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Filed 8/3/22 In re F.V. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In re F.V. et al., Persons Coming Under the Juvenile 

Court Law.

C095017

SAN JOAQUIN COUNTY HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

C.V.,

Defendant and Appellant.

(Super. Ct. No. STK-JD-DP2021-0000070)

C.V. (mother) appeals from the juvenile court’s dispositional findings and orders. 

(Welf. & Inst. Code, § 395.)1 She contends the San Joaquin County Human Services 

Agency (Agency) and the juvenile court failed to comply with the inquiry requirements 

1

 Undesignated statutory references are to the Welfare and Institutions Code.
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of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because the Agency

did not contact extended family members to inquire about the ICWA. She further 

contends the juvenile court lacked jurisdiction to condition modification of its visitation 

order concerning the minor, F.V.,2 upon mother’s completion of substance abuse 

treatment and counseling.

We conclude that the ICWA issue is premature, and the juvenile court did not err 

in its visitation order. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because the issues on appeal are limited, we dispense with a detailed recitation of 

the underlying facts and procedure.

On February 22, 2021, the Agency filed a section 300 petition on behalf of the 

minors F.V. (born October 2011) and M.N. (born September 2015) alleging the minors

came within the provision of section 300, subdivision (b), failure to protect;

subdivision (c), serious emotional damage; and subdivision (g), no provision for support.

In the detention report, the social worker reported that there was no reason to believe F.V.

was an Indian child as defined by the ICWA because both mother and F.V.’s father, 

A.V., stated there was no Native American ancestry in their respective families. As to 

M.N., the social worker reported that M.N.’s father, J.N., reported possible Native 

American ancestry through his paternal line. The social worker reported that father J.N.

completed an ICWA-010 form, and an ICWA-030 form would be completed after the 

petition was filed.

At the February 23, 2021, detention hearing, the juvenile court found A.V. was the 

presumed father of F.V., and J.N. was the alleged father of M.N., pending paternity 

testing. The court then ordered the minors detained in protective custody. The court 

2

 The minor is referred to as both F.V. and F.F. in the record. We will use F.V. 

throughout this opinion for consistency.
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inquired and advised mother and father of F.V. about the Native American heritage 

requirements and directed them to complete the ICWA-020 forms. The court then 

directed the Agency to arrange visitation for mother and A.V. The court subsequently

found J.N. was the biological father of M.N. and directed the Agency to arrange 

visitation. At the jurisdictional hearing on March 9, 2021, the parties submitted on the 

petition, which was amended in court. The court directed the Agency to place F.V. with 

A.V. on an in-home visit. At the continued jurisdiction hearing on May 11, 2021, the 

court found the allegations of the petition true as to mother and took jurisdiction over the 

minors.

On March 10, 2021, ICWA-020 forms completed by A.V. and mother were filed 

with the juvenile court, stating that they each had no Native American ancestry. The 

Agency’s jurisdiction report again stated that J.N. told the social worker about possible 

Navajo ancestry through his paternal line. But on June 3, 2021, the Agency filed the 

ICWA-020 form completed by J.N. in which he indicated he had no Native American 

ancestry.

On July 16, 2021, the Agency filed a disposition report, reporting that there was 

no reason to know the minors were Indian children within the meaning of the ICWA,

based on the parents’ signed ICWA-020 forms. The Agency’s report did not list any 

further efforts to contact relatives about any possible Native American heritage. The 

report showed that F.V. was placed with her father, A.V., on March 9, 2021. The Agency 

noted that A.V. was the nonoffending parent and recommended dismissal of the juvenile 

court’s jurisdiction over F.V. The Agency recommended that full physical custody of the 

minor be awarded to A.V. with supervised visitation to mother with the minor and joint 

legal custody, as outlined in the attached proposed custody orders. The report showed 

that M.N. was placed with the paternal grandmother, who was willing to take legal 

guardianship, but was not willing to adopt the minor should reunification fail, and the 

Agency submitted a family finding referral for M.N.
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The disposition report showed that mother was offered a reunification case plan 

that consisted of substance abuse treatment, compliance with court orders, obtaining

stable housing, parenting education classes, and individual counseling. Mother’s 

therapist reported concerns, after the initial intake session, that mother appeared to still be 

using drugs. The therapist did not believe mother was ready to participate in therapy and 

was concerned that mother continued to maintain a relationship that included domestic 

violence. The report showed that, despite referrals to services, mother was not 

consistently engaging in those services.

At the August 24, 2021, dispositional hearing, the parties discussed mother’s 

visitation with F.V., since the Agency recommended terminating jurisdiction and issuing 

custody orders for that minor. Counsel for father A.V. requested supervised visitation 

occur once a week because the minor did not want to visit with mother and because 

mother did not engage in services. Mother opposed the weekly visitation schedule 

proposed by father A.V. and noted that she spoke with F.V. on the phone “pretty often.” 

The minor’s counsel confirmed that F.V. did not want to visit with mother. Because the 

recommendation was to dismiss F.V. from the dependency proceeding, it was suggested 

that the court allow F.V. to visit with mother during one of M.N.’s scheduled supervised 

visits. None of the parties objected to the dismissal of F.V. from the dependency 

proceeding. The court adopted the Agency’s proposed findings and orders as outlined in 

the disposition report, which included the custody orders attached to the report. The

court ordered physical and primary custody of F.V. to father A.V. and joint legal custody 

of the minor to both mother and A.V., dismissing the minor from the dependency. In 

order to facilitate supervision of mother’s visits with F.V., the court ordered that visits 

between F.V. and mother occur weekly during mother’s supervised visit with M.N. The 

order provides, “Mother’s visits will remain supervised/ or monitored until she provides 

proof of successful completion of: [a substance abuse] treatment program and 20 weeks 

of individual counseling.”
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At the September 1, 2021, placement hearing, the juvenile court was informed that 

the paternal grandmother was not cooperating with having M.N. assessed for services and 

transporting the minor to visits. The court was informed that paternal grandmother said 

that she was no longer able to provide care for the minor. After explanation of the court’s 

expectations, the court acknowledged the paternal grandmother’s misunderstanding as to 

her role in the dependency and continued M.N. in that placement. The court made no 

findings related to the ICWA.

Mother timely appealed.

DISCUSSION

I

ICWA Inquiry

Mother contends that the dispositional order must be reversed due to 

noncompliance with the inquiry and notice requirements of the ICWA despite a reason to 

believe the minor, M.N., was an Indian child based on the initial representation of the 

minor’s father, J.N., that he may have Native American ancestry. The Agency contends 

that any error in its failure to inquire among relatives about possible Native American 

ancestry was harmless because the minor was placed with the paternal grandmother. As 

we shall explain, the ICWA issue is premature and we will affirm the dispositional order.

“The ICWA protects the interests of Indian children and promotes the stability and 

security of Indian tribes by establishing minimum standards for removal of Indian 

children from their families, and by permitting tribal participation in dependency 

proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) 

A major purpose of the ICWA is to protect ‘Indian children who are members of or are 

eligible for membership in an Indian tribe.’ (25 U.S.C. § 1901(3).)” (In re A.W. (2019) 

38 Cal.App.5th 655, 662.) The ICWA defines an “ ‘Indian child’ ” as a child who “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).) The 
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juvenile court and the Agency have an affirmative and continuing duty, beginning at 

initial contact, to inquire whether a child who is subject to the proceedings is, or may be, 

an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)

Section 224.2, subdivision (e) provides that if the court or social worker has 

reason to believe that an Indian child is involved in a proceeding, the court or social 

worker shall, as soon as practicable, make further inquiry regarding the possible Indian 

status of the child. As relevant here, further inquiry includes interviewing the parents, 

Indian custodian, and extended family members to gather the information required in 

paragraph (5) of subdivision (a) of Section 224.3.3 (§ 224.2, subd. (e).)

“[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 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. (See § 224.2, subd. (c) [court is obligated to inquire at the first 

appearance whether anyone ‘knows or has reason to know that the child is an Indian 

child’]; id., subd. (d) [defining circumstances that establish a ‘reason to know’ a child is 

an Indian child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is 

an Indian child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 

1041, 1052.) “The juvenile court must determine whether proper notice was given under 

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 Section 224.3, subdivision (a)(5) includes the name, birth date, and birthplace of the 

Indian child, if known; the name of the Indian tribe; and the names and other identifying 

information of the Indian child’s biological parents, grandparents, and greatgrandparents, if known.
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ICWA and whether ICWA applies to the proceedings.” (In re E.W. (2009) 

170 Cal.App.4th 396, 403.)

Here, father J.N. initially indicated to the social worker that he may have Indian 

ancestry. Several months later, father J.N. completed an ICWA-020 form stating he had

no Native American ancestry. There is no indication in any of the Agency’s reports that 

the Agency undertook any further ICWA inquiry of known relatives. However, because 

the juvenile court made no ICWA ruling at or before the challenged dispositional hearing 

as to whether the ICWA applied to the proceedings, mother’s ICWA claim is premature. 

That is, the ICWA issues are not ripe for review. 

“ ‘Ripeness’ refers to the requirements of a current controversy.” (City of Santa

Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) An issue is not ripe for review unless

and until it is “sufficiently concrete to allow judicial resolution even in the absence of a

precise factual context.” (Pacific Legal Foundation v. California Coastal Com. (1982)

33 Cal.3d 158, 170; see id. at pp. 170-172.) Mother contends that because the juvenile 

court ordered M.N.’s removal at disposition without finding “ ‘active efforts’ ” to prevent 

removal had been made, the disposition order is necessarily premised on an implied 

finding that the ICWA did not apply. But she cites no authority to support her position. 

We decline mother’s invitation to assess the adequacy of the ICWA inquiry and noticing 

process because the minor’s dependency case is ongoing. Any perceived deficiencies 

with the ICWA inquiry and noticing may still be resolved during the normal course of the 

dependency proceedings. (See, e.g., In re M.R. (2017) 7 Cal.App.5th 886, 904 [the 

ICWA claim was premature where no final ICWA ruling made at dispositional hearing].) 

Although this issue is not yet ripe, we note that the Agency and juvenile court should 

ensure that the ICWA inquiry is properly completed and the required findings are made 

as the case advances. 
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II

Visitation Order

Mother contends the juvenile court lacked jurisdiction to issue an order dismissing 

the minor, F.V., from the dependency but requiring mother to complete a substance abuse 

treatment program and individual counseling before visitation would be unsupervised. 

Specifically, she contends “[t]he juvenile court lacked jurisdiction to condition the family 

court’s ability to modify its custody or visitation order on mother’s completion of 

services.” We disagree with mother’s characterization of the order.

In crafting an exit order at the termination of dependency proceedings, a juvenile 

court may issue custody and visitation orders (§ 362.4, subd. (a)), as well as collateral 

orders regarding such things as counseling or parenting classes that the juvenile court 

determines, in its broad discretion, would serve the child’s interest. (In re Chantal S.

(1996) 13 Cal.4th 196, 204; In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456 (Cole Y.).) 

The family court enforces such orders following the termination of juvenile court 

jurisdiction. (See § 362.4, subds. (a) & (b).) But the family court has authority under 

section 302, subdivision (d) to modify or terminate such juvenile court orders, if “the 

[family] court finds . . . there has been a significant change of circumstances since the 

juvenile court issued the order and modification of the order is in the best interests of the 

child.” (§ 302, subd. (d).)

Mother cites Cole Y. for the proposition that a juvenile court does not have 

authority to limit the family court’s ability to modify such an order, contending that the 

order in this case is comparable. But in Cole Y. the juvenile court order expressly

conditioned the family court’s ability to modify the juvenile court’s custody and 

visitation order on the parent completing counseling. (Cole Y., supra, 233 Cal.App.4th at 

p. 1451 [juvenile court order on review provided that “ ‘in order to modify the [juvenile] 

court’s orders, . . . [the] Father will have to complete . . . a full drug program with weekly 

testing, a parenting program and individual counseling’ ”].) In contrast, the custody order 
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here does not explicitly limit the family court’s modification of the order. The order 

provides, “Mother’s visits will remain supervised/ or monitored until she provides proof 

of successful completion of: [a substance abuse] treatment program and 20 weeks of 

individual counseling.” Contrary to mother’s characterization of the order, the order 

cannot be construed as placing a condition or limitation on the family court’s authority to 

modify it. Mother remains free to seek a modification of the order based on “a 

significant change of circumstances” that is in F.V.’s best interests. (§ 302, subd. (d).) 

Thus, the family court remains free to modify or terminate the exit order based on its own 

findings of changed circumstances and the child’s best interest. (See Heidi S. v. David H.

(2016) 1 Cal.App.5th 1150, 1164.) Nothing in the order expressly prohibits or limits 

these paths to modification. Accordingly, we reject mother’s contention.

DISPOSITION

The orders of the juvenile court are affirmed.

 /s/

HOCH, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

DUARTE, J.