Filed 7/16/21 In re F.N. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re F.N., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

M.N.,

Defendant and Appellant.

 D078573

 (Super. Ct. No. J520491)

APPEAL from an order of the Superior Court of San Diego County, 

Marian F. Gaston, Judge. Reversed and remanded with directions. 

Jacob I. Olson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Office of County Counsel, Caitlin E, Rae, Chief Deputy County Counsel 

and Georgia Braun, Deputy County Counsel for Plaintiff and Respondent. 
2

M.N. (Mother) appeals from a January 2021 jurisdiction/disposition 

hearing under Welfare and Institutions Code1 sections 300 regarding her son 

F.N. Mother challenges the juvenile court’s November 2020 finding that 

there was no reason to know that F.N. was an Indian child under the Indian 

Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq., 

and section 224 et seq. She also contends the San Diego County Health and 

Human Services Agency (Agency) was required by section 224.2 subdivision 

(f) and section 224.3, subdivision (a)(1) to provide formal notice to three 

Indian tribes, which she contends the Agency failed to do. We conclude the 

Agency was not required to make formal notice to the three Indian tribes. 

Nevertheless, because we determine there is an apparent error or 

inconsistency in the juvenile court’s January 21, 2021 minute order regarding 

applicability of ICWA to these proceedings, we conditionally reverse and 

remand to the juvenile court with direction to clarify its finding as to whether 

ICWA applies. 

PROCEDURAL AND FACTUAL BACKGROUND

Because Mother does not substantively challenge the juvenile court’s 

jurisdiction/disposition findings, we restrict our recitation of the facts to those 

relevant to the limited issues on appeal regarding compliance with ICWA. 

In March 2017, the San Diego County Health and Human Services 

Agency (Agency) first opened a voluntary case with Mother and F.N. after 

Mother tested positive for methamphetamines during her first trimester of 

pregnancy with F.N. and F.N. tested positive at birth. In August 2020, the 

maternal grandmother of F.N. notified the Agency of an incident of domestic 

1 All further statutory references are to the Welfare and Institutions 

Code unless otherwise indicated. 
3

violence between Mother and Mother’s 17-year-old daughter. Maternal 

grandmother also notified the Agency of Mother’s ongoing substance abuse 

and declining mental health. During its investigation of this report, the 

Agency initiated a safety plan for F.N. The Agency contacted F.N.’s 

presumed father, who indicated that due to his own issues, he was not in a 

place to care for F.N. The father acknowledged that the maternal 

grandmother served as F.N.’s primary caregiver and that father’s 

involvement with F.N. had been limited to supervised visitation. 

Due to ongoing substance abuse, mental health issues, and domestic 

violence, the Agency believed F.N. to be “at further risk of maltreatment, 

severe neglect, injury or death.” In late August 2020, the Agency petitioned

the juvenile court for three-year-old F.N. under section 300, subdivision (b)

and applied for a protective custody warrant. The Agency recommended that 

F.N. be detained with his maternal grandmother to mitigate the safety 

threats brought about by the Mother. (CT 15, 27.) As noted in its August 

2020 initial detention report, the Agency interviewed the Mother and father 

of F.N. and both reported they did not have any Native American heritage. 

At the August 27, 2020 initial detention hearing, Mother appeared but 

was not yet represented by counsel. Father attended with counsel, who 

informed the court that father has been found to be F.N.’s father in other 

family court proceedings and that there was an existing child support and 

visitation order for father in that case. Father denied the allegations in the 

section 300 petition but joined the request to have F.N. detained with the 

maternal grandmother. Counsel also informed the juvenile court that Father 

had “Native American heritage,” stating Father’s “maternal grandmother 

was on the registry. She has passed away. She was on the registry for Creek 

and Cherokee.” 
4

Before continuing the hearing for one day to allow Mother to obtain 

counsel, the court made a “temporary” finding the Agency had made an 

adequate showing that F.N. was a child described by section 300, subdivision 

(b). At the hearing the following day, Mother was not present, but she was 

represented by counsel. The court confirmed its finding that the Agency had 

made a prima facie showing that F.N. was a child described by section 300, 

subdivision (b). The court ordered F.N. detained in out-of-home care until the 

Agency could place him with his maternal grandmother.2 The court ordered 

separate supervised visitation for the parents. The court also ordered the 

parents to complete the “Parental Notification of Indian Status” form and 

submit it to the Agency. The court deferred on the ICWA issue and set the 

matter for a jurisdiction and disposition hearing in September 2020. 

In advance of the September hearing, the Agency made further inquiry 

of F.N.’s Indian heritage, interviewing Father and the maternal 

grandmother. Mother had previously disclosed she had no relevant 

information. In the Agency’s September 2020 jurisdiction/disposition report, 

the Agency included information on ICWA status stating, “The Indian Child 

Welfare Act does or may apply.” Father reported his mother was affiliated 

with “Creek Cherokee,” although she passed away in 2010, and his 

grandmother was “full Creek Indian and the tribe was from Muskogee, 

Oklahoma.” Father himself was not registered with any Indian tribe and he 

confirmed that no other relative in his family would have further information 

about tribal affiliation. He denied having lived on an Indian reservation and 

2 The maternal grandmother’s home was not yet approved for placement, 

so the court authorized an extended visit to the grandmother’s home and 

granted the Agency discretion to place F.N. once the grandmother’s home was 

approved. 
5

denied he had any other reason to believe F.N. was an Indian child. The

maternal grandmother denied any Indian heritage and had no information 

about tribal affiliation. As such, the Agency’s report included the following 

recommendation as to the ICWA: “Notice pursuant to the Indian Child 

Welfare Act is required because the court has reason to know the child may 

be an Indian child. Reasonable Inquiry has been made to determine whether 

the child is or may be an Indian child.” The Agency further recommended 

that the court make a true finding on the section 300 petition for F.N., 

remove custody from the mother, and find detriment to place with the father. 

The Agency recommended reunification services for both parents and 

separate supervised visitation. 

In September 2020, the court held the jurisdiction and disposition 

hearing. Father was present with counsel. The Mother did not attend the 

hearing, but she was represented by counsel. Through counsel, Mother 

denied the allegations in the Agency’s section 300 petition and requested the 

matter set for trial. Her counsel also asked “that the court defer on the issue 

of the Indian Child Welfare Act. I do need to follow up with [Mother] on that 

a little bit more.” The Agency also acknowledged “[i]t is possible that this 

will become a case where the Indian Child Welfare Act does apply, but I’d ask 

the court at this time to defer pending the Agency’s ongoing communications 

with the Cherokee Tribes, and I would ask the court to not yet order that the

Agency notice any tribes.” The court continued to defer on ICWA “while we 

collect more information.” The court set a pretrial settlement conference for 

October 2020 and the contested trial for November 2020. 

The Agency continued its ICWA inquiry efforts. As detailed in the 

Agency’s October 2020 addendum report, the Agency called the Muscogee 

Creek Nation, which informed the Agency in a phone call that it had looked 
6

up the family’s information and “there was nothing for them in their 

database.” The Agency reported it also received an email from the Creek 

Nation stating, “Based on the information provided by your notice of ICWA 

proceedings, the child(ren) on this case are ineligible for ICWA in 

relationship to the Muscogee (Creek) Nation.” The Nation also informed the 

Agency that “there were no other tribes with Creek in their name in that 

state.” 

The Agency also called the Cherokee Nation and the United Keetoowah 

Bank of Cherokee Indians in Oklahoma and conducted email communication 

with the Eastern Band of Cherokee Indians. Each requested the Agency send 

the “ICWA-030” form with the family’s information so the tribes could 

confirm eligibility. The Agency’s report further detailed that it had sent the 

required forms on October 12, 2020 to all three. The October 2020 

addendum, however, did not attach the three ICWA-030 forms. 

At the October 2020 pretrial status conference, the father was present 

with counsel. The Mother did not attend the conference, but she was 

represented by counsel, who confirmed Mother was requesting the matter be 

set for trial. Father also confirmed the matter for trial. Counsel for the 

Agency notified the court that it had contacted the Muscogee Creek Nation, 

who “indicated that the great-grandmother was not a member.” The Agency 

reported that the Nation had “checked their records, and it does not sound 

like [the] family would be eligible for membership in this tribe.” The Agency 

further informed the court that it had “reached out to the three Cherokee 

tribes as there was an indication that the family may have Cherokee history.” 

The Agency asked the “[c]ourt continue to defer on ICWA until the trial date. 

The Agency would like to make some additional efforts to get in touch with 

the Cherokee tribe, and we can provide those updates at trial.” The court 
7

confirmed trial for November 2020 and stated “[a]t that time, we will address 

the Indian Child Welfare Act.”

In advance of the November 2020 hearing, the Agency submitted a 

November 2020 addendum report. The Agency confirmed it maintained its 

recommendations from the September 2020 jurisdiction and disposition 

report. The Agency’s addendum included no further information about the 

ICWA or about the Agency’s inquiry efforts. 

At the contested November 2020 adjudication hearing, the Mother’s 

counsel requested a continuance. Before continuing the hearing, the Agency 

and court addressed ICWA. As it had done at the September 2020 hearing, 

the Agency represented that it had reached out to the Muscogee Creek Tribe, 

which “confirmed that there is not any record of that relative and that they 

have no evidence that the father or child would be eligible for membership.” 

The Agency also reiterated that they had “reached out to all three Cherokee 

Tribes, the United Keetoowah Tribe, the Cherokee Nation, and the Eastern 

Band of Cherokee, and [the Agency] did send written 030s more than a 

month ago. [The Agency] ha[s] not received any response.” The Agency 

requested a finding that ICWA inquiry was sufficient at that point in time

and that “the [c]ourt has no reason to know that this minor is an Indian 

child.” The Agency also stated that it would continue to report on any further 

information received as a result of inquiry under the ICWA. The other 

parties did not address ICWA or respond to the Agency’s representations. 

The court found that the Agency’s ICWA inquiry had “been sufficient to 

that point” and that “[r]ight now[,] there is no reason to know [F.N.] is an 

Indian child.” The court concluded, “This finding is made without prejudice. 

If we get additional information, we can reopen inquiry.” The court’s minute

order from the hearing further reflected its ICWA findings, stating: (1) 
8

“Notice pursuant to the Indian Child Welfare Act is not required because the 

court has reason to know the child is not an Indian child. Reasonable inquiry 

has been made to determine whether the child is or may be an Indian child”; 

and (2) “The court finds without prejudice that the Indian Child Welfare Act 

does not apply to this proceeding.” The court then continued the contested 

hearing until January 2021. 

Prior to the January 2021 hearing, the Agency submitted two January 

2020 addendum reports, providing the court further information about 

parents and the issues leading to the dependency proceedings. These reports 

included no further information about ICWA or the Agency’s inquiry efforts. 

Again, the Agency confirmed it maintained its recommendations from the 

September 2020 jurisdiction/disposition report. 

In January 2021, the court held the contested adjudication hearing. 

Both parents attended with counsel and the trial proceeded by way of 

document trial and stipulated testimony from the maternal grandmother. 

The court admitted the August 2020 initial detention report, the September 

2020 jurisdiction/disposition report, and the Agency addendum reports from 

September, October, and November 2020, a December 2020 addendum,3 and 

3 Mother moved to augment the record on appeal in this matter to 

include documents missing from the record: the December 2020 Agency 

addendum report and the three ICWA 030 forms the Agency purportedly sent 

in October 2020. We granted Mother’s request, but the clerk of the superior 

court subsequently notified this court that “[a]fter a diligent search of the 

court files as well as other applicable areas of the juvenile court business 

office, [the clerk] ha[s] been unsuccessful in locating” these items. In its 

response brief, the Agency contends that when counsel for the Agency 

requested the December 2020 addendum be admitted to evidence, it 

incorrectly referred to the “JV-285 Relative Information form” as an 

addendum. The Agency explained that form (and not any addendum) “is the 

only record in evidence which was filed with the court on that date.” 
9

the two January 2021 addendum reports. The grandmother’s stipulated 

testimony was as follows: “The mother . . . visits [F.N.] on a daily basis. The 

mother does not show any signs of substance abuse at the visits. The mother 

regularly calls to get updates about [F.N.’s] health, development, and wellbeing, and since the case started, the mother has shown big improvements in 

her consistency and attitude.” Neither the court nor any of the parties 

addressed ICWA at the hearing. 

The court adopted many of the recommendations included in the 

Agency’s initial September 2020 jurisdiction/disposition report, finding the 

petition true by clear and convincing evidence, removing custody from the 

mother, and ordering reunification services for both parents. The court made 

no explicit mention about ICWA on the record. 

However, the minute order for the hearing stated, “Notice pursuant to 

the Indian Child Welfare Act is required because the court has reason to 

know the child may be an Indian child. Reasonable inquiry has been made to 

determine whether the child is or may be an Indian child.” At the conclusion 

of the hearing, the court set a six-month review hearing for July 19, 2021. 

Mother timely appealed the juvenile court’s January 2021 order. Father did 

not appeal or otherwise join in Mother’s arguments on appeal. 

The Agency subsequently filed a motion to augment the record on 

appeal, which includes a July 2021 Agency addendum report, submitted to 

the juvenile court in advance of F.N.’s six-month review hearing scheduled to 

occur in July 2021. The report attaches the ICWA-030 form the Agency sent 

to the three Cherokee tribes in October 2020, with certified mail receipts. 

The report also attaches an April 2021 response from the Cherokee Nation 

stating that the Nation examined its tribal records and, based on its 

examination, F.N. is “NOT an ‘Indian child/children’ in relation to the 
10

Cherokee Nation as defined in the Federal Indian Child Welfare Act, 25 

U.S.C. Section 1903(4).” 

DISCUSSION

A. Issues on Appeal

Mother’s February 2021 notice of appeal challenges the juvenile court’s 

January 2020 findings related to ICWA, which stated, “Notice pursuant to 

the Indian Child Welfare Act is required because the court has reason to 

know the child may be an Indian child.” The court also determined that 

“[r]easonable inquiry has been made to determine whether the child is or 

may be an Indian child.” On appeal, however, Mother focuses on an earlier 

hearing and claims the court erred in November 2020 by initially finding 

there was no reason to know F.N. was an Indian Child. Mother also argues 

that at the same November 2020 hearing, the court erroneously found the 

Agency’s inquiry and notice efforts “sufficient up to this point.” She argues 

the Agency was required to provide notice under the ICWA because there was 

reason to know F.N. was an Indian child. She further claims the Agency 

failed to provide adequate notice under ICWA because “[t]here is no evidence 

in the record that the Agency sent ICWA-030 forms and requested family 

information to the Cherokee Nation, Eastern Band of Cherokee Indians, and 

United Keetoowah Band of Cherokee in Oklahoma. 

B. ICWA Inquiry and Notice Requirements

In 1978 Congress enacted ICWA “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.) ICWA defines an “Indian child” as an 
11

“unmarried person who is under age eighteen and is either (a) a member of 

an Indian tribe or (b) eligible for membership in an Indian tribe and is the 

biological child of a member of an Indian tribe.” (25 U.S.C. § 1903, subd. (4); 

see § 224.1.) 

In every dependency proceeding, the trial court and Agency have an 

affirmative and continuing duty to determine if ICWA applies. (§ 224.2, 

subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 10–11.) If there is “reason to 

believe” a child is an Indian child, section 224.2, subdivision (e) requires the 

court or social worker to “make further inquiry regarding the possible Indian 

status of the child. . . .” (§ 224.2, subd. (e); In re T.G. (2020) 58 Cal.App.5th 

275, 290.) There is a “reason to believe” a child is an Indian child whenever 

the court or social worker 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.” (§ 224.2, subd. (e)(1); see also § 224.2, subd. (d)(1)-(6); Cal. Rule 

of Court,4 rule 5.481.) This further inquiry is to enable the court to 

“determine whether there is reason to know a child is an Indian child.” 

(§ 224.2, subd. (e)(2).) “Contact with a tribe shall include 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.” (§ 224.2, subd. (e)(2)(C).) 

If further inquiry reveals reason to know the child is an Indian child 

under ICWA, the court and Agency must comply with the formal notice 

requirements of section 224.3. (§ 224.2, subd. (f); see also rule 5.481, 

subds. (a)(4) and (c)(1).) The Indian tribe determines whether the child is an 

Indian child under ICWA. (T.G., supra, 58 Cal.App.5th at p. 294.) A tribe’s 

4 Further undesignated rule references are to the California Rules of Court. 
12

determination “that a child is or is not a member of, or eligible for 

membership in, that tribe . . . shall be conclusive.” (Ibid.; § 224.2, subd. (h).) 

As such, meaningful notice must be provided to the relevant Indian 

tribe(s). (25 U.S.C. § 1912(a); In re Karla C. (2003) 113 Cal.App.4th 166, 175

(Karla C.); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253 

(Dwayne P.), [“ ‘Of course, the tribe’s right to assert jurisdiction over the 

proceeding or to intervene in it is meaningless if the tribe has no notice that 

the action is pending’ [Citation.]”].) ICWA requires the Agency to notify the 

“parent or Indian custodian and the Indian child’s tribe, by registered mail 

with return receipt requested, of the pending proceedings and of their right of 

intervention.” (25 U.S.C. § 1912(a); § 224.3, subd. (a).) “ The notice must 

include the name, [birth date], and birthplace of the Indian child; his or her 

tribal affiliation; a copy of the dependency petition; the petitioner’s name; a 

statement of the right to the tribe to intervene in the proceeding; and 

information about the Indian child’s biological mother, biological father, 

maternal and paternal grandparents and great-grandparents or Indian 

custodians, including maiden, married and former names or aliases; [birth 

dates]; places of birth and death; current and former addresses; tribal 

enrollment numbers, and/or other identifying information.” (In re Louis S. 

(2004) 117 Cal.App.4th 622, 630; see § 224.3, subd. (a)(5)(A)-(H).) 

Specifically, rule 5.481, subdivision (c) requires the Agency to send form

“ICWA-030” to the “parent or legal guardian and Indian custodian of an 

Indian child, and the Indian child’s tribe.” And “[n]otice shall be sent . . . for 

every hearing that may culminate in an order for foster care placement, 

termination of parental rights, preadoptive placement, or adoptive 

placement . . . unless it is determined that [ICWA] does not apply to the case 

in accordance with section 224.2.” (§ 224.3, subd. (b).) 
13

To enable a court to determine if sufficient notice was given, the 

Agency must file the ICWA notice, return receipts, and responses received 

from the tribe(s) with the juvenile court. (Karla C., supra, 113 Cal.App.4th at 

pp. 175, 178–179.) ICWA notice requirements are strictly construed. (In re 

G.S.R. (2008) 159 Cal.App.4th 1202, 1216.) “When proper notice is not given 

under the ICWA, the court’s order is voidable.” (Karla C., at p. 174, citing 25 

U.S.C. § 1914; Dwayne P., supra, 103 Cal.App.4th at p. 260.) 

“We review the trial court’s findings whether proper notice was given 

under ICWA and whether ICWA applies to the proceedings for substantial 

evidence.” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 (D.N.).) 

C. Mother’s Appeal of the Court’s Finding That There Was No 

 Reason to Know the Child was an Indian Child is Untimely 

 and Moot

Mother contends the court erred in finding there was no reason to 

know F.N. is an Indian child in November 2020. She argues that the record 

reveals the court had “reason to know” F.N. was an Indian child, thus 

triggering section 224.3’s notice requirements. We disagree. 

First, Mother’s appeal of this finding is untimely. (See Van Beurden 

Ins. Servs., Inc. v. Customized Worldwide Weather Ins. Agency (1997) 15 

Cal.4th 51, 56 [This court lacks jurisdiction to review an order where the 

notice of appeal was not timely filed as to the order].) Mother’s notice of 

appeal filed in February 2020 purports to challenge the court’s January 21, 

2021 jurisdictional/dispositional order. Yet, on appeal, the Mother challenges 

the court’s findings as to ICWA made at a November 2020 hearing. To the 

extent Mother challenges the court’s November 2020 order, her notice of 

appeal was filed more than 60 days after that order. (Rule 8.104.) 

Second, at the January 2021 contested hearing—the hearing from 

which Mother’s appeal extends—the court made a contrary finding. There, 
14

the court found “Notice pursuant to the Indian Child Welfare Act is required 

because the court has reason to know the child may be an Indian child.” 

Ordinarily, the court’s subsequent finding would render Mother’s challenge 

moot. (See In re Kristin B. (1986) 187 Cal.App.3d 596, 604–605.) 

Problematically, however, the Agency asks us to ignore the courts finding, 

arguing “that the inclusion of this ICWA notice order was merely an 

oversight on the part of the juvenile court.” We decline the Agency’s request 

and instead, remand to the juvenile court to clarify and correct, if necessary,

its findings as to whether or not there is reason to know F.N. may be an 

Indian child. 

Remand is the correct remedy for the court to correct any errors in its 

minute order. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [“ ‘It is not open 

to question that a court has the inherent power to correct clerical errors in its 

records so as to make these records reflect the true facts. [Citations.] The 

power exists independently of statute and may be exercised in criminal as 

well as in civil cases. [Citations.]’ ”].) Where an error is raised on appeal, 

“the appellate court itself should order the trial court to correct” the error. 

(Id. at p. 188.) While we cannot ignore the court’s present January 2021 

minute order, we agree the record contains sufficient evidence of a likely 

error by the trial court, and as such, conditionally reverse and remand so the

juvenile court can correct the record. 

The likely error derives from the Agency’s early inquiry efforts 

regarding applicability of ICWA to F.N. At the August 2020 initial detention 

hearing for F.N., counsel for father informed the court that father had 

“Native American heritage” and that F.N.’s great-grandmother was “on the 

registry for Creek and Cherokee.” In conducting further inquiry in 

September 2020, father reported to the Agency that his mother was affiliated 
15

with “Creek Cherokee” and his grandmother was “full Creek Indian and the 

tribe was from Muskogee, Oklahoma.” Based on this information, the Agency 

informed the court in its September jurisdiction/disposition report, ICWA 

“does or may apply.” The Agency further recommended in its report that the 

court find “Notice pursuant to the Indian Child Welfare Act is required 

because the court has reason to know the child may be an Indian child.” 

At the September jurisdictional hearing, however, the Agency

requested the court defer on making its finding regarding ICWA. The Agency 

argues that when the Agency made this request, the Agency was “clarif[ying]

its recommendation regarding ICWA” to the court and was “assert[ing] that 

further inquiry was all that was required in [F.N.’s] case.” The record does 

not support the Agency’s argument. At the September hearing, the Agency 

asked, “to defer pending the Agency’s ongoing communications with the 

Cherokee tribes,” and more specifically, that the court “not yet order that the 

agency notice any tribes.” Thus, there is no indication in the record that at 

this time, the Agency changed its recommendation that the court require 

notice under ICWA. 

The Agency also contends it “never renewed the recommendation that 

the court make a formal order for ICWA notice.” The Agency ignores its 

October, November, and January addendum reports, all of which informed 

the court that the Agency “maintain[ed] the recommendations stated in the 

Jurisdiction and Disposition Report dated 9/21/2020,” the report which 

recommended the court order formal notice. 

The record does show, however, that at the November 2020 hearing, 

the Agency informed the court of its belief that “the Court has no reason to 

know that this minor is an Indian child.” The Agency thus asked the court to 

find that the Agency’s efforts were “sufficient to date.” The court ultimately 
16

agreed, finding “there is no reason to know [F.N.] is an Indian child” and that 

Agency’s ICWA inquiry had “been sufficient to this point.” The court’s 

minute order further stated, “[t]he court finds without prejudice that the

Indian Child Welfare Act does not apply to this proceeding.”

As stated ante, however, at the contested January 2021 hearing, the 

court’s minute order includes a contrary finding, that, “Notice pursuant to the 

Indian Child Welfare Act is required because the court has reason to know 

the child may be an Indian child.” The Agency contends the court must have 

“inadvertently adopted” this recommendation from the September 

jurisdiction/disposition report because there was no further testimony, 

evidence, or argument about ICWA at the January hearing. This error could 

also have been avoided had the Agency revised its recommendations to the 

court following its inquiry efforts and after the court made its finding in 

November 2020 that ICWA did not apply. 

Based on our review of the record, it appears the court’s finding may 

have indeed been inadvertent. While announcing its findings, the court only 

implicitly referred to ICWA when it stated, “I’ll adopt 2 through 4,” referring 

to recommendations two through four in the Agency’s September 2020 

jurisdiction/disposition report. Recommendation number three was the 

finding requiring ICWA notice. We cannot simply ignore the minute order as

there is no inconsistency between the court’s findings on the record (adopting 

recommendation three) and the court’s minute order including that finding. 

(C.f. T.G., supra, 58 Cal.App.5th at p. 299, quoting In re Nia A. (2016) 246 

Cal.App.4th 1241, 1247, fn. 1 [“ ‘ When there is a discrepancy between the 

minute order and the oral pronouncement of judgment, the oral 

pronouncement controls ’ ”].) Nevertheless, we recognize there is 

inconsistency between the record from November 2020—in which the court 
17

found ICWA did not apply to the proceedings—to January 2021 where the 

court found notice under ICWA was required. Between this time, none of the 

parties introduced additional evidence to the court about ICWA. Neither the 

parties nor the court made any other statements about ICWA at the January 

2021 hearing. 

Accordingly, we conditionally reverse the juvenile court’s January 2021 

jurisdiction/disposition order and remand with direction to the trial court to 

clarify its finding as to ICWA, in particular, as to whether or not there is 

reason to know F.N. is an Indian child and ICWA applies. 

D. ICWA’s Notice Requirements Were Not Triggered

Mother contends the Agency was required under sections 224.2, 

subdivision (f) and 224.3, subdivision (a)(1) to send “notice” to the three 

Cherokee tribes using the ICWA-030 forms and that the court could not make 

a finding that there was no reason to know F.N. was an Indian child in their 

absence. We disagree. 

As discussed ante, we have remanded to the juvenile court to clarify its 

January 2021 finding requiring notice under ICWA. Nevertheless, because 

both the court’s November 2020 and January 2021 orders include findings 

that the Agency’s inquiry efforts, finding respectively that inquiry “been 

sufficient to that point” and that “[r]easonable inquiry has been made,” we 

turn to the merits of Mother’s argument that notice under ICWA was

triggered. 

The court and Agency have “reason to know” a child is an Indian child 

if any of the following occur: (1) a designated individual “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) a designated individual “informs the court that it has 
18

discovered information indicating that the child is an Indian child”; (4) the 

child themself “gives the court reason to know that the child is an Indian 

child”; (5) “[t]he court is informed that the child is or has been a ward of a 

tribal court”; or (6) “[t]he 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)(1)-(6).) On appeal, Mother does not contend, 

and indeed the substantial evidence does not show, that any of these 

occurred. 

Instead, the only information about Indian heritage came from F.N.’s 

father about possible Indian heritage through the Cherokee tribes and the 

Muscogee Creek Nation. While father denied ever living on a reservation or 

being a member of any Indian tribe, he did state his belief that his mother 

and maternal grandmother were registered members. Where a parent only 

lists a child’s grandparent’s name as a member of an Indian tribe, this does 

not establish a reason to know a child is an Indian child, nor does it trigger 

the noticing requirement. (See In re A.M. (2020), 47 Cal.App.5th 303, 321

[rejecting mother’s claim that she may have Indian heritage rose to the level 

of “ ‘information indicating that the child[ren] [are] . . . Indian [child]ren’

(Citations omitted.)”].) 

Accordingly, the information provided to the Agency was sufficient to 

establish the Agency and court “had reason to believe” F.N. may be an Indian 

child, thus triggering only the duty to conduct further inquiry with the 

relevant Indian tribes. (A.M., supra, 47 Cal.App.5th at pp. 322–323; In re 

D.S. (2020) 46 Cal.App.5th 1041, 1052.) We conclude that substantial 

evidence supports the Agency complied with its inquiry obligations pursuant 

to section 224.2, subdivision (e).
19

The Agency conducted further interviews with the maternal 

grandmother, who denied any knowledge of F.N. having Indian heritage. The 

Agency could not interview father’s mother or paternal grandmother as both 

were deceased.5 (See § 224.2, subd. (e)(2) [stating further inquiry 

“[i]nterviewing the parents, Indian custodian, and extended family members 

to gather the information” about whether the child is, or may be, an Indian 

child].) 

As to the known Indian tribes, the Agency was required to “[c]ontact[ ] 

the tribe or tribes,” which included “telephone, facsimile, or electronic mail”

to “shar[e] 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.” (§ 224.2, subd. (e)(2)(C).) The 

Agency contacted the Muscogee Creek Nation, which informed the Agency in 

a phone call that it had looked up the family’s information and “there was 

nothing for them in their database.” The Agency reported it also received an 

email from the Creek Nation stating, “Based on the information provided by 

your notice of ICWA proceedings, the child(ren) on this case are ineligible for 

ICWA in relationship to the Muscogee (Creek) Nation.” The Nation also 

informed the Agency that “there were no other tribes with Creek in their 

name in that state.” 

The Agency also contacted the Cherokee Nation, United Keetoowah 

Bank of Cherokee Indians, and Eastern Bank of Cherokee Indians in 

Oklahoma. Each requested the Agency send the “ICWA-030” form with the 

5 The record does not contain completed Parental Notification of Indian 

Status forms (ICWA-20) from either parent, despite the court’s order they 

submit them. These forms should be completed. (Rule 5.481(a)(2)(c).) 
20

family’s information so the tribes could confirm eligibility. The Agency 

reported that it had sent these forms in October 2020. 

Although the Agency could have attached the three ICWA-030 forms 

with its October addendum, thereby better documenting its efforts, the 

substantial evidence shows it provided sufficient information to support the 

court’s findings that the Agency’s inquiry efforts were sufficient. (D.S., 

supra, 46 Cal.App.5th at p. 1054.) Section 224.2, subdivision (g) does not 

require the court review the actual forms to determine if the Agency “used 

due diligence to identify and work with all of the tribes.” Rather, “the court 

shall confirm [sufficient inquiry], by way of a report, declaration, or testimony 

included in the record.” (§ 224.2, subd. (g).) Here, there is no dispute the 

Agency’s report and information provided to the court detailed its inquiry 

efforts. 

Based on our decision, we deny the Agency’s request to augment the 

record on appeal to include the ICWA-030 form it sent to the Cherokee 

Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of 

Cherokee in Oklahoma in October 2020. We note that the Agency recently 

filed these forms, along with an April 2021 response from the Cherokee 

Nation, with the trial court for the upcoming July 2021 six-month review 

hearing for F.N. The April 2021 response is new evidence the juvenile court 

has not yet had an opportunity to review. As we are remanding to the trial 

court to clarify its January 2021 finding related to applicability of ICWA, and 

given this additional new information from the Cherokee Nation, which 

includes the Nation’s determination that F.N. is “NOT an ‘Indian 

child/children’ in relation to the Cherokee Nation as defined in the Federal 

Indian Child Welfare Act, 25 U.S.C. Section 1903(4),” the juvenile court will 
21

make additional findings related to ICWA. We leave it to the juvenile court’s 

discretion to do so in the first instance. 

DISPOSITION

The juvenile court’s January 2021 jurisdictional and dispositional order 

is conditionally reversed. The case is remanded to the juvenile court with 

directions to clarify its finding as to whether or not ICWA applies to these 

proceedings. If the court finds that there is no reason to know F.N. is an 

Indian child, the remainder of the jurisdictional and dispositional order shall 

be reinstated. Remittitur shall issue immediately. 

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.