Filed 6/13/24 In re J.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.E., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

Ja.E.,

Defendant and Appellant.

 D083614

 (Super. Ct. No. J520368)

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

Alexander M. Calero, Judge. Conditionally reversed and remanded with 

directions. 

Jill Smith, under appointment by the Court of Appeal, for Defendant

and Appellant. 

Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy 

County Counsel, and Evangelina Woo, Deputy County Counsel, for Plaintiff 

and Respondent. 
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INTRODUCTION

Ja.E. (Mother) appeals from the juvenile court’s order terminating 

parental rights to her son, J.E. (Welf. & Inst. Code,1 366.26.) Mother

contends, and the San Diego County Health and Human Services Agency 

(Agency) concedes, that the Agency failed to comply with its initial inquiry 

duties under the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) 

(ICWA). The parties also agree that the juvenile court erred by relying on a 

prior ICWA finding in J.E.’s sibling’s case to determine that ICWA was 

inapplicable to the proceedings. We accept the Agency’s concession, 

conditionally reverse the order terminating Mother’s parental rights, and 

remand for the limited purpose of compliance with ICWA and its related 

statutory provisions. 

FACTUAL AND PROCEDURAL BACKGROUND2

In December 2020, the Agency petitioned the juvenile court on behalf of 

J.E. pursuant to section 300, subdivision (b)(1). The Agency included an

ICWA-010(A) form with its petition that indicated the Agency had 

interviewed M.J. (Father), and he provided no reason to believe J.E. was 

Native American as defined by ICWA. The Agency also informed the court 

that in a dependency matter involving J.E.’s sibling, a juvenile court 

previously found, without prejudice, that ICWA did not apply to the 

proceedings. Consequently, the Agency opined that ICWA was not applicable 

to J.E.’s case. 

1 Unspecified statutory references are to the Welfare and Institutions 

Code. 

2 Mother’s sole contentions on appeal concern ICWA, and we limit our 

discussion of the factual and procedural background to those facts relevant to 

her claims. 
3

At the detention hearing, the court made a prima facie finding that J.E.

fell within its jurisdiction and detained him in out-of-home care. The court 

also found, without prejudice, that ICWA did not apply to the proceedings. 

The minute order from the detention hearing states, “court takes judicial 

notice as to ICWA. Previous findings were made in sibling’s case.”3 

Thereafter, the Agency documented its interviews with Mother and the 

maternal grandmother in reports submitted to the juvenile court. The 

reports do not reflect that the Agency inquired from them regarding any 

potential Native American ancestry. And although Mother listed relatives 

who were providing her support during the dependency proceedings, 

including J.E.’s maternal aunt, the record does not demonstrate that the

Agency attempted to contact the maternal aunt as part of its ICWA 

investigation. Nor was there investigation of J.E.’s extended paternal family; 

Father informed an Agency social worker that the paternal grandmother 

resided in San Antonio, Texas, but the record does not reflect any attempt to 

contact her. 

Nonetheless, relying on the juvenile court’s prior finding at the 

detention hearing that ICWA was inapplicable, the Agency continued to 

recommend that ICWA did not apply. At multiple hearings during the 

dependency proceedings, the court reaffirmed its prior finding that ICWA 

was inapplicable. The minute order from a review hearing in February 2022

reflects the court additionally found the Agency had “conducted adequate 

further inquiry to identify and work with all of the tribes of which there is 

reason to know that the child may be a member, or eligible for membership

3 The record does not include a transcript of this hearing. The normal 

record on appeal from an order terminating parental rights includes only the 

reporter’s transcripts of the oral proceedings at the section 366.26 hearings. 

(Cal. Rules of Court, rule 8.407(b)(2).) 
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[and] to verify whether the child is in fact a member or whether a biological 

parent is a member and the child is a member.” 

At the final section 366.26 hearing in February 2024, the Agency again

recommended the court find ICWA did not apply to the proceedings. The 

court adopted the Agency’s recommendation and found ICWA did not apply. 

The court then terminated parental rights and referred J.E. for adoptive 

placement.

DISCUSSION

In California dependency proceedings, 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).) “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. (2020) 

55 Cal.App.5th 558, 566.) In the first phase, where the child is taken into 

temporary custody pursuant to sections 306 or 307, the Agency’s initial 

inquiry must include, “but is not limited to, asking the child, parents, legal 

guardian, Indian custodian, [and] extended family . . . whether the child is, or 

may be, a Indian child[.]” (§ 224.2, subd. (b).) ICWA defines “ ‘extended 

family member’ ” by “the law or custom of the Indian child’s tribe” or, absent 

such law or custom, as “a person who has reached the age of eighteen and 

who is the Indian child’s grandparent, aunt or uncle, brother or sister, 

brother-in-law or sister-in-law, niece or nephew, first or second cousin, or 

stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [“ ‘extended family 

member’ . . . defined as provided in [§] 1903” of ICWA].) Where, as here, the 

facts are undisputed, “we independently determine whether ICWA’s 

requirements have been satisfied.” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1051.) 
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As the Agency concedes, it was required to interview J.E.’s extended 

family to the extent those relatives were available. (§ 224.2, subd. (b).) The 

record does not reflect the Agency made an ICWA-related inquiry with 

Mother or the maternal grandmother. Nor does the record suggest an effort 

to interview the maternal aunt and paternal grandmother, both of whom

were mentioned by the parents in conversations with an Agency social 

worker. Accordingly, the evidence before the juvenile court did not include

sufficient inquiries of J.E.’s extended family.

Moreover, the previous ICWA finding regarding J.E.’s sibling was not 

dispositive of J.E.’s status under ICWA because “ ‘[a] determination of tribal 

membership is made on an individual basis . . . .’ ” (In re Jonathan D. (2001) 

92 Cal.App.4th 105, 111.) The court’s judicial notice of the prior ICWA 

finding in J.E.’s sibling’s case was therefore insufficient, without more, to 

support its finding that ICWA did not apply. (Ibid.) Accordingly, we 

conclude the court’s finding that ICWA did not apply to the proceedings was

not supported by sufficient evidence. We conditionally reverse the court’s 

order terminating Mother’s parental rights and remand the matter to the 

juvenile court so the Agency may comply with ICWA and section 224.2. The 

parties have filed a joint stipulation to immediate issuance of the remittitur, 

which we accept. (Cal. Rules of Court, rule 8.272(c)(1).)
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DISPOSITION

The juvenile court’s order terminating Mother’s parental rights is 

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

directions that the Agency comply with the inquiry provisions of ICWA and 

section 224.2. If, after Agency compliance with ICWA and section 224.2, the 

juvenile court finds that no ICWA notice is required to be given, the juvenile 

court shall reinstate the order terminating Mother’s parental rights. If, after 

compliance with section 224.2, the juvenile court finds that ICWA notice is 

required, the Agency shall comply with its ICWA notice obligations and the 

juvenile court shall proceed accordingly. The clerk of this court is directed to 

issue the remittitur immediately. 

BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.