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Filed 2/16/23 In re O.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re O.L. et al., Persons Coming Under 

the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT 

OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

M.J.,

Defendant and Appellant.

E079745

(Super. Ct. No. SWJ200224)

OPINION

APPEAL from the Superior Court of Riverside County. Donal B. Donnelly, 

Judge. Affirmed.

Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant 

and Appellant M.J.

Minh C. Tran, County Counsel, Melinda H. Frey, Deputy County Counsel, for 

Plaintiff and Respondent.
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I.

INTRODUCTION

M.J. (Mother) appeals from the juvenile court’s jurisdictional/dispositional order 

as to her four children.

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 Mother’s sole contention on appeal is that the Riverside County 

Department of Public Social Services (DPSS) failed to discharge its duty of initial inquiry 

under state law implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 

§ 1901 et seq.), and therefore substantial evidence did not support the juvenile court’s 

finding that ICWA did not apply. DPSS acknowledges the error and intends to remedy 

the omissions, but contends that because this is an appeal from disposition, reversal of the 

dispositional order and remand is not required. Applying In re Dominick D. (2022) 82 

Cal.App.5th 560, 563, 567 (Dominick D.) and In re S.H. (2022) 82 Cal.App.5th 166 

(S.H.), we affirm on the basis that alleged ICWA inquiry error does not warrant reversal 

of a dispositional order.

II.

FACTUAL AND PROCEDURAL BACKGROUND

On May 10, 2022, a petition was filed on behalf of 13-year-old O.L., nine-year-old 

A.L., seven-year-old Al.L., and three-year-old I.V.P. pursuant to Welfare and Institutions 

Code section2300, subdivisions (b)(1) (failure to protect), (d) (sexual abuse), and (j) 

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 Neither the father of the three older children nor the father of Mother’s youngest 

child are parties to this appeal.

2

 Unless otherwise noted, all further statutory references are to the Welfare and 

Institutions Code.
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(abuse of sibling) based on Mother’s failure to protect O.L. from sexual abuse by her 

half-sibling I.V.P.’s father (Father S.P.L.) and Mother’s abuse of controlled substances. 

The petition noted that an inquiry gave no reason for DPSS to believe the children were 

or may be Indian children.

The children were detained, and the three older children were placed with their 

father (Father R.L.) while I.V.P. was taken into protective custody. The detention report 

noted that the parents denied Native American ancestry and that ICWA did not apply. 

The paternal grandparents and paternal aunt of the three older children also denied having 

any Native American heritage.

On May 11, 2022, Mother filed an ICWA-020 Parental Notification of Indian 

Status (ICWA-020) form and indicated that she had no Native American ancestry. On 

this same day, Fathers R.L. and S.P.L. also filed an ICWA-020 form, indicating they had 

no Native American ancestry.

The detention hearing was held on May 11, 2022. All three parents were present 

in court. The court formally detained the children from Mother’s and Father S.P.L.’s 

custody and set a jurisdiction hearing. The court did not detain the three girls from their 

father and ordered the girls to remain in the care and custody of Father R.L. The juvenile 

court omitted to inquire of the parents regarding their Native American ancestry. The 

court’s minute order of the detention hearing, however, indicates ICWA does not apply to 

the proceedings.
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In its June 1, 2022 jurisdiction/disposition report, DPSS recommended that (1) the 

juvenile court find true the allegations in the petition against Mother and Father S.P.L.; 

(2) in lieu of dependency, Father R.L. be granted Family Law Court orders granting him 

full legal and physical custody of his three girls; (3) I.V.P. be adjudged a dependent of 

the court; and (4) Mother and Father S.P.L. be provided with reunification services. 

DPSS also recommended that the court find ICWA does not apply. In the report, DPSS 

noted that at the detention hearing, the juvenile court found ICWA did not apply as to the 

children and that during the initial investigation, the parents denied having any Native 

American ancestry. The report further noted that on May 23, 2022, Mother, Fathers R.L. 

and S.P.L. denied having any Native American ancestry.

The jurisdictional/dispositional hearing was held on August 19, 2022. The 

juvenile court found true the allegations in the petition, declared I.V.P. a dependent of the 

court, and provided the parents with reunification services. In regards to the three girls, 

the court granted Father R.L. full legal and physical custody of his daughters in lieu of 

dependency. The court further found that ICWA did not apply. Mother timely appealed

the dispositional order.

III.

DISCUSSION

Mother contends that the juvenile court and DPSS failed to comply with their duty 

of inquiry with respect to ICWA. She thus argues there is insufficient evidence to

support the court’s finding that ICWA did not apply. DPSS acknowledges that “there 
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were inadvertent omissions in conducting the initial inquiry by the Court and that 

extended family members were not questioned on the issue of whether the children might 

be Indian children.” DPSS further asserts that it “intends to remedy these omissions with 

regard to the one child that remains under the juvenile court’s jurisdiction” and that 

because this is an appeal from disposition, pursuant to S.H., supra, 82 Cal.App.5th 166 

reversal of the disposition order and remand is not required. We affirm since alleged 

ICWA inquiry error does not warrant reversal of a dispositional order.

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ICWA establishes minimum federal standards that a state court must follow before 

removing Indian children from their families. (In re T.G. (2020) 58 Cal.App.5th 275, 

287.) California law implementing ICWA also imposes requirements to protect the rights 

of Indian children, their families, and their tribes. (See §§ 224-224.6; In re Abbigail A.

(2016) 1 Cal.5th 83, 91 [“persistent noncompliance with ICWA led the Legislature in 

2006 to ‘incorporate[] ICWA’s requirements into California statutory law’”].)

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 We note that Courts of Appeal are split on the proper disposition of cases where 

the parents appeal an order other than the order terminating parental rights, so the 

dependency remains ongoing in the lower court, and the only alleged error is with the 

ICWA inquiry. Another panel of this court has held the appropriate disposition where the 

juvenile court has found that ICWA does not apply is to vacate the ICWA finding and 

remand, but otherwise affirm. (Dominick D., supra, 82 Cal.App.5th at p. 568.) At least 

one case has disagreed with this approach and instead concluded the appeal is moot and 

should be dismissed. (See In re Baby Girl M. (2022) 83 Cal.App.5th 635.) We follow 

the approach outlined in S.H., supra, 82 Cal.App.5th at pp.179-180, concluding that the 

appropriate disposition is to affirm without remand. Whether we remand as in Dominick

D. or affirm as we do here, the case returns to trial court with an ongoing duty to comply 

with ICWA.
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“‘“‘Federal regulations implementing ICWA . . . require that state courts “ask each 

participant in an emergency or voluntary or involuntary child-custody proceeding 

whether the participant knows or has reason to know that the child is an Indian child.” 

[Citation.] The court must also “instruct the parties to inform the court if they 

subsequently receive information that provides reason to know the child is an Indian 

child.”’”’ [Citations.] ‘State law, however, more 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.”’” 

(In re J.C. (2022) 77 Cal.App.5th 70, 77.)

Under California law, the juvenile court and county child welfare department have 

“an affirmative and continuing duty to inquire” whether a child subject to a section 300 

petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 

558, 566.) “This continuing duty can be divided into three phases: the initial duty to 

inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.” (In re

D.F., supra, at p. 566.) The juvenile court must inquire at each party’s first appearance, 

whether any participant in the proceeding “knows or has reason to know that the child is 

an Indian child.” (§ 224.2, subd. (c).) Part of the initial inquiry also includes requiring 

each party to complete California Judicial Council form ICWA-020, Parental Notification 

of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).)

When the initial inquiry gives the juvenile court or social worker “reason to 

believe that an Indian child is involved,” (§ 224.2, subd. (e)) the court and social worker 
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must conduct further inquiry to “determine whether there is reason to know a child is an 

Indian child.” (§ 224.2, subd. (e)(2); see In re J.S. (2021) 62 Cal.App.5th 678, 686.) The 

department “does not discharge their duty of further inquiry until they make a 

‘meaningful effort’ to locate and interview extended family members and to contact BIA 

and the tribes.” (In re K.T. (2022) 76 Cal.App.5th 732, 744.) Extended family members 

include adults who are the child’s stepparents, grandparents, siblings, brothers-or sistersin-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); 

§ 224.1, subd. (c).) Finally, if the further inquiry “‘“‘results in a reason to know the child 

is an Indian child, then the formal notice requirements of section 224.3 apply.’”’” (In re

J.C., supra, 77 Cal.App.5th at p. 78) Federal regulations define the grounds for reason to 

know that an Indian child is involved (25 C.F.R. § 23.107(c)(1)-(6)), and state law 

conforms to that definition (§ 224.2, subd. (d)(1)-(6)).

“‘“If the court makes a finding that proper and adequate further inquiry and due 

diligence as required in [section 224.2] have been conducted and there is no reason to 

know whether the child is an Indian child, the court may make a finding that [ICWA] 

does not apply to the proceedings, subject to reversal based on sufficiency of the 

evidence.”’” (In re J.C., supra, 77 Cal.App.5th at p. 78.)
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There is a “split of authority as to whether a violation of the ICWA constitutes 

jurisdictional error,” such that any violation requires reversal. (See In re Brooke C.

(2005) 127 Cal.App.4th 377, 384 [discussing split].) This court has previously followed 

the approach taken in Brooke C. (See Dominick D., supra, 82 Cal.App.5th at pp. 563, 

567; In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) Under that approach, in a 

dependency case, “ICWA inquiry and notice errors do not warrant reversal of the juvenile 

court’s jurisdictional or dispositional findings and orders.” (Dominick D., supra, at p. 

567.) In other words, “the only order which would be subject to reversal for failure to 

give notice would be an order terminating parental rights.” (In re Brooke C., supra, at p. 

385.)

Mother’s current appeal is from the juvenile court’s dispositional order, not an 

order terminating parental rights. Therefore, even assuming ICWA inquiry error, such 

error is not sufficient to warrant reversing the juvenile court’s dispositional order. Nor is 

remand with instructions to complete the ICWA inquiry necessary, regardless of the 

merits of Mother’s arguments that DPSS has not yet completed its duty of further inquiry. 

(See S.H., supra, 82 Cal.App.5th at pp. 176-178.) This dependency matter will not end 

with this appeal. “So long as proceedings are ongoing and all parties recognize the 

continuing duty of ICWA inquiry, both the Agency and the juvenile court have an 

adequate opportunity to fulfill those statutory duties.” (Id. at p. 179.) That appears to be 

the case in the instant matter.
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IV.

DISPOSITION

The juvenile court’s dispositional order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.