Filed 9/26/22 In re J.M. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.M., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES

AGENCY,

Plaintiff and Respondent,

v.

S.S.,

Defendant and Appellant.

 D080554

 (Super. Ct. No. EJ4679)

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

Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.

Emily Uhre, under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

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

Respondent.
2

In this dependency proceeding, the juvenile court granted J.M.’s 

petition under Welfare and Institutions Code section 388 to stop visits with 

her mother, S.S. (Mother).1 Mother appeals that order, on the sole basis that 

the San Diego County Health and Human Services Agency (Agency) and the 

juvenile court did not comply with their inquiry duties under the federal 

Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and section 224.2. 

She contends the Agency failed to ask paternal grandmother, maternal 

grandparents, and maternal aunt about the family’s possible Native 

American heritage, and it failed to make sufficient efforts to locate an 

additional 25 potential relatives it had contacted by mail as part of the family 

finding efforts.2 

The Agency concedes the error, acknowledging its “initial ICWA 

inquiry was deficient and failed to comply with . . . section 224.2, subdivision 

(b).” The Agency’s concession is proper. In California dependency 

proceedings, 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).) The Agency’s initial duty of inquiry includes “asking the 

child, 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.” (§ 224.2, subd. 

(b).) ICWA defines “ ‘extended family member’ ” by “the law or custom of the 

1 All further statutory references are to the Welfare and Institutions 

Code unless otherwise indicated.

2 As Mother acknowledges, it is unclear what type of relationship, if any, 

these individuals had with J.M. It is therefore also unclear whether any of 

these persons qualify as an “extended family member” or a necessary subject 

of ICWA inquiry under section 224.2, subdivision (b).
3

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].) 

Thus, the Agency is correct that it should have contacted the paternal 

grandmother, maternal grandparents, and maternal aunt about the family’s 

possible Native American heritage. We therefore conclude substantial 

evidence does not support the juvenile court’s finding that ICWA did not 

apply. 

The Agency further agrees a conditional reversal and limited remand is 

appropriate to ensure compliance with the inquiry provisions of ICWA and 

section 224.2. Mother and the Agency have submitted a joint stipulation for 

issuance of an immediate remittitur pursuant to California Rules of Court, 

rule 8.272(c)(1). We shall conditionally reverse the order granting J.M.’s 

section 388 petition with a limited remand for the Agency and the juvenile 

court to comply with ICWA and section 224.2.3

3 Before reversing or vacating a judgment based upon a stipulation of the

parties, an appellate court must find “both of the following: [¶] (A) There is

no reasonable possibility that the interests of nonparties or the public will be

adversely affected by the reversal. [¶] (B) The reasons of the parties for

requesting reversal outweigh the erosion of public trust that may result from

the nullification of a judgment and the risk that the availability of stipulated

reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc.,

§ 128, subd. (a)(8).) The present case involves reversible error because the

parties agree, and we concur, that the Agency failed to comply with ICWA

and related California provisions. Because this case would be subject to

reversal to permit compliance with ICWA and corresponding California

statutes and rules absent the parties’ stipulation, a stipulated remand
4

DISPOSITION

The June 14, 2022 order granting J.M.’s section 388 petition is 

conditionally reversed and the matter is remanded to the juvenile court with 

directions that within 30 days of the remittitur the Agency must file a report 

demonstrating its compliance with the inquiry provisions of ICWA and 

section 224.2, subdivision (b), and, if required, conduct further inquiry under 

section 224.2, subdivision (e). Within 45 days of the remittitur, the juvenile 

court must conduct a hearing to determine if the Agency’s investigation 

satisfied its affirmative duty to investigate. The juvenile court has the 

discretion to adjust these time periods on a showing of good cause. 

If neither the Agency nor the juvenile court has reason to believe or to 

know J.M. is an Indian child, the June 14, 2022 order shall be reinstated. 

Alternatively, if after completing the inquiry, the Agency or the juvenile court 

has reason to believe or to know J.M. is an Indian child, the juvenile court 

shall proceed accordingly. The remittitur shall issue immediately. (Cal. 

Rules of Court, rule 8.272(c)(1).)

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

advances the interests identified by Code of Civil Procedure section 128,

subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)