Filed 6/23/23 In re O.M. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re O.M. et al., Persons 

Coming Under the Juvenile 

Court Law.

2d Juv. No. B324157

(Super. Ct. Nos. 20JV00064, 

20JV00065)

(Santa Barbara County)

SANTA BARBARA COUNTY 

CHILD PROTECTIVE 

SERVICES,

 Plaintiff and Respondent,

v.

MARCO M. et al.,

 Defendants and Appellants.

Marco M. (father) appeals the juvenile court’s order 

terminating his parental rights to his daughter, D.R. and 

selecting adoption as the permanent plan. (Welf. & Inst. Code,
2

§ 366.26.)1 Lisa Z. (mother) separately appealed the juvenile 

court’s orders as to D.R., and D.R.’s older half-sister, O.M. 

Mother’s opening brief joins in father’s arguments. Father and 

mother’s sole contention on appeal is that the Santa Barbara 

County Child Welfare Services (“CWS”) and the juvenile court did 

not comply with the duty to inquire further whether the children 

are Indian children pursuant to the Indian Child Welfare Act of 

1978 (ICWA) (25 U.S.C., § 1901 et seq.) and related California 

law.2 We conditionally affirm and remand for compliance with 

ICWA. 

Facts and Procedural History

In April 2019, the San Diego County Child Welfare Services 

(“agency”) filed a dependency petition pursuant to section 300, 

subdivision (b) on behalf of 9-year-old D.R. and 14-year-old O.M. 

The petition alleged mother suffered from mental illness and had 

recently been placed on an involuntary psychiatric hold pursuant 

to section 5150. The children remained in mother’s care.

At the detention hearing, mother’s counsel stated that 

mother had submitted an ICWA-020 form and indicated she had no 

known Indian ancestry. The dependency petition filed with the 

juvenile court also included an Indian Child Inquiry Attachment,

ICWA-010 form, which indicated that mother denied having Indian 

ancestry.

1 All further undesignated statutory references are to the 

Welfare and Institutions Code.

2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same 

for consistency, even though we recognize that other terms, such 

as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In 

re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
3

In May 2019, the agency filed a jurisdiction/disposition 

report with the juvenile court. The report stated that mother was 

asked the following questions: “(1) Do you have any Native 

American heritage? [¶] (2) Do your grandparents or any other 

extended family have Native American heritage? Are you or any 

of your extended family members of an Indian tribe? [¶] (3) 

Have you or any of your family members ever received services 

from an Indian tribe, such as educational, financial, counseling, 

medical, etc.? [¶] (4) Have you or any of your family members 

ever participated in tribal activities, events, lived on [a] 

reservation, [or] spoken an Indian language?” Mother answered 

“no” to each of these questions. 

The agency also sent an ICWA questionnaire to each of the 

children’s fathers.3 Father provided a written response and 

answered “no” to each of the questions. He did not identify 

anyone who may have additional information regarding possible 

Indian ancestry. 

At the jurisdictional hearing, both fathers made their 

initial appearance and each denied having Indian ancestry. The

juvenile court found that ICWA did not apply. The juvenile court 

also granted father’s request for paternity testing. 

In July 2019, the juvenile court conducted a contested 

jurisdictional and dispositional hearing and found father was 

D.R.’s biological father. 

In January 2020, the agency moved to transfer the case to 

Santa Barbara County. The transfer out motion reflected the San 

Diego County Juvenile Court’s finding that ICWA did not apply. 

In March 2020, the Santa Barbara County Juvenile Court accepted

transfer of the case from San Diego County. 

3 The father of O.M. is not a party to this action.
4

In March 2021, CWS secured a protective custody warrant 

pursuant to section 340 and detained the children due to

concerns regarding mother’s paranoid behavior and failure to 

comply with her case plan. CWS filed a supplemental petition 

pursuant to section 387. At the hearing in April 2021, the 

juvenile court sustained the petition, removed the children from 

mother, and ordered reunification services for mother. 

CWS subsequently prepared an ICWA matrix, which 

reflected that in March 2021, CWS interviewed mother who 

disclosed she was adopted and therefore was unsure of her 

heritage. Mother also stated that she had taken an Ancestry.com 

test, which “showed traces” of Indian ancestry. CWS spoke with 

two of mother’s adult daughters, D.R.’s half siblings, who denied 

having Indian ancestry. CWS also spoke with maternal second 

cousin who did not have any information regarding mother’s 

biological family but she reported that “as to the maternal adoptive 

family, no one in the family to be a registered member; however, 

they knew they had Navajo and Apache [a]ncestry.” (Sic.) 

In October 2022, at the section 366.26 hearing, the juvenile 

court denied mother’s request for a contested hearing and 

terminated parental rights. At that same hearing, CWS reviewed 

the ICWA inquiry process to date and requested the juvenile court 

find that ICWA did not apply. The juvenile court did not expressly 

state the ICWA did not apply but made the requested finding as 

reflected in the “Minute Order/Findings and Orders.” 

ICWA Inquiry and Notice

Father and mother contend the orders terminating their 

parental rights should be conditionally reversed and the matter 

remanded to the juvenile court for further inquiry. We agree.
5

We generally review ICWA findings for substantial 

evidence. ( In re J.K. (2022) 83 Cal.App.5th 498, 504.) “Because 

the material facts at issue here are undisputed, ‘“we review 

independently whether ICWA requirements have been 

satisfied.”’” (Ibid.)

ICWA defines an “‘Indian child’” 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) & (8); § 224.1, subd. (a).) The juvenile court and 

the county child welfare department have an affirmative and 

continuing duty to inquire whether a child subject to dependency 

proceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal. 

Rules of Court, rules 5.481(a) & 5.668(c).)

“‘The continuing duty to inquire whether a child is or may 

be an Indian child “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 Antonio R. (2022) 76 

Cal.App.5th 421, 429.)

The duty to inquire begins with the initial contact and 

obligates the juvenile court and the child services agency to ask 

the child, parents, extended family members, and others who 

have an interest in the child, whether the child is, or may be, an 

Indian child. (§ 224.2, subds. (a)-(c).)

The duty of further inquiry is triggered if the child services 

agency or the juvenile court has “reason to believe that an Indian 

child is involved in a proceeding.” (§ 224.2, subd. (e).) The 

Legislature defined “reason to believe” as having “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. 
6

Information suggesting 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), italics added.)

Those enumerated grounds are as follows: “(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 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 that the child is an Indian child. [¶] (5) 

The court is informed that the child is or has been a ward of a 

tribal court. [¶] (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).)

When the “reason to believe” threshold is reached, the 

requisite further inquiry includes, but is not limited to, 

interviewing the parents, extended family members, contacting 

the Bureau of Indian Affairs and State Department of Social 

Services for assistance in identifying the tribes in which the child 

may be a member or eligible for membership, contacting the 

tribes and any other person that may reasonably be expected to

have information regarding the child’s membership status or 

eligibility. (§ 224.2, subd. (e)(2)(A)-(C).) 
7

Here, citing In re Robert F. (2023) 90 Cal.App.5th 492,

(Robert F.) CWS contends it had no duty to inquire of extended 

family members about any Indian ancestry because the children 

were detained under a protective custody warrant pursuant to 

section 340, not section 306, which is the prerequisite to the 

section 224.2, subdivision (b) extended family member inquiry 

requirement. (See Robert F., at pp. 497, 500, 504, citing In re 

Adrian L. (2022) 86 Cal.App.5th 342 (conc. opn. of Kelley, J.).) 

We need not decide whether we agree with the holding in 

Robert F. because even if there was no duty of initial inquiry, 

once information is received that suggests a child may be an 

Indian child, we do agree that the agency “cannot ignore the 

information.” (Robert F., supra, 40 Cal.App.5th at p. 504.) And 

even if a claim of “Indian ancestry” alone is insufficient to impose 

a duty of further inquiry, (see In re Austin J. (2020) 47 Cal.App. 

5th 870, 888-889), the cousin did not merely report the family 

had “Indian Ancestry.” She not only stated that the family 

“knew” there was Indian Ancestry, but she identified the two 

tribes by name. The “reason to believe” standard “should be 

broadly interpreted.” (In re S.R. (2021) 64 Cal.App.5th 303, 317.) 

The maternal cousin’s certainty that the maternal family had 

Apache and Navajo ancestry gives reason to believe the children 

may be Indian children and triggers the duty to conduct a further 

inquiry. (§ 224.2, subd. (e)(2)(A)-(C).)

The duty to conduct a further inquiry exists despite the fact 

that the ancestry is through mother’s adoptive family. ICWA and 

its application to Indian children is not limited solely to children 

who are the biological descendants of a federally recognized tribe. 

“Tribal membership is treated under the ICWA as a matter of 

political affiliation rather than racial origin . . . . In incorporating 
8

the ICWA requirements into state law, the California Legislature 

explicitly found and declared that tribal membership is a 

question of political affiliation and that a tribe’s determination of 

its membership is binding on the state.” (In re B.R. (2009) 176 

Cal.App.4th 773, 783.)

“Because it had reason to believe an Indian child may be 

involved, the [agency] was obligated . . . to ‘make further inquiry 

regarding the possible Indian status of the child’ and to ‘make 

that inquiry as soon as practicable.’” (In re Rylei S. (2022) 81 

Cal.App.5th 309, 319.) 

The agency failed to satisfy its duty. There is nothing in 

the record suggesting that the agency conducted any further 

investigation in response to the cousin’s information. The agency 

did not attempt to verify this information with other family 

members nor did it make informal contact with the Navajo or 

Apache tribes. 

The error was not harmless. There is no indication any 

effort was ever made to make additional inquiries of other known 

and readily available relatives regarding the cousin’s 

information. The mother reported that her parents lived in 

Vista, California but the record does not show any attempt to 

contact them. In fact, it appears despite asking for and receiving 

this information from the cousin, the agency did nothing.

“Because we do not know what we do not know” (In re Rylei S., 

supra, 81 Cal.App.5th at p. 324) and because there is readily 

obtainable information that is likely to bear on whether D.R. is 

an Indian child, (In re Benjamin M. (2021) 70 Cal.App.5th 735, 

744) a limited remand is required. 
9

Disposition

The judgment (orders terminating parental rights and 

selecting adoption as the permanent plan) is conditionally 

affirmed. The matter is remanded to the juvenile court for the 

limited purpose of allowing the agency and the juvenile court to 

satisfy their statutorily-mandated inquiry duties under section 

224.2. If, after satisfying those duties, the juvenile court 

concludes that D.R. is not an Indian child, it shall enter a new 

order finding ICWA does not apply and the judgment (order 

terminating parental rights) shall become final as of that date. 

If, the juvenile court finds that D.R. is an Indian child, and that 

ICWA does apply, it shall enter an order to that effect and the 

judgment (order terminating parental rights) is reversed as of 

that date and the court shall hold a new section 366.26 hearing in 

compliance with ICWA and related California law.

NOT TO BE PUBLISHED.

CODY, J.

I concur:

GILBERT, P. J.
YEGAN, J., Dissenting: 

I respectfully dissent. As I explained in my dissenting 

opinion in In re J.K. (2022) 83 Cal.App.5th 498, the Court of 

Appeal is tasked to affirm a judgment unless there has been a 

miscarriage of justice, in which case we reverse. There is no 

showing of an actual miscarriage of justice in this case. If there 

were some facts here that would cause a reasonable person to 

have a “reason to believe” the children were Indian children 

within the meaning of the Indian Child Welfare Act of 1978 

(ICWA) (25 U.S.C., § 1901 et seq.), I would not vote to 

conditionally reverse. Instead, there is only speculation that 

further inquiry may or may not reveal some evidence that the 

children are Indian children. This is insufficient to support a 

reversal of the juvenile court’s judgment. 

The goal of ICWA is laudable. However, I entertain a real 

doubt that the cases automatically reversing a judgment because 

of an ICWA violation accomplish the goal of ICWA. Instead, the 

delays caused by ICWA reversals are costly and in most cases, 

counterproductive. Dependent children need stability and a 

sense of permanency. They should not have to wait because of 

the delay caused by reversals of judgments which, in the vast 

majority of cases, will not result in placement with an Indian 

family. 

Although we strive to uphold the letter and spirit of a 

statute, ICWA does not trump the Constitution. Appellate courts 

must follow the Constitutional mandate that reversal is only 

required where there is a miscarriage of justice. I would affirm. 

NOT TO BE PUBLISHED.

YEGAN, J.
Gustavo E. Lavayen, Judge

Superior Court County of Santa Barbara

______________________________

Jesse McGowan, under appointment by the Court of Appeal, 

for Defendant and Appellant, Marco M.

Jesse Frederic Rodriguez, under appointment by the Court 

of Appeal, for Defendant and Appellant, Lisa Z.

Rachel Van Mullem, County Counsel, Lisa A. Rothstein, 

Snr. Deputy, for Plaintiff and Respondent.