Filed 9/30/26 In re M.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re M.S., a Person Coming Under the Juvenile
Court Law.
TULARE COUNTY HEALTH AND HUMAN
SERVICES AGENCY, F091560
Plaintiff and Respondent, (Super. Ct. No. JJV076617A)
v.
OPINION
M.S. et al.,
Defendants and Appellants.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Frank
Anthony Ruiz, Judge.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and
Appellant Michael S.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant
and Appellant J.R.
* Before DeSantos, Acting P. J., Harrell, J. and Guerra, J.
Jennifer M. Flores, County Counsel, and Marit C. Erickson, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
J.R. (mother) and presumed father Michael S. (father) (collectively, the parents)
appeal from the juvenile court’s order terminating their parental rights as to their minor
child M.S. (Welf. & Inst. Code,1 § 366.26). Their sole contention on appeal is that the
court erred by finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
(ICWA)2 inapplicable because the Tulare County Health and Human Services Agency
(agency) failed to fulfill its duty of inquiry under ICWA and the California Indian Child
Welfare Act (§ 224 et seq.) (Cal-ICWA).
The agency concedes error, and the parties have stipulated to an immediate
conditional reversal and remand for the limited purpose of ensuring compliance with the
inquiry provisions of ICWA and Cal-ICWA.
We accept the agency’s concession of error and the parties’ stipulation. We
conditionally reverse the juvenile court’s order terminating parental rights and remand
with directions to ensure ICWA and Cal-ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2025, dependency jurisdiction was taken over then-infant M.S. under
section 300, subdivisions (b)(1) (failure to protect) and (e) (serious physical abuse of a
child under five years of age). The juvenile court adjudged M.S. a dependent, removed
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.)
2.
her from the parents’ custody, and denied both parents reunification services pursuant to
section 361.5, subdivision (b)(6) (child dependent due to severe physical harm and
reunification services would not benefit child). Following a contested section 366.26
hearing conducted on April 29, 2026, parental rights were terminated, and adoption was
selected as M.S.’s permanent plan.
Relevant facts related to the claimed ICWA inquiry error follow.
At the detention hearing, father and the paternal grandmother claimed Cherokee
ancestry through the paternal grandmother’s mother, the paternal great-grandmother. The
paternal grandmother did not know the specific Cherokee tribe with which the family
may be affiliated but advised the paternal great-grandmother was born in Arkansas. The
paternal grandmother denied that she; the paternal great-grandmother; the paternal
grandmother’s brother, the paternal great-uncle; or anyone else in her family, including
her children and M.S., were enrolled or registered members of any Indian tribe. When
asked if any of her relatives might have more information about which Cherokee tribe the
family might be affiliated with, the paternal grandmother gave the name of her aunt, the
paternal great-great-aunt, on the record. The juvenile court found there was no reason to
believe ICWA applied but directed the agency to follow up on the claim of Cherokee
ancestry.
The agency followed up with the paternal grandmother and gathered familial
information for her side of the family for the purpose of preparing a notice of child
custody proceeding for Indian Child (ICWA-030) form. The paternal grandmother
reported that the paternal great-grandmother, who was deceased, would tell them they
were part “Cherokee with the Arkansas Tribe.” The agency did not document that
anyone contacted the paternal great-great-aunt. The ICWA-030 form contained, as
relevant here, the parents’ names, addresses, and birthdates; the paternal grandmother’s
name, address, and date and place of birth; and the paternal great-grandmother (paternal
grandmother’s mother)’s name, date and place of birth, and date and place of death. The
3.
form did not include the names of or other information regarding the paternal great-great-
aunt or the paternal great-uncle. The agency mailed the ICWA-030 forms to three
Cherokee tribes and the Bureau of Indian Affairs (BIA).
All Cherokee tribes subsequently informed the agency that M.S. was not a
registered member nor eligible to register.
In addition to the above, over the course of the proceedings, mother, paternal
grandfather, a maternal aunt, maternal grandmother, and a maternal great-aunt all were
asked about and denied Indian ancestry.
At the section 366.26 hearing the juvenile court found the agency had fulfilled its
duty of ICWA inquiry and there was no reason to believe or know M.S. was an Indian
child.
DISCUSSION
The parents contend that the juvenile court’s finding that the agency conducted an
adequate ICWA inquiry was error because the agency did not report any information
regarding their efforts to contact and interview the paternal great-great-aunt identified by
paternal grandmother as someone who would know more about the tribe with which the
family was affiliated, nor the paternal great-uncle to whom the paternal grandmother also
made reference.
The agency subsequently filed a “Stipulation to Conditional Reversal, Remand,
and Immediate Remittitur,” on July 29, 2026, signed by county counsel and both parents’
appellate attorneys. (Some capitalization omitted.) Therein, the agency concedes inquiry
error and asserts that the parties:
“[S]tipulate to conditional reversal of the April 29, 2026[,] order terminating
parental rights and to remand to the juvenile court for compliance with the inquiry
and notice requirements of ICWA and corresponding California statutes. If the
juvenile court thereafter finds a proper and adequate inquiry and due diligence has
been conducted and concludes ICWA does not apply, then the court shall reinstate
the order terminating parental rights. If the juvenile court concludes ICWA
4.
applies, then it shall proceed in conformity with the ICWA and California
implementing provisions.”
The parties also stipulate to the immediate issuance of the remittitur to minimize delay to
the case.
Because the agency has conceded error and has stipulated to reversal and
immediate remittitur, in the interest of expediency and the best interest of M.S., we
accept the agency’s concession and the parties’ stipulations.
We first analyze the appropriateness of the agency’s concession of error. Under
Cal-ICWA, the court and county child welfare agency “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 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).) The agency’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).)
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
a federally recognized Indian tribe. (25 U.S.C. § 1903(4) & (8); see Welf. & Inst. Code,
§ 224.1, subd. (a) [adopting federal definitions].)
4 All further rule references are to the California Rules of Court.
5.
When initial inquiry gives rise to a “reason to believe”5 (but not sufficient
evidence to determine there is a “reason to know”6) that an Indian child is involved in a
proceeding, “further inquiry regarding the possible Indian status of the child” is required,
which includes gathering additional biographical information from family members and
contacting relevant tribes and the BIA. (§ 224.2, subd. (e)(2)(A)–(C); see § 224.3,
subd. (a)(5) [listing the biographical information required].) Among the information
required to be gathered is: “All names known of the Indian child’s biological parents,
grandparents, and great-grandparents, or Indian custodians, including maiden, married,
and former names or aliases, as well as their current and former addresses, birth dates,
places of birth and death, tribal enrollment, membership, or citizenship information of
other direct lineal ancestors of the child, and any other identifying information, if
known.” (§ 224.3, subd. (a)(5)(C).) “Contact with a tribe shall include sharing
information identified by the tribe as necessary for the tribe to make a membership or
5 “There is reason to believe a child involved in a proceeding is an Indian child
whenever the court, social worker, or probation officer 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. Information suggesting membership or
eligibility for membership includes, but is not limited to, information that indicates, but
does not establish, the existence of one or more of the grounds for reason to know
enumerated” in section 224.2, subdivision (d)(1) through (6). (§ 224.2, subd. (e)(1).)
6 These enumerated grounds for “reason to know” are: “(1) A person having an
interest in the child, including the child, an officer of the court, a tribe, an Indian
organization, a public or private agency, or a member of the child’s extended family
informs the court that the child is an Indian child[;] [¶] (2) The residence or domicile of
the child, the child’s parents, or Indian custodian is on a reservation or in an Alaska
Native village …[;] [¶] (3) Any participant in the proceeding, officer of the court, Indian
tribe, Indian organization, or agency informs the court that it has discovered information
indicating that the child is an Indian child[;] [¶] (4) The child who is the subject of the
proceeding 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[; and/or] [¶] (6) The
court is informed that either parent or the child possess an identification card indicating
membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d); see 25 C.F.R.
§ 23.107(c) (2026).)
6.
citizenship eligibility determination, as well as information on the current status of the
child and the case.” (§ 224.2, subd. (e)(2)(C).)
When the court or agency “knows or has reason to know” an Indian child is
involved in the dependency proceeding, formal notice to the relevant tribes is required.
(§ 224.3, subd. (a).)
The agency “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
agency 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).)
The juvenile court’s finding that there is no reason to know whether a child is an
Indian child is reviewed for substantial evidence, and the court’s finding that the agency
has conducted a proper and adequate inquiry and due diligence is reviewed for abuse of
discretion. (In re K.H. (2022) 84 Cal.App.5th 566, 600–601.)
We believe this is a close case. The paternal grandmother claimed possible
Cherokee affiliation through the paternal great-grandmother, which triggered the
agency’s duty of further inquiry. In efforts to comply with that duty, names and birth
dates and places, and, where applicable, death dates and places, of the lineal relatives of
that line of the family were provided to all federally-recognized Cherokee tribes, and
after reviewing that information, none of the tribes identified M.S. as an Indian child.
We acknowledge that the paternal grandmother indicated the paternal great-great-aunt
would have more information about what Cherokee tribe the family was affiliated with.
However, given that the agency sent the relevant information to multiple Cherokee tribes,
and there is no evidence the tribes requested more information, it is not immediately clear
7.
to us the juvenile court could not have reasonably concluded that obtaining more
information from the paternal great-great-aunt would not have reasonably uncovered
more information about whether M.S. was an Indian child within the meaning of ICWA.
Further, it appears the juvenile court could have reasonably concluded that there was not
any evidence on the record that the paternal great-uncle would have been able to provide
additional information that the paternal grandmother did not have.7
On the other hand, we acknowledge the parties’ apparent position that the paternal
great-great-aunt, might have been able to provide additional actionable information as to
the claim of Indian ancestry. She was of the same generation as the paternal great-
grandmother, through whom affiliation was claimed, and the paternal-great grandmother
was deceased and could not give additional information herself. Given the posture of this
appeal, and that the agency has conceded error and agreed to the immediate conditional
reversal, remand, and issuance of remittitur, we accept the concession in an abundance of
caution.
We also conclude immediate conditional reversal/remand and issuance of
remittitur is appropriate. Before reversing or vacating a judgment based upon a
stipulation of the parties, and appellate court must find “both of the following: [¶] (A)
There is no reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal [and] [¶] (B) The reasons of the parties for requesting
reversal outweigh the erosion of public trust that may result from the nullification of a
7 Courts disagree about how much Cal-ICWA requires the child welfare department
to do to make contact with extended family members. (See e.g., In re Claudia R. (2025)
115 Cal.App.5th 76, 86–87 [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”].)
8.
judgment and the risk that the availability of stipulated reversal will reduce the incentive
for pretrial settlement.” (Code Civ. Proc., § 128, subd. (a)(8)(A)–(B).)
We find both conditions are present. Here, the parties, and we, agree that Cal-
ICWA inquiry error has occurred, and conditional reversal and limited remand are
necessary regardless of the existence of the stipulation. Thus, the reason for the
stipulation is solely to expedite the appellate process and resolution of the error. Quicker
resolution of this error, which affects the stability and permanence of a young child,
benefits, rather than adversely affects, the child, the public, and a nonparty such as the
prospective adoptive parent. Further, the expedited resolution of the present case serves
to advance, rather than erode, public trust and outweighs any negative effect of
discouraging prejudgment resolution of ICWA issues.8 (See In re Rashad H. (2000) 78
Cal.App.4th 376, 379–382 [stipulation to reverse order terminating parental rights due to
notice error permitted by Code Civ. Proc., § 128, subd. (a)(8)].)
DISPOSITION
The orders terminating parental rights are 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). 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.) By stipulation of the parties, the Clerk/Executive Officer of this court is
directed to issue the remittitur immediately. (Rule 8.272(c)(1).)
8 We rest assured the parties will refrain from using the availability of a stipulated
reversal as a reason not to prioritize ensuring compliance with ICWA and Cal-ICWA
inquiry provisions in the first instance before parental rights are terminated.
9.