1

Filed 10/22/21 In re B.B. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re B.B., a Person Coming Under 

the Juvenile Court Law.

HUMBOLDT COUNTY 

DEPARTMENT OF HEALTH & 

HUMAN SERVICES,

Plaintiff and Respondent,

v.

A.C.,

Defendant and Appellant.

 A162025

 (Humboldt County 

 Super. Ct. No. JV190126)

A.C. (mother) appeals from a Welfare and Institutions Code1

section 366.26 order terminating her parental rights. Mother’s sole 

contention on appeal is that the Humboldt Department of Health & Human 

Services (Department) and juvenile court failed to comply with the inquiry 

provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; 

ICWA). We conditionally reverse the order as to B.B. (minor) and remand 

the matter to allow the Department and court to take all necessary corrective 

actions. 

1 All statutory references are to the Welfare and Institutions Code.
2

BACKGROUND2

In July 2019, the Department filed a section 300 petition alleging 

minor B.B. and her half sibling G.C.3 had suffered or were at substantial risk 

of suffering serious physical harm and/or illness (§ 300, subd. (a)) and failure 

to protect (§ 300, subd. (b)) due to domestic violence between mother and 

father and to mother’s “unresolved substance abuse and mental health 

issues.” Attached to the petition was California Judicial Council form ICWA010A. A box was checked indicating an “Indian child inquiry” had not been 

made. 

In its detention report, the Department noted it was unsure whether 

ICWA applied and that parents needed to “fill out an[ ] ICWA 020 and do 

further inquiry.” The Department requested an absent parent search for 

father, as his whereabouts were unknown. At the detention hearing, the 

court ordered parents to complete an ICWA-020 form.4 

In its jurisdiction report, the Department again noted it was unsure 

whether ICWA applied. The parents had not given “any information of 

possible Native Ancestry for the children,” but the Department would do 

“further inquiry with the family.” At the jurisdiction hearing, the court made 

no ICWA finding and set the matter for a disposition hearing.

5

2 We summarize only those facts relevant to the issue on appeal.

3 G.C. has a different father than minor and is not a party to this 

appeal.

4 The court ruled that a prima facie showing had been made that 

minors were children described by section 300, and ordered reunification 

services and visitation for parents and set the matter for a jurisdiction 

hearing. 

5 The court sustained the section 300 petition, finding by a 

preponderance of the evidence that detention was proper under subdivisions 

(a) and (b). 
3

In its disposition report, the Department requested the court make a 

finding that ICWA did not apply. Mother identified as White and reported 

“she knew of no Native American ancestry.” Father identified as Black and 

had “not said that he has any Native American ancestry.” 

At the disposition hearing,6 the court elevated father to presumed 

father status. Father indicated he may have “Inuit ancestry” through his 

mother (paternal grandmother). Father stated he did not know if paternal 

grandmother was enrolled in any tribe, and that he “didn’t get to know her 

much” but provided the court with paternal grandmother’s full name. The 

court then asked, “But as far as you know, you’re not enrolled in any Tribe? 

‘No’? Shaking his head ‘no.’ All right.” The court continued the disposition 

hearing and directed father to complete an ICWA-020 form. On the ICWA020 form, father checked the box indicating he “may have Indian ancestry” 

and stated “Inuit.” The form contains no other information regarding father’s 

ancestry. 

In an addendum to its disposition report prepared for the continued 

hearing, the Department stated father reported paternal grandmother, who 

was deceased, had “Eskimo Indian ancestry, but [father] was unsure if he or 

the paternal grandmother were ever enrolled in a tribe.” The Department

was “sending out ICWA 030 [notices] to all Eskimo tribes to determine if 

father and [minor] are eligible or enrolled members of any Eskimo Indian 

tribe.” At the uncontested hearing, the court found ICWA did not apply and 

set the matter for a six-month review hearing.7 

6 We grant the Department’s request for judicial notice of the 

September 19, 2019 reporter’s transcript and the “Department’s Delivered 

Service Log.” (Evid. Code, §§ 452, 453, 459.)

7 The court also ordered no reunification services to father who had 

been elevated to “presumed father” and who was in custody. 
4

In its six-month status review report, the Department noted ICWA did 

not apply. At the six-month review hearing, the court ordered minors to 

remain dependents of the court and set the matter for a 12-month review 

hearing. It made no further ICWA determinations. 

In its 12-month status review report, the Department continued to 

state ICWA did not apply. The Department had “not had any contact from 

[father],” and he had “not engaged in any services to make changes in his 

life.” After his initial appearance, father had refused to appear at any 

subsequent hearing. At the 12-month review hearing, the court terminated

services and set a section 366.26 hearing. 

Before the section 366.26 hearing, and a year after it had found ICWA 

did not apply, the court held a hearing specifically to address the application 

of ICWA. It had come to the court’s attention that ICWA “may not have been 

adequately addressed” because “in hindsight, the Court should have required 

the information obtained from the ICWA-030 forms be included” in the 

Department’s report. The court therefore ordered the Department to prepare 

a new report that included, “in detail, their efforts in this matter.” 

In its addendum report, the Department recited that father had 

reported at the jurisdiction hearing that paternal grandmother had “native 

ancestry with the Inuit/Eskimo Tribe in Alaska” but was unable to provide 

any other information. Father had subsequently passed away in November

2020. The year prior to his death, in October 2019, the Department had sent 

ICWA-030 notices “to all Eskimo tribes to determine if father and [minor] are 

eligible or enrolled members” but received no responses. None of these 

notices were included in the record. The social worker had also contacted five 

tribes and those tribal databases had no enrolled members with paternal 
5

grandmother’s last name and no other “Inupiaq Eskimo Tribes” had 

responded. 

At the ICWA hearing, county counsel, joined by minor’s counsel,

requested that the court find ICWA did not apply. Father’s counsel had no 

information to add. He explained father had appeared at the initial hearing 

but “declined to be transported for all future appearances,” and counsel had 

had “limited contact” with father before he died. Mother’s counsel, in turn,

had no “direction” from mother as to whether she agreed or disagreed with 

the Department’s ICWA determination, and counsel submitted on the matter. 

The court found the Department “made every effort” to obtain information 

from father before he passed away and ruled ICWA did not apply. 

In the meantime, however, the Department had served ICWA-030 

notices informing 122 tribes, the Bureau of Indian Affairs, and the Secretary 

of the Interior of the section 366.26 hearing. The notices contained father’s

information and the available information of paternal grandparents. These 

notices were not mentioned in the addendum report that had been prepared 

for the ICWA hearing, nor were they filed with the court until three weeks 

after that hearing. 

In its section 366.26 report, the Department recommended termination 

of mother’s parental rights and at the section 366.26 hearing the court 

ordered adoption as the permanent plan. The court terminated mother’s 

parental rights, stated minor and G.C. were not Indian children, and set the 

matter for a postpermanency planning hearing. 

DISCUSSION

“Congress enacted ICWA in 1978 to address concerns regarding the 

separation of Indian children from their tribes through adoption or foster 

care placement, usually in non-Indian homes. [Citation.] ICWA established 
6

minimum standards for state courts to follow before removing Indian 

children from their families and placing them in foster care or adoptive 

homes. [Citations.] In 2006, California adopted various procedural and 

substantive provisions of ICWA. [Citation.] In 2016, new federal regulations 

were adopted concerning ICWA compliance. [Citation.] Following the 

enactment of the federal regulations, California made conforming 

amendments to its statutes, including portions of the Welfare and 

Institutions Code related to ICWA notice and inquiry requirements. 

[Citations.] Those changes became effective January 1, 2109 [citation], and 

govern here.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).)

“The new statute specifies the steps the Agency and the juvenile court 

are required to take in determining a child’s possible status as an Indian 

child. An ‘Indian child is defined in the same manner as under federal law, 

i.e., as ‘any unmarried person who is under age eighteen and is either (a) a 

member of an Indian tribe or (b) is eligible for membership in an Indian tribe 

and is the biological child of a member of an Indian tribe . . . .’ (25 U.S.C. 

§ 1903(4); accord, Welf. & Inst. Code, § 224.1, subd. (a) [adopting the federal 

definition].) The Agency and the juvenile court have ‘an affirmative and 

continuing duty’ in every dependency proceeding to determine whether ICWA 

applies.” (D.S., supra, 46 Cal.App.5th at p. 1048.)

“[S]ection 224.2 creates three distinct duties regarding ICWA in 

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

minor and his [or her] 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 
7

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.” (D.S., supra,

46 Cal.App.5th at p. 1052.)

“The juvenile court may . . . make a finding that ICWA does not apply 

because the Agency’s further inquiry and due diligence was ‘proper and 

adequate’ but no ‘reason to know’ whether the child is an Indian child was 

discovered. (§ 224.2, subds. (i)(2), (g).) Even if the court makes this finding, 

the Agency and the court have a continuing duty under ICWA, 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).)” (D.S., supra, 46 Cal.App.5th at p. 1050.)

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

substantial evidence. [Citations.] But where the facts are undisputed, we 

independently determine whether ICWA’s requirements have been satisfied.” 

(D.S., supra, 46 Cal.App.5th at p. 1051.)

Before we turn to mother’s contention that the Department failed to 

comply with the second duty—the duty of further inquiry under 

section 224.2, subdivision (e)—as to father’s Indian ancestry, we first address 

the Department’s contention that it had no duty to conduct a further inquiry

“based on father’s limited . . . disclosures.” 

As we have recited, father filled out an ICWA-020 form indicating he 

“may have Indian ancestry.” He then listed “Inuit.” The rest of the form is 

devoid of any information. Father subsequently reported paternal 

grandmother “has Eskimo Indian ancestry, but was unsure if he or the 

paternal grandmother were ever enrolled in a tribe.” 
8

The Department, relying on In re Austin J. (2020) 47 Cal.App.5th 870

(Austin J.), claims this was not enough information to require “further

inquiry.” Mother, relying on In re T.G. (2020) 58 Cal.App.5th 275 (T.G.),

claims it was.

In Austin J., the mother informed the juvenile court her “ ‘mother had 

Cherokee,’ and said her ‘family in Little Rock, Arkansas’ would have more 

information.” (Austin J., supra, 47 Cal.App.5th at p. 878.) When filling out 

the ICWA-020 form, the mother left blank the box indicating whether she 

was or may be eligible for membership in a tribe but stated “the child ‘may 

have Indian ancestry’; namely, Cherokee, through her grandmother, who is 

deceased.” (Ibid.) When the mother spoke with the social worker, she 

explained she “ ‘may have [a] connection to the Cherokee tribe or other tribes 

as well as having Creole heritage,’ ” but that she “ ‘did not know if she was 

registered with any tribe,’ ” and the “possible Cherokee heritage was on her 

mother’s side of the family through her maternal grandmother and maternal 

grandfather,” and that her maternal aunt “might have additional 

information.” (Ibid.) The maternal aunt, in turn, said the maternal 

grandmother “ ‘may have had Cherokee heritage,’ ” the maternal grandfather 

“ ‘possibly had heritage but that she did not know what tribe,’ ” and she was 

unaware if anyone in the family attended an Indian school, lived on a 

reservation or had been treated in an Indian clinic. (Ibid.) The juvenile court 

found ICWA did not apply. (Id. at p. 887.)

On appeal, the mother contended the Department “was required to 

provide notice to Cherokee tribes because social workers and the court had 

‘reason to know an Indian child [was] involved.’ ” (Austin J., supra, 

47 Cal.App.5th at p. 886.) The Court of Appeal disagreed. The court held the 

mother’s statements “that she ‘may have Indian ancestry’ and had been ‘told 
9

that [her] mother had Cherokee [ancestry],’ and the similar statement by 

Mother’s aunt that she ‘may have had Cherokee heritage,’ are insufficient to 

support a reason to believe the children are Indian children as defined in 

ICWA. At most, they suggest a mere possibility of Indian ancestry.” (Id. at 

p. 888.) “Even if we assume,” said the court, “that the possibility of Indian 

ancestry may suggest the possibility of Indian tribal membership, that bare 

suggestion is insufficient by itself to establish a reason to believe a child is an 

Indian child. In the recent changes to California’s ICWA-related law, the 

Legislature removed the language, ‘information suggesting the child is a 

member of a tribe or eligible for membership in a tribe,’ from the list of 

circumstances that provided one with a ‘reason to know’ a child is an Indian 

child. Significantly, it did not add that language to a definition of the newly 

created ‘reason to believe’ standard for inquiry. We will not infer its 

incorporation into that standard. [¶] In short, the fact disclosed through the 

social worker’s initial inquiry regarding the possibility that the children are 

Indian children—that Mother may have Cherokee ancestry—is insufficient 

by itself to provide a reason to believe that either the children or their 

parents are members of, or eligible for membership in, an Indian tribe. 

Therefore, the statute imposed no duty to make further inquiry.” (Id. at 

p. 889.) 

In T.G., the mother reported the maternal grandfather “had Indian 

ancestry, ‘but no connection to a tribe.” In filling out an ICWA-020 form, the 

mother indicated she “ ‘may have Indian ancestry’ ” and indicated “Cherokee 

as the name of the band or tribe.” She “additionally indicated possible Indian 

ancestry [through her] paternal side through her great-grandfather.” (T.G., 

supra, 58 Cal.App.5th at p. 283.) At the detention hearing, the maternal 

grandmother confirmed “she had American Indian ancestry on her side of the 
10

family” through the Cherokee tribe, although she did not know through 

which ancestor, she claimed Cherokee heritage. (Id. at pp. 283–284.) The 

juvenile court ordered the Los Angeles County Department of Children and 

Family Services (department) to send notices to the Department of the 

Interior, the Bureau of Indian Affairs, and the Cherokee Nation. (Id. at 

p. 285.) However, “no ICWA notice of any sort was ever sent” in the 

proceedings. (Id. at p. 286.) Later, and with no explanation, the 

department’s status review report stated ICWA does not apply. “That same 

statement was thereafter repeated in all subsequent reports, including the 

report for the section 366.26 selection and implementation hearings . . . . 

None of the court’s subsequent orders includes ICWA findings.” (Id. at 

pp. 286– 287.)

On appeal, the mother contended the juvenile court and the 

department failed to comply “with their duties of inquiry and notice” under 

ICWA. (T.G., supra, 58 Cal.App.5th at p. 280.) The Court of Appeal agreed, 

holding the department “failed to adequately investigate [the mother’s] claim 

of Indian ancestry and the juvenile court failed to ensure an appropriate 

inquiry had been conducted before concluding, if it ever actually did, ICWA 

did not apply.” (Ibid.) The court stated the mother and maternal 

grandmother’s preliminary responses “unquestionably provided reason to 

believe Indian children might be involved in these proceedings.” (Id. at 

p. 292.) And while the juvenile court “fulfilled its initial obligation to ask 

about [the mother’s] possible Indian ancestry[,] it failed . . . to ensure the 

[d]epartment complied with its duty of further inquiry based on the responses 

the court received from [the mother] and [the maternal grandmother].” (Id. 

at p. 293.)
11

In conditionally reversing the juvenile court orders, the court disagreed 

with the Austin J. court’s “narrow reading of the nature and quality of 

information sufficient to trigger the duty of further inquiry.” (T.G., supra, 

58 Cal.App.5th at p. 294.) The court stated that although “an ‘Indian child’ is 

defined in terms of tribal membership, not ancestry,” “the question of 

membership is determined by the tribes, not the courts or child protective 

agencies.” (Ibid.)

8 On remand, the court ordered the juvenile court to direct 

the department to “make a meaningful and thorough inquiry regarding [the 

minors’] possible Indian ancestry, including interviews with extended family 

members and other persons who may reasonably be expected to have 

information regarding the children’s tribal membership and contact with any 

tribes that may have such information.” (Id. at p. 297.)

Significantly, Austin J. predated an amendment to section 224.2 

defining “reason to believe.” As the appellate court in In re S.R. (2021) 

64 Cal.App.5th 303 stated, the amendment “confirms the ‘reason to believe’ 

standard requiring further inquiry should be broadly interpreted.” (Id. at 

p. 317.) 

We therefore conclude T.G., rather than Austin J., reflects the proper 

approach and further conclude the Department’s duty of further inquiry was 

triggered by father’s statements concerning his ancestry.

We therefore turn to whether the Department adequately discharged 

its duty of inquiry. 

“When [the ‘reason to believe’] threshold is reached, the requisite 

‘further inquiry’ ‘includes: (1) interviewing the parents and extended family 

8 The court also disagreed with the Austin J. court’s holding “that 

amendments enacted by Assembly Bill No. 3176 (2017–2018 Reg. Sess.) . . . 

were intended to limit the [d]epartment’s robust duty of inquiry.” (T.G., 

supra, 58 Cal.App.5th at pp. 280–281.)
12

members; (2) contacting the Bureau of Indian Affairs 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.’ ” (Austin J., supra, 47 Cal.App.5th at 

p. 883.) 

The following can be determined on the record before us: First, in its 

addendum report for the ICWA hearing, the Department stated that on 

October 1, 2019 it sent out ICWA-030 notices to “all Eskimo tribes to 

determine if the father and [minor] are eligible or enrolled members of any 

Eskimo Indian Tribe” and it received no responses. Second, the social worker 

contacted five tribes, and none had “enrolled members” with paternal 

grandmother’s name. Third, a week before filing the addendum report, the 

Department sent ICWA-030 notices to 122 Native Alaskan tribes, as well as 

to the Bureau of Indian Affairs Pacific Region Regional Office and the 

Secretary of the Interior. However, the Department did not discuss these 

notices in its addendum report. Nor did it file these notices until 

December 29, which while prior to the January 27, 2021 section 366.26 

hearing, was three weeks after the December 8, 2020 ICWA hearing. 

Therefore, no information about the December 2020 ICWA-030 notices was 

before the court when it made its ICWA determination, although the notices 

were in the file and available to the court at the section 366.26 hearing. 

On appeal, mother contends these efforts did not satisfy the 

Department’s burden under section 224.2, subdivision (e). 

First, she asserts that since the October 2019 notices were never filed 

with the juvenile court, the Department “never provided the juvenile court 

with the information it shared with the tribes.” Initially, we observe “there is 

no express directive to the social services agency to provide a record of the 
13

efforts it undertook to comply with ICWA, either in the applicable statutes or 

rules of court,” however, “a social services agency has the obligation to make 

a meaningful effort” to fulfill its duty of further inquiry. (In re K.R. (2018)

20 Cal.App.5th 701, 709.) With that being said, while it is unclear what 

information was conveyed to the tribes in the initial notices, it is clear that 

the social worker gave the five tribes she contacted by telephone paternal 

grandmother’s name and no one by that name was enrolled in those tribes. 

Further, it is clear from the record what information was contained in the 

subsequent December 2020 notices. Those notices contained father’s

information, including his dates of birth and death and known addresses, 

minor’s information, and paternal grandparents’ information, including 

grandmother’s date of birth, and last address. 

Mother takes no issue with the accuracy of the information contained 

in the December 2020 notices but rather complains they were “never 

considered by the juvenile court or discussed at the section 366.26 hearing.” 

She further complains that even though the social worker personally 

contacted five recognized tribes in October 2019, that left 224 of the 229 

federally recognized Alaskan tribes unnoticed,

9 and even though the 

Department in December 2020 sent notices to 122 of these tribes, some were 

duplicate notices and 73 had incorrect addresses because of address changes 

implemented in 2020. In short, mother maintains all 229 federally

recognized tribes in Alaska should have been contacted. 

9 We take judicial notice of the relevant pages of the Federal Register, 

Notices, 85 Federal Register 24005 et seq. (Apr. 30, 2020). (Evid. Code, 

§§ 452, 459.) There are 229 federally recognized Alaskan tribes (or native 

villages). (Notices, 85 Fed.Reg. 24005–24013 (Apr. 30, 2020); 

<www.bia.gov/regional-offices/alaska/tribes-served> [as of Oct. 22, 2021].) 
14

Although father identified Eskimo or Inuit heritage through paternal 

grandmother, he had no information on any specific tribe. There is, however,

no federally recognized “Inuit” or “Eskimo” tribe. Rather, the term “Eskimo,” 

as it pertains to Alaskan indigenous or aboriginal peoples has been replaced 

by the term “Inuit.” The term “Inuit” is a collective term (the plural of Inuk) 

for a group of “culturally similar indigenous peoples inhabiting the Artic 

regions of Alaska, Greenland, Canada, and Siberia.” 

(<www.newworldencyclopedia.org/entry/Inuit> [as of Oct. 22, 2021].) The 

Alaskan Inuit comprises, among others, the Alutiiq, Yup’ik (or Yupiat), and 

Inupiat tribes. (Degnan, Education: A Lifeline for the Inuit in Transition 

(1997) 10 St. Thomas L.Rev. 109.) 

The Department maintains that through its further inquiry efforts it 

obtained “names, birthdates, and dates of death for the paternal 

grandparents—information that was . . . not provided to the Department 

from either mother or father” and also “narrow[ed] father’s Inuit ancestry to 

the Inupiaq and Yupik Tribes.” In light of this information, the Department 

sent the December 2020 ICWA-030 notices to the “122 Inupiaq and/or Yupiat 

Tribes and not all 229 federally-recognized tribes in Alaska.” 

While it appears imminently reasonable for the Department to have 

narrowed the list of tribes that should have been noticed, that winnowing 

process is not included in the record on appeal. The Department cites to its 

addendum report, which does not state that the department “narrow[ed]” 

father’s ancestry to certain tribes. Nor does it explain how and why the 

Department did so. Indeed, the report does not even mention that the 

Department noticed “Inupiaq and/or Yupiat Tribes,” let alone discuss how the 

Department narrowed its focus to only those tribes. “In the absence of an 

appellate record affirmatively showing the court’s and the agency’s efforts to 
15

comply with ICWA’s inquiry and notice requirements, we will not, as a 

general rule, conclude that substantial evidence supports the court’s finding 

that proper and adequate ICWA notices were given or that ICWA did not 

apply.” (In re N.G. (2018) 27 Cal.App.5th 474, 484.) 

The Department asserts it was “not required to definitively ascertain or 

refute father’s claim of Inuit ancestry” and that requiring the Department to 

“contact the [Bureau of Indian Affairs], the State Department of Social 

Services, and all 229 federally recognized tribes in Alaska—where the child’s 

deceased father is not an enrolled member of any identifiable tribe and where 

the father has provided only vague information regarding his Inuit 

ancestry—is not supported by existing case law defining the ICWA inquiry 

duties of child protection agencies.” (Fn. omitted.) 

While it is true the Department is not required to “ ‘cast about’ for 

investigative leads” (In re A.M. (2020) 47 Cal.App.5th 303, 323), statutory 

and case law require that an agency contact the Bureau of Indian Affairs and 

the State Department of Social Services when there is reason to believe such 

ancestry. (§ 224.2, subd. (e)(2); D.S., supra, 46 Cal.App.5th at p. 1049 

[“required further inquiry includes . . . contacting the Bureau of Indian 

Affairs and State Department of Social Services” (fn. omitted)].) The 

requirement that the agency contact the Bureau of Indian Affairs and the 

State Department of Social Services is “for assistance in identifying the 

names and contact information of the tribes in which the child may be a 

member, or eligible for membership in, and contacting the tribes and any 

other person that may reasonably be expected to have information regarding 

the child’s membership status or eligibility.” (§ 224.2, subd. (e)(2)(B).) 

Therefore, as it claims to have concluded, the Department may not need to 

contact all 229 federally recognized Alaskan tribes. (See In re M.W. (2020) 
16

49 Cal.App.5th 1034, 1045 [“With that limited information . . . the 

Department contacted the [California Department of Social Services] and the 

[Bureau of Indian Affairs] to obtain assistance in identifying the designated 

tribal agents for all federally recognized Navajo, Apache, and Cherokee 

tribes.”].) Further, although the Department sent an ICWA-030 notice to the 

Bureau of Indian Affairs, it sent that notice to the Pacific Region Regional 

Office (which consists of California tribes) and not the Alaska Region 

Regional Office (which consists of Alaskan native villages and tribes). (See 

<www.bia.gov/regional-offices> [as of Oct. 22, 2021].) 

The Department also asserts father “was not an enrolled member of 

any tribe and [minor] does not meet the definition of an Indian child under 

ICWA.” Although the court minutes indicate father stated he was “not 

enrolled in any tribe,” the transcript of the hearing indicates father was 

unsure whether he was enrolled in a tribe. He shook his head, indicating 

“No,” when asked, “as far as you know, you’re not enrolled in any Tribe?” 

This response does not mean that father was not enrolled, rather it merely

reflects ignorance on the matter. Additionally, the Department’s October 

2019 report states father was “unsure if he or the paternal grandmother were 

ever enrolled in a tribe.” In any event, while “an ‘Indian child’ is defined in 

terms of tribal membership, not ancestry,” “the question of membership is

determined by the tribes, not the courts or child protective agencies. (See 

Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65–66, fn. 21 [Indian 

tribe is final arbiter of its membership rights]; § 224.2, subd. (h) [‘A 

determination by an Indian tribe that a child is or is not a member of, or 

eligible for membership in, that tribe . . . shall be conclusive. Information 

that the child is not enrolled, or is not eligible for enrollment in, the tribe is 

not determinative of the child’s membership status unless the tribe also 
17

confirms in writing that enrollment is a prerequisite for membership under 

tribal law or custom’].)” (T.G., supra, 58 Cal.App.5th at p. 294.)

Finally, we cannot say any error was harmless as the Department 

urges. The Department asserts mother “cannot demonstrate that there are 

any viable leads available to the Department or the juvenile court that would 

result in a ‘reason to know’ that [minor] is an Indian child for noticing 

purposes, or any evidence that could actually result in a credible 

determination that [minor] is an Indian child.” However, we cannot say that 

the assistance provided by the Bureau of Indian Affairs or State Department 

of Social Services would not have pointed to more accurate tribal information. 

Further, the Department does not refute mother’s claim that 73 of the 122 

ICWA-030 notices were sent to incorrect addresses. Even assuming the 

Department correctly identified the 122 tribes entitled to notice, more than 

half of these notices may never have arrived at their intended destination, 

and there are no return receipts or responses in the record to confirm the 

tribes received any of the notices. “Additional investigation may not develop 

further information establishing the need for ICWA notice, but it is essential 

to the enforcement of the court’s and child protective agency’s ‘affirmative 

and continuing duty to inquire’ to construe broadly the duty to make further 

inquiry.” (T.G., supra, 58 Cal.App.5th at p. 295.)10

10 The Department also contends the doctrine of invited error should 

apply due to mother’s “decision to disengage from the dependency, refusal to 

participate or attend hearings, and failure to timely notify the Department of 

any issues she may have had with the sufficiency of inquiry into father’s 

alleged Inuit ancestry effectively amounts to litigation gamesmanship that 

should not be rewarded by this court, especially because it unnecessarily 

results in [minor’s] prolonged uncertainty in a dependency limbo.” While 

certainly frustrating, mother’s refusal to participate in the proceedings 

cannot relieve the Department of its duty to comply with ICWA or a juvenile 

court’s duty to ensure such compliance. (See In re B.R. (2009) 
18

DISPOSITION

The section 366.26 order as to B.B. is conditionally reversed. The 

matter is remanded to the juvenile court for full compliance with the inquiry 

and notice provisions of ICWA and related California law and for further 

proceedings not inconsistent with this opinion. 

176 Cal.App.4th 773, 779 [“ ‘it would be contrary to the terms of the [ICWA] 

to conclude . . . that parental inaction could excuse the failure of the juvenile 

court [and the Department] to ensure’ ” compliance with ICWA].)
19

BANKE, J.

WE CONCUR:

HUMES, P. J.

SANCHEZ, J.

A162025

In re B.B.