Filed 6/23/26 In re M.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re M.H. et al., Persons Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF F091012
HUMAN SERVICES,
(Super. Ct. Nos. JD146041-00,
Plaintiff and Respondent, JD146042-00 & JD146043-00)
v.
OPINION
M.W.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Brian Bitker, 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., DeSantos, J., and Harrell, J.
M.W. (mother) appeals from the juvenile court’s orders made at a Welfare and
Institutions Code1 section 366.26 hearing terminating parental rights as to her two minor
children P.L. and L.L. and establishing legal guardianship for her minor child M.H. She
contends the court erred by finding the Kern County Department of Human Services
(department) adequately complied with inquiry provisions of the Indian Child Welfare
Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA)2 and the California Indian Child Welfare
Act (§ 224 et seq.) (Cal-ICWA). The department concedes error.
On our own motion, we take judicial notice of our nonpublished opinion in In re
P.L. et al. (May 14, 2026, F090926 [nonpub. opn.]). (Evid. Code, §§ 452, subd. (d), 459;
Estate of Kempton (2023) 91 Cal.App.5th 189, 193, fn. 2 [taking judicial notice of prior
nonpublished opinion in the same case on court’s own motion].) In In re P.L. et al., P.L.
and L.L.’s father, D.L., appealed from the order terminating his parental rights as to them
and raised a nearly identical issue that is raised in the present appeal. There, the
department conceded error, and we accepted the concession, conditionally reversed the
order terminating parental rights of father as to P.L. and L.L. and remanded for further
proceedings to ensure compliance with ICWA and Cal-ICWA.
We also accept the department’s concession as to the orders pertaining to mother;
we conditionally reverse the orders terminating parental rights as to P.L. and L.L. and
establishing legal guardianship as to M.H. and remand for further proceedings to ensure
compliance with ICWA and Cal-ICWA.
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2 “[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.)
2.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2024, the department filed dependency petitions on behalf of mother’s
three minor children, then 11-year-old M.H., then two-year-old P.L., and then one-year-
old L.L. C.H. was listed as M.H.’s alleged father, and D.L. was listed as P.L. and L.L.’s
alleged father. The children lived with mother and D.L. at the time the petition was filed.
Thereafter, the juvenile court declared C.H. as the presumed father of M.H., and
D.L. as the presumed father of P.L. and L.L., ordered the children detained from the
parents, and set a jurisdiction/disposition hearing. Mother, C.H., and D.L. were asked
about and denied Indian ancestry.
In July and August 2024, the department conducted extensive family finding
efforts. Based on the documentation, the efforts appear to have elicited the identities of
and contact information for approximately 19 maternal relatives, nine of D.L.’s relatives,
and three of C.H.’s relatives. The family finding social worker mailed “AB 938”3 letters,
including pamphlets entitled “Important Information for Relatives Concerning Placement
of a Child” and “Your Rights” to relatives for whom a mailing address was located. The
documentation did not state whether ICWA inquiries were included with the “AB 938”
letters.
The family finding social worker also documented unsuccessful attempts at
telephone contact for the purposes of both “family finding” and ICWA inquiry with the
maternal grandmother, two maternal great uncles, a maternal aunt, a maternal great
grandmother, a maternal great grandfather, a maternal great aunt; P.L. and L.L.’s paternal
half sibling, paternal aunt, and paternal uncle; and two of M.H.’s paternal uncles. Of
these relatives, telephone contact was unsuccessful either because the phone numbers
3 Assembly Bill No. 938 (2009-2010 Reg. Sess.) added subdivision (e) to
section 309 requiring social workers to identify and locate relatives upon removal of a
child, notify them of the removal, and provide options to them to participate in the care or
placement of the child during the proceedings.
3.
were disconnected, the voicemail boxes were full, or because the person did not answer.
Where it was possible to leave a voicemail, the social worker did, and in some cases sent
a text message, requesting a return phone call.
The social worker made successful telephone contact with a maternal great aunt,
P.L. and L.L.’s paternal cousin and paternal half sibling, and M.H.’s paternal aunt. All of
these relatives were asked about and denied Indian ancestry.
At the jurisdiction/disposition hearing conducted on August 15, 2024, the juvenile
court sustained the dependency petitions and adjudged the children dependents. The
children were ordered removed from the parents’ physical custody, and the parents were
ordered to participate in reunification services. The court made a finding that there was
not a reason to know the children were Indian children within the meaning of ICWA,
without prejudice, noting the department had a continuing duty to inquiry in compliance
with ICWA.
D.L.’s reunification services were terminated at the six-month status review
hearing conducted in March 2025 and mother’s and C.H.’s services were terminated at
the 12-month status review hearing conducted in August 2025, where the juvenile court
also set a section 366. 26 hearing as to all the children.
The section 366.26 hearing was conducted on December 11, 2025. As to P.L. and
L.L., the juvenile court ordered parental rights terminated and selected adoption as their
permanent plans. As to M.H., the court ordered a permanent plan of legal guardianship
and terminated dependency jurisdiction over him. No additional ICWA findings were
made.
In the department’s reporting throughout the reunification period and ahead of the
section 366.26 hearing, no additional ICWA inquiry efforts beyond those made in July
and August 2024 were documented.
4.
DISCUSSION
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,”4 in order to determine
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,5 rule 5.481(a).)
As relevant here, the department’s initial 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 “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.)
4 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 Indian tribe. (25 U.S.C. § 1903(4) & (8); see Welf. & Inst. Code,
§ 224.1, subd. (a) [adopting federal definitions].)
5 All further rule references are to the California Rules of Court.
5.
Mother contends the department’s inquiry as to the children’s maternal extended
family members was inadequate and therefore that the juvenile court’s implied finding
otherwise was an abuse of discretion. Specifically, according to mother it was “cursory
and … abandoned within weeks of the children’s detention.” Mother adds that because
mother informed the department that she spoke with her sisters weekly, the department
was required, but failed, to make any attempts to contact one of the maternal aunts and to
obtain current contact information for the other maternal aunt. Further, though the
department documented it was unable to make contact with the maternal grandmother,
mother’s indication to the department of where the maternal grandmother lived triggered
the department’s duty to conduct additional searches for updated contact information for
her.
As we have stated, the department concedes error, and we have accepted the
department’s previous concession with regard to the order terminating D.L.’s parental
rights as to P.L. and L.L. by way of our prior opinion in In re P.L. et al. (May 14, 2026,
F090926 [nonpub. opn.]). Without further discussion, we accept the concession as to the
order terminating mother’s parental rights as to P.L. and L.L. and the order establishing a
legal guardianship as to M.H.
DISPOSITION
The orders terminating mother’s parental rights as to P.L. and L.L. and the order
establishing a legal guardianship as to M.H. are conditionally reversed. The matters are
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). 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.)
6.