Filed 9/18/26 In re M.W. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
SIXTH APPELLATE DISTRICT
In re M.W., a Person Coming Under the H054062
Juvenile Court Law. (Santa Cruz County
Super. Ct. No. 24JU00032)
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
D.W.,
Defendant and Appellant.
Appellant D.W. (father) appeals from the juvenile court’s orders terminating his
parental rights and selecting a permanent plan of adoption for his child, M.W., following
a hearing under Welfare and Institutions Code section 366.26.1 The sole issue on appeal
is whether the juvenile court erred by finding the Indian Child Welfare Act, 25 U.S.C.
§ 1901 et seq. (ICWA), inapplicable to M.W. We conditionally reverse the termination
order because the record does not demonstrate that the Santa Cruz County Human
Services Department (department) fulfilled its duty of further inquiry under ICWA.
1 Subsequent undesignated statutory references are to the Welfare and Institutions
Code.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. Dependency Proceedings
In February 2024, law enforcement took M.W. into protective custody after
finding him sleeping outside with his mother without adequate food, clothing or bedding.
The department filed a petition pursuant to section 300, subdivision (b), alleging that
M.W. was at risk of harm from his mother’s inability to provide for his basic needs, his
parents’ mental health and substance abuse issues, and father’s failure to protect him.
The juvenile court ordered M.W. detained and the department placed him with a resource
family. The court also ordered supervised visitation for M.W. and his parents.
At the jurisdictional hearing, the juvenile court sustained the petition and ordered
reunification services for both parents. M.W.’s mother stopped attending visitations or
otherwise participating in her case plan during the review period and eventually
discontinued all contact with the department. Father’s attendance at visitations and
participation in his case plan also declined over that time. He did not attend the 18-
month review hearing because he was incarcerated and refused to be transported from
jail. After considering these circumstances, the juvenile court terminated reunification
services for both parents and set the matter for a section 366.26 selection and
implementation hearing.
At the section 366.26 hearing, father asked the court to place M.W. with father’s
sister or to apply an exception to adoption and order an alternative plan. The juvenile
court denied both requests, instead finding M.W.’s placement with his resource family to
2 “ ‘In accord with the usual rules on appeal, we state the facts in the manner most
favorable to the dependency court’s order.’ [Citation.] In light of the limited scope of
this appeal, we provide an abbreviated summary of the dependency proceedings.” (In re
D.S. (2020) 46 Cal.App.5th 1041, 1046 (D.S.).) Also, because M.W.’s mother did not
appeal from the juvenile court’s order, we omit facts related to her that are not pertinent
to the disposition of this appeal.
2
be in his best interest. The court also terminated the parental rights of father and M.W.’s
mother and selected a permanent plan of adoption.
B. ICWA Inquiry and Findings
At the outset of the dependency proceedings, both parents completed a Parental
Notification of Indian Status (ICWA-020) form and each denied Indian ancestry.
However, M.W.’s mother changed her position at a later hearing and claimed possible
Indian ancestry. Based on that statement, the juvenile court found there was “no reason
to know” but “there may be reason to believe” that M.W. was an Indian child and ordered
the department to give “proper notice” to the relevant tribes and to the Bureau of Indian
Affairs (BIA).
The department questioned M.W.’s mother and maternal grandmother, the latter of
whom reported possible Indian ancestry through M.W.’s maternal grandfather but could
not provide additional information. Other maternal relatives refused to speak with the
department when contacted or did not respond to the department’s messages. The
department also spoke to father, who identified possible Chippewa or Choctaw ancestry
through M.W.’s paternal great-grandmother. The department then contacted M.W.’s
paternal grandfather, who provided the name and birth date of the paternal great-
grandmother and indicated that she may have been Chippewa or Chickasaw. M.W.’s
paternal aunt, paternal uncle, and paternal grandmother did not have additional relevant
information, and the department could not reach other paternal relatives despite its efforts
to do so. During a later interview, paternal grandfather denied knowledge of any relative
who was a member of a tribe or eligible for membership in a tribe, in contrast to his
earlier statement.
The Department initially reported to the juvenile court that it sent inquiry letters to
the Chippewa, Choctaw, and Chickasaw tribes by certified mail. However, in a later
report submitted before the six-month review hearing, the department stated that it sent
certified letters to the BIA and several bands of the Chippewa and Choctaw tribes,
3
without further mention of the Chickasaw tribe. Twelve bands had responded, each
stating that M.W. was not an enrolled member or eligible for enrollment. Because the
department was still awaiting responses from some bands, it notified the juvenile court
that it would not be seeking ICWA findings at the six-month review hearing.
The department submitted an updated report before the 12-month review hearing.
There, the department described additional attempts to obtain information about M.W.’s
Indian ancestry from paternal and maternal relatives. None of its attempts to contact
paternal relatives were successful. The department did speak with one maternal relative,
who stated that M.W. was “ ‘[p]ossibly’ ” an Indian child because M.W.’s maternal
grandfather had “ ‘some Native American in him.’ ” As it did for the six-month review
hearing, the department stated it would defer seeking ICWA findings at the 12-month
review hearing.
The department submitted a final report addressing its ICWA inquiry before the
section 366.26 hearing. The department concluded that ICWA did not apply to M.W.,
writing, “As of the writing of this report, no new relatives have been named and no new
relatives have contacted the [d]epartment, so there is no new information giving rise to
reason to know or reason to believe.” The juvenile court found that M.W. was not an
Indian child and that ICWA did not apply.
Father timely appealed from the order terminating parental rights and selecting a
permanent plan of adoption for M.W.
II. DISCUSSION
In his initial briefing on appeal, father argued the juvenile court’s finding that
ICWA did not apply was erroneous because the department failed to demonstrate that it
discharged its duty of inquiry. To that end, father contended the evidence detailing the
department’s investigation was incomplete because it failed to present to the juvenile
court any ICWA-030 forms or the correspondence it sent to the tribes. The department,
borrowing turns of phrase used in In re Dezi C. (2024) 16 Cal.5th 1112 (Dezi C.) and
4
other dependency cases discussing ICWA, contended the evidence of its investigation
was sufficient because the department had only a “reason to believe” rather than a
“reason to know” that M.W. was an Indian child.
After reviewing the record, we requested supplemental briefing to address an issue
neither party raised: the adequacy of the ICWA investigation with respect to the
Chickasaw tribe. We did so because, as noted ante, the department initially
acknowledged sending notice to the Chickasaw tribe but omitted any mention of that
tribe from its later reports. As before, father argued in his supplemental brief that the
department failed to prove that it discharged its duty of inquiry for each of the pertinent
tribes, including the Chickasaw. In its supplemental brief, the department conceded that
“further inquiry with the Chickasaw Tribe in fact did not occur as originally documented
and remand for compliance may be warranted.” However, the department added that if a
remand was necessary, formal notice to the tribes should not be required.
As we explain below, the department’s ICWA inquiry was incomplete because it
did not contact each of the tribes in which M.W. may be a member or may be eligible for
membership. Therefore, the department did not fully discharge its duty of further inquiry
and the juvenile court’s negative ICWA finding cannot be sustained.
A. ICWA Framework and Standard of Review
Congress enacted ICWA to establish minimum standards for state courts to follow
before removing Indian children from their tribes and placing them in adoptive homes.
(Dezi C., supra, 16 Cal.5th at p. 1129; D.S., supra, 46 Cal.App.5th at p. 1048.) In turn,
California enacted legislation conforming to ICWA’s federal regulations, including
notice and inquiry requirements for dependency proceedings involving an Indian child.
(D.S., at p. 1048.) An “ ‘Indian child’ ” is defined as “ ‘any unmarried person who is
under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
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membership in an Indian tribe and is the biological child of a member of an Indian
tribe[.]’ ” (Ibid.; § 224.1, subd. (b).)
Under state law, the department and the juvenile court “have ‘an affirmative and
continuing duty’ in every dependency proceeding to determine whether ICWA applies by
inquiring whether a child is or may be an Indian child.” (Dezi C., supra, 16 Cal.5th at
pp. 1131–1132; § 224.2, subd. (a).) Corollary to that duty, the juvenile court also “has a
responsibility to ascertain that the agency has conducted an adequate investigation.” (In
re K.R. (2018) 20 Cal.App.5th 701, 709.) When a child is placed in the temporary
custody of a county welfare agency, the agency must ask “the child’s 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.” (Dezi C., at p. 1132; § 224.2, subd. (b)(2).)
A “reason to believe” a child is an Indian child arises if the department receives
during its initial investigation “information suggesting that either the parent of the child
or the child is a member or citizen, or may be eligible for membership … in an Indian
tribe.” (§ 224.2, subd. (e); Dezi C., supra, 16 Cal.5th at p. 1132.) The department must
then conduct a further inquiry by “(1) interviewing the parents and extended family
members; (2) contacting the [BIA] and State Department of Social Services; and (3)
contacting tribes the child may be affiliated with and anyone else that might have
information regarding the child’s membership or eligibility in a tribe.” (Dezi C., at
pp. 1132–1133; § 224.2, subd. (e)(2).) “At this stage, contact with a tribe ‘shall, at a
minimum, include telephone, facsimile, or electronic mail contact to each tribe’s
designated agent for receipt of [ICWA] notices,’ and ‘sharing information identified by
the tribe as necessary for the tribe to make a membership or eligibility determination, as
well as information on the current status of the child and the case.’ ” (Dezi C., at p. 1133;
§ 224.2, subd. (e)(2)(C).) “The juvenile court may find ICWA does not apply following
‘proper and adequate further inquiry and due diligence’ by [the department] because
6
‘there is no reason to know whether the child is an Indian child’ or because ‘the court
does not have sufficient evidence to determine that the child is or is not an Indian
child[.]’ [Citation.]” (In re D.F. (2020) 55 Cal.App.5th 558, 570–571 (D.F.).)
If further inquiry establishes a “reason to know” the child is an Indian child, then
the department must provide formal notice to the tribe, which is distinct from the sharing
of information mandated when the department only has a “reason to believe.” (Dezi C.,
supra, 16 Cal.5th at p. 1133; § 224.3, subds. (a), (b).) “The notice must include enough
information for the tribe to ‘conduct a meaningful review of its records to determine the
child’s eligibility for membership’ [citation], including the identifying information for the
child’s biological parents, grandparents, and great-grandparents, to the extent known
[citations].” (Dezi C., at p. 1133.) “It is this ‘notice requirement, which … enables a
tribe to determine whether the child is an Indian child and, if so, whether to intervene in
or exercise jurisdiction over the proceeding.’ ” (D.F., supra, 55 Cal.App.5th at p. 568.)
“[A] ‘reason to know’ exists under any of the following circumstances: ‘(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 [he or she] is an Indian
child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal
court[; and] [¶] (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).)” (Dezi C., supra, 16 Cal.5th at p. 1133.) “[O]nce there is reason to know a
7
child is an Indian child, the juvenile court must find ICWA applies and ‘treat the minor as
an Indian child unless and until it determines that ICWA does not apply.’ ” (Ibid.)
“We review the juvenile court’s ICWA findings for substantial evidence.” (In re
I.F. (2022) 77 Cal.App.5th 152, 162.) The juvenile court’s “determination that the
agency’s inquiry was proper, adequate, and duly diligent” is “reviewed under a hybrid
substantial evidence and abuse of discretion standard.” (In re K.H. (2022)
84 Cal.App.5th 566, 589 (K.H.).) “ ‘[W]here the facts are undisputed, we independently
determine whether ICWA’s requirements have been satisfied.’ ” (D.F., supra,
55 Cal.App.5th at p. 565.)
B. The Department’s ICWA Inquiry was Incomplete
We first address the issue raised in our request for supplemental briefing; that is,
whether the department’s further inquiry was incomplete without evidence that it
contacted the Chickasaw tribe. We hold that it was incomplete.
During the ICWA investigation, several of M.W.’s relatives disclosed to the
department the possibility of Indian ancestry, including M.W.’s mother, father, maternal
grandmother, and paternal grandfather. However, because the information from mother
and maternal grandmother was “too vague, attenuated and speculative,” only the
disclosures from father and paternal grandfather impact our analysis. (In re J.D. (2010)
189 Cal.App.4th 118, 125.) From them, the department learned that M.W. may have a
connection to three tribes—the Chippewa, Choctaw, or Chickasaw. This information was
enough to provide the department with a “reason to believe” that M.W. was an Indian
child. (In re Josiah T. (2021) 71 Cal.App.5th 388, 404 (Josiah T.) [paternal
grandmother’s representation of Cherokee ancestry created a “reason to believe” child
was an Indian child]; In re S.R. (2021) 64 Cal.App.5th 303, 315–316 [“reason to believe”
arose from grandparents’ assertion of familial association with a specific tribe]; D.F.,
supra, 55 Cal.App.5th at p. 569 [mother’s statement she “ ‘may’ ” have Indian ancestry
from an “ ‘unknown tribe name from New Mexico’ ” created a “ ‘reason to believe’ ”
8
triggering further inquiry]; In re T.G. (2020) 58 Cal.App.5th 275, 292 (T.G.) [mother’s
belief she had Cherokee ancestry on maternal side and “possible Indian ancestry” on
paternal side provided “reason to believe” for further inquiry]. ) Thus, under
section 224.2, subdivision (e), the department was obligated to conduct a further inquiry
that required it to contact any “tribes … that may reasonably be expected to have
information regarding the child’s membership, citizenship status, or eligibility,” along
with interviewing M.W.’s relatives and contacting the BIA.
The department concedes, however, that it did not contact each of the tribes
disclosed by father and paternal grandfather. As demonstrated by its reports to the
juvenile court, the department sent letters to several bands of the Chippewa and Choctaw
tribes but never contacted the Chickasaw tribe. Consequently, at the time the department
submitted its final report before the section 366.26 hearing, the ICWA investigation was
incomplete. As other courts have recognized, the department “does not discharge their
duty of further inquiry until they make a ‘meaningful effort’ … to contact … the tribes.
[Citation.]” (In re K.T. (2022) 76 Cal.App.5th 732, 744; accord In re Rylei S. (2022)
81 Cal.App.5th 309, 319–320.) “ ‘[J]ust as proper notice to Indian tribes is central to
effectuating ICWA’s purpose, an adequate investigation of a family member’s belief a
child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice
will receive it.’ [Citation.]” (K.T., at p. 744, quoting T.G., supra, 58 Cal.App.5th at
p. 289.)
Although the department does not dispute its duty to contact the Chickasaw tribe
and acknowledges that remand may be appropriate, it nonetheless suggests in its
supplemental brief that we should disregard the deficiency because father did not raise
the issue in his original appellate briefing. In support, the department relies on the
appellate principle that “[c]ontentions are waived when a party fails to support them with
reasoned argument and citations to authority.” (Moulton Niguel Water Dist. v. Colombo
(2003) 111 Cal.App.4th 1210, 1215 (Moulton Niguel).) We are not persuaded. The
9
particular waiver principle cited in Moulton Niguel applies to contentions or arguments
that are raised in a party’s appellate brief but done so “without discussion or
explanation.” (Ibid.) But here, we understand the department to claim that father did not
anywhere identify in his original briefing an issue arising from the absence of contact
with the Chickasaw tribe. Given this distinction, the department’s reliance on Moulton
Niguel is misplaced.
That said, another principle appears more fitting to these circumstances: that an
appellant forfeits or abandons contentions of error by failing to raise or address the
contentions in their briefs on appeal. (Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1177.) Even so, we have the authority, in our discretion,
“to excuse an appellant’s failure to raise a claim of error in [their] opening brief, provided
that the respondent has an adequate opportunity to brief the issue.” (Orange County
Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368, fn. 7.)
Here, we invited supplemental briefing to address the omission of the Chickasaw tribe
from the department’s list of contacted tribes and received briefs from both parties in
response. Moreover, we agree with other appellate courts that have declined to find a
waiver under comparable circumstances because ICWA’s inquiry and notice
requirements serve the interests of Indian tribes irrespective of the interests of the parents
in a dependency proceeding. (See, e.g., D.S., supra, 46 Cal.App.5th at p. 1051, fn. 11; In
re Jonathan S. (2005) 129 Cal.App.4th 334, 340; In re Suzanna L. (2002)
104 Cal.App.4th 223, 231–232.) For these reasons, we see no basis to disregard the
department’s admitted error.3
3 In its supplemental brief, the department also mentions that paternal grandfather
eventually denied any Indian ancestry during a subsequent interview. We note that this
change of position did not relieve the department of contacting the Chickasaw tribe as
part of its duty of further inquiry. (Josiah T., supra, 71 Cal.App.5th at pp. 405–406
[“mere change in reporting, without more, is not an automatic ICWA free pass; when
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In sum, the department had a “reason to believe” that M.W. was an Indian child
but did not fulfill its duty of further inquiry because it never contacted a tribe with which
“the child may be affiliated.” (Dezi C., supra, 16 Cal.5th at pp. 1132.) As a result, the
juvenile court’s implied finding that the investigation was adequate and proper was an
abuse of discretion (K.H., supra, 84 Cal.App.5th at p. 589), and its express finding that
ICWA did not apply was not supported by substantial evidence. (Josiah T., supra,
71 Cal.App.5th at p. 408 [finding that ICWA does not apply is error when the
department’s inquiry was inadequate].) We will conditionally reverse the order
terminating father’s parental rights for a limited remand to ensure compliance with
ICWA’s inquiry and notice requirements. (Dezi C., at p. 1136.)
C. The Record of the Department’s Contacts with Other Tribes was Adequate
We proceed to address father’s other argument concerning the adequacy of the
investigative record with respect to the department’s contacts with the other tribes to
provide the parties and the juvenile court direction on remand. Father claims the
evidence of the investigation was incomplete because the department did not produce to
the juvenile court any ICWA-030 forms or any of the correspondence it sent to the
Chippewa or Choctaw tribes. Father contends that without those documents, the juvenile
court could not confirm whether the department shared with the tribes the information
necessary to make an eligibility determination.
Father, however, “conflates two separate and distinct provisions of section 224.2,
namely the ‘reason to know’ provisions found in section 224.2, subdivisions (c), (d), (f),
(g), and (i) and the ‘reason to believe’ provision found in section 224.2, subdivision (e).”
(In re M.W. (2020) 49 Cal.App.5th 1034, 1047 (M.W.); Dezi C., supra, 16 Cal.5th at
there is a conflict in the evidence and no supporting information, [the department] may
not rely on the denial alone without making some effort to clarify the relative’s claim”].)
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p. 1133 [sharing of information with tribes at “reason to believe” stage is “distinct from
formal ICWA notice, which requires a ‘reason to know’ ”].) When there is a “reason to
know” that the child is an Indian child, a more formal method of notice is required
containing the biographical data specified in section 224.3, subdivision (a)(5)(C). (Dezi
C., at p. 1133.) The ICWA-030 form is designated to provide notice with this level of
detail. (See Cal. Rules of Court, rule 5.481(c) [“If it is known or there is reason to know
an Indian child is involved in a proceeding … the social worker … must send Notice of
Child Custody Proceeding for Indian Child (form ICWA-030) to … the Indian child’s
tribe”].)
But in this case, the department never had a “reason to know” that M.W. was an
Indian child because none of the statutory criteria were established. (§ 224.2, subd. (d).)
As we have explained ante, the information the department received at most raised a
“reason to believe” M.W. may be an Indian child under section 242.2, subdivision (e).
That section “does not detail what specific documentation is required when conducting
further inquiry” (In re H.M. (2025) 109 Cal.App.5th 1171, 1184.), and, unlike the notice
requirements at the “reason to know” stage, “does not require that any extensive or
particular formal documentation of ICWA inquiry be provided to the tribe.” (M.W.,
supra, 49 Cal.App.5th 1034 at p. 1046.) The department may properly document its
investigation “ ‘by way of report, declaration, or testimony included in the record.’ ”
(Ibid.) For example, in D.S., supra, 46 Cal.App.5th at p. 1054, the appellate court held
the agency sufficiently documented its further inquiry by describing its investigation in a
written report prepared before the jurisdictional hearing. Similarly, in M.W., supra,
49 Cal.App.5th at pp. 1046–1047, the agency’s written reports and the testimony of a
social worker constituted an adequate record of the agency’s further inquiry. The M.W.
court rejected the appellant’s argument that additional materials were required, such as
tribal contact information, a family tree, mail return receipts, and the tribes’ responses.
(Id. at pp. 1045–1047.)
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Much like the agencies in D.S. and M.W., the department thoroughly detailed its
investigation with respect to the Chippewa and Choctaw tribes through four written
reports that it submitted to the juvenile court. The department explained that it sent
certified letters to the BIA and 21 bands of the Chippewa and Choctaw tribes. The
department also attached to its second ICWA report the 12 letters it received in response.
Each of the responses indicated that M.W. was not a tribal member or eligible for
membership. Most of the letters also included M.W.’s name and birthdate, and some had
the names and birthdates of father, M.W.’s mother, and other relatives. These facts
undermine father’s assertion that, without reviewing the department’s inquiry letters, the
juvenile court could not confirm whether the department communicated enough
information for the tribes to determine M.W.’s eligibility. Moreover, the investigative
record compiled by the department in this case does not resemble those found insufficient
in the cases father cited in this supplemental brief, K.H., supra, 84 Cal.App.5th and In re
E.C. (2022) 85 Cal.App.5th 123 (E.C.). In K.H., the investigation was not developed
beyond questioning the child’s mother and father. (K.H., at p. 591.) And in E.C., the
record was silent and did not describe what inquiry was conducted. (E.C., at p. 134.)
These cases are plainly distinguishable and do not govern the analysis here.
Furthermore, to the extent father contends that additional biographical data should
have been provided to the tribes, such as the familial information from section 224.3,
subdivision (a)(5)(C), that would be included in an ICWA-030 form, we reiterate that
father conflates the notice requirements that apply when there is a “reason to know” a
child is an Indian child with the informal contact contemplated when there is only a
“reason to believe.” (In re Q.M. (2022) 79 Cal.App.5th 1068, 1084 [notices sent to tribes
without detailed biographical information not inadequate at “reason to believe” stage
because formal notice was not required]; see D.F., supra, 55 Cal.App.5th at p. 572
[declining to address whether ICWA notices lacked necessary information because
agency was not required to provide formal notice to tribes].)
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Thus, absent the disclosure of any new or additional information suggesting a
need for additional inquiry, we conclude on this record that nothing more was needed
from the department to properly document its investigation into whether M.W. was either
a member of or eligible for membership in the Chippewa or Choctaw tribes. Since this
case was only at the “reason to believe” stage, formal notice to those tribes was not
required.
III. DISPOSITION
The order terminating Father’s parental rights is conditionally reversed and the
matter is remanded to the juvenile court for the limited purpose of complying with the
inquiry and notice provisions of ICWA as to the Chickasaw tribe. If the juvenile court
thereafter finds the further inquiry was proper and adequate and again concludes that
ICWA does not apply, the order shall be reinstated. If, however, the juvenile court
concludes that ICWA applies, the juvenile court is ordered to conduct a new
section 366.26 hearing and proceed in accordance with ICWA.
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______________________________________
Adams, J.
WE CONCUR:
____________________________________
Greenwood, P. J.
____________________________________
Danner, J.
H054062
In re M.W.; Santa Cruz County HSD v. D.W.