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Filed 3/17/23 In re M.W. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 FIVE

In re M.W., A Person Coming Under 

the Juvenile Court Law.

CONTRA COSTA COUNTY 

CHILDREN & FAMILY SERVICES 

BUREAU,

Plaintiff and Respondent,

v.

S.F., et al., 

Defendants and Appellants.

 A165497

 (Contra Costa County

 Super. Ct. No. J21-00349)

In this dependency action, S.F. (Mother) and J.W. (Father) (collectively, 

Parents) appeal the juvenile court’s order terminating parental rights to their 

child M.W. (Minor), arguing failure to comply with the Indian Child Welfare 

Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We affirm.
2

FACTUAL AND PROCEDURAL BACKGROUND1

In July 2021, the Contra Costa County Children and Family Services 

Bureau (Bureau) filed a Welfare and Institutions Code section 3002 petition 

alleging Minor was at risk of harm due to Mother’s history of substance 

abuse and domestic violence, most recently involving her brother. The 

petition was sustained in August. The Bureau initially could not locate 

Father, but located him in late August. 

Parents’ parental rights to Minor’s sibling (Sibling) had been 

terminated in 2017. The Bureau had provided notice of possible Indian 

ancestry to several tribes in connection with Sibling’s proceeding but either 

received no response or were informed that Sibling was not an Indian child. 

Parents were initially unavailable to respond to ICWA inquiries in Minor’s 

case but, because of Sibling’s ICWA history, the Bureau stated there was 

reason to believe Minor is or may be an Indian child. 

In a report filed in advance of the September 23, 2021 disposition 

hearing, the Bureau stated Father reported Cherokee ancestry, said he did 

not have contact information for registered family members, and informed 

the Bureau he was “ ‘working on getting registered.’ ” At the time of the 

report, Parents were not responding to calls or mail and neither appeared at 

the disposition hearing. Minor had been placed in the home of maternal 

relatives who had adopted Sibling. The juvenile court bypassed reunification 

services for both Parents and set a section 366.26 hearing for January 20, 

2022. 

1 We omit facts not relevant to this appeal, including facts regarding 

Mother’s possible Indian ancestry.

2 All undesignated section references are to the Welfare and 

Institutions Code.
3

In an October 2021 ICWA report, the Bureau reported Father stated 

his sibling was a registered tribal member but declined to provide her name 

or contact information. Neither Mother nor Father had maintained contact 

with the Bureau or provided information about relatives with Indian 

ancestry. The Bureau had contacted tribes and agencies to provide the 

names and, if known, additional identifying information about paternal 

relatives gathered during Sibling’s proceeding, including the Cherokee 

Nation enrollment number for a paternal great-grandfather. No tribe 

informed the Bureau that Minor was an Indian child. 

On January 18, 2022, Mother filed a section 388 petition seeking 

reunification services. The juvenile court continued the section 366.26 

hearing from January 20 to February 23, and set the hearing on Mother’s 

section 388 petition for the same date. On February 1, the Bureau informed 

the court it had located Father. 

In a report filed in advance of the February 2022 hearing, the Bureau 

reported Mother recently provided contact information for Father’s twin 

sister and the Bureau had been trying to obtain information about possible 

Indian ancestry from the paternal aunt. At the beginning of the hearing, 

county counsel informed the court the Bureau had learned the day before the 

hearing that a paternal aunt was a registered Cherokee member. The 

juvenile court denied Mother’s section 388 petition and continued the section 

366.26 hearing to April 7, 2022 to allow further ICWA inquiry. 

In a report filed in advance of the April 2022 hearing, the Bureau 

reported Father said he had submitted Cherokee registration documents in 

February with the help of his sister, but he had no copies of the documents. 

The juvenile court continued the hearing to May 4. 
4

In a report filed in advance of the May 4, 2022 hearing, the Bureau 

reported providing tribes with all known relative information, including the 

names, dates of birth, and last known addresses of Father’s twin sister, 

sister, cousin, and aunt; and, for the last three of those, the date they had 

been approved as Cherokee Nation members. Father’s twin sister told the 

Bureau she had not helped Father prepare tribal registration documents. 

At the May 4, 2022 hearing, Father testified he submitted an 

application for membership with a Cherokee tribe shortly after the April 7 

hearing. Approximately one or two weeks before the current hearing, he 

received a letter from the tribe informing him he had provided the wrong

social security number and requesting a picture of his state identification

card. He sent the requested materials back four days before the hearing, 

except for his state identification card because he is still waiting for it to 

arrive by mail. His sister was supposed to have submitted his membership 

application for him, but since he did not know if she actually had done so, he 

proceeded to apply himself. Father did not have a copy of his application and 

did not bring to court the letter from the tribe. Following Father’s testimony, 

the court continued the hearing to May 25. 

In a report filed in advance of the May 25, 2022, hearing, the Bureau 

reported contacting relevant tribes on May 13 with updated information, 

including card and roll numbers for Father’s great-grandfather and greatgreat-grandfather, and Cherokee registry numbers for Father’s two sisters, 

cousin, and aunt. At the May 25 hearing, the Bureau submitted two exhibits 

into evidence: (1) a letter from the Bureau to the Cherokee Nation including a 

list of Cherokee relatives and copies of available relative membership cards, 

Father’s twin sister’s birth certificate, and Father’s birth certificate; and (2) a 
5

May 4 letter from the Cherokee Nation in response, stating Minor is not an 

Indian child.3

At the May 25, 2022 hearing, Father did not appear. When Father’s 

counsel expressed concerns with proceeding in light of Father’s pending tribal 

application, the juvenile court noted the application “is far from being 

imminently approved,” and expressed “concerns about some of [Father’s] 

testimony, his credibility, his inability to even submit an application, using 

the wrong Social Security number in this case, as he testified to, the 

inconsistent representations he made about whether his sister was the one 

that tendered the application or whether he did, the fact that this 

membership in the Cherokee tribe has been an issue ongoing since the 

sibling’s case years ago, collectively raised concerns about whether [Father] is 

going to be able to get his application across the finish line in a timely 

fashion.” The juvenile court reasoned the section 366.26 hearing was 

originally set for January, and “this exact issue was also raised in the 

sibling’s case,” such that Father “has had more than enough time to perfect 

and submit his application for membership in the Cherokee tribe.” The court 

found no reason to believe ICWA applies or to delay proceedings pending 

Father’s application process. 

The court proceeded to the section 366.26 hearing and terminated 

Parents’ parental rights to Minor. 

DISCUSSION

Both Parents argue the juvenile court’s finding that the Bureau’s ICWA 

inquiry was adequate lacks substantial evidence because the Bureau failed to 

contact additional paternal relatives to inquire about Father’s Indian 

3 The exhibits are not part of the record but their contents were 

described at the hearing.
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ancestry. In the cases relied on by Parents, the social services agency had 

either not obtained any information or had only obtained scant information

about the minor’s possible Indian ancestry. (See In re J.C. (2022) 

77 Cal.App.5th 70, 75–76 [parents denied Indian ancestry and agency failed 

to ask available extended family members about possible Indian ancestry]; In 

re Antonio R. (2022) 76 Cal.App.5th 421, 431 [same]; In re H.V. (2022) 

75 Cal.App.5th 433, 436 [same]; In re Y.W. (2021) 70 Cal.App.5th 542, 553 

[same]; In re K.R. (2018) 20 Cal.App.5th 701, 707 [agency notified tribes of 

possible Indian ancestry with name, birthdate, and birthplace of the father; 

name, birthdate, birthplace, and last known address of the paternal 

grandfather; and name of the paternal great-grandfather, but failed to 

interview extended family members to obtain additional information].) Here, 

in contrast, the Bureau obtained detailed information about Father’s Indian 

ancestry, including tribal registration numbers for close relatives. Parents 

provide no authority requiring an agency that has already obtained 

substantial detailed information about Indian ancestry from some relatives to 

seek additional information from other relatives. We are unpersuaded by 

Parents’ argument that these relatives could explain why Father is not a 

registered member when his siblings are, as it appears the reason is simply 

that Father has not yet completed the application process. Accordingly, we 

reject Parents’ challenges to the juvenile court’s finding that the Bureau’s 

ICWA inquiry was adequate.4

4 Because we do not rely on the ICWA noticing in Sibling’s case to reach 

this conclusion, we need not address Father’s argument that the prior ICWA 

noticing is not dispositive here. We reject Father’s contention that the 

Bureau failed to inform Cherokee tribes that Father’s two sisters were 

enrolled members, because the Bureau in fact provided this information to 

Cherokee tribes in mid-May. 
7

Mother argues the Bureau was required to send formal ICWA notice to 

the relevant Indian tribes because Father had “so many relatives” enrolled.

5

Formal ICWA notice is required when there is “reason to know the child is an 

Indian child.” (§ 224.2, subd. (c).) ICWA defines “ ‘Indian child’ ... 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.’ ” (In re Abbigail A. (2016) 

1 Cal.5th 83, 88 [quoting 25 U.S.C. § 1903(4)]; see also id. at p. 91 [California 

law provides that “ ‘Indian child’ and ICWA’s other critical terms ‘shall be 

defined as provided in [ICWA]’ ” (quoting § 224.1, subd. (a))].) Reason to 

know a child is an Indian child exists under specific enumerated 

circumstances, none of which are addressed by Mother or present here.

6 

Accordingly, Mother has failed to demonstrate that noticing was required.

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5 Both Parents join in each other’s arguments.

6 “There is reason to know a child involved in a proceeding is an Indian 

child under any of the following circumstances: [¶] (1) A person having an 

interest in the child, including the child, an officer of the court, a tribe, an 

Indian organization, a public or private agency, or a member of the child’s 

extended family informs the court that the child is an Indian child. [¶] (2) The 

residence or domicile of the child, the child’s parents, or Indian custodian is 

on a reservation or in an Alaska Native village. [¶] (3) Any participant in the 

proceeding, officer of the court, Indian tribe, Indian organization, or agency 

informs the court that it has discovered information indicating that the child 

is an Indian child. [¶] (4) The child who is the subject of the proceeding 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. [¶] (6) The 

court is informed that either parent or the child possess an identification card 

indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d).)

7 Mother cursorily contends formal notice was required because of her 

reported Pomo tribe ancestry. Mother informed the Bureau she had Pomo 

ancestry; however, the maternal relatives for whom Mother provided contact 
8

Finally, Father argues the juvenile court erred in terminating parental 

rights while Father’s tribal membership application was pending, relying on 

In re Abbigail A., supra, 1 Cal.5th 83. In that case, a tribe stated the minors

were eligible for enrollment but were not Indian children because neither of 

their biological parents was a member. (Id. at p. 89.) In light of this 

information, the minors’ father told the court he intended to apply for 

membership. (Ibid.) Five months after the tribe reported the minors were 

eligible, the applications of the father and minors were still pending because 

the tribe required additional documents. (Ibid.) The juvenile court treated 

the case as if ICWA applied, pursuant to a then-existing rule of court 

requiring juvenile courts to proceed as if a child is an Indian child when the 

child is eligible for tribal membership but does not meet the definition of 

Indian child. (Id. at pp. 88–90.) The Supreme Court held the rule invalid. 

(Id. at p. 96.)

With respect to the issue of pending membership applications, the 

Supreme Court reasoned as follows: “The possibility that a child who is not 

an Indian child may become one while a custody proceeding is pending is 

something the juvenile court certainly should consider. ... [C]ustody decisions 

made in violation of ICWA may be set aside on petition by the Indian child’s 

parent, Indian custodian or tribe (25 U.S.C. § 1914), thus requiring new 

jurisdictional and dispositional hearings. Accordingly, to wait a few days or 

weeks while a parent or child pursues an application for tribal membership 

might in some cases save time in the long run. ‘Although continuances are 

information denied Indian ancestry. The Bureau contacted multiple Pomo 

tribes with names and, when known, dates of birth of several maternal 

relatives; it either received no response or was informed Minor was not 

enrolled or eligible to be enrolled. No formal notice was required.
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discouraged in dependency cases’ [citation], the juvenile court has authority 

to grant brief, necessary continuances that are not inconsistent with the 

child’s best interests, while giving ‘substantial weight to a minor’s need for 

prompt resolution of his or her custody status, the need to provide children 

with stable environments, and the damage to a minor of prolonged temporary 

placements.’ ([] § 352, subd. (a); see [] §§ 352, subd. (b), 366.26, subd. (c)(3) 

[limits on continuances]; [Cal. Rules of Court,] rule 5.550(a) [continuances in 

dependency proceedings].)” (In re Abbigail A., supra, 1 Cal.5th at p. 95.)

The juvenile court did not err in declining to further continue the 

proceedings while Father’s application was pending. The section 366.26 

hearing had been continued over multiple months, the dependency 

proceeding had been pending for nearly a year, and Sibling’s dependency 

proceeding had taken place years before, during which time Father knew of 

his Cherokee ancestry. We note that, should Minor become an Indian child

while this proceeding is still pending, “[t]he tribe may intervene ‘at any point 

in the proceeding.’ ([25 U.S.C.] § 1911(c).)” (In re Abbigail A., supra,

1 Cal.5th at p. 91; see also ibid. [“ICWA authorizes collateral attacks: When a 

court removes an Indian child or terminates parental rights in violation of 

ICWA, ‘any parent or Indian custodian from whose custody such child was 

removed, and the Indian child’s tribe may petition any court of competent 

jurisdiction to invalidate such action....’ ([25 U.S.C.] § 1914.)”].)

DISPOSITION

The juvenile court’s order is affirmed.
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SIMONS, J.

We concur. 

JACKSON, P. J.

BURNS, J. 

(A165497)