforts]; In re K.G. (2025) 117 Cal.App.5th 379, 381 [department
adequately discharges its duty of inquiry by asking people it would contact in its usual
course of business and is not required to “go further afield”].)
We need not take a definitive approach here given the department’s concession
and because no matter which approach we take, although we review the juvenile court’s
finding regarding the adequacy of the inquiry and ICWA’s applicability with deference
(Dezi C., supra, 16 Cal.5th at pp. 1140–1141, 1144), on this record, we cannot say the
department conducted an adequate inquiry.
The clearest error, and the one the parties appear to agree upon, was that the
department failed to conduct an adequate inquiry of the maternal side of I.M.’s family by
failing to inquire with any maternal relatives beside mother.5 The department came into
direct contact with several maternal relatives multiple times and knew of others. For
example, mother was very involved in the dependency proceedings and lived with the
maternal grandmother at one point and the maternal great-grandmother at another point.
The maternal great-grandmother also participated in visits with I.M. Mother indicated
her three siblings as well as both of her parents resided in Madera. I.M. was placed with
the maternal uncle at the beginning of the case, and two maternal aunts applied for
placement. Mother’s siblings also attended child and family team meetings, and one of
the maternal aunts participated in visits with I.M.
Because, by any standard, these maternal relatives were clearly reasonably
available for ICWA inquiry, the department should have conducted inquiry with them and
documented the results. Because they failed to do so, and because the juvenile court had
5 Just because the parents and family members inquired of denied Indian ancestry
does not mean the other family members would not have meaningful information related
to the children’s status as Indian children. (See In re Claudia R., supra, 115 Cal.App.5th
at p. 81.)
5.
too little other evidence to rely on to determine whether I.M. might be an Indian child
through his maternal family, the court’s implied determination the department had
conducted an adequate inquiry was an abuse of discretion.6
The parties agree, as do we, that a conditional reversal and limited remand is the
proper disposition. (See Dezi C., supra, 16 Cal.5th at p. 1141.)
III. Upon Remand, the Department is Responsible for Developing the Record on
ICWA Inquiry, so the Juvenile Court May Make Informed ICWA
Determinations in the First Instance in a Manner Consistent with This
Opinion
The department makes some requests for specific directions from this court, which
we will now address. First, the department spends a portion of its briefing arguing that
that “paternal-side inquiry documented in the [record] provides a starting point on
remand,” and asserts the juvenile court should be permitted to consider information
contained in the section 366.26 report indicating that the paternal grandmother, the
paternal aunt, and father all denied Indian ancestry. This assertion seems to be based on
the inaccurate premise that this information was provided to the juvenile court after the
order terminating parental rights and, as such, is postjudgment evidence which generally
should not be considered by this court. We do not see any reason, nor does it appear that
father is asserting, that the juvenile court should be precluded from considering any
6 The parties do not seem to agree on what, if any, additional error occurred
regarding inquiry with the paternal side of I.M.’s family. Father mentions once in his
briefing that the department should have attempted to locate and conduct inquiry with
additional paternal relatives but does not expound upon this point.
The department does not respond to this cursory assertion but points out that
father, though he verbally denied Indian ancestry, did not fill out an ICWA-020 form and
was not asked by the juvenile court if I.M. was or could be an Indian child upon his first
appearance in accordance with Cal-ICWA.
Based on the state of the briefing, we are not in a position to fully assess the
appropriateness of the juvenile court’s findings as to the paternal-side inquiry. Father is
encouraged upon remand to make any additional arguments regarding the department’s
discharge of its duty of inquiry that he deems appropriate so that the department may
respond to them, and the juvenile court may consider them.
6.
paternal inquiry efforts already documented on the record or any other information
relevant to the court’s ICWA determinations provided by the department upon remand.
The department also requests we specify which individuals it must contact and
complete inquiry with upon remand. We decline to do so. The juvenile court is best
suited to evaluate in the first instance the department’s subsequent efforts to comply with
the inquiry provisions of ICWA and Cal-ICWA, in accordance with the views expressed
in this opinion. We advise the department and the juvenile court to bear in mind, among
other pertinent authority, this court’s prior guidance, that courts should ensure “an
adequate initial inquiry is made of maternal relatives on both sides where available and
paternal relatives on both sides where available, and that the inquiry and its results are
documented in the record, as required by California law.” (In re K.H., supra,
84 Cal.App.5th at p. 619.) “This will supply evidence upon which the juvenile court may
exercise sound discretion in determining there has been ‘proper and adequate further
inquiry and due diligence.’ ” (Ibid.)
Finally, the department requests we direct the juvenile court to comply with a
specific timeline by requiring completion and submission of updated inquiry
documentation within 60 days of the issuance of remittitur, with a review hearing to be
held within 30 days thereafter to ensure expediated resolution of this issue in the interest
of I.M.’s permanency. The department has not established such a need. We rest assured
that the juvenile court will administer the proceedings appropriately in furtherance of the
best interests of the child. We appreciate the department’s interest in timely permanence
for I.M. and note the department itself is in the best position to ensure the proceedings are
resolved in the most efficient manner. Given that they have conceded error, they
presumably can begin working on completing the discharge of its inquiry duties and
preparing documentation of its efforts to present to the juvenile court upon remand. We
note that if the department wishes to further expedite the matter, it also has the option of
working with the other party to stipulate to the immediate issuance of the remittitur. (See
7.
rule 8.272(c)(1).) We express no opinion on whether the department should exercise this
option or whether father should agree to any proposed stipulation.
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is
remanded to the juvenile court for compliance with the inquiry and notice requirements
of sections 224.2 and 224.3 and the documentation provisions of rule 5.481(a)(5),
consistent with this opinion. If the court thereafter finds a proper and adequate further
inquiry and due diligence has been conducted and concludes ICWA does not apply
(§ 224.2, subd. (i)(2)), then the court shall reinstate the orders. If the court concludes
ICWA applies, then it shall proceed in conformity with ICWA and Cal-ICWA. (See
25 U.S.C. § 1912(a); §§ 224.2, subd. (i)(1), 224.3, 224.4.)
8.