Filed 8/9/22 In re L.D. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re L.D. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

J.S. et al.,

Defendants and Appellants.

 D080150

 (Super. Ct. Nos. EJ4459A-C)

APPEAL from an order of the Superior Court of San Diego County, 

Marissa A. Bejarano, Judge. Conditionally reversed and remanded with 

directions. 

Richard Pfeiffer, under appointment by the Court of Appeal, for 

Defendant and Appellant J.S., Father. 

Jacob I. Olson, under appointment by the Court of Appeal, for 

Defendant and Appellant L.S., Mother. 
2

Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff 

and Respondent. 

Defendant and appellant J.S. (Father) appeals from the juvenile court’s 

orders terminating his parental rights over his sons J.L.E.S. and J.A.E.S. 

Defendant and appellant L.S. (Mother) appeals from the juvenile court’s 

orders terminating her parental rights over J.L.E.S., J.A.E.S., and L.D.1

Father’s only contention on appeal is that substantial evidence does not 

support the juvenile court’s finding that the Indian Child Welfare Act (ICWA; 

25 U.S.C. § 1901 et seq.) did not apply to the proceedings. Mother joins in 

Father’s arguments. Plaintiff and respondent San Diego County Health and 

Human Services Agency (Agency) concedes in a letter brief that a conditional 

reversal and a limited remand is appropriate to ensure ICWA compliance. 

The parties have stipulated to the immediate issuance of remittitur. We 

accept the Agency’s concession, conditionally reverse the judgment, and 

remand for compliance with ICWA. 

FACTUAL AND PROCEDURAL BACKGROUND2

The Agency initiated these dependency proceedings under Welfare and 

Institutions Code section 300 subdivision (b)(1)3 on behalf of J.L.E.S., 

J.A.E.S., and L.D. (collectively referred to as the children) in September 2019, 

1 L.D.’s presumed father, C.D. is not a party to this appeal. 

2 In light of the limited scope of this appeal, we provide an abbreviated 

summary of the dependency proceedings focused on the facts relevant to the 

issue on appeal. 

3 All further section references are to the Welfare and Institutions Code 

unless otherwise indicated. 
3

alleging there was a substantial risk the children would suffer serious 

physical harm or illness based on Mother’s failure to provide adequate 

supervision or protection. The agency alleged Mother was fearful of Father 

because he appeared to be under the influence of drugs, but she nonetheless 

allowed him to sleep in the home with the children. J.S. took J.A.E.S., who 

was three years old at the time, from the home, stole a vehicle, and drove 

erratically with J.A.E.S. unrestrained in the stolen vehicle. Father was 

arrested and admitted methamphetamine use. The Agency further alleged 

Mother and Father have a violent and volatile history, including Father 

choking Mother in the presence of J.A.E.S. in July 2016, and Father lighting 

himself on fire in front of Mother and one of the children, then threatening to 

kill Mother and the children in October 2018. The Agency alleged Mother 

has a history of allowing Father back into the home despite the danger he 

presents to the children. Mother and Father failed to progress in services, 

and the court terminated parental rights in March 2022. 

In its September 23, 2019 detention report, the Agency reported that 

Father denied any Indian ancestry. Father also completed an ICWA-020 

Parental Notification of Indian Status form stating he had no Indian 

ancestry. 

C.D., L.D.’s presumed father, also completed an ICWA-020 form stating 

he had no Indian ancestry. However, in its detention report, the Agency 

reported that C.D. claimed Mother is “Blacktoe” and half Apache. 

The Agency also reported that Mother stated she had Cherokee 

ancestry. Mother then completed an ICWA-020 form on September 25, 2019, 

claiming Santa Ysabel and Barona ancestry. She completed a second ICWA020 form on October 29, 2019, claiming Cherokee and Santa Ysabel Indian 

ancestry. 
4

In its addendum report dated November 13, 2019, the Agency reported 

that maternal grandmother stated Mother was mistaken about her Indian 

ancestry. According to maternal grandmother, Mother’s family was not 

Santa Ysabel or Barona, and Mother may have thought they were because 

they attended the Santa Ysabel church when Mother was a child and 

maternal grandfather and maternal uncle helped to build the church. 

Maternal grandmother claimed that they may have Cherokee, Blackfeet, and 

Taino ancestry based on a DNA test that her brother (maternal granduncle)

completed. She also stated their Indian ancestry originated from Chihuahua, 

Mexico. 

The Agency spoke to maternal grandmother’s brother’s wife (maternal 

grandaunt-in-law), who stated her husband’s (maternal granduncle) DNA 

test results indicated he is 23 percent Cherokee and Taino Indian combined, 

but denied any Blackfeet ancestry. She stated Taino is a tribe originating 

from Puerto Rico, but their ancestors originate from Chihuahua, Mexico. 

In sum, the tribes that arose during the Agency’s inquiries were 

Blackfeet, Apache, Cherokee, Santa Ysabel, Barona, and Taino. There are 

three recognized Cherokee tribes: United Keetoowah Band of Cherokee 

Indians in Oklahoma (United Keetoowah Band), Eastern Band of Cherokee 

Indians (Eastern Band), and Cherokee Nation. (See Indian Entities 

Recognized by and Eligible To Receive Services From the United States 

Bureau of Indian Affairs, 86 Fed.Reg. 7554 (Jan. 29, 2021).) 

On October 24, 2019, the Agency spoke with a representative of the 

Barona tribe, who indicated neither Mother nor maternal grandfather are in 

their system. However, the representative stated the Agency must formally 

notice the Barona tribe. 
5

The Agency called the Santa Ysabel tribe on October 24, 2019 and 

October 30, 2019 with no answer. 

On October 30, 2019, the Agency spoke with someone from Indian 

Health Counsel, who stated that she spoke with representatives from both 

Barona and Santa Ysabel and that the representatives could find no 

connection with the children. 

On November 6, 2019, the Agency sent an inquiry email to the 

Blackfeet tribe. On November 8, 2019, the Blackfeet tribe stated they only 

reply to written letters sent by certified mail. The Agency mailed an ICWA 

letter by certified mail that same day. The parties do not contend, and we 

have found nothing in the record reflecting any responses from or further 

communications with the Blackfeet tribe. 

The Agency also sent inquiry emails to the three Cherokee tribes, on 

November 6, 2019. 

Cherokee Nation requested names and dates of birth for the children 

and biological parents to respond to the inquiry. The Agency sent the 

requested information via fax. That same day, November 6, 2019, Cherokee 

Nation confirmed the names do not appear on the tribal registry as enrolled 

members. 

The United Keetoowah Band requested inquiry in writing by certified 

mail. That same day, November 6, 2019, the Agency mailed an ICWA 

inquiry letter via certified mail to this tribe. The parties do not contend, and 

we have found nothing in the record reflecting any responses from or further 

communications with the United Keetoowah Band. 

On November 25, 2019, the Agency sent an inquiry letter to the 

Eastern Band by certified mail. On January 27, 2020, the Agency received 
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response letters from the Eastern Band confirming that the children were not 

registered nor eligible to register as members of that tribe. 

The Agency reported that it submitted an ICWA-030 Notice of Child 

Custody Proceeding for Indian Child form on October 9, 2019, but did not 

identify to whom it submitted the form—whether it was to tribes, or family 

members to fill out, or to one of the Agency’s ICWA specialists to process. 

The forms could not be found in the juvenile court record. 

In its February 10, 2020 addendum report, the Agency indicated it was 

still awaiting a response from the Cherokee and Blackfeet tribes. However, 

the Agency noted that maternal grandmother and maternal grandaunt-inlaw stated that the Indian ancestry originates from Chihuahua, Mexico, 

which would not be a federally recognized tribe. Additionally, if maternal 

granduncle was only 23 percent Cherokee and Taino combined, the children 

would not meet the 25 percent Cherokee certificate degree of Indian blood 

requirement. 

At the pretrial settlement conference on February 10, 2020, the Agency 

requested that the court making a finding that ICWA does not apply because 

the Agency inquired with all applicable tribes, which gave rise to no reason to 

know the children are Indian children. The juvenile court found that ICWA 

does not apply. 

At the contested section 366.26 hearing on March 10, 2022, the juvenile 

court again found that ICWA does not apply to the proceedings. The court 

terminated parental rights and this appeal followed. 

DISCUSSION

Father argues substantial evidence does not support the juvenile 

court’s finding that ICWA did not apply to the proceedings. Father contends 

the Agency’s initial inquiry in this case gave rise to a “reason to believe” the 
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children were Indian children, and the Agency failed to comply with the 

requirements under ICWA and section 224.2. The Agency concedes that the 

case should be remanded for compliance with ICWA. Accordingly, we 

conditionally reverse the judgment and remand for compliance with ICWA

and section 224.2. 

Congress enacted ICWA to address concerns regarding the separation 

of Indian children from their tribes through adoption or foster care placement 

with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under 

California law adopted pursuant to ICWA, the juvenile court and Agency 

have an “affirmative and continuing duty to inquire” whether a child “is or 

may be an Indian child.” (§ 224.2, subd. (a); see Isaiah W., at p. 9.) 

As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052

(In re D.S.), “section 224.2 creates three distinct duties regarding ICWA in 

dependency proceedings. First, from the Agency’s initial contact with a 

minor and his family, the statute imposes a duty of inquiry to ask all involved 

persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) 

Second, if that initial inquiry creates a ‘reason to believe’ the child is an 

Indian child, then the Agency ‘shall make further inquiry regarding the 

possible Indian status of the child, and shall make that inquiry as soon as 

practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry 

results in a reason to know the child is an Indian child, then the formal notice 

requirements of section 224.3 apply.” 

After a “reason to believe” that an Indian child is involved has been 

established, further inquiry regarding the possible Indian status of the child 

is required. (§ 224.2, subd. (e).) The duty of further inquiry includes (1)

interviewing the parents and extended family members; (2) contacting the 

Bureau of Indian Affairs (BIA) and State Department of Social Services for 
8

assistance in identifying the names and contact information of the tribes in 

which the child may be a member, or eligible for membership; and (3)

contacting tribes and anyone else that might have information regarding the 

child’s membership or eligibility in a tribe. (Id., subd. (e)(2).) 

“On appeal, we review the juvenile court’s ICWA findings for 

substantial evidence.” (In re 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.) 

Father first argues substantial evidence does not support the court’s 

ICWA finding because the Agency’s reports do not contain copies of 

correspondences exchanged with the tribes. The Agency concedes it should 

have filed the ICWA-030 forms and the inquiry letter it sent to the United 

Keetoowah Band. The Agency also concedes it should have sent the Barona

tribe formal ICWA notice as the Barona tribe requested. 

We conclude the Agency was not required to file its communications 

with the tribes where there was only a “reason to believe” requiring further 

inquiry, and not a “reason to know” requiring formal notice. (See § 224.2,

subd. (e)(2)(C) [when there is a “reason to believe” a child is an Indian child, 

further inquiry includes contacting tribes by “telephone, facsimile, or 

electronic mail”], italics added; compare with § 224.3, subds. (a)(1), (c) [when 

there is a “reason to know” a child is an Indian child, formal notice “shall be 

sent by registered or certified mail with return receipt requested” and “[p]roof 

of the notice, including copies of notices sent and all return receipts and 

responses received, shall be filed with the court”], italics added.) Because 

Father does not contend there was a “reason to know” any of the children are 

Indian children, the Agency was not required to file the contents of the 

Agency’s further inquiry communications with tribes. However, the Agency 
9

should have sent the Barona tribe formal notice as requested. (§ 224.2, subd.

(e)(2)(C) [when conducting further inquiry, “[c]ontact with a tribe shall 

include sharing information identified by the tribe as necessary for the tribe 

to make a membership or eligibility determination . . . .”].) 

Second, Father argues the Agency failed to satisfy its duty to interview 

all extended family members to gather information to provide to the tribes, 

but did not specify which family members the Agency failed to interview. 

The Agency concedes it should have asked maternal grandfather, L.D.’s 

paternal grandmother, and J.L.E.S.’s and J.A.E.S.’s paternal great-aunt

about potential ICWA ancestry.

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 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)

[“ ‘extended family member’ . . . defined as provided in [§] 1903” of ICWA].) 

The Agency should have made an ICWA inquiry of maternal 

grandfather, who testified in court by telephone at one point, and L.D.’s 

paternal grandmother, who the Agency spoke to on at least one occasion. It 

is unclear to whom the Agency refers when it concedes that it should have 

asked J.L.E.S.’s and J.A.E.S.’s paternal great-aunt about potential ICWA 

ancestry. Nonetheless, the Agency is not required to make an ICWA inquiry 

of that person because a great-aunt is not someone who qualifies as an 

extended family member. (See 25 U.S.C. § 1903(2).) 
10

Third, Father argues the Agency failed to contact the Taino tribe. The 

Agency argues the Taino tribe is not federally recognized. The Agency is 

correct and was therefore not required to contact the Taino tribe. (See 86 

Fed.Reg. 7554 (Jan. 29, 2021).) 

The Agency added a fourth concession on an issue not raised by Father 

or Mother. The Agency indicated that it should have asked Mother whether 

she believed she had Apache ancestry based on L.D.’s father’s statement that 

Mother is half Apache. The Agency was not statutorily required to ask 

Mother if she had Apache ancestry where the Agency asked Mother about 

potential Indian ancestry, Mother filled out an ICWA-020 form on two 

separate occasions, and Mother never claimed Apache ancestry. 

DISPOSITION

The juvenile court’s orders terminating parental rights are 

conditionally reversed. The matter is remanded to the juvenile court with 

directions to comply with the inquiry provisions of ICWA and section 224.2

(and, if applicable, the notice provisions under section 224.3). If, after 

completing its inquiry, neither the Agency nor the juvenile court has reason 

to believe or reason to know J.L.E.S., J.A.E.S., and/or L.D. are Indian 
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children, the order terminating parental rights shall be reinstated. If the 

Agency or the juvenile court has reason to believe or reason to know J.L.E.S., 

J.A.E.S., and/or L.D. are Indian children, the juvenile court shall proceed 

accordingly. Remittitur shall issue immediately. 

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

BUCHANAN, J.