Filed 7/6/26 In re R.G. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re R.G. et al., Persons Coming
Under the Juvenile Court Law.
D087480
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520962BC)
Plaintiff and Respondent,
v.
J.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Lilys D. McCoy, Judge. Conditionally reversed and remanded with
directions.
Clare M. Lemon, under appointment by the Court of Appeal, for
Defendant and Appellant.
Damon M. Brown, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Kristin M. Ojeil, Deputy County Counsel, for Plaintiff
and Respondent.
INTRODUCTION
J.G. (Mother) appeals from the juvenile court’s order terminating
parental rights over her children R.G. and O.G. (Welf. & Inst. Code,1
§ 366.26.) Mother contends, and the San Diego County Health and Human
Services Agency (Agency) concedes, that the Agency failed to comply with its
initial inquiry duties under the federal Indian Child Welfare Act (25 U.S.C.
§ 1901 et seq.) (ICWA) and related California law because there is not
substantial evidence of an adequate initial ICWA inquiry with the maternal
relatives. We accept the Agency’s concession, conditionally reverse the order
terminating Mother’s parental rights, and remand for the limited purpose of
compliance with ICWA and its related statutory provisions. (See In re
Dezi C. (2024) 16 Cal.5th 1112, 1136.) The parties have stipulated to the
immediate issuance of remittitur.
FACTUAL AND PROCEDURAL BACKGROUND
The sole issue on appeal is compliance with ICWA. The relevant
factual and procedural background is thus limited.
When R.G. was born in February 2023, he tested positive for
amphetamines and methamphetamines, and the Agency filed a petition to
detain him under section 300, subdivision (b).
Mother was living with the maternal grandparents and uncle. Nothing
in the Agency’s report indicates it spoke with the relatives with whom Mother
resided. There was an open case on the family for R.G.’s sibling in which the
court found ICWA did not apply. At the detention hearing, the court deferred
ICWA findings.
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2
Ahead of the contested jurisdiction and disposition hearing, the Agency
met with Mother and asked if anyone in the family had ever lived on a
reservation, received assistance from a tribe, or been members or enrolled
members in a tribe, and she responded, “Not that I am aware of.” She said no
one in her family spoke a Native American language or was active in tribal
activities, and that she did not have a tribal membership or enrollment
number. The Agency’s jurisdiction and disposition report listed 21 people
with the same last name as mother to whom it sent relative notification
letters. There is no indication the letters requested information about Native
American heritage.
R.G.’s father, paternal aunt, and paternal grandmother denied Native
American ancestry.
At the contested adjudication and disposition hearing for R.G. on
May 23, 2023, the court found without prejudice that ICWA did not apply.
At R.G.’s section 366.26 pretrial status conference on February 18,
2025, the court noted the Agency had no new information regarding ICWA,
and it confirmed ICWA did not apply. At the contested section 366.22 and
18-month review hearing, the court continued to find, without prejudice, that
ICWA did not apply.
In December 2023, O.G. was born and tested positive for
amphetamines, methamphetamines, and THC. The Agency filed a petition
under section 300, subdivision (b). In its report, the Agency explained that
the court in O.G.’s siblings’ cases found ICWA did not apply. It also reported
that Mother and O.G.’s maternal aunt Jessica M. denied Native American
heritage. At O.G.’s detention hearing, the court deferred ICWA findings
pending inquiries from the Agency.
3
In the jurisdictional and dispositional report for O.G., the Agency
indicated Mother had no new information regarding ICWA, and the maternal
aunt Jessica M. denied Native American heritage. Mother mentioned a half-
sister, Jennifer M., and an older brother, Jonathan G. The Agency separately
learned of Jennifer M. during the pendency of the matter. The Agency did
not report inquiring with Jennifer M. or Jonathan G. about possible Native
American ancestry.
O.G.’s paternal aunt and grandmother also denied any Native
American heritage. The paternal grandmother had not been in contact with
the paternal grandfather since O.G.’s father was three, and she did not
remember the paternal grandfather claiming to have Native American
ancestry. Father also denied any Native American heritage, though he
indicated a paternal great grandmother Mercedes O. spoke a language called,
“Narwat.”2 He did not know if it was a tribal language. He told the Agency
he had two brothers, Juan G. and Albert G.
The Agency recommended a finding without prejudice that ICWA did
not apply.
At O.G.’s contested adjudication and disposition hearing on April 5,
2024, the court found without prejudice that ICWA did not apply. The
Agency referenced this finding in R.G.’s section 366.26 report as well.
At O.G.’s contested section 366.21 and 12-month review hearing, the
court found, without prejudice, that ICWA did not apply. The Agency
2 “Narwat” appears to refer to the Nawat language, a “natively-spoken
Nahuan language in Central America.” (Matthew & Bannister, The Form of
the Content: The Digital Archive Nahuatl/Nawat in Central America (2020)
Digital Humanities Quarterly, vol. 14, No. 4, par. 9.)
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referenced the ICWA finding from the adjudication and disposition hearing in
O.G.’s section 366.26 report.
On January 30, 2026, the juvenile court terminated parental rights for
R.G. and O.G. and found ICWA did not apply.
DISCUSSION
Congress enacted ICWA to address concerns regarding the separation
of children with Native American ancestry from their tribes through adoption
or foster care placement with non-Native American families. (In re
Isaiah W. (2016) 1 Cal.5th 1, 7.) The juvenile court and the Agency have an
affirmative and continuing duty to inquire whether a dependent child “is or
may be an Indian child” in all dependency proceedings. (§ 224.2, subd. (a).)
California’s current statutory scheme contains “three distinct duties
regarding ICWA in dependency proceedings.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1052 (D.S.).) First, from the Agency’s initial contact
with minors and their family, the statute imposes a duty of inquiry to ask all
involved persons whether the child may be a Native American child. (§ 224.2,
subds. (a) & (b).) Second, if the initial inquiry creates a “reason to believe”
the children have Native American ancestry, the Agency is required to make
further inquiry in the status of the children as soon as is practicable. (D.S.,
at p. 1052, citing § 224.2, subd. (e).) “Third, if that further inquiry results in
a reason to know the child[ren are] Indian child[ren], then the formal notice
requirements of section 224.3 apply.” (D.S., at p. 1052.)
In its initial inquiry, the Agency is obligated to conduct an ICWA
inquiry of those who qualify as “ ‘extended family member[s].’ ” (See
25 U.S.C. § 1903(2); § 224.1, subd. (c)(1).) ICWA defines “ ‘extended family
member’ ” by “the law or custom of the Indian child’s tribe” or, absent such
law or custom, as “a person who has reached the age of eighteen and who is
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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.”
(25 U.S.C. § 1903(2); § 224.1, subd. (c)(1).)
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However,
where the facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied. (Ibid.)
Mother contends the Agency failed to meet its duty of initial inquiry
because it did not ask her extended family members, other than one maternal
aunt, about the minors’ potential Native American ancestry.
The Agency knew the maternal grandparents’ and maternal uncle’s
address because Mother resided with them, but it did not inquire with them
about possible Native American ancestry. The Agency also had contact with
maternal aunt Jennifer M., but it did not ask her about possible Native
American heritage. Because the Agency failed to ask the maternal aunt
Jennifer M. or grandmother about possible Native American heritage, the
Agency did not comply with ICWA. If the initial inquiry had created a reason
to believe the minors had Native American heritage, it would have triggered
additional duties. (See D.S., supra, 46 Cal.App.5th at p. 1052.) The Agency
acknowledges its error.
DISPOSITION
The court’s order terminating Mother’s parental rights is conditionally
reversed. The matter is remanded to the juvenile court for the limited
purpose of fully complying with the inquiry provisions of ICWA and related
California law.
If after inquiry, neither the Agency nor the juvenile court has reason to
believe the minors are children with Native American ancestry, the court
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shall reinstate the court order terminating Mother’s parental rights. If, after
completing the inquiry, the Agency or the juvenile court has reason to believe
or know the children have Native American ancestry, the juvenile court shall
proceed in conformity with ICWA and related law.
The remittitur shall issue immediately.
BUCHANAN, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
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