Filed 2/15/24 In re J.H. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.H., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

T.H. et al.,

Defendants and Appellants.

 D082851

 (Super. Ct. No. J520892)

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

Michael P. Pulos, Judge. Conditionally reversed and remanded with 

directions. 

Tracy M. De Soto, under appointment by the Court of Appeal, for 

Defendant and Appellant T.H. 

William D. Caldwell, under appointment by the Court of Appeal, for 

Defendant and Appellant C.W. 
2

Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy 

County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and 

Respondent. 

C.W. (Mother) and T.H. (Father) (together, Parents) appeal from the 

order terminating their parental rights to their daughter, J.H. (Child). 

Parents’ sole contention on appeal is that the San Diego County Health and 

Human Services Agency (Agency) and the juvenile court did not comply with 

inquiry requirements pursuant to the Indian Child Welfare Act of 1978 

(ICWA), 25 United States Code section 1901 et seq., and Welfare and 

Institutions Code section 224 et seq.1 They request conditional reversal and 

remand for compliance with ICWA.2 

The Agency submitted a letter conceding that a limited remand is 

necessary to ensure ICWA compliance. We agree that a limited remand is 

appropriate. We conditionally reverse the juvenile court’s orders and remand 

the matter for compliance with ICWA, subject to reinstatement if the juvenile 

court determines J.H. is not an Indian child. 

FACTUAL AND PROCEDURAL BACKGROUND3

Child was exposed to marijuana and methamphetamine in utero. 

Mother was arrested for a federal probation violation and gave birth while in 

custody. Following Child’s birth, the Agency filed a dependency petition 

1 Further undesignated statutory references are to the Welfare and 

Institutions Code. 

2 We deny Mother’s request for judicial notice as it is unnecessary to 

resolve the matter before us. (See generally Riley v. Alameda County 

Sheriff's Office (2019) 43 Cal.App.5th 492, 518.)

3 Because the sole issue on appeal relates to the adequacy of the ICWA 

inquiry, we summarize the facts briefly, focusing on the ICWA inquiry. 
3

under section 300, subdivision (b). Parents denied Native American ancestry.

At the detention hearing in October 2021, Parents informed the court that 

neither had any known Native American ancestry. At that hearing, the court 

ordered both Parents to complete the “Parental Notification of Indian Status” 

form. Copies of those forms are not included in the record before us. 

At the jurisdictional/dispositional hearing in November 2021, Mother 

told the court that she may have Native American ancestry through the 

maternal grandfather, though she was not aware of a specific tribe. She 

“barely know[s]” his name and has “no communication with him.” 

Nevertheless, the maternal aunt and maternal great-aunt provided his name 

to the Agency for further ICWA inquiry. The social worker reports indicate 

they mailed formal ICWA inquiries; however, neither copies of the letters nor 

any responses are included in the record. The court terminated parental 

rights at the section 366.26 hearing in September 2023 after finding that 

ICWA did not apply. 

DISCUSSION

Congress enacted ICWA to address concerns regarding the separation 

of Indian children from their tribes through adoption or foster care placement 

with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) In 

dependency proceedings, the juvenile court and the Agency have an 

“affirmative and continuing duty to inquire” whether a child “is or may be an 

Indian child.” (§ 224.2, subd. (a).) This duty of inquiry extends to asking 

parents, legal guardians, extended family members and others who have an 

interest in the child. (§ 224.2, subd. (b).) ICWA defines “ ‘extended family 

member’ ” by “the law or custom of the Indian child’s tribe” or, absent such 

law or custom, as “a person who has reached the age of eighteen and who is 

the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-
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law or sister-in-law, niece or nephew, first or second cousin, or stepparent.” 

(25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).) 

Mother contends the Agency failed to satisfy its duty of initial inquiry 

under section 224.2, subdivision (b) because it did not ask her available 

extended family members if they had Native American ancestry. Social 

workers spoke with several extended maternal family members throughout 

the life of the case, including a maternal aunt and the maternal great-aunt 

who raised Mother. At the same time, the Agency was aware it had not 

contacted the maternal grandmother or the maternal grandfather, even 

though it is the maternal grandfather who may have Native American 

ancestry. Although the exact relationship is unclear, Mother also argues the 

Agency should have completed an inquiry with Terry L.W. 

Father similarly contends the Agency failed to satisfy its duty of initial 

inquiry under section 224.2, subdivision (b), asserting it did not ask Father’s 

extended family members if they had Native American ancestry. Social 

workers spoke with Father and the paternal grandmother. The Agency was 

aware of a four paternal aunts and uncles, two of whom lived with the 

paternal grandmother. While the Agency did inquire of the paternal 

grandmother, the mother to Father’s siblings, they did not ask Father’s 

siblings about Native American ancestry.4 The record also does not reflect 

any attempts to contact the paternal grandfather. 

The Agency concedes it failed to comply with the duty of initial inquiry

with respect to the maternal grandmother, maternal grandfather, and 

4 The record is unclear which of Father’s siblings are full siblings and 

share the same father. 
5

paternal grandfather.5 All parties agree a conditional reversal and limited

remand is appropriate to complete the initial inquiry.

Mother contends the Agency should also be required to ask about Terry 

L.W.’s ancestry. Based on the record before us, however, we cannot 

definitively conclude whether Terry qualifies as an extended family member 

for the purposes of ICWA. If so, it may well be appropriate for the Agency to 

inquire as to Terry’s Native American ancestry. But we note that an agency 

is only obligated to make “a good faith effort to gather information about the 

children’s membership status or eligibility” (In re D.F. (2020) 55 Cal.App.5th 

558, 570) and it need not “ ‘cast about’ for information or pursue unproductive 

investigative leads.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053.) 

Father similarly contends the Agency should make inquiries to each of 

his siblings. Aunts and uncles are considered extended family members for 

the purposes of ICWA inquiries; however, half-aunts and half-uncles are not 

included within the definition of “extended family member.” (See 25 U.S.C. 

§ 1903(2); Welf. & Inst. Code, § 224.1, subd. (c) [“ ‘extended family 

member’ . . . defined as provided in [§] 1903” of ICWA].) The Agency is not 

necessarily obligated to make inquiries to a parent’s half-siblings and the 

record before us is not clear which of Father’s siblings are full siblings. In 

5 In light of the Agency’s concession, we do not consider the significance, 

if any, of the prefatory statutory language, “[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 . . . .” (§ 224.2, 

subd. (b); compare In re Robert F. (2023) 90 Cal.App.5th 492, review granted 

July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, review 

granted July 26, 2023, S280572; In re Andres R. (2023) 94 Cal.App.5th 828, 

review granted Nov. 15, 2023, S282054; with In re Delila D. (2023) 

93 Cal.App.5th 953, review granted Sept. 27. 2023, S281447; In re C.L. (2023) 

96 Cal.App.5th 377; In re Jerry R. (2023) 95 Cal.App.5th 388; In re V.C. 

(2023) 95 Cal.App.5th 251.) 
6

any event, the Agency may be able to resolve questions of Father’s possible 

Native American ancestry through the paternal grandfather. Should this be 

the case, it may not be necessary to conduct inquiries of Father’s siblings, 

full, half, or otherwise. 

Once the Agency complies with initial inquiry efforts with extended 

family members, the court will evaluate if further inquiry is necessary. 

Accordingly, we conditionally reverse the order terminating parental rights 

and remand for the limited purpose of allowing the Agency and the juvenile 

court to comply with ICWA and section 224.2. (In re Benjamin M. (2021) 

70 Cal.App.5th 735, 746; In re K.H. (2022) 84 Cal.App.5th 566, 621.)
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DISPOSITION

The juvenile court’s September 25, 2023 orders terminating parental 

rights to J.H. are conditionally reversed. The matter is remanded with 

directions that the Agency comply with the inquiry provisions of ICWA and 

section 224.2, including at least the maternal grandmother, maternal 

grandfather, and paternal grandfather. If, after completing ICWA inquiry, 

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

that J.H. is an Indian child, the order terminating parental rights to J.H. 

shall be reinstated. Alternatively, if after completing the initial inquiry the 

Agency or the juvenile court has reason to know J.H. is an Indian child, the 

court shall proceed according to statute. 

DATO, J.

WE CONCUR:

IRION, Acting P. J.

BUCHANAN, J.