Filed 9/23/26 In re C.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re C.M., a Person Coming Under the Juvenile
Court Law.
STANISLAUS COUNTY COMMUNITY F090898
SERVICES AGENCY,
(Super. Ct. No. JVDP-24-000193)
Plaintiff and Respondent,
v.
OPINION
J.G.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Annette
Rees, Judge.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas Boze, County Counsel, and Jonathan Lee, Deputy County Counsel;
Gordon-Creed, Kelley, Holl & Sugerman, Jeremy Sugerman and Ella Wesly for Plaintiff
and Respondent.
-ooOoo-
Jessica G. (mother) appeals from the juvenile court’s order terminating her
reunification services for the child C.M. (child). Mother claims the Stanislaus County
Community Services Agency (agency) failed to comply with the duty to inquire under the
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA)1 and its state
counterpart, Welfare and Institutions Code section 224 et seq. (Cal-ICWA).2 Agency
contends there was no ICWA finding to challenge from the appealed from orders, and it
asserts that any claim of ICWA error is not timely. We vacate the juvenile court’s
finding that ICWA does not apply and remand for agency and the juvenile court to
comply with the inquiry provisions of ICWA and California law.
FACTUAL AND PROCEDURAL BACKGROUND3
In October 2024, agency filed a petition alleging child was described by
section 300, subdivisions (b)(1) and (g). The allegations involved sexual abuse of child’s
sibling, I.V., by his father, C.R. (father). Mother was arrested for charges of child
endangerment related to her violation of a protective order that prevented father from
being near child and I.V. The Indian child inquiry attachment to the petition (Judicial
Council Forms, form ICWA-010(A))4 indicated both parents were questioned about
potential Indian ancestry, and they provided no reason to believe child was or may be an
Indian child.
Agency’s detention report indicated there was no reason to believe child was an
Indian child. Both parents denied having Indian ancestry when asked by the investigating
1 “[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 Further statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
3 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts to
those bearing on that issue.
4 Further references to forms are to Judicial Council forms unless otherwise indicated.
2.
social worker on October 15, 2024. A database search of extended family members listed
a maternal aunt named Erika. A potential family member was identified in Texas, but it
was not clear how they were related to the family.
Mother identified child’s paternal uncle, Rodrigo, as a potential placement option.
She did not want child placed with Erika due to conflict in their relationship. The parents
did not provide any information for additional relatives. A social worker contacted
Rodrigo by telephone to inquire about placement consideration, but he was unable to take
placement of child and I.V. Agency’s detention report does not document any inquiry of
Rodrigo or Erika regarding potential Indian ancestry of child.
At the detention hearing held on October 18, 2024, mother and father were present
and appointed counsel. The juvenile court found there was no reason to know ICWA
applies, and agency was to continue its inquiry pursuant to section 224.2, subdivision (e).
Child was detained from mother and father’s custody, and a combined jurisdiction and
disposition hearing was set for November 15, 2024. An assessment of maternal aunt
Erika was to be completed by agency.
Agency’s jurisdiction and disposition report recommended that the allegations in
the petition be found true and family reunification services be provided to mother. The
ICWA status section of the report indicated agency had completed its inquiry and there
was no reason to know child was an Indian child. Both parents had completed parental
notification of Indian status forms (form ICWA-020), which provided no reason to
believe child was an Indian child. Agency requested the juvenile court find that ICWA
was not applicable.
Mother’s social history questionnaire provided information about her upbringing
in Mexico. Her parents were deceased, and she had two brothers and two sisters. Mother
had contact with her siblings “whenever possible.” Father did not complete the social
history questionnaire that was requested by agency.
3.
The report detailed a social worker’s attempts to contact relatives about placement
shortly after child’s removal. A social worker spoke to father’s wife, Y.M., who had an
older daughter with father. Both Y.M. and father’s cousin, C.G., expressed interest in
being assessed for placement. The maternal aunt, Erika, decided not to be assessed for
placement. Mother’s husband, Miguel S., stated mother left him and their two sons in
Mexico, and he did not want to be involved in the proceedings.
Agency’s ICWA compliance report, dated November 13, 2024, provided a chart of
all inquiries made with child’s extended family members. On October 23, 2024, letters
were sent to the relatives identified by the Youth Connections Database to inquire about
relative placement consideration and possible Indian ancestry. The letters advised the
relatives to contact agency immediately if the relative was aware of any family members
with potential Indian ancestry.
Agency’s chart of inquiries for maternal family members detailed a denial of
Indian ancestry by Erika. Agency attempted to contact paternal uncle, Rodrigo, and three
adult cousins, but the efforts to reach them by phone were unsuccessful. Miguel S., who
was initially identified as child’s presumed father due to his marriage with mother, denied
having Indian ancestry in his family.
On November 22, 2024, agency’s request to provide visitation between child,
stepmother Y.M., and half sister A.M. was granted.
At the continued jurisdiction and disposition hearing held on December 17, 2024,
the juvenile court sustained the allegations of the petition and ordered mother and father
to participate in family reunification services. The juvenile court also found ICWA was
not applicable. A six-month review hearing was set for June 3, 2025.
Agency’s report for the six-month review hearing, dated May 21, 2025,
recommended that mother and father’s reunification services be continued. At the six-
month review hearing, the juvenile court adopted agency’s recommendation, and it set a
12-month review hearing for December 3, 2025.
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On August 21, 2025, agency filed a section 388 petition requesting the juvenile
court terminate mother and father’s reunification services for child. Agency filed an
interim review report on September 4, 2025, which included updated information on
parents’ progress in services. The ICWA status section of the report included no
additional information on agency’s efforts to inquire into any Indian ancestry.
A hearing on the section 388 petition was held on October 29, 2025. Mother and
father were present for the section 388 hearing. After hearing testimony from the
supervising social worker and argument from counsel, the juvenile court partially granted
agency’s section 388 petition to terminate mother’s family reunification services.
However, the juvenile court denied agency’s request to terminate father’s family
reunification services. The 12-month review hearing remained set for December 3, 2025.
DISCUSSION
Mother contends there were extended family members, including child’s
stepmother, agency could have interviewed regarding child’s Indian ancestry but did not.
Therefore, she argues, agency failed to fulfill its duty of further inquiry under ICWA and
the juvenile court erred in finding ICWA did not apply.
I. Applicable Law
ICWA reflects a congressional determination to protect Indian children and to
promote the stability and security of Indian tribes and families by establishing minimum
federal standards that a state court, except in emergencies, must follow before removing
an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1
Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s
tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to
invalidate any foster care placement of an Indian child made in violation of ICWA (25
U.S.C. § 1914; see Welf. & Inst. Code, § 224, subd. (e)). An “‘Indian child’” is defined
in ICWA as an unmarried individual under 18 years of age who is either (1) a member of
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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 tribe.
(25 U.S.C. § 1903(4) & (8); see Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal
definitions].)
Cal-ICWA provides that “courts and child welfare agencies are charged with ‘an
affirmative and continuing duty to inquire whether a child … is or may be an Indian
child’ in dependency cases.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125 (Dezi C.),
quoting § 224.2, subd. (a); accord, Cal. Rules of Court, rule 5.481(a).)5 The continuing
duty to inquire whether a child is or may be an Indian child “can be divided into three
phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide
formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The initial duty to inquire arises at the referral stage when the reporting party is
asked whether it has “any information that the child may be an Indian child .…”
(§ 224.2, subd. (b)(1).) Once a child is received into temporary custody, the initial duty
to inquire includes asking the child, parents, legal guardian, extended family members,
and others who have an interest in the child whether the child is, or may be, an Indian
child. (Id., subd. (b)(2), § 306, subd. (b).) The juvenile court has a duty at the first
appearance of each parent to ask whether they “know or have reason to know that the
child is an Indian child .…” (§ 224.2, subd. (c).) The court must also require each parent
to complete form ICWA-020. (Rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the agency or the juvenile court has
“reason to believe” the proceedings involve an Indian child, but “does not have sufficient
information to determine that there is reason to know that the child is an Indian child .…”
(§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists
when the juvenile court or agency “has information suggesting that either the parent of
5 All further references to rules are to the California Rules of Court.
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the child or the child is a member or citizen, or may be eligible for membership or
citizenship, in an Indian tribe.” (Id., subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the
agency “shall make further inquiry regarding the possible Indian status of the child, and
shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).) Further inquiry
includes, but is not limited to, “[i]nterviewing the parents, Indian custodian, and extended
family members,” and contacting the Bureau of Indian Affairs, the State Department of
Social Services, and the tribes and any other person who may have information. (Id.,
subd. (e)(2)(A)–(C).)
The final duty component arises when the juvenile court or the agency has
“‘reason to know’” the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at
p. 567.) A “reason to know” exists if one of the following circumstances is present:
“(1) A person having an interest in the child … informs the court that the child is an
Indian child[;] [¶] (2) The residence … of the child [or] the child’s parents … is on a
reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding …
informs the court that it has discovered information indicating that the child is an Indian
child[;] [¶] (4) The child … 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[; or] [¶] (6) The court is informed that either parent or the child possess[es] an
identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2,
subd. (d)(1)–(6).)
II. Standard of Review
We review the juvenile court’s finding that there is no reason to know whether a
child is an Indian child under a substantial evidence standard, 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; In re Ezequiel G. (2022)
81 Cal.App.5th 984, 1004–1005.) An inadequate inquiry requires conditional reversal of
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the juvenile court’s order terminating parental rights with directions to the child welfare
department to conduct an adequate inquiry, supported by record documentation.
(Dezi C., supra, 16 Cal.5th at p. 1136.)
III. Analysis
A. Appealability
As a threshold matter, we address the appealability of the juvenile court’s finding
that ICWA was not applicable. Agency contends mother cannot raise any issues with
ICWA compliance because there was no ICWA finding made at the hearing on the
section 388 petition. It also argues that any challenges to a previous ICWA finding at
disposition or anticipated future ICWA finding is untimely.
The juvenile court may make a finding that ICWA does not apply to the
proceedings if it finds an agency’s inquiry and due diligence were “proper and adequate”
and the resulting record provided no reason to know the child is an Indian child.
(§ 224.2, subd. (i)(2); accord, Dezi C., supra, 16 Cal.5th at p. 1134.) But such a finding
does not end the continuing duty of inquiry, and the court “shall reverse its determination
if it subsequently receives information providing reason to believe that the child is an
Indian child and order the social worker or probation officer to conduct further
inquiry .…” (§ 224.2, subd. (i)(2); accord, Dezi C., supra, at p. 1134.)
We disagree with agency’s contention that mother must wait to appeal a future
ICWA finding. Dezi C. makes clear that the “‘“‘distinct’”’” interest of tribes is best
preserved “at the initial inquiry stage of proceedings” because, “‘Although the duty of
inquiry is a continuing one [citation], as we have seen in countless cases, … if the inquiry
is inadequate at the outset, the likelihood that the opportunity to gather relevant
information will present itself later in the proceeding declines precipitously.’” (Dezi C.,
supra, 16 Cal.5th at pp. 1138, 1139, 1140.)
The court further explained, “[T]he 2016 implementing regulations of ICWA, …
promote ‘compliance with ICWA from the earliest stages of a child-welfare proceeding.’
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[Citation.] The regulations emphasize ‘[i]t is … critically important that there be an
inquiry into that threshold issue [of whether a child is an Indian child] as soon as
possible. If this inquiry is not timely, a child-custody proceeding may not comply with
ICWA and thus may deny [ICWA] protections to Indian children and their families.’”
(Dezi C., supra, 16 Cal.5th at p. 1140.) The court’s discussion suggests that the
applicability of ICWA is best determined prior to the section 366.26 hearing. The court’s
underlying concern is evidenced by agency’s initial failure to question Rodrigo about
Indian ancestry when he was asked about placement at the initial stages of the
proceedings. By the time agency attempted to comply with its inquiry duty later in the
proceedings, Rodrigo could not be reached.
Agency’s reliance on In re Holly B. (2009) 172 Cal.App.4th 1261 (Holly B.) and
In re S.H. (2022) 82 Cal.App.5th 166 (S.H.) is misplaced. S.H. presented a case in a
different procedural posture than this one. There, the mother “appeal[ed] from a juvenile
court dispositional order adjudging her young daughter, S.H., a dependent minor and
placing her in out-of-home care with one of [the] Mother’s relatives.” (Id. at p. 170.)
Like here, the mother’s “only claim” on appeal was “the Agency conducted an
inadequate investigation into the minor’s possible Native American ancestry.” (Id. at
p. 173.) The appellate court saw “no reason to set aside the jurisdiction/disposition
order—even conditionally” because “both the Agency and the juvenile court [still had] an
adequate opportunity to fulfill [their] statutory duties.” (Id. at pp. 176, 179.) Further,
because the agency acknowledged its error, the appellate court reasoned, “Where there is
such an acknowledgement, we see no reason to set aside the jurisdiction/disposition
order—even conditionally.” (Id. at p. 176.) Unlike S.H., here agency advances
procedural arguments instead of acknowledging error, and mother is on the eve of the
permanency planning stages of the proceedings as agency had been seeking to terminate
father’s family reunification services as well. We are not persuaded that “adequate
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opportunity” (id. at p. 176) exists for the court and agency to satisfy their obligations in
the ordinary course of the proceedings.
Moreover, S.H. and Holly B. were decided prior to Dezi C. and, therefore, lacked
the benefit of the Supreme Court’s discussion regarding ICWA and Cal-ICWA’s design
to protect third party rights before proceedings advance too far. (See Dezi C., supra, 16
Cal.5th at pp. 1138–1140.) As S.H. acknowledged, “A more difficult question would be
presented [had the appeal come] from an order terminating parental rights” (S.H., supra,
82 Cal.App.5th at p. 178) because “a hearing to consider the termination of parental
rights is likely the last practical opportunity for any relevant Indian tribe to intervene in a
proceeding” (id. at pp. 178–179). In the present case, the phase of the proceedings are
closer to the termination of parental rights (the posture in Dezi C.) than the dispositional/
jurisdictional phase (the posture in S.H.).
In sum, a parent can raise the issue of ICWA compliance at any stage of the
proceedings. (In re Isaiah W., supra, 1 Cal.5th at pp. 10, 14 [parents may challenge
ICWA’s inapplicability from a subsequent order even if they did not raise such challenge
in an appeal from the initial order].) As the dependency remains open, agency remains
under a statutory duty to interview extended family members. (In re Benjamin M., supra,
70 Cal.App.5th at p. 744 [the child services agencies should interview extended family
members whose information is “readily obtainable”].) The order terminating
reunification services included an implied finding that agency’s ongoing inquiry was
adequate, which the parents can challenge in this appeal.
B. Adequacy of Inquiry
Pursuant to its duty under section 224.2, agency asked each parent whether they
had any Indian heritage. Both parents denied having any Indian ancestry. Agency had
direct contact with child’s maternal aunt, stepfather, and stepmother during the
proceedings. Child’s maternal aunt and stepfather both denied having any Indian
ancestry when questioned by agency. Child’s stepmother, Y.M., expressed interest in
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applying for placement of child, and the juvenile court authorized visitation between
child and Y.M. However, the record does not reflect that an inquiry was made of Y.M.
regarding any possible Indian ancestry for child.
The duty of inquiry did not end with asking parents and two maternal relatives.
Agency was also required under section 224.2, subdivision (b)(1), to ask available
paternal relatives. Extended family members include adults who are child’s stepparents,
grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and
first or second cousins. (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).)
There was at least one extended family member, child’s stepmother, who was in contact
with agency during the proceedings. Agency either failed to ask stepmother about Indian
ancestry or did not document it. Under the circumstances, we conclude agency did not
fulfill its statutory duty of inquiry. (§ 224.2, subd. (b).)
Because the juvenile court and agency have an affirmative and continuing duty to
inquire into child’s Indian status, and the juvenile court retains the power to reverse a
prior finding that ICWA does not apply, we vacate the court’s ICWA finding. To affirm
the orders unequivocally leaves intact an implicit judicial finding of ICWA compliance
that is not supported by substantial evidence. While agency must continue its
investigation and the juvenile court may make a different finding in the future, here the
previous inquiries by the court and agency separately fell short. Under the
circumstances, we conclude there is no reason to let the court’s ICWA finding stand.
C. Appropriate Remedy for Inadequate Inquiry
Mother asserts that a conditional reversal of the order terminating family
reunification services is required because agency is under a continuing duty of inquiry.
When parental rights have been terminated, and an ICWA violation is the sole reason for
reversal, the appropriate remedy is conditional reversal of the order terminating parental
rights. (Dezi C., supra, 16 Cal.5th at pp. 1125, 1137, 1152.) Here, because parental
rights have not been terminated and the ICWA inquiry is ongoing, reversal of the court’s
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other findings and orders at the section 388 hearing is not warranted. (In re Dominick D.
(2022) 82 Cal.App.5th 560, 563–564, 567–568.) We therefore decline to implement
mother’s requested remedy of conditional reversal of all the juvenile court’s findings and
orders made at the section 388 hearing.
DISPOSITION
The juvenile court’s order terminating mother’s reunification services are
conditionally affirmed. The juvenile court’s December 17, 2024 finding that ICWA does
not apply is vacated. We remand for agency and the juvenile court to comply with the
inquiry provisions of ICWA and California law. If the court finds child is an Indian
child, it shall conduct new proceedings in compliance with ICWA and related California
law. If not, the court’s original finding will remain in effect.
MEEHAN, Acting P. J.
WE CONCUR:
HARRELL, J.
GUERRA, J.
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