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Filed 12/28/23 In re R.W. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Glenn)

----

In re R.W. et al., Persons Coming Under the Juvenile 

Court Law.

C098678

GLENN COUNTY HEALTH AND HUMAN 

SERVICES AGENCY ,

Plaintiff and Respondent,

v.

J.W.,

Defendant and Appellant.

(Super. Ct. Nos. 23JP01067, 

23JP01068, 23JP01069)

Appellant J.W. (father), father of the minors, appeals from the juvenile court’s 

dispositional orders. (Welf. & Inst. Code, § 395.)1 Father contends the juvenile court 

and the Glenn County Health and Human Services Agency (Agency) failed to comply 

1 Undesignated statutory references are to the Welfare and Institutions Code.
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with the requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 

§ 1901 et seq.). The Agency concedes the error.

Because the juvenile court had yet to make a final ICWA finding with respect to 

these minors at the time of this appeal, and the ICWA inquiry is still ongoing in that 

court, we will dismiss the ICWA claim on appeal as premature and affirm the orders of 

the juvenile court from which this appeal was taken.

BACKGROUND

A detailed recitation of the facts and non-ICWA related procedural history is

unnecessary to our resolution of this appeal.

The Agency filed identical dependency petitions on behalf of each of the minors 

pursuant to section 300, subdivision (b), alleging the minors were at risk due to domestic 

violence in the home.2 The Indian child inquiry forms (ICWA-010) attached to the 

petitions indicated ICWA inquiry of father and V.W. (mother) revealed the minors might 

either be members or eligible for membership in the Cherokee tribe in Oklahoma. The 

disposition report clarified that mother denied Indian ancestry, but father claimed 

possible Cherokee ancestry. The minors were detained and initially placed with a relative 

but were ultimately placed together in a foster home.

At the detention hearing on March 7, 2023, the Agency’s counsel informed the 

court that the minors had possible Indian ancestry. The court ordered the minors 

detained, found there was a reason to believe the minors were Indian children, and 

ordered the Agency to conduct further inquiry and file any evidence with the court.

The March 30, 2023, jurisdiction report included father’s completed parental 

notification of Indian status form (ICWA-020) stating his belief that he had Indian 

ancestry on the maternal side of his family. The report stated the Agency completed 

2 A second allegation was later stricken by the juvenile court.
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ICWA notices (ICWA-030) utilizing information provided by father and the paternal 

aunt. However, there were no ICWA notices attached to the report.

The Agency’s May 16, 2023, disposition report included the names of maternal 

and paternal relatives provided by the parents as possible placements for the minors. The 

report also included the names of father’s seven siblings and their whereabouts, five of 

whom resided in California and with all of whom father maintained a relationship. 

Mother had also provided the Agency with the names and locations of the maternal 

grandparents and a maternal aunt, all of whom resided in California. The disposition 

report confirmed mother’s denial of Indian heritage as to all three minors. The Agency 

reported that father completed additional ICWA-020 forms for two of the minors stating 

he believed he had Indian ancestry with the following tribes: Cherokee, Comanche, and 

Blackfoot, all located in Oklahoma. The forms were attached as exhibits to the 

disposition report.

At the May 18, 2023, jurisdiction and disposition hearing, the court sustained the 

petitions as modified, adjudged the minors dependents of the juvenile court, and ordered 

their continued out-of-home placement. The court inquired about the ICWA further, 

noting there was a possibility the minors or the parents might be affiliated with various 

tribes and asking whether the Agency had made any further ICWA inquiry. The 

Agency’s counsel informed the court that the ICWA does or may apply stating, “It’s 

possible all three children have Cherokee ancestry. We’re serving notice to them and the 

Blackfoot and Comanche tribes on the paternal side. [¶] That’s all I have.” In that 

regard, the court found as follows: “The children may be Indian children and notice of 

the proceedings and the rights of the tribe to intervene was provided as required by law. 

[¶] The children are not old enough to ask if they are of Native American heritage. With 

that said, the social workers have asked [the paternal aunt] whether there is information 

indicating the children are Indian children, as well as the parents. The parties have been 

instructed to inform the Court if they receive any information indicating that the children 
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are Indian children.” The court’s written order stated the minors may be Indian children 

and “notice of the proceeding and the right of the tribe to intervene was provided as 

required by law. Proof of such notice was filed with this court.”

Father filed a timely notice of appeal of the jurisdiction and disposition orders.

DISCUSSION

Father contends the Agency’s inquiry into the minors’ possible Native American 

heritage was insufficient because the minors’ paternal and maternal extended family 

members were not interviewed despite the fact that the Agency was aware of and in some 

cases had contact with various relatives. Father also contends the Agency failed to 

include in its reports evidence of the ICWA notices it claimed to have sent to various 

Indian tribes as well as what specific information was included in those notices. Finally, 

father contends the juvenile court erred when it found the Agency provided “notice of the 

proceedings and the rights of the tribe to intervene . . . as required by law.”

The Agency concedes its further ICWA inquiry and documentation related thereto 

was inadequate and did not comply with the requirements of the ICWA and related 

California statues.

We agree that the Agency’s ICWA efforts were inadequate and the juvenile 

court’s interim ICWA finding was erroneous; however, as we explain, the ICWA claim 

on appeal is premature and accordingly must be dismissed.

“The juvenile court and the [Agency] 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).)” 

(In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056; see 

also In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) “[I]f that initial inquiry creates a 

‘reason to believe’ the child is an Indian child, then the Agency ‘shall make further 

inquiry regarding the possible Indian status of the child, and shall make that inquiry as 

soon as practicable.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052, italics omitted.)
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The Agency’s inquiry, noticing, and documentation were inadequate. For 

example, father identified the names, ages, and general locations of his seven siblings, 

some of whom resided in California. Nothing in the record suggests the Agency 

contacted or inquired of any of those individuals about Indian ancestry. The Agency was 

also in contact with at least one maternal relative for the purpose of possible relative 

placement. Yet the record is devoid of any evidence of attempts by the Agency to make 

ICWA inquiry of any maternal relatives.

Given the conceded inadequacies by the Agency, the juvenile court erred in 

finding that notice of the proceedings had been provided as required by law. The court 

had a duty to ensure the Agency made further appropriate inquiries — which the Agency 

agrees it did not do — and then make findings based on the results of all inquiries, 

including the court’s own. (See In re A.M. (2020) 47 Cal.App.5th 303, 319 [“ICWA and 

the corresponding provisions of California law impose an affirmative and continuing duty 

on the juvenile court to inquire whether the child is an Indian child”].)

However, while it is clear from the record that ICWA inquiry thus far was 

inadequate and documentation regarding inquiry and notice efforts nonexistent, and while 

the court made the interim finding that the Agency complied with notice requirements “as 

required by law,” the court made no final ruling at or before the challenged hearing as to 

whether the ICWA applied. Thus, father’s claim is premature. That is, any ICWA issues 

are not yet ripe for review. “ ‘Ripeness’ refers to the requirements of a current 

controversy.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) An 

issue is not ripe for review unless and until it is “sufficiently concrete to allow judicial 

resolution even in the absence of a precise factual context.” (Pacific Legal Foundation v. 

California Coastal Com. (1982) 33 Cal.3d 158, 170; see id. at pp. 170-172.)

Because the minors’ dependency case is still ongoing, these and any other 

perceived deficiencies with ICWA inquiry and noticing can and should be brought to the 

juvenile court’s attention and may be resolved during the normal course of the ongoing 
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dependency proceedings. (See In re M.R. (2017) 7 Cal.App.5th 886, 904 [ICWA claim 

was premature where no final ICWA ruling was made at dispositional hearing].) Indeed, 

“ ‘[c]ounsel should not forget that they are officers of the court, and while it is their duty 

to protect and defend the interests of their clients, the obligation is equally imperative to 

aid the court in avoiding error and in determining the cause in accordance with justice 

and the established rules of practice.’ ” (Williams v. Superior Court (1996) 

46 Cal.App.4th 320, 330.) If at any time, a parties’ counsel becomes aware that the 

juvenile court has failed to make necessary findings or orders, or that the agency has 

failed to make adequate inquiry under the ICWA, it is the obligation of counsel to 

promptly bring such matters to the attention of the juvenile court.

DISPOSITION

The sole claim alleging error under the ICWA is dismissed as premature. The 

orders of the juvenile court from which this appeal was taken are affirmed.

 /s/

EARL, P. J.

We concur:

 /s/

KRAUSE, J.

 /s/

KEITHLEY, J.*

*

Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.