IN THE SUPREME COURT OF 

CALIFORNIA

In re DEZI C. et al., Persons Coming 

Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANGELICA A.,

Defendant and Appellant.

S275578

Second Appellate District, Division Two

B317935

Los Angeles County Superior Court

19CCJP08030A and 19CCJP08030B

August 19, 2024

Justice Evans authored the opinion of the Court, in which 

Justices Corrigan, Liu, Kruger, and Jenkins concurred. 

Justice Kruger filed a concurring opinion, in which Justice 

Corrigan concurred.

Justice Groban filed a dissenting opinion, in which Chief 

Justice Guerrero concurred.

This opinion follows companion case In re Kenneth D., S276649, also filed this date.
1

In re DEZI C. 

S275578

Opinion of the Court by Evans, J.

In 1978, Congress enacted the Indian Child Welfare Act 

(ICWA; 25 U.S.C. § 1901 et seq.) to “formalize[] federal policy 

relating to the placement of Indian children outside the family 

home.” (In re W.B. (2012) 55 Cal.4th 30, 40 (W.B.).) Under 

ICWA’s state analogue, the California Indian Child Welfare Act

(Cal-ICWA), courts and child welfare agencies are charged with 

“an affirmative and continuing duty to inquire whether a 

child . . . is or may be an Indian child” in dependency cases. 

(Welf. & Inst. Code, § 224.2, subd. (a).) Child welfare agencies 

discharge this state law duty by “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 

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

domiciled.”1 (Id., subd. (b).)

We are tasked with determining whether a child welfare 

agency’s failure to make the statutorily required initial inquiry 

under California’s heightened ICWA requirements constitutes 

reversible error. California courts have reached differing 

1 The language of both federal and state law uses the term 

“Indian.” California courts have used alternative terms, such as 

“American Indian” or “Native American”; we use the term 

“Indian” throughout to reflect the statutory language but keep 

the terminology used by the various courts when quoting from 

their opinions. No disrespect is intended. 
In re DEZI C.

Opinion of the Court by Evans, J.

2

conclusions on this issue, and we granted review to resolve this 

conflict. ICWA and Cal-ICWA are unique statutory schemes

that are intended to protect Native American heritage, cultural 

connections between tribes and children of Native American 

ancestry, the best interests of Indian children, and the stability 

and security of Indian tribes and families. (See In re Isaiah W.

(2016) 1 Cal.5th 1, 7–8 (Isaiah W.); 25 U.S.C. § 1902; Welf. & 

Inst. Code, § 224, subd. (a).) When there is an inadequate 

inquiry and the record is underdeveloped, it is impossible for 

reviewing courts to assess prejudice because we simply do not 

know what additional information will be revealed from an 

adequate inquiry. We therefore hold that an inadequate CalICWA inquiry requires conditional reversal of the juvenile 

court’s order terminating parental rights with directions to the 

agency to conduct an adequate inquiry, supported by record 

documentation. Accordingly, we reverse the judgment of the 

Court of Appeal with directions to conditionally reverse the 

order terminating parental rights and remand for further 

proceedings consistent with our opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Angelica A. (mother) and Luis C. (father) have two 

children, Dezi C. (born in May 2016) and Joshua C. (born in 

April 2018). (In re Dezi C. (2022) 79 Cal.App.5th 769, 775 (Dezi 

C.).) In 2019, the Los Angeles County Department of Children 

and Family Services (Department) filed petitions pursuant to 

Welfare and Institutions Code2section 300 seeking to assert

dependency jurisdiction over Dezi and Joshua and alleging the 

minors were at risk of harm in the custody of mother and father 

2 Subsequent statutory references are to the Welfare and 

Institutions Code unless otherwise specified.
In re DEZI C.

Opinion of the Court by Evans, J.

3

due to the parents’ substance abuse and domestic violence 

issues.

Mother and father completed Parental Notification of 

Indian Status (ICWA-020) forms prior to the detention hearing,

and each indicated, “I have no Indian ancestry as far as I 

know.”

The initial detention hearing was held in December 2019. 

The court asked the parents about the accuracy of the ICWA020 forms and whether they had Indian heritage. Mother and 

father denied having Indian heritage, and the court found this 

was not an ICWA case. The court ordered the parents to provide 

the Department with the name, address, and any other 

identifying information of maternal and paternal relatives but 

did not explain why this information was necessary.

In February 2020, the juvenile court held a combined 

jurisdictional and dispositional hearing. It sustained the 

allegations of the petitions, removed Dezi and Joshua from the 

custody of their parents, and ordered the Department to provide 

the parents with family reunification services in accordance 

with the case plans of each parent.

A six-month review hearing was held in August 2020. At 

that hearing, the juvenile court concluded mother and father 

were not in compliance with their case plans, terminated 

reunification services, and set the matter for a permanency 

planning hearing pursuant to section 366.26.

At the section 366.26 permanency hearing, held in 

January 2022, the juvenile court concluded by clear and 

convincing evidence that the children were adoptable and were 

likely to be adopted by their paternal grandparents. The court 
In re DEZI C.

Opinion of the Court by Evans, J.

4

terminated mother’s and father’s parental rights. ICWA was 

not mentioned.

In investigating the allegations underlying the 

dependency petitions, Department social workers spoke with 

paternal grandparents, maternal grandparents, father’s 

siblings, mother’s siblings, and one of father’s cousins. (Dezi C., 

supra, 79 Cal.App.5th at p. 776.) It is undisputed that the social 

workers did not ask any of these individuals whether mother, 

father, Dezi, or Joshua had Indian ancestry. (Ibid.) This is 

despite the facts that: mother, father, and the children resided 

with paternal grandparents before the court asserted 

jurisdiction over the children and throughout the dependency 

proceedings, and paternal grandparents were likely to adopt the 

children; father’s cousin appeared at the detention hearing; and

maternal grandparents appeared at the adjudication and 

disposition hearing.

Mother appealed the termination of her parental rights. 

Her sole contention on appeal was that the Department failed to 

comply with its duty under ICWA and related California 

provisions to initially inquire of “extended family members” 

(§ 224.2, subd. (b)) regarding the children’s possible Indian 

ancestry. The Court of Appeal found it was “undisputed that 

the Department’s initial inquiry was deficient” and thus 

concluded that the operative question was whether “the 

Department’s defective initial inquiry in this case render[ed] 

invalid the juvenile court’s subsequent finding that ICWA does 

not apply (and thus render[ed] invalid the court’s concomitant 

order terminating mother’s parental rights)?” (Dezi C., supra, 

79 Cal.App.5th at pp. 776–777.)
In re DEZI C.

Opinion of the Court by Evans, J.

5

The Court of Appeal noted that “California courts have 

staked out three different rules for assessing whether a 

defective initial inquiry is harmless.” (Dezi C., supra, 79 

Cal.App.5th at p. 777.) It considered and rejected the rules in 

favor of its own fourth rule. The Court of Appeal held that if an 

agency’s inquiry is deficient, that defect “is harmless unless the 

record contains information suggesting a reason to believe that 

the child may be an ‘Indian child’ within the meaning of ICWA.” 

(Id. at p. 779, italics added.) It found this rule “best reconciles 

the competing policies at issue when an ICWA objection is 

asserted in later at the final phases of the dependency 

proceedings” (id. at p. 781), while also respecting the California 

Constitution’s requirement that a judgment not be set aside 

“unless it ‘has resulted in a miscarriage of justice.’ ” (Id. at p. 

779, citing Cal. Const., art. VI, § 13.) The Court of Appeal also 

observed that “[w]here, as here, there is no doubt that the 

Department’s inquiry was erroneous . . . we must assess 

whether it is reasonably probable that the juvenile court would 

have made the same ICWA finding had the inquiry been done 

properly.” (Id. at p. 777, citing People v. Watson (1956) 46 Cal.2d 

818, 836.)

We granted review. Since that time, a number of Courts 

of Appeal have weighed in on the split of authority, and we have 

granted review and deferred further action in some of those 

matters until after this case is decided. (In re G.A. (2022) 

81 Cal.App.5th 355, review granted and held Oct. 12, 2022

[following Dezi C. rule and concluding error was harmless]; In 

re M.M. (2022) 81 Cal.App.5th 61, review granted and held Oct. 

12, 2022 [declining to adopt “reversal per se” approach and 

finding error harmless under all other standards]; In re An. L.

(Dec. 8, 2022, B315986) [nonpub. opn.], review granted and held 
In re DEZI C.

Opinion of the Court by Evans, J.

6

Mar. 22, 2023; In re Athena R. (Dec. 13, 2022, B318751) [nonpub. 

opn.], review granted and held Mar. 22, 2023; In re D.D. (Dec. 8, 

2022, B319941) [nonpub. opn.], review granted and held Mar. 1, 

2023; In re E.T. (Oct. 4, 2022, B315104) [nonpub. opn.], review 

granted and held Dec. 28, 2022; In re M.G. (Oct. 28, 2022, 

B317366) [nonpub. opn.], review granted and held Jan. 18, 2023; 

In re R.T. (July 6, 2022, B315541) [nonpub. opn.], review

granted and held Oct. 12, 2022; In re Tyler C. (Feb. 3, 2023, 

B316341) [nonpub. opn.], review granted and held Apr. 26, 2023; 

In re X.R. (Jan. 31, 2023, B318808) [nonpub. opn.], review 

granted and held Apr. 12, 2023; In re Z.C. (Sept. 26, 2022, 

C094803) [nonpub. opn.], review granted and held Dec. 28, 

2022.)

II. DISCUSSION

The sole question presented in this case is a narrow one: 

whether a child welfare agency’s failure to make a proper 

inquiry under California’s heightened ICWA requirements 

constitutes reversible error. This is a question of law that we 

consider de novo. (Tansavatdi v. City of Rancho Palos Verdes

(2023) 14 Cal.5th 639, 652.)

A. Governing Law/ICWA

1. Background of ICWA

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 nonIndian homes.” (Mississippi Choctaw Indians Band v. Holyfield

(1989) 490 U.S. 30, 32 (Holyfield); see also 25 U.S.C. § 1901(4) 
In re DEZI C.

Opinion of the Court by Evans, J.

7

[finding “that an alarmingly high percentage of Indian families 

are broken up by the removal, often unwarranted, of their 

children from them by nontribal public and private agencies”].) 

After congressional investigation spanning several years and 

encompassing multiple hearings, Congress found that many of 

the problems resulting in the widespread separation of Indian 

children were caused by the states, which encouraged the 

practice and “failed to account for legitimate cultural differences 

in Indian families.” (ICWA Proceedings, 81 Fed.Reg. 38778, 

38780 (June 14, 2016); see also id. at p. 38781.) State 

procedures also frequently violated due process. (Id. at p. 

38781.) The separation of Indian children “contributed to a 

number of problems, including the erosion of a generation of 

Indians from Tribal communities, loss of Indian traditions and 

culture, and long-term emotional effects on Indian children 

caused by loss of their Indian identity.” (Id. at p. 38780.)

Based on these findings, in enacting ICWA, Congress 

declared “that it is the policy of this Nation to protect the best 

interests of Indian children and to promote the stability and 

security of Indian tribes and families by the establishment of 

minimum Federal standards for the removal of Indian children 

from their families and the placement of such children in foster 

or adoptive homes which will reflect the unique values of Indian 

culture . . . .” (25 U.S.C. § 1902.) It also acknowledged “there is 

no resource that is more vital to the continued existence and 

integrity of Indian tribes than their children . . .” and “the 

States, exercising their recognized jurisdiction over Indian child 

custody proceedings through administrative and judicial bodies, 

have often failed to recognize the essential tribal relations of 

Indian people and the cultural and social standards prevailing 
In re DEZI C.

Opinion of the Court by Evans, J.

8

in Indian communities and families.” (25 U.S.C. § 1901(3), (5); 

see also Holyfield, supra, 490 U.S. at pp. 35–36.)

ICWA establishes minimum standards for state courts to 

follow before removing Indian children from their families and 

placing them in foster care or adoptive homes and does not 

prohibit states from establishing higher standards. (25 U.S.C. 

§ 1921; 25 C.F.R. § 23.106 (2024); see also In re Elizabeth M.

(2018) 19 Cal.App.5th 768, 783.) Indeed, ICWA expressly yields

to state laws that provide “a higher standard of protection to the 

rights of the parent or Indian custodian of an Indian child . . . .” 

(25 U.S.C. § 1921; § 224, subd. (d).)

ICWA gives “Indian tribes concurrent jurisdiction over 

state court child custody proceedings that involve Indian 

children living off of a reservation.” (W.B., supra, 55 Cal.4th at 

p. 48.) The tribe also has the power to petition the court to 

invalidate any action taken in a custody proceeding if the action 

violated ICWA. (25 U.S.C. § 1914; see also § 224, subd. (e).) 

Thus, when ICWA applies, “the Indian child’s tribe shall have a 

right to intervene at any point” in a proceeding involving the 

removal of an Indian child from their family. (25 U.S.C. 

§ 1911(c); § 224.4; In re K.T. (2022) 76 Cal.App.5th 732, 741.)

2. Relevant Provisions of ICWA

The issue of whether ICWA applies in dependency 

proceedings turns on whether the minor is an Indian child. An 

“Indian child” is defined 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.” (25 U.S.C. 

§ 1903(4).) At the commencement of a child custody proceeding, 
In re DEZI C.

Opinion of the Court by Evans, J.

9

the court is obligated to inquire from each participant3 whether 

there is a “reason to know” that the child is or may be an Indian 

child. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.107(a) (2024).) The 

increased protections of ICWA apply “where the court knows or 

has reason to know that an Indian child is involved.” (25 U.S.C. 

§ 1912(a); 25 C.F.R. § 23.107(b)(2) (2024).)

In 2016, new federal regulations were adopted addressing 

ICWA compliance. (See ICWA Proceedings, 81 Fed.Reg., supra,

at p. 38864 [revising 25 C.F.R. § 23 (2016)].) The regulations

are binding on state courts, are intended to “improve ICWA 

implementation,” and clearly identify what actions state courts 

and agencies must undertake to ensure ICWA implementation 

in child welfare proceedings. (ICWA Proceedings, 81 Fed.Reg,

supra, at p. 38778.) The regulations urge early compliance with 

ICWA, as it “promotes the maintenance of Indian families, and 

the reunification of Indian children with their families 

whenever possible, and reduces the need for disruption in 

placements. . . . And early implementation of ICWA’s

requirements conserves judicial resources by reducing the need 

for delays, duplication, and appeals.” (Id. at p. 38779.)

3 An implementing federal regulation notes “participant” 

includes attorneys. (ICWA Proceedings, 81 Fed.Reg., supra, at 

p. 38803.) It also observes that “participants could also include 

the State agency, parents, the custodian, relatives or trial 

witnesses, depending on who is involved in the case.” (Ibid.)
In re DEZI C.

Opinion of the Court by Evans, J.

10

B. California’s Implementation of ICWA (CalICWA)

1. Background of Cal-ICWA

California struggled to comply with ICWA after its 

passing. California Indian Legal Services (CILS),

4

one of the 

sponsors of the bill that became Cal-ICWA, expressed concern 

that “state courts and county agencies in California continue to 

violate not only the spirit and intent of ICWA, but also its 

express provisions.” (Sen. Judiciary Com., Analysis of Sen. Bill 

No. 678 (2005–2006 Reg. Sess.) as amended Aug. 22, 2005, p. 6; 

see also id. at p. 7 [CILS noting a “myriad of appellate court 

decisions involving ICWA” to support contention that “social 

workers, courts and other parties still have difficulty complying 

with ICWA’s requirements”].) Of particular concern was that 

tribes were unable “to participate in child custody proceedings 

because they fail to be properly notified of the proceedings.” (Id. 

at p. 6.)

In 2006, the California Legislature passed Senate Bill No. 

678 (2005–2006 Reg. Sess.), which “enacted provisions that 

affirm ICWA’s purposes (§ 224, subd. (a)) and mandate 

compliance with ICWA ‘[i]n all Indian child custody proceedings’ 

(§ 224, subd. (b)).” (Isaiah W., supra, 1 Cal.5th at p. 9, italics 

added.) The Legislature’s “primary objective” in incorporating 

these provisions “was to increase compliance with ICWA.”

(W.B., supra, 55 Cal.4th at p. 52; see also Sen. Appropriations 

Com., Analysis of Sen. Bill No. 678 (2005–2006 Reg. Sess.) as 

amended Aug. 22, 2005, p. 1; accord, In re Abbigail A. (2016) 1 

Cal.5th 83, 91 (Abbigail A.) [“persistent noncompliance with 

4 CILS is also amicus curiae in this case.
In re DEZI C.

Opinion of the Court by Evans, J.

11

ICWA led the Legislature in 2006 to ‘incorporate[] ICWA’s 

requirements into California statutory law’ ”].) 

2. Cal-ICWA’s Provisions Relating to the Duty of 

Inquiry 

After the federal ICWA regulations were adopted in 2016, 

California made conforming amendments to Cal-ICWA, 

including portions of the Welfare and Institutions Code related 

to ICWA inquiry and notice requirements. (Assem. Bill No. 3176 

(2017-2018 Reg. Sess.); Stats. 2018, ch. 833, §§ 4–7; In re A.W. 

(2019) 38 Cal.App.5th 655, 662, fn. 3.) Among other things, 

Assembly Bill No. 3176 “revise[d] the specific steps a social 

worker, probation officer, or court is required to take in making 

an inquiry of a child’s possible status as an Indian child.” (Legis. 

Counsel’s Dig., Assem. Bill No. 3176 (2017–2018 Reg. Sess.) p. 

1; Stats. 2018, ch. 833.) As a result of this amendment, 

“ ‘agencies now have a broader duty of inquiry and a duty of 

documentation.’ ” (In re Jerry R. (2023) 95 Cal.App.5th 388, 411; 

§ 224.2, subd. (a); see also Cal. Rules of Court, rule 5.481(a).5)

5 References to rules are to the California Rules of Court. 

The California Constitution directs the Judicial Council to 

“adopt rules for court administration, practice and procedure.” 

(Cal. Const., art. VI, § 6, subd. (d); see § 265 [concerning rules 

for juvenile courts].) Rules adopted by the Judicial Council “are 

entitled to a measure of judicial deference.” (Sara M. v. Superior 

Court (2005) 36 Cal.4th 998, 1014; accord, Abbigail A., supra, 1 

Cal.5th at p. 92.)

Rule 5.481 parallels the inquiry and notice statutes of 

sections 224.2 and 224.3 and directs courts, court investigators, 

and agencies to inquire of the child, parents, “Indian custodian, 

or legal guardians, extended family members, others who have 

an interest in the child, and where applicable the party 
In re DEZI C.

Opinion of the Court by Evans, J.

12

Section 224.2 codifies and expands on ICWA’s duty of 

inquiry to determine whether a child is an Indian child.6

Agencies and juvenile courts have “an affirmative and 

continuing duty” in every dependency proceeding to determine 

whether ICWA applies by inquiring whether a child is or may 

be an Indian child. (§ 224.2, subd. (a).) This “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.” (Ibid.; see also rule 5.481(a); Isaiah W., supra, 1 Cal.5th 

at p. 14 [“juvenile court has an affirmative and continuing duty 

in all dependency proceedings to inquire into a child’s Indian 

status”].)

Section 224.2, subdivision (b) specifies that once a child is 

placed into the temporary custody of a county welfare 

department, the duty to inquire “includes, but is not limited to, 

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 

reporting child abuse or neglect,” whether the child might be an 

Indian child. (Rule 5.481(a)(1).) Importantly, the rule requires 

a petitioner in a dependency proceeding on an “ongoing basis [to] 

include in its filings a detailed description of all inquiries, and 

further inquiries it has undertaken, and all information received 

pertaining to the child’s Indian status, as well as evidence of how 

and when this information was provided to the relevant tribes. 

Whenever new information is received, that information must 

be expeditiously provided to the tribes.” (Rule 5.481(a)(5).) 

6

“Indian child” is defined in the same manner under state 

law as federal law. (§ 224.1, subd. (a).) 
In re DEZI C.

Opinion of the Court by Evans, J.

13

the child is, or may be, an Indian child.”7(See also rule 

5.481(a)(1).) “Extended family member” means “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-law or 

sister-in-law, niece or nephew, first or second cousin, or 

stepparent.” (25 U.S.C. § 1903(2); see also § 224.1, subd. (c) 

[adopting ICWA definition of “extended family member”].)

While this duty of inquiry is sometimes referred to as the 

initial duty of inquiry, this is a bit of a misnomer, as the duty 

“continues throughout the dependency proceedings.” (In re J.C.

(2022) 77 Cal.App.5th 70, 77 (J.C.); see also In re K.H. (2022) 

84 Cal.App.5th 566, p. 597, fn. 10 (K.H.) “[c]ourts have 

recognized it is somewhat inaccurate to refer to the agency’s 

‘ “ ‘initial duty of inquiry’ ” ’ ”].)

When the agency has “reason to believe” that an Indian 

child is involved, further inquiry regarding the possible Indian 

status of the child is required. (§ 224.2, subd. (e);

8

see also rule 

7 We have granted review in In re Ja.O. (2023) 91 

Cal.App.5th 672 (review granted July 26, 2023, S280572) to 

decide whether the inquiry duty under section 224.2, 

subdivision (b) applies to children taken into custody by means 

of a protective custody warrant (§ 340). That issue is not before 

us, and we do not comment on the issue here.

8 The Legislature amended section 224.2, subdivision (e) in 

2020 to define “reason to believe,” which was previously 

undefined. (Assem. Bill No. 2944 (2019–2020 Reg. Sess.) § 15, 

pp. 24–25, eff. Sept. 18, 2020; K.H., supra, 84 Cal.App.5th at 

pp. 595–596; see In re D.S. (2020) 46 Cal.App.5th 1041, 1049.) 

“Reason to believe” means that “the court, social worker, or 

probation officer has information suggesting that either the 

parent of the child or the child is a member or may be eligible 

for membership in an Indian tribe. Information suggesting 
In re DEZI C.

Opinion of the Court by Evans, J.

14

5.481(a)(4).) The required further inquiry includes 

(1) interviewing the parents and extended family members; 

(2) contacting the Bureau of Indian Affairs (BIA) and State 

Department of Social Services; and (3) contacting tribes the 

child may be affiliated with and anyone else that might have 

information regarding the child’s membership or eligibility in a 

tribe. (§ 224.2, subd. (e)(2)(A)–(C).) At this stage, contact with 

a tribe “shall, at a minimum, include telephone, facsimile, or 

electronic mail contact to each tribe’s designated agent for 

receipt of [ICWA] notices,” and “sharing information identified 

by the tribe as necessary for the tribe to make a membership or 

eligibility determination, as well as information on the current 

status of the child and the case.” (Id., subd. (e)(2)(C).)

The sharing of information with tribes at this inquiry 

stage is distinct from formal ICWA notice, which requires a 

“reason to know” — rather than a “reason to believe” — that the 

child is an Indian child. Unlike the term “reason to believe,” a 

“reason to know” exists 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 

membership or eligibility for membership includes, but is not 

limited to, information that indicates, but does not establish, the 

existence of one or more of the grounds for reason to know 

enumerated in paragraphs (1) to (6), inclusive, of subdivision 

(d).” (§ 224.2, subd. (e)(1).)
In re DEZI C.

Opinion of the Court by Evans, J.

15

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 [he or she] is an Indian child[;] [¶] (5) The court 

is informed that the child is or has been a ward of a tribal court[; 

and] [¶] (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).)

If the inquiry establishes a reason to know an Indian child 

is involved, notice must be provided to the pertinent tribes.

(§ 224.3, subds. (a), (b); 25 U.S.C. § 1912(a).) The notice must 

include enough information for the tribe to “conduct a 

meaningful review of its records to determine the child’s 

eligibility for membership” (In re Cheyanne F. (2008) 164 

Cal.App.4th 571, 576), including the identifying information for 

the child’s biological parents, grandparents, and greatgrandparents, to the extent known (§ 224.3, subd. (a)(5)(C); see 

also In re Francisco W. (2006) 139 Cal.App.4th 695, 703

(Francisco W.)). “Notice to Indian tribes is central to 

effectuating ICWA’s purpose, enabling a tribe to determine 

whether the child involved in a dependency proceeding is an 

Indian child and, if so, whether to intervene in, or exercise 

jurisdiction over, the matter.” (In re T.G. (2020) 58 Cal.App.5th 

275, 288 (T.G.).) In addition, once there is reason to know a child 

is an Indian child, the juvenile court must find ICWA applies 

and “treat the minor as an Indian child unless and until it 

determines that ICWA does not apply.” (In re S.H. (2022) 82 

Cal.App.5th 166, 177; see also § 224.2, subd. (i)(1).)

The juvenile court may alternatively make a finding that 

an agency’s inquiry and due diligence were “proper and 

adequate,” and the resulting record provided no reason to know 
In re DEZI C.

Opinion of the Court by Evans, J.

16

the child is an Indian child, so ICWA does not apply. (§ 224.2, 

subd. (i)(2).) Even if a court makes this finding, an agency and 

the court have a continuing duty under ICWA, and the 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 . . . .” (§ 224.2, subd. (i)(2).)

The juvenile court’s factual finding that ICWA does not 

apply is “subject to reversal based on sufficiency of the 

evidence.” (§ 224.2, subd. (i)(2).) Some courts apply a 

straightforward substantial evidence test when reviewing the 

juvenile court’s conclusion that ICWA does not apply. (In re 

Kenneth D. (Aug. ___, 2024, S276649) ___ Cal.5th ___, ___ [p. 12] 

(Kenneth D.).)

9

 “By contrast, other courts have applied ‘a hybrid 

substantial evidence/abuse of discretion standard, reviewing for 

substantial evidence whether there is reason to know a child is 

an Indian child, and for abuse of discretion a juvenile court’s 

finding that an agency exercised due diligence and conducted a 

“proper and adequate” ICWA inquiry.’ ” (Ibid.) As it is 

undisputed that the Cal-ICWA inquiry in this case was 

inadequate, we need not decide what standard of review applies 

to these findings. 

9

In Kenneth D., also filed today, we consider whether, when 

the statutorily required inquiry is inadequate, an appellate 

court may consider postjudgment evidence to conclude the error 

is harmless. We hold that such evidence may generally not be 

considered absent exceptional circumstances. (Kenneth D., 

supra, ___ Cal.5th at p. ___ [p. 1].)
In re DEZI C.

Opinion of the Court by Evans, J.

17

C. The Conflict in the Courts of Appeal Regarding 

the Standard for Prejudice

Against this legal backdrop, California courts have 

confronted the standard for whether an error in conducting the 

Cal-ICWA inquiry is prejudicial. Five rules have developed with 

respect to this issue. At the strictest end of the conceptual 

spectrum for assessing prejudicial error is the presumptive 

affirmance rule. Under this rule, error in the initial Cal-ICWA 

inquiry is harmless unless a parent can demonstrate on appeal 

that further inquiry would lead to a different outcome. (See, 

e.g., In re A.C. (2021) 65 Cal.App.5th 1060, 1069 [“ ‘Where the 

record below fails to demonstrate and the parents have made no 

offer of proof or other affirmative assertion of Indian heritage on 

appeal, a miscarriage of justice has not been established and 

reversal is not required’ ”].)

On the opposite end of the spectrum, another line of cases 

holds that reversal is required if a child welfare agency’s initial 

inquiry is deficient.10 (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 

542, 549, 556 (Y.W.) [agency’s failure to interview mother’s 

biological parents, where adoptive parents knew name of 

biological father and had contact information for biological aunt, 

made it impossible to demonstrate prejudice]; see also In re A.R.

(2022) 77 Cal.App.5th 197, 207 (A.R.).) Third, the court in In re 

10 Some courts view this test as treating Cal-ICWA inquiry 

violations as reversible per se. (See, e.g., Dezi C., supra, 79 

Cal.App.5th at p. 783; In re G.H. (2022) 84 Cal.App.5th 15, 32–

33 (G.H.); In re E.V. (2022) 80 Cal.App.5th 691, 698 (E.V.); Y.W., 

supra, 70 Cal.App.5th at p. 556.) The court in K.H., however, 

found this characterization overstated and instead viewed these 

cases as laying out a rule of reversal for cases involving records 

so inadequate “that the error and need for reversal are ‘clear.’ ” 

(K.H., supra, 84 Cal.App.5th at p. 618.)
In re DEZI C.

Opinion of the Court by Evans, J.

18

Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.) held 

that a defect in the Cal-ICWA inquiry is harmless unless “the

record demonstrates that the agency has not only failed in its 

duty of initial inquiry, but where the record indicates that there 

was readily obtainable information that was likely to bear 

meaningfully upon whether the child is an Indian child.”

Subsequently, the Court of Appeal below laid out the 

“ ‘reason to believe’ rule.” (Dezi C., supra, 79 Cal.App.5th at 

p. 779.) Under this rule, “an agency’s failure to conduct a proper 

initial inquiry into a dependent child’s American Indian 

heritage is harmless unless the record contains information 

suggesting a reason to believe that the child may be an ‘Indian 

child’ within the meaning of ICWA, such that the absence of 

further inquiry was prejudicial to the juvenile court’s ICWA 

finding.” (Ibid.)

Last, the K.H. court concluded prejudice must be assessed 

from the context of the injury involved, which is the “failure to 

gather and record the very information the juvenile court needs 

to ensure accuracy in determining whether further inquiry or 

notice is required, and whether ICWA does or does not apply.” 

(K.H., supra, 84 Cal.App.5th at p. 591.) It noted this injury was 

not tied to any outcome on the merits and was therefore not 

amenable to the standard Watson likelihood-of-success test to 

assess prejudice. (Id. at p. 609.) It also held that “where the 

opportunity to gather the relevant information critical to 

determining whether the child is or may be an Indian child is 

lost because there has not been adequate inquiry and due 

diligence, reversal for correction is generally the only effective 

safeguard.” (Id. at p. 610.)
In re DEZI C.

Opinion of the Court by Evans, J.

19

D. The Parties’ Positions

Mother argues that we should adopt a reversal per se rule. 

She maintains an inadequate Cal-ICWA inquiry denies tribes 

the constitutional due process right to notice, and is therefore 

structural error requiring reversal per se. Mother also contends 

that error in conducting the statutorily required inquiry is not 

amenable to the regular outcome-focused likelihood-of-success 

test laid out in Watson, because the prejudice stemming from 

the erroneous inquiry is the very failure to obtain the 

information required to determine whether ICWA applies. 

Citing to A.R., supra, 77 Cal.App.5th at p. 207, mother 

maintains that because an inadequate inquiry prejudices the 

rights of the parent, tribe, and child, “[r]eversal per se is the only 

effective safeguard of the rights ICWA was designed to protect.”

Mother alternatively argues that if we do not adopt a per 

se reversal standard for prejudice, we should adopt the 

Benjamin M. rule, as elaborated by K.H. Mother notes both 

cases focus on the adequacy of the investigation and what an 

adequate inquiry might have revealed, and both reject Watson’s 

outcome-focused approach to assessing prejudice. In mother’s

view, “this test would require reversal in every case in which 

either (1) known, available relatives were not asked about 

possible Indian ancestry or (2) the parents were not asked if 

there were any such relatives who could be asked.”

The Department disagrees that a per se reversal rule or 

the Benjamin M. rule should apply. It advocates for the reasonto-believe rule laid out by the Court of Appeal below. It argues

that the reason-to-believe rule is consistent with the California 

Constitution’s requirement that a judgment not be set aside 

unless it results in a miscarriage of justice by affecting the 
In re DEZI C.

Opinion of the Court by Evans, J.

20

outcome on the juvenile court’s ICWA finding, and that this rule

best reconciles competing policy considerations at play when 

ICWA inquiry error is asserted late in the proceedings.

E. The Failure to Conduct an Adequate Inquiry 

Requires Conditional Reversal and Remand 

with Directions To Comply with Cal-ICWA

We hold that error resulting in an inadequate initial CalICWA inquiry requires conditional reversal with directions for 

the child welfare agency to comply with the inquiry requirement 

of section 224.2, document its inquiry in compliance with rule 

5.481(a)(5), and when necessary, comply with the notice 

provision of section 224.3. When a Cal-ICWA inquiry is 

inadequate, it is impossible to ascertain whether the agency’s 

error is prejudicial. (Y.W., supra, 82 Cal.App.5th at p. 556; see 

also J.C., supra, 77 Cal.App.5th at p. 80.) “[U]ntil an agency 

conducts a proper initial inquiry and makes that information 

known, it is impossible to know what the inquiry might reveal.” 

(K.H., supra, 84 Cal.App.5th at p. 617; see also Benjamin M., 

supra, 70 Cal.App.5th at p. 743 [until agency gathers 

information and makes it known “we cannot know what 

information an initial inquiry, properly conducted, might 

reveal”].) 

“ ‘[W]hen the validity of a [judgment] depends solely on an 

unresolved or improperly resolved factual issue which is distinct 

from [the judgment], such an issue can be determined at a 

separate post-judgment hearing and if at such hearing the issue 

is resolved in favor of the [agency], the [judgment] may stand.’ ” 

(People v. Moore (2006) 39 Cal.4th 168, 176–177; see also People 

v. Minor (1980) 104 Cal.App.3d 194, 199 [“when the trial is free 

of prejudicial error and the appeal prevails on a challenge which 

establishes only the existence of an unresolved question which 
In re DEZI C.

Opinion of the Court by Evans, J.

21

may or may not vitiate the judgment, appellate courts have, in 

several instances, directed the trial court to take evidence, 

resolve the pending question, and take further proceedings 

giving effect to the determination thus made”].) The limited 

remand procedure is also appropriate where, as here, the record 

is insufficient to permit a court to assess prejudice. (See, e.g., 

People v. Gaines (2009) 46 Cal.4th 172, 180–181 [erroneous 

denial of Pitchess motion where trial court failed to review 

records requires conditional reversal and remand to trial court 

with directions to review the documents and to allow defendant 

to demonstrate prejudice from nondisclosure if documents 

contain relevant information]; see also People v. Madrigal (2023) 

93 Cal.App.5th 219, 263 [same; “[o]n this record, it is impossible 

to assess prejudice from the failure to disclose the subpoenaed 

materials because we do not know what they contain, and the 

trial court made no record of their contents”].)

In this case, the sole infirmity in the judgment is the 

failure to conduct an adequate Cal-ICWA inquiry, which renders 

it impossible to review for prejudice the trial court’s implied 

finding that ICWA does not apply. There is no indication of any

error in the dependency proceedings that would justify the 

outright reversal of the judgment terminating parental rights. 

Thus, full reversal of the section 366.26 judgment is not 

warranted; rather, a conditional reversal in order to comply with 

Cal-ICWA is appropriate. Indeed, conditional reversal appears 

to be common practice in a number of cases involving inadequate 
In re DEZI C.

Opinion of the Court by Evans, J.

22

ICWA inquiries.

11

 (See, e.g., In re K.R. (2018) 20 Cal.App.5th 

701, 709–710 (K.R.).) 

Upon a conditional reversal, the Department will make 

additional inquiry and documentation efforts consistent with its 

duties and the court shall hold a hearing thereafter to determine 

whether, in light of the outcome of the inquiry as documented, 

ICWA applies. If the juvenile court determines the inquiry is 

proper, adequate, and duly diligent and concludes that ICWA 

does not apply, any inquiry error is cured, and the judgment 

would be reinstated. (See Francisco W., supra, 139 Cal.App.4th 

at p. 705 [noting limited reversal allows ICWA error to be cured 

while affording child protection of juvenile court].) In contrast, 

if the inquiry reveals a reason to know the dependent child is an 

Indian child, the tribe has been notified (see § 224.3, subd. (a);

19 U.S.C. § 1912), and the tribe determines the child is a 

member or citizen, or eligible for membership or citizenship, of 

an Indian tribe (see § 224.1, subd. (b); 25 U.S.C. § 1903(4)), 

ICWA applies, and the judgment must be reversed.

We reach this conclusion for several reasons. First, ICWA 

and Cal-ICWA “ ‘ “recognize[] that the tribe has an interest in 

the child which is distinct from but on a parity with the interest 

of the parents” ’ ” and other relatives. (Isaiah W., supra, 

1 Cal.5th at p. 9; see also A.R., supra, 77 Cal.App.5th at p. 204 

[“As these [statutes] make clear, the primary parties protected 

under ICWA are the Native American tribes, whose right to 

11 The dissent mischaracterizes our conclusion as holding 

that an inadequate ICWA inquiry is structural error. To the 

contrary, our holding today is premised on the fact that when an 

inquiry is inadequate, the record is insufficient to determine 

whether the error is harmless under Watson. 
In re DEZI C.

Opinion of the Court by Evans, J.

23

intervene in an appropriate case will likely never be discovered 

absent the statutorily required inquiry and notice procedures”].)

That interest is compromised and cannot be protected if the 

social service agency and the juvenile court fail to perform their 

inquiry duties. (See G.H., supra, 84 Cal.App.5th at p. 31.) A

rule requiring conditional reversal when there is error in an 

ICWA inquiry acknowledges that the interest at issue belongs 

to tribes who “have no standing to intervene in a dependency 

case unless Native American ancestry is first uncovered and 

established, and thus no way of protecting their tribal interests 

unless child welfare agencies comply with ICWA and then notify 

the appropriate tribe when the inquiry reveals Native American 

ancestry.” (A.R., supra, 77 Cal.App.5th at pp. 201–202, italics 

added.) Thus, in the context of juvenile dependency appeals 

raising deficiencies in the ICWA inquiry, an appealing parent 

“is in effect acting as a surrogate for the tribe in raising 

compliance issues . . . .” (K.R., supra, 20 Cal.App.5th at p. 708.) 

This is not a conventional scenario in which the harm from error 

directly and solely affects the appealing party. Conditional 

reversal to allow inquiry error to be cured best supports the 

interests of tribes, which are independently protected by ICWA.

Second, this approach best comports with the plain 

language of the inquiry requirements of section 224.2. As we 

have seen (ante, pt. II.B.2), Cal-ICWA “broadly imposes on social 

services agencies and juvenile courts (but not parents) an 

‘affirmative and continuing duty to inquire’ whether a child in 

the dependency proceeding ‘is or may be an Indian child.’ ” 

(Benjamin M., supra, 70 Cal.App.5th at pp. 741–742, italics 

added, quoting § 224.2, subd. (a); see also § 224.2, subds. (b), (c); 

rule 5.481(a).) “ ‘[T]he burden of coming forward with 

information to determine whether an Indian child may be 
In re DEZI C.

Opinion of the Court by Evans, J.

24

involved and ICWA notice required in a dependency proceeding 

does not rest entirely — or even primarily — on the child and 

his or her family.’ ” (T.G., supra, 58 Cal.App.5th at p. 293.) 

When an inquiry is inadequate, the entities charged with the 

duty to conduct the inquiry must attempt to cure that error and 

may not avoid their duty by placing the burden on the parents 

to demonstrate that the error is prejudicial on an inadequate 

record. 

Third, “ensuring a proper, adequate, and duly diligent 

inquiry at the initial stage of the compliance process is 

foundational to fulfilling the purpose underlying ICWA and 

related California law.” (K.H., supra, 84 Cal.App.5th at p. 590.) 

ICWA was enacted to protect tribal integrity and sovereignty in 

its membership determinations, which is “central to its 

existence as an independent political community.” (Santa Clara 

Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) “Tribal 

membership criteria, classifications of membership, and 

interpretation of membership laws are unique to each tribe and 

vary across tribal nations.” (In re Dependency of Z.J.G. (2020) 

196 Wn.2d 152, 176.) Accordingly, only a tribe can determine 

whether a child is a member of, or eligible for membership in, 

that tribe (25 C.F.R. § 23.108(a), (b) (2024)), and a court “may 

not substitute its own determination regarding a child’s 

membership in a [t]ribe, a child’s eligibility for membership in a 

[t]ribe, or a parent’s membership in a [t]ribe.” (Id., § 23.108(b)

(2024); accord, Isaiah W., supra, 1 Cal.5th at p. 8.)

While the right to determine a child’s Indian ancestry 

belongs to the tribe, at the initial inquiry stage of proceedings, 

“the tribe is not present, and the agency is charged with 

obtaining information to make that right meaningful.” 

(Benjamin M., supra, 70 Cal.App.5th at p. 745, italics added.) 
In re DEZI C.

Opinion of the Court by Evans, J.

25

When an ICWA inquiry is inadequate, a child’s potential Indian 

ancestry is missed, and tribes are prevented from making the 

final determination that the child is an Indian child. 

Conditionally reversing to conduct an adequate Cal-ICWA

inquiry ensures tribes’ important sovereign right to determine 

whether the child is a member of, or eligible for membership in, 

the tribe.

Amici curiae CILS and California Tribal Families 

Coalition (CTFC) note that as a result of forced assimilation 

policies, “younger generations lack[] knowledge of their Native 

American ancestry which may only be reclaimed by conducting

[a] proper ICWA inquiry with extended family members and 

others more knowledgeable.” (Accord, ICWA Proceedings, 81 

Fed.Reg., supra, at p. 38780.) Recognizing that parents may not 

be the best source of information about a child’s Indian ancestry, 

the Legislature expressly mandated that, from the outset, child 

protective agencies expand their investigation of a child’s 

possible Indian status beyond the child’s parents. (§ 224.2, subd. 

(b); Assem. Bill No. 3176 (2017–2018 Reg. Sess.); Stats. 2018, 

ch. 833, § 5.) An “agency’s inquiry is often the only opportunity 

to collect . . . information” that the child is or may be an Indian 

child, and thus “is a critical step in safeguarding the rights 

ICWA was designed to protect and one that cannot be excused 

by reviewing courts.” (K.H., supra, 84 Cal.App.5th at p. 604.) 

“Although the duty of inquiry is a continuing one [citation], as 

we have seen in countless cases, . . . if the inquiry is inadequate 

at the outset, the likelihood that the opportunity to gather 

relevant information will present itself later in the proceeding 

declines precipitously.” (Id. at p. 609.) As required by statute, 

an adequate initial inquiry that reaches beyond parents to 

extended family members and others facilitates the discovery of 
In re DEZI C.

Opinion of the Court by Evans, J.

26

Indian identity, and maximizes the chances that potential 

Indian children are discovered and tribes are notified. 

Fourth, our holding is supported by the 2016 

implementing regulations of ICWA, which promote “compliance 

with ICWA from the earliest stages of a child-welfare 

proceeding.” (ICWA Proceedings, 81 Fed.Reg., supra, at p. 

38779.) The regulations emphasize “[i]t is . . . critically 

important that there be an inquiry into that threshold issue [of 

whether a child is an Indian child] as soon as possible. If this 

inquiry is not timely, a child-custody proceeding may not comply 

with ICWA and thus may deny [ICWA] protections to Indian 

children and their families. The failure to timely determine if 

ICWA applies also can generate unnecessary delays, as the 

court and the parties may need to redo certain processes or 

findings under the correct standard. This is inefficient for courts 

and parties, and can create delays and instability in placements 

for the Indian child.” (Id. at pp. 38802–38803.) A conditional 

reversal rule when Cal-ICWA inquiries are inadequate will 

encourage prompt, complete compliance with ICWA early in the 

proceedings and avoid delay and duplicative efforts. This will 

further ICWA and Cal-ICWA’s goals of prompt, full compliance 

with their inquiry requirements, and accommodate the critical 

interest of dependent children in permanency and stability.

The Court of Appeal expressed concern that reversing 

whenever an inquiry does not satisfy the requirements of section 

224.2 would result in an “endless feedback loop of remand, 

appeal, and remand” because the statutory duty of inquiry 

“creates an open-ended universe of stones,” and “empowers [an 

appealing parent] to obtain a remand to question extended 

family members, then a second remand to question the family 

babysitter, and then a third remand to question longtime 
In re DEZI C.

Opinion of the Court by Evans, J.

27

neighbors, and so on and so on.” (Dezi C., supra, 79 Cal.App.5th 

at pp. 784–785.) But our conclusion does not require reversal in 

all cases in which every possible extended family member has 

not been asked about the child’s Indian ancestry. As mother 

herself concedes, section 224.2 “does not require the agency to 

‘find’ unknown relatives and others who have an interest in the 

child, merely to make reasonable inquiries. The operative 

concept is those people who are reasonably available to help the 

agency with its investigation into whether the child has any 

potential Indian ancestry should be asked.” 

Because it is undisputed that the inquiry in this case was 

inadequate, we do not have occasion to decide what constitutes 

an adequate and proper inquiry necessary to satisfy section 

224.2. We note, however, that the juvenile court’s fact-specific 

determination that an inquiry is adequate, proper, and duly 

diligent is “a quintessentially discretionary function” (In re 

Ezequiel G. (2022) 81 Cal.App.5th 984, 1005) subject to a 

deferential standard of review. (§ 224.2, subd. (i)(2); see also 

Kenneth D., supra, ___ Cal.5th at p. ___ [p. 12].) “ ‘On a welldeveloped record, the court has relatively broad discretion to 

determine whether the agency’s inquiry was proper, adequate, 

and duly diligent on the specific facts of the case. However, the 

less developed the record, the more limited that discretion 

necessarily becomes.’ ” (Kenneth D., supra, ___ Cal.5th at p. ___

[p. 13]; see also In re H.B. (2023) 92 Cal.App.5th 711, 721.)

If, upon review, a juvenile court’s findings that an inquiry 

was adequate and proper and ICWA does not apply are found to 

be supported by sufficient evidence and record documentation

as required by California law (rule 5.481(a)(5)), there is no error

and conditional reversal would not be warranted even if the 

agency did not inquire of everyone who has an interest in the 
In re DEZI C.

Opinion of the Court by Evans, J.

28

child. On the other hand, if the inquiry is inadequate, 

conditional reversal is required so the agency can cure the error 

and thereby safeguard the rights of tribes, parents, and the 

child. 

Here, for example, the Department’s inquiry extended no 

further than mother and father, both of whom have 

longstanding issues with substance use disorder, even though 

their parents, siblings, and father’s cousin were readily 

available and had been interviewed by the Department 

regarding the allegations of the dependency petitions. The 

Department’s inquiry falls well short of complying with section 

224.2, as it concedes. “ ‘When, as in this case, the court’s implied 

finding that the agency’s inquiry was proper, adequate, and duly 

diligent rests on a cursory record and a patently insufficient 

inquiry that is conceded, the only viable conclusion is that the 

finding is unsupported by substantial evidence and the court’s 

conclusion to the contrary constitutes a clear abuse of 

discretion.’ ” (Kenneth D., supra, ___ Cal.5th at p. ___ [p. 13]; 

quoting K.H., supra, 84 Cal.App.5th at p. 589.)

According to our dissenting colleagues, we should

overcome the inadequate record and assess the juvenile court’s

implied ICWA finding for prejudice by requiring the appealing 

parent to make a proffer to the Court of Appeal of extra-record

evidence tending to show the child is Indian. Contrary to CalICWA, this would improperly shift the burden of proof to the 

parents and improperly substitute the reviewing court’s

“judgment for that of the juvenile court, which is to make those 

findings in the first instance.” (Kenneth D., supra, ___ Cal. 5th 

at p. ___ [p. 15].) 
In re DEZI C.

Opinion of the Court by Evans, J.

29

In the dissent’s view, since delay “of even a few months” 

for a juvenile court to conduct the statutorily required inquiry 

can impact a child, it is appropriate to admit new evidence on 

appeal under Code of Civil Procedure section 909. (Dis. opn. of 

Groban, J., post, at p. 6; id. at p. 7.) We agree with our 

dissenting colleagues about the importance of prompt resolution 

of dependency proceedings. However, if delay to comply with 

the statutory inquiry requirements were a basis to invoke Code 

of Civil Procedure section 909, the exception would swallow the 

rule we have laid out in Kenneth D. that reviewing courts may 

not generally consider previously unadmitted evidence for the 

first time on appeal to conclude initial ICWA inquiry error is 

harmless. (Kenneth D., supra, ___ Cal. 5th at p. ___ [p. 1].) As

we also observe in Kenneth D., “ ‘claims of error under ICWA are 

not rare and will not typically present the type of exceptional 

circumstances warranting deviation from the general rule’ that 

appellate courts should not engage in factfinding.” (Kenneth D., 

supra, ___ Cal.5th at p. ___ [p. 18].)

Moreover, we have never suggested that when a record is 

insufficient to ascertain whether error is harmless, we should 

require an appellant to present new, extra-record evidence 

pursuant to Code of Civil Procedure section 909 to demonstrate 

prejudice under Watson. None of the cases cited in the dissent 

allowed the introduction of new evidence on appeal to determine

whether the asserted error was prejudicial. (Dis. opn. of 

Groban, J., post, at pp. 9–10.) Nor have we relied on the absence 

of evidence, or the potential for delay in finality, to justify 

admission of new evidence on appeal under Code of Civil 

Procedure section 909. It is unclear how the dissent’s rationale 

“could be cabined to the ICWA context, as it would seem to 

countenance appellate courts’ receipt of new evidence in any 
In re DEZI C.

Opinion of the Court by Evans, J.

30

case involving harmless error review, making consideration of 

such evidence routine rather than exceptional.” (Kenneth D., 

supra, ___ Cal.5th at p. ___ [p. 18].) This would contravene our 

decision in Kenneth D., as well as our decision in In re Zeth S.

(2003) 31 Cal.4th 396, 408, in which we rejected the routine 

acceptance of postjudgment evidence under Code of Civil 

Procedure section 909 to expedite final resolution of matters.12 

Juvenile dependency proceedings “involve the well-being 

of children, [so] considerations such as permanency and stability 

are of paramount importance. (§ 366.26.)” (In re S.B. (2004) 32 

Cal.4th 1287, 1293.) “We emphatically agree that dependent 

children have a critical interest in avoiding unnecessary delays 

to their long-term placement.” (In re A.R. (2021) 11 Cal.5th 234, 

249.) “Because tribes have a right to intervene and even 

overturn prior judgments for failure to comply with ICWA 

[citations], the lack of timely and proper inquiry can undermine 

expeditious resolution and call into doubt the finality of juvenile 

court orders.” (Kenneth D., supra, ___ Cal.5th at p. ___ [p. 21].) 

Furthermore, it bears emphasis that “the obligation is 

only one of inquiry and not an absolute duty to ascertain or 

refute Native American ancestry.” (In re Antoinette S. (2002) 

104 Cal.App.4th 1401, 1413.) Agencies are already tasked with

investigating the circumstances underlying the child’s removal 

and identifying and locating the child’s extended family 

members (§ 309, subds. (a), (e)); it is a rather simple task to ask 

12 It should also be noted that prompt, permanent placement 

is not the only area of critical importance for children in 

dependency proceedings. Complying with ICWA benefits 

children by furthering their interests in continued connections 

to their tribes and preserving their culture. (See Isaiah W., 

supra, 1 Cal.5th at pp. 7–8; 25 U.S.C. § 1902.) 
In re DEZI C.

Opinion of the Court by Evans, J.

31

those family members about Indian ancestry in this process. In

fact, courts have characterized the duty of inquiry as “slight and 

swift.” (In re S.S. (2023) 90 Cal.App.5th 694, 698; see also K.H., 

supra, 84 Cal.App.5th at p. 619 [“we do not believe that 

requiring agencies and juvenile courts to ensure fulfillment of 

the most basic duties of inquiry required under ICWA adds 

measurably to” burden on agencies and courts]; A.R., supra, 77 

Cal.App.5th at p. 207 [delay in finality “need not be a significant 

one”].) The parties may also expedite the process of resolving

inadequate Cal-ICWA inquiries by stipulating to a conditional 

reversal and the immediate issuance of the remittitur to give the 

juvenile court jurisdiction to order ICWA compliance. (See In re 

Ricky R. (2022) 82 Cal.App.5th 671, 683.) We conclude that 

when a Cal-ICWA inquiry is inadequate, conditional reversal to 

undertake the simple task of inquiry best balances the weighty 

interests of Indian children and tribes under ICWA on the one 

hand, and the interests of dependent children in permanency 

and stability on the other, because it ensures finality of 

dependency judgments. (Accord, Isaiah W., supra, 1 Cal.5th at 

p. 15 [“ ‘ “To maintain stability in placements of children in 

juvenile proceedings, it is preferable to err on the side of giving 

notice and examining thoroughly whether the juvenile is an 

Indian child.” ’ ”].) In any event, when a Cal-ICWA inquiry is 

inadequate, a conditional reversal likely will inject far less delay 

than per se reversal of the entire judgment.13

13 The dissent claims our holding ensures children “remain 

in prolonged legal uncertainty” and, here, delays permanent 

placement of Dezi and Joshua and does not serve their best 

interests. (Dis. opn. of Groban, J., post, at p. 2; id. at p. 27.) But 

it is agencies who create delays in permanency by failing to 
In re DEZI C.

Opinion of the Court by Evans, J.

32

It may be that in many cases, an adequate inquiry will 

reveal no reason to believe the child is Indian. The dissent notes 

mother’s counsel conceded at oral argument that the likelihood 

of the tribe actually intervening and removing a child from 

placement is minimal.14 ICWA and Cal-ICWA, however, make 

clear that the inquiry is not concerned with the outcome, but 

rather with the protection of tribal rights, including the tribes’ 

right to determine whether a child is an Indian child.15

comply with their statutory obligation to conduct a prompt and

adequate inquiry. To the extent the dissent worries about the 

effect of delays in this particular case, there is no evidence in 

this case that Dezi’s and Joshua’s placement with their paternal 

grandparents is at risk. As the dissent concedes, to date, the 

“paternal grandparents have provided a safe and stable 

environment and stand ready to permanently adopt them . . . .” 

(Id. at pp. 26–27.) We are also unpersuaded that adopting the

dissent’s rule would eliminate delays in permanency. Our rule 

encourages prompt compliance with ICWA and Cal-ICWA and 

prompt resolution of initial inquiry errors, while honoring the 

respective roles of the juvenile court as factfinder, and the court 

of appeal as reviewer of the “judgment based on the record as it 

existed when the trial court ruled.” (Kenneth D., supra, ___

Cal.5th at p. ___ [p. 14].) 

14 Even if a child is found to be Indian, but ultimately not 

placed with a tribe, tribal placement is not ICWA’s only goal. 

Tribal input regarding a child’s placement is also a viable goal, 

particularly when children are placed with foster parents who 

do not share the children’s culture. (See, e.g., § 224.4; rules 

5.690(c)(2)(C) & 5.708(f)(7).)

15 The dissent focuses on the outcome of the inquiry, and 

characterizes it as “go[ing] to the heart of ICWA . . . .” (Dis. opn.

of Groban, J., post, at p. 14.) But as we have seen, the outcome 

is not for us to decide. (Isaiah W., supra, 1 Cal.5th at p. 8.)

Notice enables the tribe to decide whether a child is Indian “and, 

if so, whether to intervene in or exercise jurisdiction over the 
In re DEZI C.

Opinion of the Court by Evans, J.

33

“[A]bsent a reasonable inquiry at the outset, the opportunity to 

gather information relevant to the inquiry is often missed 

entirely.” (K.H., supra, 84 Cal.App.5th at p. 615.)

It is also true that any finding the trial court makes after 

remand will be appealable by the parents. As we have noted, 

however, the juvenile court’s finding regarding the adequacy of 

the inquiry and ICWA’s applicability is subject to a deferential 

standard of review. Further, child welfare agencies can avoid 

repeated remands by conducting an adequate inquiry as soon as 

possible and continuing to abide by their statutory inquiry 

obligations throughout dependency proceedings. Moreover, 

while a parent will have a right to appeal from any juvenile 

court order updating its ICWA findings following conditional 

reversal, that order will not be stayed pending appeal. (§ 395, 

subd. (a)(1).)

The Department argues that a clear rule of reversal 

should be rejected because the Legislature did not require 

automatic Cal-ICWA appeals and did not designate tribes as 

real parties in interest to dependency proceedings. The fact that 

the Legislature has not designated specific procedural paths to 

ensure Cal-ICWA compliance does not mean that compliance 

with Cal-ICWA can be sidestepped or is unimportant. Without 

an adequate inquiry, tribes will not know whether a child is an 

proceeding.” (Id. at p. 5.) It is for that reason that the “notice 

requirement is at the heart of ICWA . . . .” (In re Antonio R.

(2022) 76 Cal.App.5th 421, 429, italics added (Antonio R.).) An

adequate initial inquiry at the outset is essential to ensuring 

that tribes are properly noticed so they may make this final

determination. 
In re DEZI C.

Opinion of the Court by Evans, J.

34

Indian child and will not receive notice or have standing to 

intervene in dependency cases.

In sum, when an initial Cal-ICWA inquiry is inadequate, 

conditional reversal is warranted in order to develop the record 

and cure the inadequacy. This rule protects the interests of 

parents, children, and tribes, ensures agencies and courts are 

complying with their statutorily prescribed duties, and protects 

the permanency of dependency judgments.

F. The Department Fails To Persuade that the 

Reason-to-Believe Rule Should Apply When CalICWA Inquiries Are Inadequate

As we have noted, the Department argues the reason-tobelieve rule announced by the Court of Appeal should be adopted 

because it is consistent with the California Constitution’s 

requirement that a judgment not be set aside unless it results 

in a miscarriage of justice by affecting the outcome (in this case, 

the juvenile court’s ICWA finding). The dissent also favors the 

reason-to-believe rule. The Department maintains this rule

best reconciles competing policy considerations at play when 

Cal-ICWA compliance issues are asserted late in the 

proceedings, including: (1) the interests of dependent children 

in permanency, (2) the interest in effectuating the rights of 

Indian tribes by ensuring a determination of whether a child 

may be an Indian child, (3) the judicial branch’s interest in 

ensuring that the agency gets the message that a proper initial 

inquiry is critical, and (4) the judicial branch’s interest in 

discouraging parents from engaging in gamesmanship and 

delaying objections to the adequacy of an inquiry until parental 

rights have been terminated.
In re DEZI C.

Opinion of the Court by Evans, J.

35

We reject the reason-to-believe rule as flawed. By placing 

the burden on parents to point to something in the record 

suggesting there is a reason to believe a child might be an 

“Indian child,” the rule effectively shifts the obligation to 

conduct the inquiry away from child welfare agencies and courts

to the parents. (See Benjamin M., supra, 70 Cal.App.5th at p. 

743; see also In re V.C. (2023) 95 Cal.App.5th 251, 261 [rejecting 

reason-to-believe rule because it “shifts the duty of developing 

information on Indian ancestry from the agency to the 

parents”].) This contravenes the Legislature’s intent which, as 

evinced by section 224.2’s plain language and legislative history, 

is to impose the inquiry obligation on agencies and courts in 

order to increase compliance with ICWA. (See § 224.2, subds. 

(a)–(c), (e).)

The dissent contends that shifting the burden to the 

parents is appropriate under Watson. (Dis. opn. of Groban, J., 

post, at pp. 10–11.) The dissent not only ignores that we cannot 

ascertain whether the error is harmless when an initial CalICWA inquiry is inadequate (see ante, at pp. 20–22 & fn. 11), 

but also that the Legislature charged child welfare agencies 

with the obligation to conduct an adequate inquiry. It argues 

that Cal-ICWA contemplates parents will participate in the 

determination that a child is an Indian child by filling out 

ICWA-020 forms and notifying the court if subsequent 

information gives a reason to know the child is Indian. (Dis. 

opn. of Groban, J., post, at pp. 15–16.) Juvenile court forms 

directing parents to provide information within their possession, 

however, differs fundamentally from the statutory duty of 

inquiry, which the Legislature has expressly stated must extend 

beyond the parents. While the Legislature remains free to 

amend Cal-ICWA, the duty of inquiry, expressly placed on child 
In re DEZI C.

Opinion of the Court by Evans, J.

36

welfare agencies, cannot be shifted to the parents under the 

current statutory scheme. 

In addition, the reason-to-believe rule assumes parents 

are capable of protecting tribal rights (i.e., that they have 

sufficient knowledge of their Indian heritage to demonstrate a 

reason to believe the child might be an Indian child) and are 

interested in doing so. The Legislature has not embraced this 

assumption, however, which “overlooks recent findings on the 

impact this country’s decades-long efforts to destroy Indian 

families and eradicate Indian history and culture, including 

through abuses of the child welfare system, may have on a 

family’s awareness of its Indian ancestry.” (In re Rylei S. (2022)

81 Cal.App.5th 309, 321–322 (Rylei S.); see also ICWA 

Proceedings, 81 Fed.Reg., supra, at p. 38780.)

Indeed, there are a number of reasons why parents would 

not be knowledgeable of, or be uninterested in disclosing, their 

Indian heritage. The “[o]ral transmission of relevant 

information from generation to generation and the vagaries of 

translating from Indian languages to English combine to create 

the very real possibility that a parent’s or other relative’s 

identification of the family’s tribal affiliation is not accurate.” 

(T.G., supra, 58 Cal.App.5th at p. 289.) Further, as amici curiae 

CILS and CTFC observe, “generations who lived through 

trauma at the hands of state actors pass a lack of selfidentification as Native American to younger generations, 

leaving only the older family members or extended family 

members with knowledge of” Indian ancestry. (See also ICWA 

Proceedings, 81 Fed.Reg., supra, at p. 38780.) Parents may 

simply be estranged from, or have an unfavorable relationship 

with, extended family. (See, e.g., G.H., supra, 84 Cal.App.5th at 

pp. 30–31.)
In re DEZI C.

Opinion of the Court by Evans, J.

37

“[W]e also cannot assume a parent’s interest necessarily 

aligns with the tribe’s interest.” (K.H., supra, 84 Cal.App.5th at 

p. 613.) “ ‘The parents or Indian custodian may be fearful to selfidentify, and social workers are ill-equipped to overcome that by 

explaining the rights a parent or Indian custodian has under the 

law.’ ” (Rylei S., supra, 81 Cal.App.5th at p. 322.) This is 

unsurprising. “Native communities have endured a legacy of 

trauma at the hands of State actors who enacted forced removal 

and assimilation of their children; therefore, Native families are 

much more likely to harbor a unique distrust of government 

workers.” (In re Dependency of G.J.A. (2021) 197 Wn.2d 868, 

905; see also id. at p. 906 [“Native families often do not trust 

child welfare workers”].) “ ‘Parents may even wish to avoid the 

tribe’s participation or assumption of jurisdiction.’ ” (Rylei S., 

supra, 81 Cal.App.5th at p. 322, italics added.) They “may be 

less interested in or committed to federal and state policies of 

protecting the continued existence and integrity of tribes —

even perhaps viewing potential tribal involvement consciously 

or unconsciously as a source of competition for custody.” (G.H., 

supra, 84 Cal.App.5th at p. 31; see also Holyfield, supra, 490 

U.S. at pp. 37, 52 [mother gave birth outside of reservation to 

avoid tribal jurisdiction].) Some parents may even be victims of 

unscrupulous attorneys seeking to avoid adoption delays. (See 

In re Bridget R. (1996) 41 Cal.App.4th 1483, 1493.) Enforcing 

the requirement of an adequate inquiry only in cases in which

the record affirmatively demonstrates a reason to believe the 

child is an Indian child decreases the likelihood that child 

welfare agencies will identify potential Indian children and 

notify tribes accordingly. As discussed above, an inadequate 

inquiry denies tribes the opportunity to make membership 

determinations and intervene in dependency actions when 
In re DEZI C.

Opinion of the Court by Evans, J.

38

appropriate. As amici curiae CILS and CTFC point out, it also

results in a “bypassing of remedial requirements of the ICWA 

and a risk to the tribes of losing the next generation of their 

citizens through the [a]gency’s failures.” 

In addition, by requiring parents to demonstrate in the 

record that there is a reason to believe the child is an Indian 

child, the reason-to-believe rule “potentially make[s]

enforcement of the tribes’ rights dependent on the quality of the 

parents’ effort on appeal.” (A.R., supra, 77 Cal.App.5th at 

p. 207.) This is not what the statutory scheme contemplates. As 

we have seen, Cal-ICWA does not require parents to inquire 

about the child’s Indian ancestry. When a child welfare agency 

fails to conduct an adequate inquiry, the record of the inquiry is 

necessarily inadequate. That deficiency may hinder a parent 

from supporting a claim that a reason to believe Indian ancestry 

exists. In any event, the duty of inquiry belongs to the agency 

and may not be shifted to the parent.

The Department and the Court of Appeal maintain that a 

rule limiting remand to cases in which there is a reason to 

believe a child is an Indian child “effectuates the rights of the 

tribes in those instances in which those rights are most likely at 

risk, which are precisely the cases in which the tribe’s potential 

rights do justify placing the children in a further period of 

limbo.” (Dezi C., supra, 79 Cal.App.5th at p. 782.) They also 

take the position that “by focusing on what is in the record 

rather than what is not in the record, [the reason-to-believe rule] 

largely sidesteps the ‘how can we know what we don’t know’ and 

burden of proof conundrums that animate the automatic 

reversal and presumptive affirmance rules.” (Ibid.)
In re DEZI C.

Opinion of the Court by Evans, J.

39

These arguments improperly focus on the outcome of the 

inquiry — that there is a reason to believe the child is an Indian 

child — rather than the inquiry itself. As the K.H. court 

observed, “[b]y design, this [reason-to-believe] approach 

bypasses problems with the agency’s and the court’s discharge 

of their duties where the deficiencies lie in the failure to gather 

information at the initial stage of inquiry. [Citation.] Instead, 

the rule focuses on information relevant to the next stage in the 

ICWA compliance process — a need for further inquiry if, based 

on the record, there is reason to believe the child is an Indian 

child [citation], and on prejudice as related to the court’s ICWA 

finding [citation]. However, as recent cases demonstrate, 

following changes in California law over the past few years, 

errors in the ICWA compliance process very often lie in the lack 

of an adequate inquiry at the outset and, as we have explained, 

ensuring adequacy at the outset is essential to ensuring that the 

protection afforded by ICWA and related law is realized.” (K.H., 

supra, 84 Cal.App.5th at p. 615, italics added.) The duty of 

inquiry is an ongoing one — even if it may also trigger further 

duties — and cannot be conflated with downstream compliance 

requirements. (§ 224.2, subd. (a); J.C., supra, 77 Cal.App.5th at 

p. 77 [duty of inquiry “ ‘begins with the initial contact’ [citation] 

and continues throughout the dependency proceedings”].) 

Stated differently, the inquiry is not outcome oriented; rather, 

it is geared to ensuring that tribal heritage is acknowledged and 

inquired about in dependency cases. Focusing on whether there 

is information bearing on the outcome of the inquiry before an 

adequate inquiry has even been made frustrates the purpose of 

ICWA and ignores that “tribes have a compelling, legally 

protected interest in the inquiry itself.” (A.R., supra, 77 

Cal.App.5th at p. 202.)
In re DEZI C.

Opinion of the Court by Evans, J.

40

The Court of Appeal and the Department make much of 

the fact that mother failed to raise ICWA and Cal-ICWA 

compliance issues below and denied Indian ancestry. They

emphasize that the reason-to-believe rule will encourage 

parents to raise objections to ICWA inquiry issues earlier and 

discourage gamesmanship. It is unclear what a parent stands 

to gain by purposely withholding information regarding a child’s 

potential Indian ancestry, or intentionally withholding an 

objection to an inadequate ICWA inquiry, only to raise the 

information or objection for the first time on appeal. Neither the 

Court of Appeal nor the Department identify any benefit a 

parent would receive from appellate delay for ICWA compliance 

purposes only, and generally a child’s placement may not be 

disturbed during appeal.16 (See In re Caden C. (2021) 11 Cal.5th

614, 630.) 

16 The dissent maintains the reason a parent would wait to 

raise the issue of ICWA or Cal-ICWA noncompliance until 

appeal is that parents will “seek to do anything they can to undo

the trial court’s termination of parental rights.” (Dis. opn. of 

Groban, J., post, at p. 19.) The dissent views raising ICWA or 

Cal-ICWA error on appeal as “a logical response” to this 

possibility, and notes that in this case, mother objected for the 

first time on appeal that the agency did not comply with the duty 

of inquiry. (Ibid.) It also notes that in S.H., supra, 82 

Cal.App.5th at p. 172, a parent planned to claim Indian ancestry 

to delay the child’s removal from the home. Appealing on the 

basis of ICWA or Cal-ICWA inquiry error, however, does not 

change the fact that parental rights have been terminated even 

if Indian ancestry is discovered. And the dependency process 

does not stop simply because a claim of Indian ancestry is raised. 

As the juvenile court in S.H. observed when making its 
In re DEZI C.

Opinion of the Court by Evans, J.

41

To be sure, if a party seeks to engage in gamesmanship to 

delay resolution of a case or a minor’s permanency, we condemn 

such tactics. But there appears to be little incentive for parents 

to engage in such conduct in the first instance, and we will not 

assume parents are engaging in this tactic or that 

gamesmanship will occur based on our holding. Given the large 

number of cases to date involving patent errors with respect to 

Cal-ICWA inquiries, as well as legislative history expressing 

concerns about agencies’ failures to comply with ICWA (see ante, 

at p. 10), our primary concern is to ensure those agencies —

whose very job it is to conduct the inquiry — are not avoiding 

their duties under Cal-ICWA. (See, e.g., E.V., supra, 80 

Cal.App.5th at p. 697 [“this particular problem [of errors in

required Cal-ICWA inquiries] keeps surfacing in appeals with 

alarming frequency”].) In addition, “we presume that counsel 

representing [a parent] in such an appeal would only raise 

nonfrivolous claims on [their] behalf.” (In re J.K. (2022) 83 

Cal.App.5th 498, 508, fn. 6.) 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 counsel[] a party to do so.’ ” (Ibid., see also § 224.3, subd. (e).) 

Thus, the statutory scheme already addresses concerns 

regarding gamesmanship. 

jurisdictional findings: “I am troubled . . . that the parents 

somehow wanted to claim Native American ancestry because 

somehow they [thought] they had a leg up by doing that. I don’t 

know what they thought they would achieve by that.” (S.H., 

supra, 82 Cal.App.5th at p. 173.) Moreover, there is no evidence 

that mother raised ICWA and Cal-ICWA compliance on appeal 

here to forestall the termination of her parental rights. 
In re DEZI C.

Opinion of the Court by Evans, J.

42

Further, there is little indication that the unlikely concern 

of gamesmanship outweighs, or is on equal footing with, the 

critical importance of ensuring an adequate and proper inquiry. 

“Until the inquiry is conducted, and the issue is put to rest, the 

interests of the Native American tribes have not been 

adequately protected, and the judgment in this case would 

remain vulnerable to a potential collateral attack.” (A.R., supra, 

77 Cal.App.5th at p. 202.) As we held in Isaiah W., a parent may 

“challenge a finding of ICWA’s inapplicability in an appeal from 

the subsequent order, even if [they] did not raise such a 

challenge in an appeal from the initial order.” (Isaiah W., supra, 

1 Cal.5th at p. 6.) We justified this conclusion in part because 

ICWA permits its notice requirements to “be enforced after the 

issuance of an order terminating parental rights.” (Id. at p. 13; 

see also 25 U.S.C. § 1914.) Accordingly, ICWA findings “are 

preserved for review irrespective of any action or inaction on the 

part of the parent . . . .” (K.R., supra, 20 Cal.App.5th at p. 708, 

italics added.) Moreover, nothing in the statutory scheme 

permits the required inquiry to be halted or short circuited when 

a parent denies Indian ancestry. 

Ultimately, the reason-to-believe rule discourages full 

compliance with Cal-ICWA, does not fully acknowledge the 

history or realities of many current-day tribal communities, and 

would risk undermining the legislative intent behind section 

224.2.

17

 An adequate initial inquiry ensures that Indian 

17 Approximately 110 of the 574 federally-recognized Indian

tribes in the United States are in California. (See Indian 

Entities Recognized by and Eligible To Receive Services From 

the United States Bureau of Indian Affairs, 88 Fed.Reg. 54654

(Aug. 11, 2023) [listing all tribes eligible for BIA services and 
In re DEZI C.

Opinion of the Court by Evans, J.

43

children are identified and ICWA and Cal-ICWA are applied 

even if tribes do not intervene in the proceedings.

For all these reasons, we reject the reason-to-believe rule. 

Placing the burden on an appealing parent to demonstrate in 

the record on appeal a reason to believe the child is an Indian 

child when the record’s deficiency is due to the child welfare 

agency’s inadequate inquiry undermines the statutory scheme 

and weakens a tribe’s ability to discover and ultimately assert 

its interest in its children.

Last, we explain why we find the presumptive affirmance 

rule and the rule laid out in Benjamin M. unpersuasive. The 

presumptive affirmance rule “has been sharply criticized.” 

(K.H., supra, 84 Cal.App.5th at p. 612.) First, the rule 

contravenes our holding in Kenneth D. that absent exceptional 

circumstances, a reviewing court should not make factual 

findings and consider new evidence on appeal to conclude the 

initial inquiry error was harmless. (Kenneth D., supra, ___

Cal.5th at pp. ___, ___ [pp. 1, 18].) The rule also “require[s] a 

parent to make an affirmative representation of Indian ancestry 

funding].) These tribes range from large to very small and have 

their own governmental structures and processes. (See 

California Tribal Court-State Court Forum, Frequently Asked 

Questions: Indian Tribes and Tribal Communities in California, 

p. 1 <https://www.courts.ca.gov/documents/TribalFAQs.pdf> [as 

of Aug. 19, 2024]; all Internet citations in this opinion are 

archived by year, docket number and case name at 

<http://www.courts.ca.gov/38324.htm>.) In addition, many 

Indians in California are from out-of-state tribes. (Id. at pp. 2–

3.) These factors present challenges with ICWA and Cal-ICWA

compliance, including notice to, and participation of, tribes, 

underscoring that ICWA and Cal-ICWA must be enforced 

regardless of tribal intervention. (See ICWA Proceedings, 81 

Fed.Reg., supra, at pp. 38782–38783.)
In re DEZI C.

Opinion of the Court by Evans, J.

44

where the [agency’s] failure to conduct an adequate inquiry 

deprived the parent of the very knowledge needed to make such 

a claim.” (Y.W., supra, 70 Cal.App.5th at p. 556.) As the Court 

of Appeal below reasoned in rejecting the rule: “By placing the 

onus solely on the parent to come forward with a proffer of 

information likely to be obtained on remand, the presumptive 

affirmance rule not only embraces finality at the expense of the 

tribe’s interest in ascertaining accurate determinations of the 

Indian status of dependent children, but does too little to 

incentivize agencies to conduct proper inquiries because 

prejudicially deficient [inquiries] will go uncorrected if the 

parent is unwilling or unable to make a meaningful proffer on 

appeal.” (Dezi C., supra, 79 Cal.App.5th at p. 785.) 

As we have seen, the rule adopted by the Benjamin M.

court requires a court to “reverse where the record demonstrates 

that the agency has not only failed in its duty of initial inquiry, 

but where the record indicates that there was readily obtainable 

information that was likely to bear meaningfully upon whether 

the child is an Indian child.” (Benjamin M., supra, 70 

Cal.App.5th at p. 744.) This rule, however, is “susceptible to 

being read in different ways, depending on whether courts 

interpret it broadly or narrowly overall, and depending on how 

they interpret ‘readily obtainable information’ and ‘likely to bear 

meaningfully’ on the inquiry more specifically.” (K.H., supra, 84 

Cal.App.5th at p. 617.) As a result, this rule is malleable enough 

to result in inconsistent outcomes. (Dezi C., supra, 79 

Cal.App.5th at p. 786 [uncertainty and breadth of rule means 

reviewing courts will debate whether information is readily 

obtainable]; see also In re D.B. (2022) 87 Cal.App.5th 239, 247

[criticizing how the court in In re Y.M. (2022) 82 Cal.App.5th 

901, 917–918 applied the Benjamin M. rule]; Antonio R., supra, 
In re DEZI C.

Opinion of the Court by Evans, J.

45

76 Cal.App.5th at p. 435 [disagreeing with how Benjamin M. 

rule was applied in In re S.S. (2022) 75 Cal.App.5th 575 & In re 

Darian R. (2022) 75 Cal.App.5th 502].)

Moreover, the Benjamin M. test collapses the analysis of 

whether an inquiry is adequate into the question of whether an 

inadequate inquiry is harmless. If a child welfare agency fails

to obtain meaningful information or pursue meaningful avenues

of inquiry — by, for example, failing to discover that a parent 

was adopted, or failing to inquire further after a parent 

identified an extended family member with more information 

about the child’s potential Indian ancestry — those facts would 

be relevant to whether the initial Cal-ICWA inquiry is 

adequate, not whether the inquiry is prejudicial. The

conditional reversal rule we adopt today clearly distinguishes 

between the separate issues of whether an inquiry is adequate 

and whether inquiry error is harmless. 

G. Conclusion

It bears observing that “[t]he required inquiry here could 

have been conducted in significantly less time than it took to 

defend this appeal.” (A.R., supra, 77 Cal.App.5th at p. 202.) 

Congress and the Legislature have committed to protecting 

Native American heritage and cultural connections between 

tribes and children of Native American ancestry. (§ 224; 25 

U.S.C. § 1902.) We hold our child welfare agencies and courts 

to these commitments. We do so by requiring a judgment to be 

conditionally reversed when error results in an inadequate Cal-
In re DEZI C.

Opinion of the Court by Evans, J.

46

ICWA inquiry. It is only by conditionally reversing that we can 

ascertain whether error in the inquiry is prejudicial.18

III. DISPOSITION

The Court of Appeal’s judgment is reversed with directions 

to conditionally reverse the order terminating parental rights.

The matter is remanded to the juvenile court for compliance 

with the inquiry and notice requirements of sections 224.2 and 

224.3 and the documentation provisions of rule 5.481(a)(5),

consistent with this opinion. If the juvenile court thereafter 

finds a proper and adequate further inquiry and due diligence 

has been conducted and concludes ICWA does not apply

(§ 224.2, subd. (i)(2)), then the court shall reinstate the order 

terminating parental rights. If the juvenile court concludes

18 Because they have reached contrary conclusions on the 

issue before us, we disapprove In re A.C., supra, 65 Cal.App.5th 

1060, In re Rebecca R. (2006) 143 Cal.App.4th 1426, In re 

Benjamin M., supra, 70 Cal.App.5th 735, In re Samantha F.

(2024) 99 Cal.App.5th 1062, In re V.C., supra, 95 Cal.App.5th 

251, In re Ricky R., supra, 82 Cal.App.5th 671, In re S.S., supra,

75 Cal.App.5th 575, In re Darian R., supra, 75 Cal.App.5th 502, 

In re A.C. (2022) 75 Cal.App.5th 1009, In re Y.M., supra, 82 

Cal.App.5th 901, In re Adrian L. (2022) 86 Cal.App.5th 342, In 

re D.B., supra, 87 Cal.App.5th 239, In re Ezequiel G., supra, 81 

Cal.App.5th 984, In re G.A., supra, 81 Cal.App.5th 355, In re 

Allison B. (2022) 79 Cal.App.5th 214, In re A.M. (2020) 47 

Cal.App.5th 303, In re Austin J. (2020) 47 Cal.App.5th 870, and

In re M.M., supra, 81 Cal.App.5th 61 to the extent they are 

inconsistent with our opinion.
In re DEZI C.

Opinion of the Court by Evans, J.

47

ICWA applies, then it shall proceed in conformity with ICWA 

and California implementing provisions. (See 25 U.S.C., § 1912, 

subd. (a); §§ 224.2, subd. (i)(1); 224.3, 224.4.) 

EVANS, J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.
1

In re DEZI C.

S275578

Concurring Opinion by Justice Kruger

California law implementing the federal Indian Child 

Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) imposes an 

“affirmative and continuing duty” on a court and relevant 

agencies to inquire as to whether a child in a dependency 

proceeding “is or may be an Indian child.” (Welf. & Inst. Code, 

§ 224.2, subd. (a).) Depending on the results of this initial 

inquiry, the relevant authorities may then have an obligation to 

conduct further inquiry to determine whether the child falls 

within the ambit of the federal ICWA and its California 

counterpart (Cal-ICWA). (Welf. & Inst. Code, § 224.2, subd. (e); 

see also id., subd. (g).)

This case raises an important question concerning CalICWA’s initial inquiry requirement. But because the parties 

have conceded for purposes of this case that the agency failed to 

perform an adequate initial inquiry, the sole issue before us is 

“a narrow one: whether a child welfare agency’s failure to make 

a proper inquiry under California’s heightened ICWA 

requirements constitutes reversible error.” (Maj. opn., ante, at 

p. 6.) The majority holds that where a child welfare agency 

failed to make an adequate initial inquiry, a reviewing court 

must conditionally reverse the juvenile court’s order 

terminating parental rights and remand with instructions to the 

juvenile court to comply with Cal-ICWA’s notice and inquiry 

requirements. (Maj. opn., ante, at pp. 21–22.) 
In re DEZI C.

Kruger, J., concurring

2

I join the majority in concluding that this rule of 

conditional reversal follows from the statutory scheme the 

Legislature set forth in Welfare and Institutions Code section 

224.2. I write separately, however, to express my agreement 

with part II of the dissenting opinion on the threshold question 

of what constitutes an adequate initial inquiry under Cal-ICWA. 

Although this question is not squarely presented here, I think it 

is important to be clear on certain points for purposes of deciding 

the issue that is currently before us. Specifically, Cal-ICWA 

does not, as some have assumed, require the juvenile court to 

leave no stone unturned in an “ ‘open-ended universe of 

stones,’ ” thereby creating ever-widening circles of mandatory 

inquiry. (Dis. opn. of Groban, J., post, at p. 23; accord, maj. opn., 

ante, at pp. 26–27.) Rather, fairly read, the statute requires an 

initial inquiry that is adequate to reach a reliable conclusion 

about the applicability of ICWA. This explains why the rule of 

conditional reversal the majority adopts today will not, as the 

Court of Appeal had feared, lead to endless rounds of remands 

for additional inquiry with little or no chance of yielding 

pertinent information. With this understanding in mind, I 

agree with my colleagues that the rule the majority announces 

today makes sense of the Legislature’s careful efforts to balance 

the vital interests at stake in this case and others like it. (Maj. 

opn., ante, at p. 31; accord, dis. opn. of Groban, J., post, at 

pp. 25–26.)

 KRUGER, J.

I Concur:

CORRIGAN, J.
1

In re DEZI C.

S275578

Dissenting Opinion by Justice Groban

Prompt and permanent placement of a child in dependency 

proceedings is critically important. (In re Christopher L. (2022) 

12 Cal.5th 1063, 1081–1082 (Christopher L.).) The statutory 

scheme makes clear that courts must “give 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.” (Welf. & Inst. 

Code, § 352, subd. (a)(1) [describing the related context of when a 

court may grant a continuance].) After reunification efforts have 

failed, courts must act “reasonably promptly to minimize the time 

during which the child is in legal limbo. A child has a compelling 

right to a stable, permanent placement that allows a caretaker to 

make a full emotional commitment to the child.” (In re Celine R.

(2003) 31 Cal.4th 45, 59 (Celine R.).) “[L]engthy and unnecessary 

delay in providing permanency for children[ is] the very evil the 

Legislature intended to correct.” (In re Marilyn H. (1993) 5 Cal.4th 

295, 310 (Marilyn H.).) Indeed, we have said that even a fourmonth delay “may not seem a long period of time to an adult, it can 

be a lifetime to a young child.” (Ibid.) 

I agree with the majority that the Indian Child Welfare Act

of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and California’s version of 

ICWA (Cal-ICWA; Welf. & Inst. Code, § 224 et seq.) protect vital 

tribal interests. But the majority’s rule of automatic conditional 

reversal where there has been a failure to comply with Cal-ICWA, 

even if the parents disclaim any tribal membership and even if 
In re DEZI C.

Groban, J., dissenting

2

there is little possibility that the child may be Indian, fails to 

balance the equally important goal of achieving a prompt and 

stable placement for children in crisis. The majority opinion 

ensures that siblings Dezi C. and Joshua C., and hundreds of other 

children like them, will remain in prolonged legal uncertainty 

about who their adoptive parents will be, where they will live, 

where they will go to school, and whether they will be separated 

from one another and placed in separate homes. The majority 

forces Dezi C. and Joshua C. and their paternal grandparents to 

live with continued uncertainty about their future, even though the 

record reflects that the grandparents have consistently “provide[d]

a safe and stable home environment for Dezi and Joshua,” even 

though the parents have both previously indicated on multiple 

occasions and under penalty of perjury that they have no Indian 

ancestry, and even though, as mother’s counsel conceded at oral 

argument, the likelihood of a tribal placement is “minimal.” This 

delay and uncertainty carry the risk of creating further distress 

and instability for children who have already experienced the

trauma of being permanently removed from their parents’ care. 

This delay may also result in prospective adoptive parents deciding 

to no longer make themselves available as adoptive parents. I 

dissent to explain why our well-established standard of review for 

harmlessness of state law error is appropriate, one that allows 

lower courts to balance the goals of ICWA and Cal-ICWA with the 

goals of prompt and stable placement for children. 

I also write to highlight that the majority does not 

foreclose — and indeed quite rightly expressly leaves room for —

an alternate route that gives appellate courts greater flexibility

going forward. Even though the majority, wrongly in my view, 

adopts a rule requiring automatic conditional reversal when there 

is error in conducting a Cal-ICWA inquiry, this does not prevent 
In re DEZI C.

Groban, J., dissenting

3

appellate courts from giving substantial deference to a juvenile 

court’s finding that the inquiry was, in fact, adequate. Though my 

colleagues deprive appellate courts from taking a commonsense

approach where there was a failure to comply with Cal-ICWA at 

the trial level, appellate courts can still continue to show 

substantial deference to a juvenile court’s finding that the inquiry 

actually complied with Cal-ICWA. 

I. Standard of Prejudice for Cal-ICWA Error

The parties agree that the juvenile court complied with 

federal ICWA, but not Cal-ICWA. Though the majority largely 

ignores this distinction, the difference is crucial. Under federal 

ICWA, the court must ask both participants (i.e., the parents) at 

the commencement of proceedings “whether the participant knows 

or has reason to know that the child is an Indian child.” (25 C.F.R. 

§ 23.107(a) (2021).) That happened here. Prior to the initial 

detention hearing both parents signed under penalty of perjury 

ICWA-020 forms indicating that they do not have Indian ancestry.

The court then confirmed with the parents at the initial detention 

hearing that they did not have Indian ancestry. Thus, the 

Department of Children and Family Services (Department) and 

juvenile court satisfied the federal ICWA’s inquiry requirements. 

(25 C.F.R. § 23.107(a) (2021).)

The requirements of Cal-ICWA, however, impose additional 

duties of inquiry on a child welfare department, which “includes, 

but is not limited to,” not just asking the parents about Indian 

ancestry, but also asking the child, the “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 and where the child, the 

parents, or Indian custodian is domiciled.” (Welf. & Inst. Code, 

§ 224.2, subd. (b).) In this case, the parties agree the inquiry was 
In re DEZI C.

Groban, J., dissenting

4

inadequate under Cal-ICWA because the Department and the

court did not ask extended family members, meaning adults who 

are “the Indian child’s grandparent, aunt or uncle, brother or sister, 

brother-in-law or sister-in-law, niece or nephew, first or second 

cousin, or stepparent” (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 

224.l, subd. (c)), about Indian ancestry.

1

Where there has been a violation of state law, the standard 

of review has been well established for almost 70 years: Under 

People v. Watson (1956) 46 Cal.2d 818 (Watson), reversal is 

appropriate only where the petitioner can show that “it is 

reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.” (Id. at 

p. 836.) As we explained in Watson, this standard is consistent 

with our constitutional mandate that “[n]o judgment shall be set 

aside . . . unless, after an examination of the entire cause, including 

the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.” (Cal. 

Const., art. VI, § 13; see In re Jesusa V. (2004) 32 Cal.4th 588, 624 

(Jesusa V.) [“We typically apply a harmless-error analysis when a 

statutory mandate is disobeyed, except in a narrow category of 

circumstances when we deem the error reversible per se. This 

practice derives from article VI, section 13 of the California 

Constitution”].) The majority offers no plausible explanation as to 

1 We have granted review in In re Ja.O. (2023) 

91 Cal.App.5th 672, review granted July 26, 2023, S280572, to 

decide whether the inquiry duty under Welfare and Institutions 

Code section 224.2, subdivision (b) applies to children taken into 

custody by means of a protective custody warrant (Welf. & Inst. 

Code, § 340). That issue is not presented in this case, and I

express no view on it here. In this case, the parties do not 

dispute that Cal-ICWA applies.
In re DEZI C.

Groban, J., dissenting

5

why Watson does not apply. Nor does the majority make any 

attempt to reconcile article VI, section 13 of the California 

Constitution with its decision. (See In re Dezi C. (2022) 

79 Cal.App.5th 769, 785 (Dezi C.) [The majority’s “automatic 

reversal rule seemingly elevates ICWA above the constitutional

mandate that reversal is only required when there would be a 

miscarriage of justice. But it is well settled that constitutional 

provisions trump statutory law, not the other way around”].) 

I would not so lightly dispense with our precedent or our 

Constitution. Instead, I would apply Watson in this case by 

adopting the Court of Appeal’s “reason to believe” standard. (See 

Dezi C., supra, 79 Cal.App.5th at p. 779.) Under the “reason to 

believe” standard, “an agency’s failure to conduct a proper initial 

inquiry into a dependent child’s American Indian heritage is 

harmless unless the record contains information suggesting a 

reason to believe that the child may be an ‘Indian child’ within the 

meaning of ICWA, such that the absence of further inquiry was 

prejudicial to the juvenile court’s ICWA finding. For this purpose, 

the ‘record’ includes both the record of proceedings in the juvenile 

court and any proffer the appealing parent makes on appeal.” 

(Ibid.) This standard appropriately balances the interests of the 

child in avoiding delay and instability in permanent placement 

while at the same time requiring reversal if a threshold showing 

can be made that further ICWA or Cal-ICWA inquiry would be 

useful. But it avoids condemning children to further delay and 

instability in cases where there is zero evidence that the child is 

Indian. “By limiting a remand for further inquiry to those cases in 

which the record gives the reviewing court a reason to believe that 

the remand may undermine the juvenile court’s ICWA finding, the 

‘reason to believe’ rule effectuates the rights of the tribes in those 

instances in which those rights are most likely at risk, which are 
In re DEZI C.

Groban, J., dissenting

6

precisely the cases in which the tribe’s potential rights do justify 

placing the children in a further period of limbo.” (Dezi C., at 

pp. 781–782.) 

The majority asserts that it is not holding that an inadequate 

inquiry is structural error, but rather that the record is insufficient 

when the inquiry is inadequate to determine whether the error is 

harmless under Watson. (Maj. opn., ante, at p. 22, fn. 11.) Though 

I agree with the majority that “the juvenile court’s fact-specific 

determination that an inquiry is adequate, proper, and duly 

diligent is ‘a quintessentially discretionary function’ (In re Ezequiel 

G. (2022) 81 Cal.App.5th 984, 1005) subject to a deferential 

standard of review” (id. at p. 27; see pt. II, post), I simply do not 

understand the majority’s assertion that it is not applying a 

structural error standard in instances where the Cal-ICWA inquiry 

is, in fact, deemed inadequate. What the majority is doing is clear: 

in every case where there has been an inadequate inquiry under 

Cal-ICWA, the majority finds the Watson prejudice standard

inapplicable, and instead concludes that reversal is required 

without any attempt to assess prejudice. That is the very essence 

of a structural error standard. 

The majority also argues that it is “impossible to review for 

prejudice the trial court’s implied finding that ICWA does not 

apply.” (Maj. opn., ante, at p. 21.) However, here and in In re 

Kenneth D. (August 19, 2024, S276649) ___ Cal.5th ___ (Kenneth 

D.), the majority also rightly acknowledges that Code of Civil 

Procedure section 909 allows for the submission of postjudgment 

evidence in exceptional circumstances. (See Kenneth D., at p. ___ 

[p. 22].) This situation clearly fits the bill: where a delay of even a 

few months “can be a lifetime to a young child” (Marilyn H., supra,

5 Cal.4th at p. 310), then it is appropriate to ask parents to come 

forward with at least some information showing that there would
In re DEZI C.

Groban, J., dissenting

7

be a reason to justify further delay. This requirement need not be 

onerous — if a parent can proffer any document, or any declaration, 

tending to show that the child might be Indian, then this would 

likely be sufficient to require reversal so that further inquiry can 

be made. But this is the very common sense and practical solution 

that my colleagues in the majority refuse to embrace. If we are

going to delay permanent placement for a child who has already 

been through an unimaginable trauma — the loss of one or both of 

his parents as permanent caregivers — we should make sure that 

there is at least a glimmer of hope that such delay might be 

beneficial. Imagine a situation on appeal, like this one, where the 

parents have already submitted signed ICWA forms indicating that 

they have no Indian ancestry and confirmed as much to the juvenile 

court. And imagine a situation, like here, where the parents have

not adduced one iota of evidence on appeal that they or their 

children are members of, or eligible for membership in, a federally 

recognized Indian tribe. Now assume that, after the juvenile court 

order was final, the Department spoke to all the people required 

under Cal-ICWA and presented declarations on appeal in which 

each of these persons stated the child had no Indian ancestry. 

Would the majority still require reversal? I fear the answer is 

“yes.”

The majority worries that if the interpretation advocated for 

here were adopted “the exception would swallow the rule we have 

laid out in Kenneth D. that reviewing courts may not generally 

consider previously unadmitted evidence for the first time on 

appeal to conclude initial ICWA inquiry error is harmless.” (Maj. 

opn., ante, at p. 29, citing Kenneth D., supra, ___ Cal.5th at p. ___

[p. 1].) But the facts of these two cases allay this concern. In 

Kenneth D., the memorandum from the Placer County Department 

of Health and Human Services presented for postjudgment review 
In re DEZI C.

Groban, J., dissenting

8

contained conflicting hearsay statements concerning Indian 

ancestry: “Kenneth D.’s father ‘stated that he thought he might 

have Cherokee ancestry out of Oklahoma’ while the paternal 

grandmother stated the father’s statement was ‘not accurate’ and 

that she was ‘unaware of any Native American Heritage.’ ” 

(Kenneth D., supra, ___ Cal.5th at p. ___ [p. 1] (conc. opn. of Groban, 

J.).) On this record, there simply was no basis to conclusively 

determine that the child was not of Indian descent. The 

circumstances in Kenneth D. simply were not “ ‘exceptional.’ ” 

(Ibid.) Conversely, here, as described, both parents signed ICWA 

forms under penalty of perjury indicating that they did not have

Indian ancestry and the court then confirmed with the parents at 

the initial detention hearing that they did not have Indian 

ancestry. Code of Civil Procedure section 909 exists for exactly 

these kinds of exceptional cases and our Courts of Appeal are well

equipped to distinguish between unexceptional fact patterns like 

Kenneth D. and exceptional cases like the one presented here.

The majority offers a variety of other reasons for requiring 

automatic conditional reversal, stating that “Cal-ICWA ‘broadly 

imposes on social services agencies and juvenile courts (but not 

parents) an “affirmative and continuing duty to inquire” ’ ” (maj. 

opn., ante, at p. 23, original italics); “ICWA was enacted to protect 

tribal integrity and sovereignty” (id. at p. 24); adequate initial 

inquiry “maximizes the chances that potential Indian children are 

discovered and tribes are notified” (id. at p. 26); and that the ICWA 

implementing regulations state that early inquiry is “ ‘critically 

important’ ” (ibid.). These arguments redound to: “Because we 

think Cal-ICWA is a very important piece of legislation, and 

because we think a state actor failed in its duty to follow the law, 

we are going to require automatic conditional reversal when the 

statute is violated.” But until today, it had been our longstanding 
In re DEZI C.

Groban, J., dissenting

9

practice to inquire, in accordance with our state Constitution (Cal. 

Const., art. VI, § 13), whether the violation of a directory statute 

was prejudicial. (In re R.L. (2016) 4 Cal.App.5th 125, 143 [when “a 

statute does not provide any consequence for noncompliance, the 

language should be considered directory rather than mandatory”]; 

In re C.T. (2002) 100 Cal.App.4th 101, 111.) “Only in a ‘very limited 

class of cases’ has the Court concluded that an error is structural, 

and ‘thus subject to automatic reversal’ on appeal.” (Greer v. 

United States (2021) 593 U.S. 503, 513.) The majority’s resolution 

of this appeal ignores the way we and lower courts have applied 

Watson in literally thousands of cases. 

In every Watson case, an important interest is at stake (see 

cases below involving the rights of a criminal defendant to admit 

evidence at trial; cases involving the right of a criminal defendant 

to have a properly instructed jury; and cases involving the 

statutory right to counsel) and in every case, a state actor has failed 

to comply with state law. But we do not adopt the automatic

reversal rule applied here. Instead, for state law error, we have, 

for almost seven decades, quite logically gone on to ask if “it is 

reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.” 

(Watson, supra, 46 Cal.2d at p. 836; see, e.g., People v. Lewis (2021) 

11 Cal.5th 952, 973 [Watson applies to trial court’s failure to 

appoint counsel in hearing on resentencing petition as required by 

statute]; People v. Sivongxxay (2017) 3 Cal.5th 151, 187 [Watson

applies when the trial court fails to expressly reference the special 

circumstance allegation in the jury trial waiver colloquy or 

otherwise fails to seek a separate waiver regarding the allegation, 

as required by statutes construed in People v. Memro (1985) 

38 Cal.3d 658, 704]; People v. Anzalone (2013) 56 Cal.4th 545, 555 

[Watson applies to trial court’s failure to ask jury foreperson to 
In re DEZI C.

Groban, J., dissenting

10

affirm verdict as required by Pen. Code § 1149]; People v. Gutierrez

(2009) 45 Cal.4th 789, 828 [Watson applies if the trial court 

erroneously fails to admit evidence that a victim was the initial 

aggressor]; People v. Crayton (2002) 28 Cal.4th 346, 365 [Watson

applies to whether an unrepresented defendant would have 

invoked the right to counsel had he or she been readvised of this 

right at arraignment, as is required under Pen. Code § 987, subd.

(a)]; People v. Breverman (1998) 19 Cal.4th 142, 148–149 [Watson

applies if a trial court has not complied with its sua sponte duty to 

instruct on all lesser necessarily included offenses supported by the 

evidence].) 

For illustration, in instructional error cases like Breverman, 

this means that we determine what we think the jury would have 

concluded had it possessed information that was never imparted to 

it. In cases like Gutierrez, we applied Watson, even though the jury 

never heard evidence in the defendant’s favor that it should have. 

Moreover, though this arises in a different context, courts routinely 

apply a prejudice analysis when an attorney has failed to notify a 

client of immigration consequences resulting from the plea. (People 

v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar).) We do not find the 

error to be structural, but instead require the defendant to 

affirmatively come forward with evidence that the plea would be 

different. (Ibid.) Similarly, though again arising in a different 

context, we routinely apply a prejudice analysis when foreign 

nationals are not informed, pursuant to the Vienna Convention, of 

their right to consular notification within two hours of arrest, 

booking, or detention. (People v. Vargas (2020) 9 Cal.5th 793, 832

(Vargas).)

While the majority asserts that the “reason to believe” rule is 

flawed because it “effectively shifts the obligation to conduct the 

inquiry away from child welfare agencies and courts to the parents” 
In re DEZI C.

Groban, J., dissenting

11

(maj. opn., ante, at p. 35), this is how Watson works: even in the 

face of a blatant and admitted error by a state actor that violated

the party’s rights, the party still must show that the error made a 

difference in the outcome. And, in many of these cases requiring a 

showing of prejudicial error, the party relies on evidence in the 

record or actually attempts to come forward with new evidence to 

show prejudice. (See Vivar, supra, 11 Cal.5th at p. 530 [“In a 

declaration submitted with his [Penal Code] section 1473.7 motion, 

Vivar claims he would never have entered this plea had he 

understood that it would require his deportation”]; Vargas, supra,

9 Cal.5th at p. 834 [finding defendant had not demonstrated 

prejudice on a claim, based on evidence presented in a new trial

motion, that he was denied due process of law for consular 

notification violations].) I suppose we could have quite easily 

concluded in countless of these cases that automatic reversal was 

required because the statute that was violated “ ‘broadly imposes’ ” 

a duty on the state actor (maj. opn., ante, at p. 23); we could have 

highlighted that the burden to act was imposed on the state and 

not upon the party (ibid.); we could have noted that requiring 

compliance with the statute that was violated is “ ‘foundational to 

fulfilling [its] purpose’ ” (id. at p. 24); and we could have cited to 

implementing regulations that stated that compliance with the 

statute is “ ‘critically important’ ” (id. at p. 26). But that is not 

what our Constitution requires. (See Cal. Const., art. VI, § 13 [“No 

judgment shall be set aside . . . unless, after an examination of the 

entire cause, including the evidence, the court shall be of the 

opinion that the error complained of has resulted in a miscarriage 

of justice”].) Where a state law has been violated, article VI, section 

13 makes clear that we do not automatically reverse the judgment, 

but that we instead ask whether “it is reasonably probable that a 

result more favorable to the appealing party would have been 
In re DEZI C.

Groban, J., dissenting

12

reached in the absence of the error.” (Watson, supra, 46 Cal.2d 818 

at p. 836; see Cal. Const., art. VI, § 13.) In this way, the majority’s 

automatic conditional reversal rule constitutes a significant 

departure from our precedent.

The majority attempts to distinguish these cases that require

a showing of prejudice by noting that “[n]one of the cases cited in 

the dissent allowed the introduction of new evidence on appeal to 

determine whether the asserted error was prejudicial.” (Maj. opn., 

ante, at p. 29.) First, it is noteworthy that, in some of these cases, 

though the evidence was not presented for the first time on appeal, 

the court did use evidence that was submitted only after the trial 

had concluded in order to determine whether there was prejudicial 

error. (See Vivar, supra, 11 Cal.5th at p. 530 [relying upon a 

declaration submitted with the Pen. Code, § 1473.7 motion]; 

Vargas, supra, 9 Cal.5th at p. 834 [relying upon evidence presented 

in a new trial motion].) Second, in most cases applying Watson, we 

assess prejudice without even permitting the petitioner to submit 

additional evidence. I do not understand how affording the 

petitioner the opportunity to produce postjudgment evidence

makes the Watson standard less appropriate here. If anything, 

allowing a petitioner the right to introduce postjudgment evidence 

that might support petitioner’s position — and requiring the 

petitioner make only a minimal showing in order to obtain a 

remand — makes this case an even better candidate for Watson

review than most. Third, we are not just considering the 

application of Watson, but the California Constitution as well. The 

majority does not plausibly explain why the mere possibility that 

an appellate court could invoke Code of Civil Procedure section 909

means that we can now set aside judgments without applying a 

prejudice analysis. (Cal. Const., art. VI, § 13.) 
In re DEZI C.

Groban, J., dissenting

13

The majority’s conclusion is all the more confounding because 

we have routinely rejected claims that other state statutory 

violations in dependency proceedings constitute structural error, 

explaining that the interest in providing an expedited proceeding 

to resolve the child’s status without further delay “would be 

thwarted if the proceeding had to be redone without any showing 

the new proceeding would have a different outcome.” (Jesusa V., 

supra, 32 Cal.4th at p. 625.) We stated that “the price that would 

be paid [by treating error as structural], in the form of needless 

reversals of dependency judgments, is unacceptably high in light of 

the strong public interest in prompt resolution of these cases so 

that the children may receive loving and secure home 

environments as soon as reasonably possible.” (In re James F.

(2008) 42 Cal.4th 901, 918; see also In re A.R. (2021) 11 Cal.5th 

234, 249 [“We emphatically agree that dependent children have a 

critical interest in avoiding unnecessary delays to their long-term 

placement”]; Christopher L., supra, 12 Cal.5th at p. 1081 [“[I]n the 

dependency context, automatic reversal for errors that do not 

invariably lead to fundamental unfairness would exact a 

particularly steep cost. ‘There is little that can be as detrimental 

to a child’s sound development as uncertainty over whether he is 

to remain in his current “home,” under the care of his parents or 

foster parents, especially when such uncertainty is prolonged’ ”].) 

As we said in Celine R. in the context of a failure to appoint 

separate counsel for siblings in an adoption proceeding: “We add 

another reason criminal cases [and per se reversal] are inapt. In a 

criminal case, reversal of a criminal judgment is virtually always 

in the defendant’s best interest. The situation in a dependency case 

is often different. Reversal of an order of adoption, for example, 

might be contrary to the child’s best interest because it would delay 

and might even prevent the adoption. . . . The delay an appellate 
In re DEZI C.

Groban, J., dissenting

14

reversal causes might be contrary to, rather than in, the child’s best 

interests. Thus, a reviewing court should not mechanically set 

aside an adoption order because of error in not giving that child 

separate counsel; the error must be prejudicial under the proper 

standard before reversal is appropriate.” (Celine R., supra, 

31 Cal.4th at p. 59, original italics.) The majority does not explain 

its departure from our numerous decisions reaffirming that 

Watson’s standard of review applies to dependency proceedings.

The majority also justifies its automatic reversal rule because 

ICWA protects the rights of nonparties, i.e., the tribe. (Maj. opn., 

ante, at p. 24.) But the entire scheme at play here is structured so 

that other entities — the parents, the Department, and the court —

seek to vindicate the rights of the tribe through adequate inquiry. 

We do not change any of the other applicable rules, e.g., what 

evidence is admissible, the burden of proof, the relevant statutory 

deadlines, simply because the rights of a third party (the tribe) may 

be implicated. The rules are what the rules are. It therefore seems 

very strange to conclude that though Watson has typically provided 

the standard of review for state law error for almost 70 years, we 

will dispense with Watson because a Cal-ICWA violation might 

implicate the rights of a non-party. This is especially odd since the 

Watson standard is routinely applied when the rights of a criminal 

defendant have been violated. Are we prepared to hold that where 

the statutory rights of a criminal defendant are violated, harmless 

error review is appropriate, but where the rights of a third-party in 

a non-criminal proceeding are implicated, then automatic reversal 

is required? Apparently so. 

The majority concedes that it is not “concerned with the 

outcome” of the inquiry, i.e., whether the child is or may be an 

Indian child. (Maj. opn., ante, at p. 32; see also id. at pp. 38–39.)

However, the outcome of the inquiry goes to the heart of ICWA, 
In re DEZI C.

Groban, J., dissenting

15

which, as the majority also emphasizes, is designed “ ‘to protect the 

best interests of Indian children and to promote the stability and 

security of Indian tribes and families by the establishment of 

minimum Federal standards for the removal of Indian children 

from their families and the placement of such children in foster or 

adoptive homes which will reflect the unique values of Indian 

culture . . . .’ ” (Maj. opn., ante, at p. 7, quoting 25 U.S.C. § 1902.) 

Determining whether the child is or may be an Indian child is a 

critical step to protecting “ ‘the best interests of Indian children’ ”

and to promoting “ ‘the stability and security of Indian tribes and 

families.’ ” (Ibid.)

Though the majority resists requiring parents to 

affirmatively come forward with information on appeal involving 

their Indian ancestry, the entire ICWA structure places affirmative 

requirements upon parents to assist the court in establishing 

Indian ancestry. “Because early identification of Indian children is 

critical to ICWA’s proper implementation, we believe the statute 

must be interpreted in a way that requires all participants — child 

protective agencies, the parents, all counsel, and the juvenile 

courts — to work together to determine whether children are 

Indian children.” (In re Ezequiel G., supra, 81 Cal.App.5th at 

p. 1002 (Ezequiel G.).) “[P]arents are required at their first 

appearances to fill out ICWA-020 forms in which they declare their 

Indian status under penalty of perjury, and they are instructed 

that if they get new information, they must ‘let [their] attorney, all

the attorneys on the case, and the social worker . . . know 

immediately.’ ” (Id. at p. 1003, citing Judicial Council of Cal., Form 

ICWA-020 [rev. Mar. 25, 2020].) Cal-ICWA also requires parents, 

per court instruction, to notify the court if they receive subsequent 

information that provides a reason to know the child is an Indian 

child. (Welf. & Inst. Code, sec. 224.2, subd. (c).) Simply put, 
In re DEZI C.

Groban, J., dissenting

16

“requiring all parties to actively participate in the ICWA inquiry is 

critical to ensuring that an adequate ICWA investigation is 

conducted and Indian children are promptly identified at the 

earliest possible stages of dependency cases.” (Ezequiel G., at 

p. 1003, italics added.) Mandating conditional reversal based on a 

parent’s claim of Cal-ICWA inquiry errors, raised for the first time 

on appeal and without requiring the parent to present any evidence 

that the child is or may be an Indian child, “has precisely the 

opposite effect.” (Ibid.) 

The majority also offers a series of speculative reasons for 

rejecting the “reason to believe” rule: the parents’ knowledge of 

their ancestry may be hampered by translation issues from 

Indian languages to English (maj. opn., ante, at p. 36); parents 

may be fearful to self-identify and social workers may be illequipped to address these fears (id. at p. 37); the parents may 

view the tribe as competition for custody (ibid.); and the parents

may be represented by unscrupulous attorneys (ibid.). This 

strikes me as a lot of conjecture about why the parents may be 

ill-equipped to know if they have Indian ancestry without a word 

of discussion about whether delay and uncertainty will have a 

negative impact on the child.2 It also fails to explain why 

2 The majority opinion improperly relies on assertions from 

In re Rylei S. (2022) 81 Cal.App.5th 309, 322, which originate in 

the California ICWA Compliance Task Force’s 2017 report to the 

California Attorney General’s Bureau of Children’s Justice 

(Task Force Report). (See maj. opn., ante, at p. 37.) This is 

improper because we denied mother’s request to take judicial 

notice of this report, and for good reason. It is not properly 

subject to judicial notice and was created by “an independent, 

tribally led entity.” (Task Force Report, p. 1.) Unable to quote 

from the report itself, the majority instead simply quotes from a 
In re DEZI C.

Groban, J., dissenting

17

parents would be fearful of self-identification during juvenile 

court proceedings — but not on appeal.

It is of course possible that unscrupulous attorneys may 

represent a parent in a dependency proceeding, or a competent 

translation may not be obtained in a specific case. But what we 

do know for sure is that the majority’s rule of automatic 

conditional reversal will always, in every single case of reversal, 

result in a delayed permanent placement for children who have 

already experienced a great deal of trauma. Delaying 

permanency for children — leaving them in legal limbo about 

where they will live, who will raise them, where they will go to 

school, and whether they will be separated from siblings — will 

now occur in 100 percent of cases where a child welfare 

department fails to comply with Cal-ICWA. And this automatic 

reversal will occur without any inquiry at all regarding whether 

such delay would actually be in the best interest of the child. “A

conditional reversal (or affirmance) of such orders inevitably 

delays an adoption from proceeding, and in some cases, it may 

throw an adoption off track entirely if the prospective adoptive 

family cannot tolerate further delay. In both scenarios, the 

uncertainty caused by California’s ICWA-related statutes 

negatively affects children who deserve permanence without 

case that quotes from the improperly noticed report. This 

strikes me as inappropriate. Moreover, even had we taken 

judicial notice of this report, it bears repeating that “matters of 

which judicial notice is taken are considered only for their 

existence, not for the truth of the matters asserted in them.” (In 

re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 

1209; see Guarantee Forklift, Inc. v. Capacity of Texas Inc. 

(2017) 11 Cal.App.5th 1066, 1075 [“we generally do not take 

judicial notice of the truth of the matter asserted in such 

documents”].) The majority opinion violates this settled rule.
In re DEZI C.

Groban, J., dissenting

18

undue delay.” (In re H.V. (2022) 75 Cal.App.5th 433, 442, fn. 5

(dis. opn. of Baker, J.) (H.V.).) In fact, “[i]n just the last 12 

months, [an automatic reversal] approach to asserted ICWA

[and Cal-ICWA] error has resulted in, by our count, appellate 

courts returning more than 100 dependency cases to the juvenile 

courts with directions to conduct further ICWA [and Cal-ICWA] 

inquiries after parental rights were terminated. At best, these 

reversals significantly delay entry of final judgments releasing 

children for adoption; at worst, they may result in potential 

adoptive parents deciding not to adopt.” (Ezequiel G., supra,

81 Cal.App.5th at p. 1001.)3 I do not understand why we should 

adopt a rule (automatic conditional reversal) that will always

create this negative outcome (delay in permanent placement) 

simply because other problems (like translation issues) could

arise. The flexible approach adopted by the Court of Appeal 

accounts for this problem while also comporting with our 

traditional harmless error standard of review, but the majority 

errantly, in my view, refuses to embrace it. This refusal is 

3 The majority takes solace in the fact that “there is no 

evidence in this case that Dezi’s and Joshua’s placement with 

their paternal grandparents is at risk.” (Maj. opn., ante, at p. 32, 

fn. 13.) This may be so, but it seems to undervalue the 

psychological uncertainty placed upon children and their 

families by the fact that the placement remains temporary and 

could be undone by a subsequent court determination. And, 

though the paternal grandparents in this case may be 

unwavering heretofore in their commitment to permanently 

adopt these children, today’s ruling will sweep much more 

broadly than just the case of Dezi C. and Joshua C. Other 

prospective placements, especially in cases where the adoptive 

parents are not related to the children, may be far more reticent 

to create lasting bonds, with the prospect of losing the children

looming overhead for years on end.
In re DEZI C.

Groban, J., dissenting

19

especially heartbreaking given that counsel for appellant 

mother conceded during oral argument that “the likelihood of 

the tribe actually intervening and removing a child from 

placement are very, very, not non-existent, but minimal.”

Finally, the majority rejects out of hand the notion that a 

parent may seek to delay termination of parental rights by waiting 

until appeal to argue that the ICWA or Cal-ICWA inquiry was 

inadequate. Counsel for appellant mother argues that appellants 

can do just that and may assert such error on appeal without 

having raised the issue previously. (In re Isaiah W. (2016) 1 

Cal.5th 1, 6, 9, 14–15.) The majority repeatedly asserts that it is 

“unclear what a parent stands to gain” from waiting to raise the 

issue and “there appears to be little incentive for parents to engage 

in such conduct in the first instance.” (Maj. opn., ante, at pp. 40–

41.) But the reasons for a parent waiting to raise the issue of ICWA

or Cal-ICWA non-compliance on appeal are quite clear: faced with 

the unimaginable prospect of losing custody of their child forever, 

and emboldened by our case law making such an approach 

perfectly lawful, it is completely understandable for parents to seek 

to do anything they can to undo the trial court’s termination of 

parental rights. This is not “gamesmanship” (maj. opn., ante, at 

p. 41), but instead a logical response to the possibility of losing 

custody of one’s own child forever. In fact, that is what occurred in 

this case: “[n]early 30 months into the proceedings and on appeal 

from the termination of her parental rights, [mother] for the first 

time object[ed] that the agency did not discharge its statutory duty 

to ‘inquire’ of ‘extended family members’ whether her children 

might be ‘Indian child[ren].’ ” (Dezi C., supra, 79 Cal.App.5th at 

p. 774.) 

Moreover, there are published cases describing parents 

seeking to delay the removal of their children from the home by 
In re DEZI C.

Groban, J., dissenting

20

claiming Indian heritage. In In re S.H. (2022) 82 Cal.App.5th 166, 

172 (S.H.), the Court of Appeal described a voicemail received by a 

social worker from the father, who apparently accidentally left his 

phone on after he completed his intended message. “In the 

apparent unintended portion of the recording, he discussed with 

[m]other a plan to claim that the minor had Indian ancestry to 

delay the Agency’s removal of her from the home.” (Ibid.) 

While it is understandable that a parent may seek to forestall 

such a heartbreaking result as the termination of parental rights, 

this scenario makes it all the more clear why a rule of automatic

conditional reversal is ill advised. Where a parent may be raising 

Cal-ICWA noncompliance solely to delay termination of parental

rights; where there is no evidence at all that the child is or may be 

an Indian; and where the appealing parent herself or himself may 

have previously attested (like they did here) that the child has no 

Indian ancestry, then a rule of automatic reversal makes little 

sense. 

II. Deference to the Adequacy of Cal-ICWA Inquiry

As described above, there are two ways that appellate courts 

can appropriately resolve issues related to Cal-ICWA compliance 

without needlessly delaying the proceedings: The first is by 

applying a flexible standard for prejudice to determine whether 

any error in the Cal-ICWA inquiry is harmless. For the reasons 

described above, I believe my colleagues have missed an 

opportunity with respect to this pathway. Notably, however, the 

majority still gives space for a second way that allows appellate 

courts the sufficient flexibility that is required in handling these

complex cases. Rather than focusing on the appropriate standard 

of review if there was an inadequate inquiry under Cal-ICWA

(automatic reversal versus harmless error review), alternatively,

appellate courts could simply give appropriate deference to a 
In re DEZI C.

Groban, J., dissenting

21

juvenile court’s findings that the Cal-ICWA inquiry was adequate. 

Stated differently, if the appellate court concludes there was 

substantial evidence to support the juvenile court’s determination 

that the Cal-ICWA inquiry was, in fact, adequate and ICWA does 

not apply, then it need not reach the question of whether reversal 

for Cal-ICWA error is required.

The majority rightly leaves room for this approach, 

explaining that “the juvenile court’s fact-specific determination 

that an inquiry is adequate, proper, and duly diligent is ‘a 

quintessentially discretionary function’ ([Ezequiel G., supra,]

81 Cal.App.5th [at p.] 1005) subject to a deferential standard of 

review” (maj. opn., ante, at p. 27); and “[i]f, upon review, a juvenile 

court’s findings that an inquiry was adequate and proper and 

ICWA does not apply are found to be supported by sufficient 

evidence and record documentation as required by California law 

([Cal. Rules of Court, ]rule 5.481(a)(5)), there is no error and 

conditional reversal would not be warranted even if the agency did 

not inquire of everyone who has an interest in the child” (id. at 

pp. 27–28). Because the Department conceded the Cal-ICWA 

inquiry in this case was inadequate, the parties did not litigate the

issue of whether the juvenile court’s finding that ICWA does not 

apply is supported by substantial evidence. I write to expand on 

what this means for appellate courts going forward.

First, as the majority explains, a juvenile court’s finding that 

the child welfare department met its inquiry requirements under 

Cal-ICWA is entitled to substantial deference on appeal. (In re S.R.

(2021) 64 Cal.App.5th 303, 312, 278.) The statutory scheme

specifically provides for a sufficiency of the evidence standard for

reviewing the adequacy of the inquiry, stating: “If the court makes 

a finding that proper and adequate further inquiry and due 

diligence as required in this section have been conducted and there 
In re DEZI C.

Groban, J., dissenting

22

is no reason to know whether the child is an Indian child, the court 

may make a finding that the federal [ICWA] does not apply to the 

proceedings, subject to reversal based on sufficiency of the evidence.” 

(Welf. & Inst. Code, § 224.2, subd. (i)(2), italics added.) We

normally apply a deferential standard of review in assessing the 

evidence’s sufficiency because “ ‘[c]onflicts and even testimony 

[that] is subject to justifiable suspicion do not justify the reversal 

of a judgment, for it is the exclusive province of the trial judge or 

jury to determine the credibility of a witness and the truth or falsity 

of the facts upon which a determination depends. [Citation.] We 

resolve neither credibility issues nor evidentiary conflicts; we look 

for substantial evidence. [Citation.]’ [Citation.] A reversal for 

insufficient evidence ‘is unwarranted unless it appears “that upon 

no hypothesis whatever is there sufficient substantial evidence to 

support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th

327, 357.) 

Second, Cal-ICWA itself confers significant discretion on 

juvenile courts in determining whether an inquiry was adequate. 

(See Ezequiel G., supra, 81 Cal.App.5th at pp. 1006–1007.) In my 

view, Cal-ICWA does not require an inquiry of every single 

extended family member and person listed in the statute. Welfare 

and Institutions Code section 224.2, subdivision (b) requires that 

the Department “inquire whether [a dependent child] is an Indian 

child,” and then provides that the “[i]nquiry includes, but is not 

limited to, 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 . . . .” (Welf. & Inst. Code, § 

224.2, subd. (b).) An “ ‘extended family member’ ” is (unless 

otherwise defined by an Indian child’s tribe) an adult who is “the 

Indian child’s grandparent, aunt or uncle, brother or sister, 
In re DEZI C.

Groban, J., dissenting

23

brother-in-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) [adopting federal definition].)

I, like other courts which have interpreted the same 

language, do not read the statute as requiring that an initial CalICWA inquiry be made of every member of a child’s extended 

family, including every first and second cousin, every single niece

and nephew, all aunts and uncles, all siblings-in-law, plus every 

other person who has an interest in the child. (Ezequiel G., supra, 

81 Cal.App.5th at pp. 1005–1006.) Such a reading is “absurd at 

best and impossible at worst” (id. at p. 1006) and “creates an openended universe of stones, the rule ostensibly empowers the party 

to obtain a remand to question extended family members, then a 

second remand to question the family babysitter, and then a third 

remand to question longtime neighbors, and so on and so on.” (Dezi 

C., supra, 79 Cal.App.5th at p. 785.) In fact, the majority appears 

to agree, at least to an extent, emphasizing its holding “does not 

require reversal in all cases in which every possible extended 

family member has not been asked about the child’s Indian 

ancestry.”4 (Maj. opn., ante, at p. 27.) 

4 Given the fact that the question of what constitutes 

adequate notice is not at issue here, this makes it difficult for 

the majority to provide definitive guidance on this issue. But 

this unique procedural posture also makes it hard for the 

juvenile court to know how to proceed with remand instructions 

“to conduct an adequate inquiry.” (Maj. opn., ante, at p. 2.) It 

similarly creates uncertainty for child welfare departments on 

remand to know what is meant by asking “extended family 

members and others” as required by statute (id. at p. 26), or 

“ ‘those people who are reasonably available to help the agency 

with its investigation’ ” (id. at p. 27), nor does it assist the 
In re DEZI C.

Groban, J., dissenting

24

The better reading is that the “ ‘includes, but is not limited 

to’ ” language tells us that these are “examples of the categories of 

people a social services agency or court should inquire of.” (In re 

A.C. (2022) 86 Cal.App.5th 130, 142 (dis. opn. of Baker, J.); see also 

H.V., supra, 75 Cal.App.5th at p. 440 (dis. opn. of Baker, J.) [CalICWA has “no endpoint” and is “impossible to satisfy in practice”]; 

Ezequiel G., supra, 81 Cal.App.5th at p. 1005 [“The need for a 

juvenile court to exercise discretion in considering whether an 

ICWA inquiry is adequate is particularly acute because the scope 

of the inquiry required by state law is not well defined”].)

Indeed, the list in Welfare and Institutions Code section 

224.2, subdivision (b) itself makes clear that the Department need

not interview every person listed in this provision in every case. 

For example, if no one has identified any Indian ancestry, then 

contacting the proper “Indian custodian” becomes unfeasible. A 

“legal guardian” may not exist in every case for the Department to 

contact. The child may not have any nieces or nephews or siblingsin-law, or their nieces or nephews may be infants and therefore 

impossible to interview. Furthermore, if “the party reporting child 

abuse or neglect” is someone with only a minimal relationship with 

the child, like an emergency room doctor at a hospital, then it 

would make no sense to ask that person about the child’s Indian 

ancestry. (Ibid.) Finally, the phrase “others who have an interest 

in the child,” through its use of broad, non-specific language, also 

agencies with understanding the parameters of an inquiry that 

is meant to be “ ‘slight and swift’ ” (id. at p. 31). To be clear, I 

do not suggest that the majority should have tackled these 

thorny questions. They admittedly are not presented by the 

petition for review. But the uncertainty created by this 

procedural posture is nonetheless unfortunate.
In re DEZI C.

Groban, J., dissenting

25

suggests itself that courts have discretion in determining exactly 

who these indeterminate “others” are. (Ibid.)

This kind of flexibility in interpreting the requirements of 

Cal-ICWA is crucial. Imagine a case where the Department had 

interviewed every single person enumerated by the statute, so 

assume that the Department interviewed 40 people, and all of them 

had said the child had no Indian ancestry, but the Department

failed to speak to one of the child’s eight aunts. Under this 

hypothetical it would be absurd to conclude that the inquiry was 

inadequate and automatic conditional reversal was required. Or 

let us imagine a case involving a child who, with his entire family, 

recently immigrated from Ukraine, thereby making it highly 

improbable that the child is a member of, or may be eligible for 

membership in, a federally recognized Indian tribe. Any court 

would be hard pressed to find that the Department’s inquiry 

regarding his or her Indian ancestry was inadequate because it did 

not ask his or her entire extended (Ukrainian) family about Indian 

descent. The same would be true for a case where the Department 

had recently completed an adequate Cal-ICWA inquiry for the 

child’s sibling in a different dependency case — it would be illogical 

to hold that the inquiry was inadequate because the Department 

failed to recontact all the same extended family members.

In sum, in reviewing a juvenile court’s Cal-ICWA findings for 

abuse of discretion, I believe “a proper application of the governing 

substantial evidence standard of appellate review mitigates some 

of the flaws in the statutory scheme.” (H.V., supra, 75 Cal.App.5th 

at p. 441 (dis. opn. of Baker, J.).) I further believe “the focus of the 

court’s analysis should not be on the number of individuals 

interviewed, but on whether the agency’s [Cal-ICWA] inquiry has 

yielded reliable information about a child’s possible tribal 

affiliation.” (Ezequiel G., supra, 81 Cal.App.5th at p. 1009; accord,
In re DEZI C.

Groban, J., dissenting

26

In re E.W. (2023) 91 Cal.App.5th 314, 322.) In order to 

appropriately balance the importance of Cal-ICWA compliance 

with the best interest of children in the dependency system, 

appellate courts should bear in mind that a juvenile court’s finding 

that Cal-ICWA inquiry was satisfied and that ICWA does not apply

is entitled to substantial deference and that the requirements 

imposed by Cal-ICWA are flexible.5

III. Conclusion

This case is a prime example of why adhering to our 

traditional review of claims of state law error on appeal is 

necessary. Dependency proceedings were initiated when Dezi C. 

was three and a half years old and her brother, Joshua C. was one

and a half years of age. The children are now over eight and six 

years old. They have spent most of their short lives in the 

dependency system. The juvenile court sustained allegations that 

the minors were at risk of harm in the custody of mother and father 

5 Furthermore, though the instant case presents an appeal 

from an order terminating parental rights, other cases may 

arise in the context of an interlocutory appeal, where

dependency proceedings are still ongoing. (See, e.g., S.H., supra,

82 Cal.App.5th at pp. 171, 179; In re Baby Girl M. (2022) 

83 Cal.App.5th 635, 638.) In such a case, some Court of Appeal 

decisions find that because the Department has a continuing

duty of inquiry and because, unlike the present case, there will 

necessarily be further dependency proceedings in the juvenile 

court, reversal based upon a prior failure to adequately inquire 

as to Indian ancestry may be unnecessary. (See S.H., at p. 179

[“So long as proceedings are ongoing and all parties recognize 

the continuing duty of ICWA inquiry,” then “disturbing an early 

order in a dependency proceeding is not required where, as here, 

the court, counsel, and the Agency are aware of incomplete 

ICWA inquiry”].) Though this fact pattern is neither presented 

nor decided here, this may be another way to avoid needless 

reversal in cases involving such a procedural posture.
In re DEZI C.

Groban, J., dissenting

27

due to the parents’ substance abuse and domestic violence issues. 

Their paternal grandparents have provided a safe and stable 

environment and stand ready to permanently adopt them, but the 

majority today ensures that this crucial permanent placement will 

again be delayed. The instability and uncertainty caused by 

removing Dezi C. and Joshua C. from their parents and delaying

permanent placement with their paternal grandparents does not 

serve the best interest of the children. Today, this court strays 

from its previous repeated and rightful admonitions that a “child 

has a compelling right to a stable, permanent placement that 

allows a caretaker to make a full emotional commitment to the 

child” (Celine R., supra, 31 Cal.4th at p. 59) and that although even 

a four-month delay “may not seem a long period of time to an adult, 

it can be a lifetime to a young child.” (Marilyn H., supra, 5 Cal.4th 

at p. 310.) It also diverges from our constitutional mandate that 

no judgment shall be set aside unless the error complained of has 

resulted in a miscarriage of justice. (Cal. Const. art. VI, § 13.) Both 

parents here signed ICWA forms under penalty of perjury 

indicating that they do not have Indian ancestry and after years of 

litigation, there has never been a glimmer of evidence to suggest 

that the children are Indian. Nonetheless, because the 

Department failed to ask additional family members about the 

children’s ancestry, my colleagues invoke a rule of automatic 

conditional reversal that is wholly inconsistent with the way in 

which California courts have assessed state law error for almost 

seven decades. In the process, the majority forgoes a far more

practical approach that would avoid automatic reversal but allow 

for reversal if there were a minimal showing that further inquiry 

might be useful. And the majority takes this approach even though 

the mother’s own counsel admits that this delay will likely be for 

naught, conceding at oral argument that the likelihood of a child in 
In re DEZI C.

Groban, J., dissenting

28

these circumstances having Indian ancestry and being placed with 

a tribe is “minimal.” The majority’s formulaic approach needlessly 

condemns these children and others like them to more uncertainty, 

more instability, and more trauma. I dissent.

GROBAN, J.

I Concur:

GUERRERO, C. J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion In re Dezi C.

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 79 Cal.App.5th 769

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S275578

Date Filed: August 19, 2024

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Robin R. Kesler

__________________________________________________________

Counsel:

Karen J. Dodd and John L. Dodd, under appointments by the Supreme 

Court, for Defendant and Appellant.

Suzanne Nicholson, Sean Angele Burleigh and Christopher Blake for 

California Appellate Defense Counsel as Amicus Curiae on behalf of 

Defendant and Appellant.

Dorothy Alther, Hannah Reed, Laura Pedicini, Sheila Quinlan; 

Kimberly Cluff and Shunya Wade for California Indian Legal Services

and California Tribal Families Coalition as Amici Curiae on behalf of 

Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County 

Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff 

and Respondent.

Jennifer Henning; Claudia G. Silva, County Counsel (San Diego), Lisa 

M. Maldonado, Chief Deputy County Counsel, and Eliza Molk, Deputy 
County Counsel, for the California State Association of Counties as 

Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

John L. Dodd

Attorney at Law

17621 Irvine Boulevard, Suite 200

Tustin, CA 92780

(714) 731-5572

Stephen Watson

Deputy County Counsel

500 West Temple Street, Suite 648

Los Angeles, CA 90012

(213) 808-8774