1

Filed 5/3/23 In re N.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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(San Joaquin)

----

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

Court Law.

C096840

SAN JOAQUIN COUNTY HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

F.W.,

Defendant and Appellant.

(Super. Ct. No. STK-JD-DP2020-0000425)

Appellant F.W., father of the minors, appeals from juvenile court orders 

terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, 

§§ 366.26, 395.)1 Father contends the orders should be reversed because the juvenile 

court and the San Joaquin County Human Services Agency (Agency) failed to comply 

1 Undesignated statutory references are to the Welfare and Institutions Code.
2

with the notice and inquiry requirements of the Indian Child Welfare Act (25 U.S.C. 

§ 1901 et seq.) (ICWA).

Because the juvenile court did not make ICWA findings, we will conditionally 

reverse and remand the matter for ICWA compliance.

BACKGROUND

A section 300 petition was filed on behalf of the minors in November 2020

following a failed safety plan. The detention report reflected that mother indicated she

did not have any Indian ancestry and father indicated he had “Oklahoma Cherokee” 

heritage through his maternal grandmother. The social worker completed an ICWA-10 

form and stated that ICWA notices would be sent. Neither parent appeared at the 

November 2020 detention hearing. The minors were ordered detained from parental 

custody and were placed in the home of T., a paternal relative.

The parents attended the jurisdiction hearing on December 1, 2020, and were 

appointed counsel. The juvenile court inquired about possible Indian ancestry. Mother

stated she did not have any Indian ancestry and father stated that, on his maternal side, his 

grandmother’s mother was “Cherokee Indian out of Oklahoma, but she passed away” and 

her husband had remarried. The juvenile court directed father to provide that information 

to the Agency and the jurisdiction hearing was continued.

On December 8, 2020, the Agency filed ICWA-20 forms that had been completed 

and signed by the parents on October 16, 2020. On the forms, mother indicated she had 

no Native American ancestry; father indicated he had Cherokee Indian ancestry with a 

tribe in Oklahoma through his maternal grandmother.

On January 5, 2021, the Agency filed ICWA notice documentation. The notice 

contained identifying information for mother and the maternal grandparents who were 

born in Vietnam. The notice also contained names, addresses, birth/death dates, and 

tribal affiliations (Apache, Cherokee, Choctaw, and Navajo) for father and his maternal 

line, which included the minors’ grandmother, great-grandmother (deceased), great-
3

grandfather (deceased), great-great grandfather (deceased), and great-great grandmother 

(deceased). The notice was sent to The Choctaw Nation of Oklahoma, Cherokee Nation, 

Apache Tribe of Oklahoma, Colorado River Indian Tribes, Eastern Band of Cherokee 

Indians, Jena Band of Choctaw Indians, Mescalero Apache Tribe, Navajo Nation, Fort 

Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mississippi Band of Choctaw 

Indians, Ramah Navajo School Board, Inc., San Carlos Apache Tribe, United Keetoowah 

Band of Cherokee Indians of Oklahoma, Yavapai-Apache Nation of Camp Verde Indian 

Reservation Arizona, Tonto Apache Tribe of Arizona, and White Mountain Apache Tribe 

of Fort Apache Reservation Arizona. The notice was also sent to the Bureau of Indian 

Affairs (BIA). The notice included the completed ICWA-20 forms, along with birth 

certificates for father, one of the minors, and the paternal grandmother. Father’s birth 

certificate indicated that the identifying information for his father had been withheld.

The Agency’s February 18, 2021 jurisdiction report reflected that the investigating 

social worker completed and signed an ICWA-10 form which gave her reason to believe 

the minors might have Indian ancestry in a Cherokee tribe from Oklahoma. The report 

provided the parents’ responses regarding Indian ancestry in their completed ICWA-20 

forms. The report reflected that notice was sent to the tribes in a completed ICWA-30 

form and an ICWA compliance hearing was set for March 23, 2021. But there is no 

indication in the record that the hearing occurred. The juvenile court took jurisdiction on 

March 2, 2021.

The Agency’s November 23, 2021 disposition report provided a summary of the 

ICWA information and status and noted responses had not been received from the BIA,

Colorado River Indian Tribes, Yavapai-Apache Nation, and San Carlos Apache Tribe. 

Each of the other tribes had responded that the minors were not enrolled or eligible for 

enrollment. The Agency concluded there was no reason to believe the minors were 

Indian children within the meaning of ICWA.
4

The disposition report included mother’s family background, as provided by 

mother. Mother was the oldest of six siblings and was raised by her mother. The 

January 5, 2021 ICWA notice contained information showing that both of mother’s 

parents originated from Vietnam. She never knew her father. The report also contained 

father’s family background interview which was completed with the assistance of his 

relative Sharon, who helped father with the minors’ care and appointments. Father, who 

was diagnosed with schizophrenia as a child, stated he was the only child born to his 

mother and his father. His mother was an alcoholic and inconsistent in his life, so he was

often left in the care of his maternal grandmother, who passed away in 2007. Father

reported that he never met his father, who was in and out of prison most of his life.

The disposition report also reflected that, in addition to paternal relatives T. and 

Sharon, the Agency identified a maternal uncle, T.L., and one non-related extended 

family member. The Agency further identified the paternal grandmother, maternal 

grandmother, and a maternal aunt – none of whom had responded to the Agency’s 

attempt at contact. The Agency identified three additional maternal relatives but lacked 

sufficient information to contact them. In February 2022, the minors were moved from 

T.’s home to the home of T.’s mother -- unnamed in the social worker’s reports -- where 

they have remained.

The disposition hearing did not commence until January 5, 2022, and was not 

completed until March 1, 2022. The juvenile court adjudicated the minors dependent

children of the court, ordered them removed from parental custody, bypassed parents for 

reunification services, and set a section 366.26 hearing.

The contested section 366.26 hearing took place on August 17, 2022. The juvenile 

court found the minors likely to be adopted, found no exceptions to adoption applied, and 

terminated parental rights. Father appealed.
5

DISCUSSION

Father contends the juvenile court did not make required ICWA findings. 

The Agency concedes the juvenile court did not make express findings. We agree with 

the parties that the juvenile court did not make any findings as to the adequacy of the 

Agency’s inquiry or whether ICWA applied. A juvenile court must make findings as 

to the applicability of ICWA, and failure to do so is error. (In re Jennifer A. (2002) 

103 Cal.App.4th 692, 704-705, 709.)

The Agency nevertheless argues that on this record, the juvenile court could be 

deemed to have made implied ICWA findings. But when findings are implied, the record 

must “ ‘reflect that the court considered the issue and decided whether ICWA applies.’ ” 

(In re G.A. (2022) 81 Cal.App.5th 355, 361, review granted Oct. 12, 2022, S276056, 

quoting In re Asia L. (2003) 107 Cal.App.4th 498, 506.) For example, in Asia L., the 

appellate court concluded the juvenile court implicitly found ICWA did not apply when it 

“expressly found that ‘notice had been given pursuant to ICWA’ and then proceeded to

terminate appellants’ parental rights under the usual rather than the heightened ICWA 

standards.” (In re Asia L., at p. 506.)

Here, the record does not show any finding or even comment by the juvenile court 

as to the adequacy of the Agency’s inquiry or whether ICWA applied. We decline to 

imply ICWA findings on this record.

The Agency suggests there can be no prejudice because the minors were placed 

with a paternal relative who planned to provide permanency to the minors through 

adoption, and such a relative placement would have been the first placement preference if 

the minors had been found to be Indian children. But the Agency did not develop this 

point into a complete argument. Among other things, it did not address whether, on this 

record, a tribe could have possibly been prevented from seeking intervention, transfer to 

tribal court, or tribal customary adoption. Because we have not been provided with a full 

argument on this specific point, we decline to decide it.
6

Moreover, we decline to make our own ICWA findings. Appellate courts can 

make findings of fact on appeal, but the authority is exercised sparingly. (In re Zeth 

S. (2003) 31 Cal.4th 396, 405.) “[I]t is up to the juvenile court to review the information 

concerning the notice given, the timing of the notice, and the response of the tribe, so that 

it may make a determination as to the applicability of [ICWA], and thereafter comply 

with all of its provisions, if applicable.” (In re Jennifer A., supra, 103 Cal.App.4th at 

p. 705.) We will remand for the juvenile court to make the requisite findings.

DISPOSITION

The orders terminating parental rights are conditionally reversed and the matter 

remanded for the juvenile court to determine whether compliance with ICWA has 

occurred, and to enter ICWA findings. If the minors are found not to be Indian children

falling within the provisions of ICWA, the orders shall be reinstated. However, if the 

minors are determined to be Indian children as defined by ICWA, and the juvenile court 

determines ICWA applies to this case, the court shall proceed in accordance with ICWA.

 /S/

MAURO, Acting P. J.

We concur:

 /S/

KRAUSE, J.

 /S/

MESIWALA, J.