1

Filed 2/15/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

D.S.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

BERNARDINO COUNTY,

Respondent;

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Real Party in Interest.

E079017

(Super.Ct.No. J290699)

OPINION

PURPORTED APPEAL from an order of the Superior Court of San Bernardino 

County, treated as petition for extraordinary writ. Lynn M. Poncin, Judge. Petition 

granted.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion 

is certified for publication with the exception of part III.D.
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Jamie A. Moran, by appointment of the Court of Appeal, for Petitioner.

Tom Bunton, County Counsel, Joseph R. Barrell and Glen C. Moret, Deputy 

County Counsel, for Real Party in Interest.

I. INTRODUCTION

Petitioner D.S. (Mother) is the adoptive mother of A.S. In 2021, San Bernardino 

County Children and Family Services (CFS) filed a petition pursuant to Welfare and 

Institutions Code1section 300 et seq. on behalf of A.S. in response to allegations of 

physical abuse. During the pendency of the proceedings, Mother filed a petition pursuant 

to section 388, seeking to have A.S. placed back in Mother’s home. She filed a notice of 

appeal from the summary denial of this petition.

However, on appeal, Mother does not address any issue encompassed by her 

section 388 petition. Nor does she seek reversal of the order denying her petition or 

reversal of any prior jurisdictional or dispositional orders. Instead, Mother’s opening 

brief is entirely devoted to seeking review of the adequacy of the juvenile court and 

CFS’s efforts to fulfill their obligations under the Indian Child Welfare Act of 1978 

(ICWA; 25 U.S.C. § 1901 et seq.), seeking only to have the matter “remanded with 

instructions for the juvenile court to order full compliance with the inquiry provisions of 

the ICWA.”

As a result, we construe Mother’s appeal as a petition for extraordinary writ 

seeking an order directing the juvenile court and CFS to comply with their statutory 

1

 Undesignated statutory references are to the Welfare and Institutions Code.
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duties under ICWA and the related California statutes; and, upon consideration of the 

matter on the merits, we grant the requested relief.

II. FACTS AND PROCEDURAL HISTORY

Mother is the only adoptive parent of A.S. On September 28, 2021, CFS filed a 

petition on behalf of A.S. pursuant to section 300 et seq. in response to allegations that 

Mother had physically abused A.S. At the detention hearing on September 29, Mother 

personally appeared and (1) confirmed she was the only adoptive parent of A.S.,

(2) denied knowledge of any Indian ancestry, and (3) provided contact information for 

several relatives, including a maternal aunt, maternal uncle, and maternal grandparents. 

No subsequent reports filed by CFS document or otherwise suggest that social workers 

contacted any of these relatives to inquire whether they had knowledge of A.S.’s 

potential status as an Indian child.

At a contested jurisdictional and dispositional hearing held on January 3, 2022, the 

juvenile court found that ICWA did not apply, denied further reunification services to 

Mother, and set the matter for a permanency planning hearing pursuant to section 366.26. 

On May 3, the juvenile court held a hearing pursuant to section 366.26. However, the 

juvenile court did not terminate Mother’s parental rights and instead set the matter for 

further hearing.

On May 16, 2022, Mother filed a petition pursuant to section 388, requesting only 

that A.S. be placed back in Mother’s home based upon purported changed circumstances. 

Her petition did not request a reinstatement of reunification services or a change in the 

juvenile court’s other jurisdictional or dispositional orders. The juvenile court summarily 
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denied the petition without a hearing, and Mother filed a notice of appeal from the order 

denying her section 388 petition.

III. DISCUSSION

A. We Will Construe Mother’s Appeal as a Petition Seeking a Writ of Mandate

“ ‘ “[A]n appealable judgment or order is a jurisdictional prerequisite to an 

appeal.” ’ [Citations.] . . . ‘ “Appeals in dependency proceedings are governed by 

section 395,” ’ ” and “ ‘ “ ‘[a] consequence of section 395 is that an unappealed 

disposition or postdisposition order is final and binding and may not be attacked on 

appeal from a later appealable order.’ ” ’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 74; In 

re A.A. (2016) 243 Cal.App.4th 1220, 1234.) Additionally, “ ‘ “[o]ur jurisdiction on 

appeal is limited in scope to the notice of appeal and the judgment or order appealed 

from.” ’ ” (In re J.F., at p. 75.) In this case, Mother has appealed from the juvenile 

court’s order denying her section 388 petition. However, the petition raised only the 

issue of temporary placement of A.S. The issue of ICWA compliance was never raised 

in this petition.2 Thus, the issue Mother raises in her opening brief is clearly outside the 

scope of her notice of appeal, as well as the order from which she appealed.

2

 Nor could the section 388 petition reasonably be construed to encompass any 

issue involving ICWA compliance. The ICWA and related California statutes are 

intended to provide tribal entities with notice and an opportunity to participate in any 

hearing “that may culminate in an order for foster care placement, termination of parental 

rights, preadoptive placement, or adoptive placement . . . .” (§ 224.3, subd. (a).) 

Mother’s section 388 petition would not have led to any of these outcomes, as her 

petition did not seek reversal of the juvenile court’s prior orders terminating reunification 

services or setting the matter for a permanency planning hearing pursuant to section 

366.26. Thus, Mother’s petition, even if granted, would have only provided for A.S.’s 

[footnote continued on next page]
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Further, we observe that ordinarily, the failure to comply with statutory duties 

under ICWA is not grounds for reversal of juvenile dependency orders issued prior to 

termination of parental rights. (In re S.H. (2022) 82 Cal.App.5th 166, 177-179 [failure to 

conduct proper initial inquiry under ICWA does not warrant reversal of jurisdictional and 

dispositional orders]; In re Dominick D. (2022) 82 Cal.App.5th 560, 567 [“ICWA inquiry 

and notice errors do not warrant reversal of the juvenile court’s jurisdictional or 

dispositional findings and orders other than the ICWA finding itself.”].) Instead, to the 

extent any party believes that an order directing ICWA compliance is necessary while a 

juvenile dependency proceeding is still pending, that party should seek review by petition 

for extraordinary writ. (See § 366.26, subd. (l); Dwayne P. v. Superior Court (2002) 

103 Cal.App.4th 247, 261 [granting writ directing compliance with ICWA]; Justin L. v. 

Superior Court (2008) 165 Cal.App.4th 1406, 1411 [same]; D.B. v. Superior Court

(2009) 171 Cal.App.4th 197, 208 [same].)

Nevertheless, we recognize that “ ‘[t]he best interest of the child is the 

fundamental goal of the juvenile dependency system, underlying the three primary goals 

of child safety, family preservation, and timely permanency and stability.’ ” (In re 

Joshua A. (2015) 239 Cal.App.4th 208, 218.) Because CFS has chosen to respond to 

Mother’s contention on the merits and has not conceded that it has any duty under ICWA 

in this case, we do not believe the interests of justice or the best interests of A.S. are 

placement back in Mother’s home until the time of the continued permanency planning 

hearing. Mother’s section 388 petition would not have resulted in any of these outcomes, 

and it did not seek reversal of the juvenile court’s prior orders terminating Mother’s 

reunification services.
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served by declining to the address the issue of ICWA compliance, only to have the issue 

raised anew in a subsequent appeal from a future permanency planning order.

Thus, we will exercise our discretion to construe Mother’s appeal as a petition for 

writ of mandate (Olson v. Cory (1983) 35 Cal.3d 390, 400-401 [treating premature 

defective appeal as a writ petition]; Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 

254, 260 [construing defective appeal from order setting a § 366.26 hearing as a petition 

for writ of mandate]), which would have been the more appropriate vehicle for seeking 

an interlocutory order directing ICWA compliance (Justin L. v. Superior Court, supra, 

165 Cal.App.4th at pp. 1408-1411 [issuing preemptory writ of mandate directing juvenile 

court and child welfare agency to comply with inquiry and notice requirements under 

ICWA]). As we explain, we believe that Mother has established that she is entitled to the 

order requested.

B. Legal Background and Standard of Review

“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 minimum standards for state courts to 

follow before removing Indian children from their families and placing them in foster 

care or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)

The Welfare and Institutions Code “creates three distinct duties regarding ICWA 

in dependency proceedings. First, from the [department’s] initial contact with a minor 

and his family, the statute imposes a duty of inquiry to ask all involved persons whether 

the child may be an Indian child. [Citation.] Second, if that initial inquiry creates a 
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‘reason to believe’ the child is an Indian child, then the [department] ‘shall make further 

inquiry regarding the possible Indian status of the child, and shall make that inquiry as 

soon as practicable.’ [Citation.] 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.” 

(In re D.S., supra, 46 Cal.App.5th at p. 1052; § 224.2.)

Following the inquiry stages, the juvenile court may make a finding that ICWA 

does not apply because the department’s inquiry and due diligence was “ ‘proper and 

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

(In re D.S., supra, 46 Cal.App.5th at p. 1050.) However, the duty to inquire is “ ‘an 

affirmative and continuing duty’ ” and the juvenile 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.’ ” 

(In re D.S., at p. 1048, 1050 ; In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[T]he juvenile 

court has a continuing duty to conduct an inquiry when it has received information that a 

dependent child might be an Indian child, as defined by ICWA . . . .”].)

A juvenile court’s finding that ICWA does not apply includes an implicit finding 

that social workers fulfilled their duty of inquiry. (In re Austin J. (2020) 47 Cal.App.5th 

870, 885.) “[W]e review the juvenile court’s ICWA findings under the substantial 

evidence test, which requires us to determine if reasonable, credible evidence of solid 

value supports the court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; In re 

Austin J., at p. 885 [finding reviewed for substantial evidence and implicit finding made 

that social workers fulfilled their duty of inquiry].)
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C. The Department Failed To Comply with Its Statutory Duty of Inquiry

Mother claims that CFS failed to fulfill its duty of initial inquiry because the 

record does not show any effort to interview extended family members in order to 

determine whether any information might exist that would suggest A.S. is an Indian 

child. We agree.

The record in this case indicates that Mother provided contact information for a 

maternal uncle, maternal aunt, and maternal grandparents at the time of the detention 

hearing. The record also shows that A.S. identified the existence of these relatives when 

speaking with a social worker. However, none of CFS’s reports document any effort to 

contact any of these individuals for the purpose of making an ICWA inquiry. Thus, the 

record does not support an implied finding that CFS fulfilled its duty of initial inquiry 

under ICWA or the juvenile court’s finding that ICWA does not apply.

CFS concedes that its efforts in this case would normally be insufficient to fulfill 

its statutorily mandated duty of inquiry, but it argues that it had no duty to conduct an 

inquiry under the unique facts of this case because all of the identified relatives were 

adoptive relatives. In support of this argument, CFS relies on In re Francisco D. (2014) 

230 Cal.App.4th 73 (Francisco D.), which concluded that ICWA is inapplicable unless 

the child is “ ‘a member of an Indian Tribe’ ” or “the biological child of a member of a 

tribe” (In re Francisco D., at pp. 83-84). We disagree.

First, as acknowledged by CFS, Francisco D. predates the current statutory 

scheme. Under the current statutory scheme, section 224.2 sets forth specific steps that a 

child welfare agency must undertake in order to fulfill its duty of inquiry under ICWA. 
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(§ 224.2.) Notably, section 224.2 was not added to the Welfare and Institutions Code 

until 2018—years after Francisco D. was decided. As such, Francisco D. is of little 

value for the purpose of interpreting the obligations imposed by ICWA and the related 

California statutes currently in effect.

Second, we do not believe the logic of Francisco D. can be extended to apply to 

the current statutory scheme. Specifically, section 224.2 provides that the duty of initial 

inquiry under ICWA now 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).) Under California law, “an adopted person and the adopting 

person are, by law, in a parent-child relationship the same as a natural parent and child” 

(Ehrenclou v. MacDonald (2004) 117 Cal.App.4th 364, 372), and section 224.2, 

subdivision (b), makes no distinction when using the term “parent.” Additionally, 

inclusion of legal guardians, Indian custodians, others who have an interest in the child,

and the party reporting child abuse or neglect in the list of persons who must be 

interviewed does not suggest any limitation on the duty of inquiry based upon a 

biological connection to the child.

3

 In light of this clear and unambiguous language, we 

3 Arguably, even the term “extended family member” does not suggest the 

necessity of a biological connection to the child. ICWA provides that the meaning of 

“ ‘extended family member’ ” is “defined by the law or custom of the Indian child’s 

tribe” and may include the child’s “brother-in-law,” “sister-in-law,” and “stepparent.” 

(25 U.S.C. § 1903, subd. (2).)
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find no basis to conclude that the duty of inquiry imposed under section 224.2 is limited 

only to biological relatives.

As CFS concedes, the record in this case clearly shows that it failed to contact 

multiple known family members for the purpose of fulfilling its duty of inquiry under 

ICWA, and the failure to do so is not excused simply because these family members may 

be related by adoption.

D. The Record Does Not Permit Us To Conclude CFS’s Failure Was Harmless

CFS also argues that, even if it failed to fulfill its duty of inquiry, any such failure 

should be deemed harmless. We disagree.

We acknowledge that the standard of prejudice requiring reversal in cases 

involving ICWA is unsettled in the Courts of Appeal. (In re Antonio R. (2022) 

76 Cal.App.5th 421, 433 [“Courts of Appeal are divided as to whether a parent must 

make an affirmative showing of prejudice to support reversal . . . .”].) However, this 

court has adopted the standard of prejudice articulated in In re Benjamin M. (2021) 

70 Cal.App.5th 735 (Benjamin M.), which rejects both an automatic rule of reversal or a 

rule that places the burden squarely on the parents to show the likelihood of obtaining a 

more favorable result. (Id. at pp. 743-745.) Instead, we explained that reversal is 

required “where the record indicates that there was readily obtainable information that 

was likely to bear meaningfully upon whether the child is an Indian child.” (Id. at 

p. 744.)

CFS concedes that under this standard, the record discloses that there was “readily 

available information that could have been gathered from the relatives,” but it questions 
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whether any such information would have borne meaningfully on whether A.S. was an 

Indian child. However, in considering the prejudicial effect of a social services agency’s 

failure to discharge its duty to inquire under ICWA, this court has repeatedly held that the 

failure to comply with an initial duty of inquiry is deemed prejudicial in the absence of 

information in the record to suggest otherwise. (In re K.R. (2018) 20 Cal.App.5th 701, 

709; In re N.G. (2018) 27 Cal.App.5th 474, 484; Benjamin M., supra, 70 Cal.App.5th at 

pp. 744-745.) As this court has previously explained: “[W]here the record does not 

show what, if any, efforts the agency made to discharge its duty of inquiry [citations]; . . . 

the burden of making an adequate record demonstrating the court’s and the agency’s 

efforts to comply with ICWA’s inquiry and notice requirements must fall squarely and 

affirmatively on the court and the agency,” and “as a general rule, we will find the 

appellant’s claims of ICWA error prejudicial and reversible.” (In re N.G., at p. 484.)

CFS argues that information held by extended family members in this case would 

be unlikely to bear meaningfully on whether A.S. was an Indian child because Mother 

already denied knowledge of Indian heritage, and there was no evidence that she was 

estranged from the identified family members. We disagree. “In determining whether 

the failure to make an adequate initial inquiry is prejudicial, we ask whether the 

information in the hands of the extended family members is likely to be meaningful in 

determining whether the child is an Indian child, not whether the information is likely to 

show the child is in fact an Indian child. In most circumstances, the information in the 

possession of extended relatives is likely to be meaningful in determining whether the 

child is an Indian child—regardless of whether the information ultimately shows the child 
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is or is not an Indian child.” (In re Antonio R., supra, 76 Cal.App.5th at p. 435; Benjamin 

M., supra, 70 Cal.App.5th at p. 745 [“While we cannot know how [a relative] would 

answer the inquiry, [the relative’s] answer is likely to bear meaningfully on the 

determination at issue . . . .”].) Thus, the fact that family members might further disavow 

knowledge of potential Indian ancestry is not dispositive.

On this record,

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it is clear that the information known to relatives was “likely to 

bear meaningfully” upon whether A.S. is an Indian child. Under Benjamin M., even if 

the identified relatives responded to an ICWA inquiry by confirming their lack of 

information, such an answer assists CFS and the juvenile court in making a fully 

informed determination regarding whether ICWA applies. Under this court’s precedent, 

we cannot conclude that the failure to make such an inquiry was harmless.

IV. DISPOSITION

The petition for extraordinary writ is granted. Let a preemptory writ of mandate 

issue directing the juvenile court and CFS to comply with the inquiry provisions of 

ICWA and of Welfare and Institutions Code sections 224.2 and 224.3. The juvenile court 

is further directed to vacate or continue any hearing set pursuant to section 366.26. If, 

after completing the initial inquiry, neither CFS nor the juvenile court has reason to 

believe or reason to know that A.S. is an Indian child, the juvenile court may proceed 

4

 CFS points out that some courts have come to different conclusions when 

applying the test articulated in Benjamin M. However, different outcomes are to be 

expected because the very purpose of the test articulated in Benjamin M. is to avoid 

“applying broad, rigid reversal rules” in favor of focusing on the specific facts of each 

case. (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
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with setting the matter for a permanency planning hearing pursuant to section 366.26. If, 

however, CFS or the court discovers a reason to believe that A.S. is an Indian child, the 

court shall not conduct any such hearing until such time as the further inquiry and notice 

requirements of 224.2 and 224.3 are met. If the juvenile court has already held a hearing 

pursuant to section 366.26 during the pendency of this proceeding resulting in an order 

terminating parental rights, this opinion shall be without prejudice to any claim involving 

ICWA compliance on an appeal from any such order.

CERTIFIED FOR PARTIAL PUBLICATION

FIELDS

J.

We concur:

MILLER

Acting P. J.

CODRINGTON

J.