Filed 6/14/23 In re K.C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re K.C., et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

K.C.,

Defendant and Appellant.

D081537

(Super. Ct. Nos. J520852, 

 J520852AB)

APPEAL from orders of the Superior Court of San Diego County, 

Browder A. Willis III, Judge. Conditionally reversed in part and remanded 

with directions.

Sarah Vaona, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Claudia G. Silva, County Counsel and Natasha C. Edwards, Senior 

Deputy County Counsel.
2

K.C. (Father) appeals two orders arising from special hearings in the 

Welfare and Institutions Code1 section 300 dependency proceedings for 

minors, Kd.C. and Km.C.2 His sole contention on appeal is that the San 

Diego County Health and Human Services Agency (Agency) and the juvenile 

court failed to conduct an adequate initial inquiry under the Indian Child 

Welfare Act (ICWA; 25 U.S.C. § 1901 et seq) and section 224.2. Specifically, 

Father contends there was no inquiry into the Native American ancestry of 

the paternal grandfather, who appeared at two hearings, and two paternal 

relatives, whom the Agency contacted. The Agency concedes error. We

accept the concession, conditionally reverse the orders, and remand for the 

limited purpose of compliance with ICWA.

BACKGROUND3

In September 2021, the Agency filed a section 300, subdivision (b),

dependency petitions for Km.C. and Kd.C., alleging then two- and three-yearold minors (respectively) were at substantial risk of harm because Father was

physically abusing Mother and violating a criminal protective order (CPO). 

The Agency placed the children in foster care.

At a detention hearing that month, the court detained Km.C. and Kd.C.

and ordered reunification services for the parents. The court also asked 

Mother and maternal grandfather—both appeared at the hearing—about 

their Native American ancestry. Maternal grandfather stated he was not 

1 Undesignated statutory references are to the Welfare and Institutions 

Code.

2 G.C. (Mother) is not a party to this appeal.

3 Because Father’s sole contention on appeal concerns ICWA, we limit 

our factual background accordingly.
3

aware of any such ancestry, but Mother said she had Native American 

ancestry based on her recent DNA test. The court stated the DNA test did

not “necessarily qualif[y] as a basis to believe there is a specific tribal 

registration” and found “[M]other’s family history . . . does not apply.”

At the initial jurisdiction and disposition hearing, Father denied any 

known Native American ancestry. The court found without prejudice that 

ICWA was inapplicable.

Around October 2021, the Agency called a paternal relative about 

placement and mailed another paternal relative a relative notification 

letter.4 There is no documentation the Agency asked these relatives about 

their Native American ancestry.

That month, the paternal grandfather appeared at a jurisdiction and 

disposition hearing, but the court did not inquire about his Native American 

ancestry.

At the contested jurisdiction hearing in December 2021, the court found 

true the allegations in the petitions. Although the paternal grandfather 

again appeared, the court did not ask him about his Native American 

ancestry. The Agency later spoke to the paternal grandfather, but there is no 

documentation he was asked about his Native American ancestry.

In the meantime, Father completed his substance abuse assessment, 

tested negative for alcohol and substances, and took domestic violence, 

parenting, and education classes. Then in March 2022, Father was arrested 

for violating two CPOs, both prohibiting him from coming within 100 yards of 

Mother. According to the police report, Father and Mother were still living 

together and had an altercation before the police arrived at the home. Father 

4 It is unclear from the record exactly how these relatives are related to 

the children.
4

left the state after the incident and never completed the remainder of his 

reunification services. Around the same time, Mother moved to another 

county and filed a motion to transfer the case to that county. The Agency 

agreed to the transfer.

At a special hearing on December 19, 2022, the court terminated

reunification services for Father and transferred the case to Mother’s county 

of residence. The court again found without prejudice that ICWA was not 

applicable. Father appealed. 

DISCUSSION

In response to concerns regarding the separation of Native American 

children from their tribes through adoption or foster care placement with 

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

Congress enacted ICWA to give tribes the “right to intervene in or exercise 

jurisdiction over a dependency proceeding involving the Indian child”5 (In re 

I.F. (2022) 77 Cal.App.5th 152, 160). Under California law adopted pursuant 

to ICWA, the juvenile court and Agency have an “affirmative and continuing 

duty to inquire” whether a child “is or may be an Indian child.” (§ 224.2, 

subd. (a); see Isaiah W., supra, at p. 9.)

Section 224.2 creates three distinct duties: the initial duty to inquire, 

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

re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.); In re D.F. (2020) 55 

Cal.App.5th 558, 566.) Relevant here is the duty of initial inquiry. That duty 

“begins with the initial contact, including, but not limited to, asking the party 

5 An “ ‘Indian child’ ” is “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); see § 224.1, subd. (a).)
5

reporting child abuse or neglect whether the party has any information that 

the child may be an Indian child.” (§ 224.2, subd. (a).) The duty further

requires the juvenile court to ask, at “the first appearance in court of each 

party,” whether each participant knows or has reason to know the child is an 

Indian child. (§ 224.2, subd. (c).) “If a child is placed into the temporary 

custody of a county welfare department pursuant to Section 306 or county 

probation department pursuant to Section 307,” the Agency has a duty to ask 

“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.” (§ 

224.2, subd. (b).)

The Agency “must on an ongoing basis 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.” (Cal. Rules of 

Court, rule 5.481(a)(5).)

When the facts are undisputed, as here, “we independently determine 

whether ICWA’s requirements have been satisfied.” (D.S., supra, 46 

Cal.App.5th at p. 1051.)

Father contends the Agency and court failed to fulfill their initial duty 

of inquiry under subdivisions (a) to (c) of section 224.2. Father asserts 

neither the court nor the Agency asked the paternal grandfather and 

relatives about their Native American ancestry. The Agency concedes its 

failure to ask the paternal relatives is inconsistent with subdivision (b) of 

section 224.2, and it should have asked the paternal grandfather as well. 

We question whether subdivision (b) of section 224.2 was triggered if 

the children were not placed in temporary custody under section 306 or by 
6

the probation department pursuant to section 307.6 (See In re Robert F. 

(2023) 307 Cal.Rptr.3d 492, 501-502 [duty to inquire extended family 

members under section 224.2, subdivision (b), is triggered only when the 

child is placed in temporary custody under section 306]; In re Ja.O. (2023) 91 

Cal.App.5th 672, 681[[same]). Even so, we need not reach this question here

and conclude the duty of initial inquiry was not satisfied independently of 

whether subdivision (b) applies.

Subdivision (c) imposed on the court a duty to inquire the paternal 

grandfather about his Native American ancestry when he appeared at two of 

the hearings. (§ 224.2, subd. (c).) The court, however, did not do so, and the 

Agency never followed up with him. Because this falls short of the inquiry 

obligations imposed by section 224.2, we accept the Agency’s concession. 

Accordingly, conditional reversal and limited remand are appropriate to

ensure compliance with the initial duty to inquire.

DISPOSITION

The December 19, 2022, orders are conditionally reversed. The matter 

is remanded to the court with directions to comply with the inquiry 

provisions set forth in section 224.2. If, after completing its inquiry, neither 

the Agency nor the juvenile court has reason to believe or reason to know the 

children are Indian children, the orders shall be reinstated. If the Agency or 

the juvenile court has reason to believe or reason to know either of the 

6 Sections 306 and 307 authorize a social worker and the probation 

department to take a child into temporary custody “without a warrant” in 

certain situations, whereas section 340 provides for the issuance of protective 

custody warrants. (§§ 306, subd. (a)(1) & (2), 307, 340, subd. (b)(2).)
7

children is an Indian child, the juvenile court shall proceed accordingly. In 

all other respects, the orders are affirmed.

By stipulation of the parties, the clerk of this court is directed to issue 

the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).) 

CASTILLO, J.

WE CONCUR:

DATO, Acting P. J.

KELETY, J.