Filed 9/16/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re J.K.,

A Person Coming Under The 

Juvenile Court Law.

______________________________

SANTA BARBARA COUNTY 

DEPARTMENT OF SOCIAL 

SERVICES,

 Plaintiff and Respondent,

v.

S.K.,

 Defendant and Appellant.

2d Juv. No. B319316

(Super. Ct. No. 21JV00074)

(Santa Barbara County)

This is yet another in a series of conflicting dependency 

appeals following a termination of parental rights in which the 

juvenile court and county welfare department failed to satisfy 

their expanded duties of initial inquiry under the Indian Child 

Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.) and related 

California law (Welf. & Inst. Code, § 224.2).1 S.K. (mother), who 

1 All undesignated references are to the Welfare and 

Institutions Code.
2

appeals the order terminating parental rights to her minor child 

J.K. with a permanent plan of adoption (§ 366.26), contends the 

juvenile court erred in finding ICWA did not apply because Santa 

Barbara County Child Welfare Services (CWS) and the juvenile 

court failed to ask J.K.’s extended family members about his 

possible Indian status.2 Mother asks us to order that the matter 

be remanded so these duties can be satisfied. 

We conclude the juvenile court errs in finding ICWA does 

not apply where, as here, the record does not establish that the 

expanded duty of initial inquiry set forth in section 224.2, 

subdivision (b), has been satisfied. We also conclude that a 

conditional affirmance with a limited remand for full satisfaction 

of the duties of inquiry and notice is necessary and appropriate 

because (1) CWS and the juvenile court have “an affirmative and 

continuing duty” to inquire into J.K.’s potential Indian status 

(§ 224.2, subd. (a), italics added); and (2) the record on appeal 

does not “affirmatively reflect[] that the protections intended to 

be afforded through the exercise of that duty have been 

provided.” (In re Rylei S. (2022) 81 Cal.App.5th 309, 325 (Rylei

S.).) Accordingly we conditionally affirm the judgment and 

remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Mother and A.A. (father, who is not a party to this appeal) 

are the natural parents of J.K., born in February 2021. CWS 

filed a section 300 petition alleging among other things that J.K.

tested positive for drugs after his birth. CWS asserted in its 

detention report that ICWA did not apply because both parents 

2 “[B]ecause ICWA use the term ‘Indian,’ we do the same 

for consistency, even though we recognize that other terms, such 

as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In 

re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn.1.)
3

had denied Indian ancestry and that mother’s parental rights to 

J.K.’s half-sibling Z.V.K. had recently been terminated. 

Both parents appeared at the detention hearing, denied 

Indian ancestry, and completed and filed the Parental 

Notification of Indian Status form (ICWA-020) to attest that they 

had no Indian ancestry. At the request of CWS’s counsel, the 

court found ICWA did not apply and took judicial notice of the 

recent finding that ICWA did not apply in Z.V.K.’s dependency 

case. The court also took judicial notice of the reports in Z.V.K.’s 

case, which contained no indication that CWS had made ICWArelated inquiries of the maternal grandmother or the maternal 

relatives with whom Z.V.K. was placed.

J.K. was placed with non-relative extended family 

members. The court directed the parents to provide CWS with 

the names and addresses of all relatives to assist in investigating 

J.K.’s possible placement with an extended family member.

On March 30, 2021, the social worker reported that the 

paternal grandmother had stated she had no Indian ancestry. 

The social worker also contacted the paternal grandfather, 

father’s and mother’s siblings, and other maternal relatives, but 

there is no indication that she made any inquiries of them 

regarding J.K.’s possible Indian status. In the court’s April 27, 

2021 dispositional orders and findings — which were prepared on 

form JV-415 by CWS’s attorney — the section that is supposed to 

identify the relatives the social worker asked about J.K.’s 

possible Indian status was blank.

At the conclusion of the jurisdiction and disposition 

hearing, father was offered reunification services but services 

were bypassed as to mother. We subsequently dismissed 

mother’s appeal challenging the order bypassing services. (Dept. 

of Social Services, County of Santa Barbara v. S.K. (B311988, 

Aug. 31, 2021) [nonpub. opn.]). In referring to ICWA in its report 
4

for the section 366.26 hearing, CWS stated that both parents had 

denied Indian ancestry and had each completed the requisite 

forms. At the conclusion of the six-month review hearing, the 

court terminated services as to father and set the matter for a 

section 366.26 permanency planning hearing. At the conclusion 

of the section 366.26 hearing, at which neither parent appeared, 

the court terminated parental rights to J.K. and selected 

adoption as the child’s permanent plan.

DISCUSSION

Mother contends the juvenile court erred in finding ICWA 

did not apply because the record does not reflect that CWS and 

the court satisfied their duties of inquiry under section 224.2,

which required CWS to ask J.K.’s extended family members 

whether they had any information regarding the child’s possible 

Indian status. As part of its affirmative and continuing duty of 

inquiry, the juvenile court was required to ensure that this 

information was presented and included in the record prior to 

making any ICWA finding. Mother asks us to remand the matter 

to the juvenile court for the limited purpose of allowing CWS and 

the court to satisfy these duties. We agree with the contention of 

error and shall issue a conditional affirmance with a limited 

remand.

I.

We generally review ICWA findings for substantial 

evidence. (In re A.M. (2020) 47 Cal.App.5th 303, 314.) Because 

the material facts at issue here are undisputed, “‘we review 

independently whether ICWA requirements have been satisfied.’” 

(In re J.L. (2017) 10 Cal.App.5th 913, 918.)

“ICWA reflects a congressional determination to protect 

Indian children and to promote the stability and security of 

Indian tribes and families by establishing minimum federal 

standards a state court must follow before removing an Indian 
5

child from his or her family.” (In re T.G. (2020) 58 Cal.App.5th 

275, 287 (T.G.).)3 “Congress enacted ICWA in 1978 in response to 

‘rising concern in the mid-1970’s over the consequences to Indian 

children, Indian families, and Indian tribes of abusive child 

welfare practices that resulted in the separation of large numbers 

of Indian children from their families and tribes through 

adoption or foster care placement, usually in non-Indian homes.’” 

(In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).)

“ICWA significantly limits state court actions concerning 

out-of-family placements for Indian children. ‘When ICWA 

applies, a state court may not . . . terminate parental rights to an 

Indian child unless the court is satisfied “that active efforts have 

been made to provide remedial services and rehabilitative 

programs designed to prevent the breakup of the Indian family 

and that these efforts have proved unsuccessful.” [Citations.]’” 

(T.G., supra, 58 Cal.App.5th at p. 287.) “ICWA and the 

controlling federal regulations [citation] simply set a floor for 

minimal procedural protections for Indian children, their families 

and their tribes; the statute authorizes states to provide ‘a higher 

standard of protection to the rights of the parent or Indian 

custodian of an Indian child than the rights provided under’ 

ICWA. [Citations.]” (T.G., at p. 288.) “In addition to 

significantly limiting state court actions concerning out-of-family 

placements for Indian children [citation], ICWA permits an 

Indian child’s tribe to intervene in or, where appropriate, exercise 

jurisdiction over a child custody proceeding [citations].” (Rylei S., 

supra, 81 Cal.App.5th at p. 316.)

3 ICWA defines an Indian child as an unmarried individual 

under the age of 18 who is either a member of a federallyrecognized Indian tribe or is eligible for membership in such a 

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

§ 1903(4) & (8); § 224.1, subd. (a).) 
6

Pursuant to ICWA and related California law, “[t]he 

[juvenile] court[ and] county welfare department . . . have an 

affirmative and continuing duty to inquire whether a child for 

whom a petition under Section 300 . . . may be, or has been, filed,

is or may be an Indian child. The duty to inquire begins with the 

initial contact, including, but not limited to, asking the party 

reporting child abuse or neglect whether the party has any 

information that the child may be an Indian child.” (§ 224.2, 

subd. (a).) This duty applies to “[t]he court, court-connected 

investigator, . . . the county welfare department, . . . licensed 

adoption agency, adoption service provider, [and] investigator.” 

(Cal. Rules of Court, rule 5.481.)

Section 224.2, subdivision (b), which went into effect on 

January 1, 2019, provides that “[i]f a child is placed into the 

temporary custody of a county welfare department pursuant to 

Section 306 or county probation department pursuant to Section 

307, the county welfare department or county probation 

department has a duty to inquire whether that child is an Indian 

child. Inquiry includes, but is not limited to, asking the child, 

parents, legal guardian, . . . 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 

and where the child, the parents, or [the] Indian custodian is 

domiciled.” (§ 224.2, subd. (b).) Extended family members 

include grandparents, aunts and uncles, siblings, brothers-in-law 

and sisters-in-law, nieces and nephews, first and second cousins, 

and stepparents. (25 U.S.C.S. § 1903(2); § 224.1, subd. (c).)

Prior to the enactment of section 224.2, subdivision (b), the duty 

of initial inquiry could be satisfied by asking the child’s parents 

whether the child is or may be an Indian child. (Former § 224.3.) 

If information obtained through the initial inquiry gives the 

juvenile court or the social worker “reason to believe” the child is 
7 

or may be an Indian child, “the court[ or] social worker . . . shall 

make further inquiry regarding the possible Indian status of the 

child . . . as soon as practicable.” (§ 224.2, subd. (e).) “The duty to 

develop information concerning whether a child is an Indian child 

rests with the court and the [county welfare department], not the 

parents or members of the parents’ families.” (In re Antonio R.

(2022) 76 Cal.App.5th 421, 430.) 

 If the initial or further inquiry gives rise to a “reason to 

know” the child is an Indian child, notice of the proceedings must 

be given to the tribes of which the child may be a member or 

eligible for membership. (25 U.S.C.S. § 1912(a), italics added; 

§§ 224.2, subd. (f), 224.3.) “This notice requirement . . . enables a 

tribe to determine whether the child is an Indian child and, if so, 

whether to intervene in or exercise jurisdiction over the 

proceeding.” (Isaiah W., supra, 1 Cal.5th at p. 5.) 

II. 

 Our Legislature unanimously enacted section 224.2, 

subdivision (b) after the California ICWA Compliance Task Force 

(the Task Force) – which is chaired by and comprised of tribal 

leaders and other tribal representatives and advocates — issued 

a report advocating for the new law (the Task Force Report). 

Among other things, the Task Force explained that “[w]hen 

parents are the sole target of the initial inquiry, it should be 

understood that there are a variety of reasons why relying on the 

parents does not necessarily protect the child’s best interests, or 

the rights of the tribe. Parents may simply not have that 

information, or may possess only vague or ambiguous 

information. [¶] The parents or Indian custodian may be fearful 

to self-identify, and social workers are ill-equipped to overcome 

that by explaining the rights a parent or Indian custodian has 

under the law. Parents may even wish to avoid the tribe’s 

participation or assumption of jurisdiction.’ [Citation.]” (Cal. 
8 

ICWA Compliance Task Force, Rep. to Cal. Atty. Gen.’s Bur. of 

Children’s Justice (2017) p. 28.) 

 Section 224.2, subdivision (b) makes clear that CWS’s duty 

of initial inquiry required it to ask J.K.’s extended family 

members about J.K.’s potential Indian status. And the juvenile 

court, pursuant to its affirmative and continuing duty of inquiry 

(§ 224.2, subd. (a)), was required to ensure that CWS had 

satisfied its initial inquiry duties and that the record so reflect 

(see, e.g., Rylei S., supra, 81 Cal.App.5th at pp. 322-323, and 

cases cited therein.) Those duties were not satisfied here. Other 

than the paternal grandmother, no information was sought from 

any of J.K.’s extended family members about his possible Indian 

status. Although the court took judicial notice of the prior finding 

that ICWA did not apply to J.K.’s half-sibling Z.V.K., that finding 

has no bearing on whether J.K. has Indian ancestry through his 

paternal relatives. Moreover, it appears from the record that 

CWS may have also failed to conduct a sufficient initial ICWA 

inquiry as to Z.V.K. Notwithstanding CWS’s claim to the 

contrary on appeal, the record is thus insufficient to support the 

juvenile court’s finding that ICWA did not apply. 

III.

 Because the record demonstrates that CWS and the 

juvenile court failed to satisfy their statutorily-mandated duties 

under section 224.2, the matter must be remanded to remedy this 

error. We agree with our colleagues in Rylei S. that when, as 

here, a statutorily-mandated duty has not been performed, the 

matter must be remanded for satisfaction of the duty unless the 

record “affirmatively reflects that the protections intended to be 

afforded through the exercise of that duty have been provided.” 

(Rylei S., supra, 81 Cal.App.5th at p. 325.) 

 We also agree that the appropriate remedy is to issue a 

conditional affirmance with a limited remand. (Rylei S., supra, 
9

81 Cal.App.5th at pp. 326-327.) Although conditional affirmances 

are rare, they have previously been issued in various types of 

cases by both the appellate courts and our Supreme Court.4 We 

issue such a disposition here because time is of the essence and a 

conditional affirmance provides the best opportunity for the error

to be handled expeditiously without unduly prolonging the 

finality of the proceedings. Appeals from orders terminating 

parental rights are governed by section 395, so they “have 

precedence over all other cases in the court to which the appeal is 

taken.” (§ 395, subd. (a)(1).) Moreover, the appealed order or 

judgment is not stayed while the appeal is pending. (Ibid.) With

a conditional affirmance, the judgment remains in place on 

4 (See, e.g., In re Z.O. (2022) 79 Cal.App.5th 1, 11 

[conditionally affirming judgment terminating parental rights 

and remanding for “the trial court [to] expeditiously hold 

proceedings and/or make findings regarding the need, or lack 

thereof, of a GAL [guardian ad litem] for mother as of the time 

the GAL was originally appointed”]; People v. Magana (2022) 76 

Cal.App.5th 310, 328 [conditionally affirming order declaring 

appellant to be a sexually violent predator under Sexually 

Violent Predator Act (SVPA) and remanding to give him “an 

opportunity to raise an equal protection challenge to the SVPA’s 

jury waiver provisions”]; In re Marriage of Ramer (1986) 187 

Cal.App.3d 263, 278-280 [conditionally affirming modified 

judgment in marital dissolution case]; Jehl v. Southern Pac. Co. 

(1967) 66 Cal.2d 821, 835-836 [conditionally affirming order 

granting new trial limited to damages]; see also Mercer v. Perez 

(1968) 68 Cal.2d 104, 122, fn. 7 [noting that in Jehl the 

challenged order was “conditionally affirmed”].)
10

remand.5 When a judgment is conditionally reversed, the 

judgment is reinstated on the date the underlying condition is 

satisfied. (See People v. Gaines (2009) 46 Cal.4th 172, 181-182.)6

Although parents subject to dependency proceedings have 

no duty to conduct the initial inquiry on the county welfare 

departments’ behalf, they are obligated to provide any and all 

information they have regarding their extended family members 

and to apprise their attorneys and the social worker of any new 

information relating to extended family members or their 

knowledge regarding their children’s possible Indian status. In 

this case, it appears the parents have already identified all of 

their relatives and the social worker has already had contact with 

them. If these extended family members all deny any knowledge 

that J.K. is or may be an Indian child, the error will be quickly 

corrected without disturbing or unduly prolonging the finality the 

judgment. Accordingly, a conditional affirmance with a limited 

5 Because a conditional affirmance does not “set aside” the 

judgment, the constitutional “miscarriage of justice” provision 

(Cal. Const., art. VI, § 13) does not apply.

6 Although mother will have a right to appeal from any

juvenile court order updating its ICWA findings on remand, that 

order will not be stayed pending any appeal. (§ 395, subd. (a)(1).)

Moreover, we presume that counsel representing mother in such 

an appeal would only raise nonfrivolous claims on her behalf. We 

also note that with regard to ICWA notices parents in 

dependency proceedings may be sanctioned if they “knowingly 

and willfully falsif[y] or conceal[] a material fact concerning 

whether the child is an Indian child, or counsels a party to do so.” 

(§ 224.3, subd. (e).)
11

remand will best serve J.K.’s interests in achieving permanency, 

stability, and the finality of these proceedings.7 

The issuance of a conditional affirmance with a limited 

remand is a proper, appropriate, and necessary exercise of our 

supervisory authority over the juvenile courts. (See Riverside

County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 635.) In 

enacting section 224.2, the Legislature expanded the county 

welfare departments’ initial duty of inquiry to include asking the 

child’s extended family members if they have any information 

indicating that the child is or may be an Indian child. The 

juvenile court has a duty to ensure that this information was 

presented to and considered by the court in making its ICWA 

findings. 

CWS and the juvenile court also have an affirmative and 

continuing duty to inquire into J.K.’s potential Indian status.

(§ 224.2, subd. (a).) Declining to issue a remand in these 

7 It has been suggested that the duty of initial inquiry set 

forth in section 224.2 may be difficult to satisfy. But the wisdom 

or workability of the statute is none of our concern. (People v. 

Raybon (2021) 11 Cal.5th 1056, 1084; County of Sacramento v. 

Hickman (1967) 66 Cal.2d 841, 854.) In any event, in 

interpreting statutes “[t]he court will apply common sense to the 

language at hand and interpret the statute to make it workable 

and reasonable.” (Wasatch Property Management v. Degrate 

(2005) 35 Cal.4th 1111, 1122.) County welfare department 

employees conducting the initial inquiry compelled by section 

224.2 need not undergo overly voluminous record searches, 

attend family reunions, conduct stakeouts, or search 

Ancestry.com. Nor are they required to interview young children 

or other extended family members who would not be expected to 

have any information regarding the child’s Indian status. They 

merely need to make reasonable and diligent efforts to conduct 

the required inquiry and report those efforts and the results 

thereof to the court. 
12

circumstances would effectively absolve the juvenile court and 

CWS of their statutorily-mandated duties under section 224.2. A 

duty that is unenforceable is but a chimera. 

 We cannot interpret statutes in a manner that renders 

language in the statute a nullity. (Tuolumne Jobs & Small 

Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 

1039.) Moreover, our Supreme Court has held it is improper for 

courts to “‘frustrate the creation of a statutory duty by refusing to 

enforce it through the normal judicial means.’” (City of Dinuba v. 

County of Tulare (2007) 41 Cal.4th 859, 869.) Because the record 

does not affirmatively reflect that the protections intended to be 

afforded through the exercise of the statutory duties set forth in 

section 224.2 have been provided (Rylei S., supra, 81 Cal.App.5th 

at pp. 316-317), and CWS and the juvenile court each have a 

continuing obligation to satisfy those duties, a conditional 

affirmance and limited remand for CWS and the juvenile court to 

satisfy their respective duties is required. 

III.

 Our Supreme Court has made clear that ICWA issues may 

be raised for the first time by parents appealing the termination 

of their parental rights. (Isaiah W., supra, 1 Cal.5th at p. 9.) The 

court reasoned: “We are mindful of the child’s need for a 

permanent and stable home, and we agree that a swift and early 

resolution of ICWA notice issues is ideal. But the federal and 

state statutes were clearly written to protect the integrity and 

stability of Indian tribes despite the potential for delay in placing 

a child. The [relevant] provisions . . . recognize the importance of 

properly determining a child’s Indian status even when a 

dependency proceeding has progressed beyond the initial stages. 

[Citations.]” (Id. at p. 12, italics added.). 

 The court went on to note that ICWA and related California 

law give tribes the right to intervene at any point in the 
13

dependency proceedings, even after parental rights have been 

terminated. (Isaiah W., supra, 1 Cal.5th at p. 13, citing 25 

U.S.C.S. § 1911(c); §224.4.) The court also recognized that the 

relevant law, “considered as a whole, make[s] clear that Indian 

tribes have interests protected by ICWA that are separate and 

distinct from the interests of parents of Indian children. 

[Citation.] ICWA’s notice requirements are ‘intended to protect 

the interests of Indian children and tribes despite the parents’ 

inaction.’ [Citations.]” (Ibid.)

Of course, juvenile court judges and county welfare 

departments have no duty to give any such notice unless there is 

a “reason to know” the child is an Indian child. But the 

determination of this “reason to know” presumes that the county 

welfare department has satisfied its duties of initial inquiry 

under section 224.2, and that the juvenile court has correctly 

found so based on evidence in the record. This initial inquiry 

may be the source of knowledge giving rise to a “reason to know.” 

As we have noted, the statute expressly recognizes that a child’s 

extended family members may have information giving rise to 

not merely a “reason to believe” the child is or may be an Indian 

child, but a “reason to know” the child is an Indian child. 

(§ 224.2, subd. (d)(1).)

If the statutorily-mandated duties of inquiry are not 

satisfied, the court’s finding that there is no “reason to know” the 

child is an Indian child is fatally uninformed. “‘[T]he tribe’s right 

to assert jurisdiction over the proceeding or to intervene in it is 

meaningless if the tribe has no notice that the action is pending.’ 

[Citations.]” (Isaiah W., supra, 1 Cal.5th at pp. 13-14.) Here, one 

can merely speculate that a proper inquiry under section 224.2 

would not have uncovered information giving rise to a “reason to 

know” that J.K. is an Indian child.
14

In light of these principles, we are not persuaded by CWS’s 

assertion that remanding the matter for satisfaction of the duties 

set forth in section 224.2 would be contrary to J.K.’s interests in 

permanency and stability. Moreover, CWS has contributed to the

delay in the finality of these proceedings by opposing the appeal 

rather than stipulating to a remand. J.K.’s interests are best 

served by a full resolution of all ICWA-related issues, and “Indian 

tribes have interests protected by ICWA that are separate and 

distinct from the interests of parents of Indian children.” (Isaiah

W., supra, 1 Cal.5th at pp. 12-13.)

Parents who are committed to reunifying with their 

children must also be committed to acting in the children’s best 

interests. But parents are not likely to know the law unless their 

attorneys tell them. The juvenile court is also reasonably 

expected to be currently apprised of the law, particularly as it 

relates to the court’s statutorily-mandated duties. Here, 

however, the attorneys and juvenile court judge either were 

unaware of the provision or simply overlooked it.

It is also clear that counsel for CWS now knows that CWS 

failed to satisfy its continuing duty of inquiry under section 

224.2. As we have noted, this dereliction of duty is not in J.K.’s 

best interests and can likely be rectified on remand with only a 

minor delay in the proceedings. 

DISPOSITION

The order terminating parental rights is conditionally 

affirmed. The matter is remanded to the juvenile court for the 

limited purpose of allowing CWS and the juvenile court to satisfy 

their statutorily-mandated inquiry and notice duties under 

section 224.2 by, among other things, soliciting information (or 

making reasonable efforts to do so, supported by a showing of 

reasonable and due diligence) from J.K.’s extended family 

members regarding the child’s possible Indian status. All such 
15

duties shall be promptly performed and completed with 

reasonable and due diligence.

After satisfying its initial inquiry duties in accordance with 

section 224.2, subdivision (b), CWS and the social worker shall 

file a report with the juvenile court (with any necessary 

attachments) setting forth the details and results of its inquiry, 

its reasonable and diligent efforts to contact the extended family 

members identified by the parents or any other individuals 

identified by the parents or extended family members who might 

be reasonably expected to have information about J.K.’s potential 

Indian status, and its findings and recommendations regarding 

whether ICWA applies or may apply. 

If the report and its attachments demonstrate that CWS 

has satisfied its duty of initial inquiry, the court shall so find and 

then proceed to find whether this new information gives the 

social worker or the court a “reason to believe” J.K. is or may be 

an Indian child, or a “reason to know” J.K. is an Indian child. If 

the court concludes there is still no “reason to believe” that J.K. is 

or may be an Indian child, it shall enter a new order finding that 

ICWA does not apply and the judgment (order terminating 

parental rights) shall become final as of that date. 

If the court finds that the new information gives rise to a 

“reason to believe” that J.K. is or may be an Indian child, the 

court shall find that ICWA may apply and further inquiry shall 

be conducted in accordance with section 224.2, subdivision (e). If 

such further inquiry dispels the reason to believe that J.K. is or 

may be an Indian child, the court shall enter a new order finding 

that ICWA does not apply and the judgment (order terminating 

parental rights) shall become final as of that date.

If the information obtained during the initial or further 

inquiry gives the court or the social worker a “reason to know” 

that J.K. is an Indian child, the court shall ensure that proper 
16

notice of the proceedings is sent in accordance with section 224.2, 

subdivision (f) and section 224.3. If the court subsequently finds 

in accordance with section 224.2, subdivision (i)(2) that ICWA 

does not apply, it shall enter an order to that effect and the 

judgment shall become final as of that date. 

 If on remand a tribe informs the court that J.K. is a 

member of the tribe or eligible for membership and that the tribe 

intends to intervene in the proceedings, the court shall find that 

ICWA applies and enter an order to that effect. If the court 

issues such an order, the judgment (order terminating parental 

rights) is reversed as of that date. If the judgment is so reversed, 

the court shall promptly hold a new section 366.26 hearing in 

compliance with ICWA and related California law. 

 CERTIFIED FOR PUBLICATION. 

 PERREN, J.*

 I concur: 

 GILBERT, P.J.

* Retired Associate Justice of the Court of Appeal, Second 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution. 
GILBERT, P.J. 

 I concur. 

 I do not support the rigid application of ICWA promulgated 

by In re Rylei S. (2022) 81 Cal.App.5th 309. Nevertheless, I 

believe a limited remand here is appropriate for the reasons 

stated in In re Benjamin M. (2021) 70 Cal.App.5th 735, 744, 

readily obtainable information that is likely to bear on whether 

the child is an Indian child. 

 I agree that the result here is appropriate. I take issue, 

however, with footnote 5 in the majority opinion. (Ante, p. 10.) 

In my view the perceived differences between a conditional 

affirmance and a conditional reversal do not determine whether 

there is a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) 

Juliet’s oft-quoted comments about a rose is apt. 

 I also wish to caution that against the backdrop of ICWA 

what is of paramount concern is the best interest of the child. 

(See In re Josiah Z. (2005) 36 Cal.4th 664, 673.) ICWA 

consideration is important, but it does not supersede the child’s 

best interest. (Welf. & Inst. Code, § 202, subd. (d).) 

 CERTIFIED FOR PUBLICATION. 

 GILBERT, P.J. 
YEGAN, J., Dissenting: 

I respectfully dissent. The continuing appellate 

controversy which is now dominating the advance sheets 

concerns the Indian Child Welfare Act (ICWA) and the 

appropriate standard of appellate review. Strict and inflexible 

ICWA enforcement at the Court of Appeal level strikes at the 

heart of two basic aspects of the California Constitution: First, 

the oath of judicial office, which directs justices to “support and 

defend” the California Constitution, not a statute. Second, 

reversal of a superior court judgment only where an error is 

prejudicial, i.e., where it is reasonably probable that a different 

result will obtain upon reversal. There is no California Supreme 

Court case which has held that the ICWA error is “structural 

error.” And I doubt that such an opinion could be written given 

the Supreme Court rules on when this extraordinary appellate 

rule can be applied. 

The primary and overarching dispute to be decided in 

dependency cases is between the parent or parents of the child or 

children, and the State of California, whose job it is to secure the 

safety and well-being of children. The caption of a dependency 

case is telling. It does not mention an Indian tribe. An Indian 

tribe is neither a party nor a real party in interest in a 

dependency case. 

I entertain a real doubt that the cases automatically 

reversing a judgment because of an ICWA violation, accomplish 

the goal of ICWA. The Legislature has not purported to declare 

that ICWA error is always prejudicial. I doubt that it could 

lawfully do so. And I am fairly certain that the inevitable delay 

caused by ICWA reversals is counterproductive. Childhood is not 

“stayed” while the superior court revisits ICWA upon a Court of 

Appeal order to do so. Dependent children need the stability of a 
2

superior court final order and “new” parents now. New parents 

are presumptively ready and able to shepherd children in a safe 

and caring environment. It is hard enough for a child to grow up 

in a functional family environment. It is harder still in a nonfunctional family environment. A dependent child cannot, and 

should not, have to wait because of the delay caused by reversals 

of judgments which, in the vast majority of cases, will not result 

in placement with an Indian family. The primary goal of 

dependency court is the safety and well-being of children. Any 

other goal, including an ICWA goal, is secondary. 

The various districts and divisions of the Court of Appeal 

have conflicting approaches to how this troublesome issue is to be 

treated on appeal. In my view, the issue is straight forward. The 

Court of Appeal does not reverse a superior court judgment based 

upon a silent record, i.e., the absence of Indian ancestry proof. 

Error by the superior court is never presumed. Error by the 

superior court must be affirmatively shown. This is true even if 

the child welfare investigators could have undertaken a more 

robust investigation concerning Indian heritage. Any 

investigation could always be more robust. And the trial court 

has a duty to monitor that inquiry. That monitoring too, can 

always be more robust. Perhaps there should be a rule requiring 

an ICWA objection in the superior court before a parent can raise 

and ICWA issue on appeal, and perhaps the superior court should 

develop a form showing compliance with the search for Indian 

ancestry listing all of the parents’ extended family which have 

been contacted. Such a checklist would hopefully put an end to 

needless litigation at the Court of Appeal. 

The goal of ICWA is laudable. But, the late Justice 

Macklin Fleming would ask: How much time, money, 
3

investigation efforts, attorney time, and judicial resources is to be 

spent trying to achieve “perfect justice?” 

The Court of Appeal is tasked to affirm a judgment unless 

there has been a miscarriage of justice, in which case we reverse. 

There is no showing of an actual miscarriage of justice in this 

case. There isn’t even a suggestion that upon further inquiry, 

there may be some evidence of Indian ancestry. If there were, I 

would vote to reverse. Of course, upon further investigation, 

there may be proof that there is, or is not, evidence of Indian 

ancestry. And even if there is some proof of Indian ancestry, that 

does not automatically mean that a child will be placed with an 

Indian family. This is all speculative. So, should there be a 

reversal, conditional reversal, or “conditional affirmance,” based 

upon speculation? My answer now is, No. 

The oath of judicial office does not say that appellate courts 

have a duty to support and defend a statute. This is a glaring 

omission in the oath and the only inference that can be drawn is 

that the judicial oath of office is not directed to a statute. Of 

course, we strive to uphold the letter and spirit of a statute. And, 

we do so in almost every case. But, the Constitution takes 

precedence over a statute. This is not a novel statement. Any 

negligent violation of statute in almost any context does not 

inexorably result in reversal. Such a violation, an error, must be 

prejudicial within the meaning of the California Constitution to 

warrant reversal of a judgment. 

The Court of Appeal should not continue to slavishly 

adhere to the ICWA rules at the expense of the California 

Constitution. There is no ICWA exception to the California 

Constitution. As indicated, we strive to follow any statute, 

including the ICWA statute. And, at least in Division Six of the 

Second Appellate District, we have always and strictly applied 
4 

ICWA and reversed upon a showing of “ICWA error.” That time, 

for me, is now over. Rather than championing the rights of an 

Indian tribe, we should be championing the rights of a dependent 

child. 

 The prior Court of Appeal opinions, and the majority 

opinion here, does not solve this administration of justice 

problem. The new opinion authored by Justice Hoffstadt, In re 

Dezi C. (2022) 79 Cal.App.5th 769, does solve the problem. This 

scholarly opinion is consistent with the oath of office, follows the 

Constitutional mandate of when and when not to reverse a 

judgment, and is a pragmatic solution for the ICWA issue at the 

Court of Appeal level. It dictates that we affirm in this case. 

CERTIFIED FOR PUBLICATION. 

 YEGAN, J. 
Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Aida Aslanian, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rachel Van Mullem, County Counsel, Lisa A. Rothstein,

Deputy County Counsel, for Plaintiff and Respondent.