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Filed 4/5/23 In re D.L. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

In re D.L., a Person Coming Under the Juvenile Court 

Law.

C097046

SACRAMENTO COUNTY DEPARTMENT OF 

CHILD, FAMILY AND ADULT SERVICES,

Plaintiff and Respondent,

v.

D.L.,

Defendant and Appellant.

(Super. Ct. No. JD238366)

D.L. (mother) appeals from juvenile court orders terminating her parental rights 

and directing that D.L. (minor) be placed for adoption. (Welf. & Inst. Code, § 366.26.)1 

Mother contends the Sacramento County Department of Child, Family and Adult 

Services (Department) failed to comply with the requirements of the Indian Child 

1 Undesignated statutory references are to the Welfare and Institutions Code.
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Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because the Department failed to ask all 

relatives involved in the proceedings about minor’s potential Indian ancestry. We will 

conditionally affirm the juvenile court orders and remand the matter for further 

compliance with ICWA, including inquiry directed to minor’s paternal and maternal 

relatives.

BACKGROUND

In July 2017, minor’s father died in a car accident. A few weeks later, on a 

referral from a mandatory reporter, the Department filed a section 300 petition on behalf 

of minor (born in October 2015). The minor was medically fragile and had serious health 

issues. The petition alleged general neglect. It alleged mother had mental health 

challenges affecting her ability to care for minor and that she had authorized contact 

between minor and another man that appeared inappropriate.

According to the petition, mother told the Department minor has no known Indian 

ancestry. And in the detention report, the Department indicated there is no reported 

Native American heritage.

Mother completed the ICWA-20 form stating she had “no Indian ancestry as far as 

I know.” At the detention hearing in 2017 (for which we do not have a reporter’s

transcript), the juvenile court found there was “no evidence before the Court that [the]

child is an Indian child within the meaning of [ICWA]. [¶] There is no reason to know 

the child is an Indian child. [¶] No further ICWA notice is required.” It ordered mother 

to disclose to the agency any other relatives of the minor.

In its jurisdiction report, the Department attached a petition and order from a prior

2016 dependency case for minor’s full sibling. According to the prior petition, both 

mother and father claimed the sibling had no known Indian heritage. At the initial 

hearing in that case, the juvenile court found there was no evidence the sibling was an 

Indian child within the meaning of ICWA. Those proceedings were ultimately 
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terminated, and there is no information in the record of any additional inquiry made as to 

the sibling’s Indian ancestry.

During the current proceeding, the Department interviewed minor’s paternal 

grandmother, paternal step-grandfather, paternal aunt, and maternal grandmother. The 

maternal grandmother and paternal aunt also went through the resource family approval 

process to establish eligibility as caregivers for minor. But there is no evidence in the 

appellate record that the Department or the juvenile court asked any of those relatives

about minor’s potential Indian ancestry, and there is no evidence those relatives provided 

any information on this subject.

The juvenile court terminated mother’s parental rights in August 2022 and 

directed that minor be placed for adoption.

DISCUSSION

Mother argues the juvenile court and the Department should have asked the 

identified relatives about minor’s ancestry.

“ICWA protects the interests of Indian children and promotes the stability and 

security of Indian tribes by establishing minimum standards for removal of Indian 

children from their families, and by permitting tribal participation in dependency 

proceedings. [Citations.]” (In re A.W. (2019) 38 Cal.App.5th 655, 662.) ICWA defines 

an “ ‘Indian child’ ” as a child who “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).)

The juvenile court and the Department have an affirmative and continuing duty, 

beginning at initial contact, to inquire whether a child who is subject to the proceedings 

is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).) 

We review claims of inadequate inquiry into a child’s Native American ancestry for 

substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
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Here, at the initial hearing, the juvenile court received information from mother

via an ICWA-20 form stating she had no knowledge minor had Indian ancestry. Due to 

the recent death of minor’s father, the juvenile court could not make such an inquiry of 

him. But there is no record the paternal grandparents, paternal aunt, or maternal 

grandmother were asked about minor’s potential Indian ancestry.

The Department acknowledges it did not inquire with minor’s extended family, 

but argues there is no prejudice because mother denied Indian ancestry in this case, both

parents denied such ancestry in the sibling’s previous case, and mother provided no 

evidence or offer of proof that minor might have Indian heritage. As we read the record, 

however, mother did not deny Indian ancestry, she said she has no knowledge of it. As 

for father’s asserted denial in the prior case, in this case the juvenile court did not take 

judicial notice of it or rely upon it; and aside from the petition and the detention order, the 

record in this case does not include ICWA compliance documentation from the previous 

case.

California Courts of Appeal have taken different approaches regarding when to 

reverse in failure-to-inquire cases. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 779-

786, review granted Sept. 21, 2022, S275578 [discussing three approaches and adopting a 

fourth].) One line of cases holds that an error in the initial inquiry must result in reversal 

because the duty to inquire is mandatory and unconditional. (See, e.g., In re J.C. (2022) 

77 Cal.App.5th 70, 80.) A second line of cases holds that such error is presumptively 

harmless unless a showing is made by the parent on appeal (such as by an offer of proof) 

why further inquiry would lead to a different ICWA finding. (See In re A.C. (2021) 

65 Cal.App.5th 1060, 1069.) A third line of cases holds reversal is required when the 

agency failed in its duty of initial inquiry and the record indicates there is readily 

obtainable information likely to bear meaningfully upon whether the child is an Indian 

child. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.)
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Here, although it is arguable the failure of inquiry was harmless, the case involves 

some unique circumstances, such as father’s recent death. Until the California Supreme 

Court has had an opportunity to address the split in authority, we will conditionally 

affirm the juvenile court orders and remand the matter for further compliance with 

ICWA, including inquiry directed to minor’s paternal and maternal relatives.

DISPOSITION

The orders terminating parental rights are conditionally affirmed, and the matter is 

remanded for further compliance with ICWA, including inquiry directed to minor’s 

paternal and maternal relatives. If, on remand, the juvenile court determines ICWA 

applies, the juvenile court shall vacate its previous orders terminating parental rights and 

conduct further proceedings consistent with ICWA, including a new section 366.26 

hearing. (25 U.S.C. § 1914; § 224, subd. (e).)

 /S/

MAURO, Acting P. J.

We concur:

 /S/

DUARTE, J.

 /S/

BOULWARE EURIE, J.