Filed 12/22/23 In re J.J. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re J.J., a Person Coming 

Under the Juvenile Court Law.

 B328838

 (Los Angeles County

 Super. Ct. No.

 20CCJP06178A)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

A.J.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Stephen C. Marpet, Commissioner. 

Conditionally affirmed with directions.
2

Konrad S. Lee, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Avedis Koutoujian, Deputy 

County Counsel, for Plaintiff and Respondent.

_________________________________________

A.J. (father) appeals from the juvenile court’s order 

terminating parental rights over his son, J.J., under Welfare and 

Institutions Code1section 366.26. Father contends it was error to 

deny him the right to present evidence at the section 366.26 

hearing. He further contends the court erroneously failed to 

ensure compliance with the inquiry provisions of the Indian Child 

Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related 

California statutes (Welf. & Inst. Code, § 224 et seq.).

We conditionally affirm and remand the matter solely for 

the court to ensure compliance with ICWA and related California 

statutes. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Initial Proceedings and Reunification Period

In October 2020, the Los Angeles County Department of 

Children and Family Services (Department) received a referral 

from a reporting party with safety concerns for J.J., a one-weekold baby, due to mother’s mental health issues and excessive 

1

All further statutory references are to the Welfare and 

Institutions Code unless otherwise specified.
3

discipline history with J.J.’s 13-year-old half-sibling.

2

The halfsibling had already been removed from mother in Ohio on 

suspicion of excessive physical discipline and child trafficking. 

There was also a history of domestic violence by father against 

mother. There were two active protective orders protecting 

mother from father until August 2022, and March 2030, 

respectively. 

In November 2020, J.J. was detained pursuant to a 

protective custody warrant and the Department filed a petition 

under section 300 alleging risk of serious physical harm to J.J.

During the jurisdiction and disposition hearing in December 

2020, the juvenile court sustained the allegations, declared J.J. a 

dependent, removed him from parents’ custody, and ordered 

family reunification services and monitored visitation for each 

parent. 

By March 2021, J.J. was placed with his paternal 

grandmother (PGM). At the six-month review hearing in June 

2021, the court found father to be in substantial compliance with 

the reunification order and ordered continued family 

reunification services, allowing father unmonitored visits with 

J.J. 

On November 14, 2021, during an unmonitored visit with 

J.J., father called the police complaining mother was intoxicated 

and banging on his door demanding to see J.J. Father was 

arrested on suspicion of domestic violence and J.J. was returned 

to PGM. Charges were later dismissed but father was 

subsequently arrested on a probation violation instead. In May 

2 Mother is not a party to the current appeal.
4

2022, father was sentenced to four years in prison with a 

potential release within 8 to 18 months. At the combined 12 and 

18-month review hearing in June 2022, the juvenile court 

followed the Department’s recommendation by terminating

family reunification services and set the matter for a section 

366.26 hearing. 

2. Permanency Planning

According to the Department’s November 29, 2021 service 

log, aware of the domestic violence incident two weeks prior, 

PGM3stated she was “willing to provide permanency for [J.J.] 

whether it is to adopt him or to be his legal guardian.” The 

Department reported as such in its December 16, 2021 Status 

Review Report for the 12-month review hearing. Thereafter, 

during a December 22, 2021 home visit, when a social worker 

discussed J.J.’s need for stability whether with father or PGM, 

PGM stated she was willing to adopt J.J. to keep him safe from 

mother and father. 

Then, during a home visit on April 12, 2022, PGM stated 

although she was “open to adoption,” she preferred legal 

guardianship because father did not want her to adopt. During a 

home visit on May 16, 2022, however, PGM reiterated her 

willingness to adopt J.J. “to ensure that he is [safe] and not 

around his [parents’] drama.” She explained that her intentions 

were not to keep J.J. from his parents, but to ensure J.J. was 

3

The service log indicates contact with “MGM” or the 

maternal grandmother, then changes mid-paragraph to “PGM” or 

the paternal grandmother. J.J. began living with PGM in March 

2021, thus, “MGM” appears to be a typographical error.
5

raised in a safe and healthy environment. She further explained 

that although she had no doubt J.J.’s parents loved him, they did

not make the best decisions regarding J.J. Accordingly, the 

Department reported in its May 23, 2022 Status Review Report 

that PGM “desires to provide permanency for [J.J.] through 

adoption should the parents be unable to reunify with him” and 

that “[s]he wants to raise [J.J.] in a safe and loving home 

environment, where he is not exposed to abusive behaviors.” 

On June 10, 2022, the juvenile court set a section 366.26 

hearing for October 5, 2022 “to address the best permanent plan 

for the child with the court identifying adoption” and ordered the 

Department to initiate an adoptive home study. In a July 14, 

2022 Concurrent Planning Assessment, PGM acknowledged she 

was aware of the full legal responsibility of adoption; that family 

reunification takes precedence, but if reunification fails, adoption 

is the preferred alternative plan; and that she was interested in 

adopting J.J. if reunification with his parents was not possible. 

In its September 20, 2022 Addendum Report, the 

Department requested a continuance of the October 5, 2022 

section 366.26 hearing because there were pending reference 

checks and PGM needed more time to provide documents related 

to her previous marriages necessary to adopt J.J. The 

Department also informed the court that PGM appeared to 

understand the responsibilities inherent with being an adoptive 

parent and that she was “committed to providing [J.J.] with a 

stable and loving family environment through adoption.” This 

status was unchanged in the Department’s Status Review Report

and the 366.26 WIC Report, both filed on September 26, 2022. 

During the section 366.26 hearing on October 5, 2022, J.J.’s 

counsel stated PGM previously indicated to counsel an interest in 
6

legal guardianship, yet the Department’s report stated PGM is 

interested in adoption. J.J.’s counsel requested the Department

address this seeming conflict in their next report. No contested 

hearing was requested by mother or father, but the court 

suggested and ordered the Department to notice PGM to appear 

at the continued section 366.26 hearing on January 3, 2023 “so 

that she can express what her desire is.” 

Thereafter, in a December 14, 2022 medical evaluation 

report4for J.J., the clinician reported PGM “does plan to adopt 

[J.J.]; however, there have been no updates regarding court 

dates.” On January 3, 2023, the Department filed a Last Minute 

Information (LMI) requesting a continuance to determine if PGM 

is able to provide the aforementioned documents and to 

“determine if she is fully invested in pursuing the permanent 

plan of adoption for [J.J.].” The hearing was continued to April 

26, 2023. 

On April 12, 2023, the Department filed an LMI apprising 

the court that it received the references they were waiting for and 

that PGM submitted the documents necessary for adoption. The 

Department confirmed PGM was still interested in adopting J.J. 

The Status Review Report for the April 26, 2023 hearing reflected

the same. 

3. Section 366.26 Hearing

The section 366.26 hearing was held on April 26, 2023. 

Father’s counsel stated during the hearing:

4

The medical report was attached to the Status Review 

Report for the April 26, 2023 section 366.26 hearing.
7

“I did discuss the recommendation with the father 

this morning via telephone. I discussed with him

previously. However, it was supposed to be a legal 

guardianship rec. The caretaker had been going back 

and forth for sometime. And if you look at prior notes 

from, I believe, January, my notes it does state you 

ordered the caretaker to come back previously 

because they weren’t sure whether it was going to be 

legal guardianship or adoption. The father -- I spoke 

to him this morning, he believes that the wishes of 

the paternal grandmother/caretaker, that he’s very 

close to, is legal guardianship and she’s being 

pressured by the social worker. And he speaks to 

[J.J.], his son, on a weekly basis. He used to have 

unmonitored visits before the arrest. He is asking to 

set it for contest. And LMI on his weekly phone 

contact with his son and also the wishes of paternal 

grandmother/caretaker.” 

The court turned to J.J.’s counsel for a response as it was 

J.J.’s counsel who, on October 5, 2022, originally requested 

clarification on whether PGM was interested in legal 

guardianship or adoption. J.J.’s counsel replied:

“I spoke with the caretaker yesterday. She was still

on board with the plan of adoption. In fact, she 

thought the adoption was happening today based on 

her conversation with the social worker. I haven’t 

spoken to her about legal guardianship as an 

alternative, at this point, because the plan was 
8

always adoption. I don’t have an objection to – I do 

understand that [J.J.] has a relationship with his 

father. They talk every single week. So I don’t have 

an objection to discussing the idea of legal 

guardianship. That was not the plan she was on 

board with as of today.”

The court responded, “well, it’s not a matter of on board. 

She’s ready, willing and able to adopt. There’s no real legal basis 

to continue this matter over, as she indicates, she’s ready to 

adopt.” Father’s counsel then changed her approach and 

attempted to argue the parental benefit exception based on the 

father’s regular contact.

5

The court stated based on the facts of 

this case, the parental benefit exception would not apply either. 

Thereafter, the court found by clear and convincing evidence that 

J.J. was adoptable and terminated parental rights. 

4. Facts Related to ICWA

The Department’s Detention Report indicated mother and 

father denied having any Indian ancestry. Mother and father also 

denied any Indian ancestry on their Parental Notification of 

Indican Status form (ICWA-020). During the detention hearing 

on November 24, 2020, based on the ICWA-020 forms, the court 

found ICWA inapplicable. 

A December 17, 2020 jurisdiction/disposition report stated

mother and father again denied having any Indian ancestry. The 

5 On appeal, appellant raised an issue only as to the relative 

adoption exception under section 366.26(c)(1)(A), and not as to 

the parental benefit exception under section 366.26(c)(1)(B).
9

October 5, 2022 366.26 WIC Report, however, indicated PGM told

the dependency investigator that there was Native American 

ancestry in her family but she did not know which tribe. The 

investigator did not ask PGM for contact information of other 

relatives who might have more information. The same report 

indicated mother also stated that she is Native American, but 

declined to name a tribe or provide relative information. The 

investigator noted in the report that she left a voicemail for 

paternal aunt and sent ICWA notices to the Bureau of Indian 

Affairs (BIA) and Secretary of Interior. These notices are absent 

in the record, however. In December 2022, mother again 

indicated she had Indian ancestry in her section 388 petition. 

There is no evidence in the record that Department 

employees made any attempt to contact available maternal or 

paternal relatives, other than PGM, to ask whether J.J. had any 

Indian ancestry.

DISCUSSION

Father asserts the juvenile court violated his due process 

rights when it refused to set a contested hearing to prove the 

application of the relative caregiver exception. Father also 

asserts, and the Department concedes, the ICWA procedure was 

not followed. 

1. Father’s Due Process Claim

Father contends his due process rights were violated when 

the court terminated his parental rights without permitting a 

contested evidentiary hearing on the applicability of the relative 

caregiver exception under section 366.26, subdivision (c)(1)(A).

We disagree.
10

A. Standard of Review

We review the denial of a contested hearing by the trial

court for abuse of discretion. (In re A.G. (2020) 58 Cal.App.5th 

973, 1003 (A.G.); In re Grace P. (2017) 8 Cal.App.5th 605, 611 

(Grace P.) Under that standard, the decision of the trial court is 

given a high degree of deference unless it was arbitrary, 

capricious, patently absurd, or exceeds the bounds of reason. (In 

re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Earl L.

(2004) 121 Cal.App.4th 1050, 1053.) “[W]hen two or more 

inferences can be reasonably deduced from the facts, we may not 

substitute our decision for the juvenile court’s decision.” (In re 

Josiah S. (2002) 102 Cal.App.4th 403, 419.)

B. Relative Caregiver Exception

At a section 366.26 hearing, the juvenile court selects and 

implements a permanent plan for the dependent child, i.e., 

adoption, legal guardianship, or long-term foster care. (§ 366.26, 

subd. (b); In re Noah G. (2016) 247 Cal.App.4th 1292, 1299.) The 

preferred plan is adoption. (In re Breanna S. (2017) 8 Cal.App.5th

636, 645.) “Because a section 366.26 hearing occurs only after the 

court has repeatedly found the parent unable to meet the child’s 

needs, it is only in an extraordinary case that preservation of the 

parent’s rights will prevail over the Legislature’s preference for 

adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th

1339, 1350.) Once the juvenile court determines by clear and 

convincing evidence “that it is likely the child will be adopted, the 

court shall terminate parental rights and order the child placed 

for adoption,” unless a statutory exception applies. (§ 366.26, 

subd. (c)(1).) Father does not dispute the juvenile court’s findings

of adoptability or inapplicability of exceptions to termination of 

parental rights. Father claims the juvenile court denied his due 
11

process rights by refusing to permit a contested hearing on 

whether the relative caregiver exception applies. 

It is the parent’s burden to prove a statutory exception 

applies. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1119-1120.)

To meet the burden of proving the relative caregiver exception, 

the parent must show (1) “a circumstance exists which makes the 

relative unable or unwilling to adopt,” (2) “the relative’s inability 

or unwillingness is not due to a refusal to accept legal or financial 

responsibility,” (3) “the relative is willing and capable of 

providing the child with a stable and permanent environment 

through legal guardianship, and” (4) “removing the child from the 

relative’s custody would be detrimental to the child’s emotional 

well-being.” (§ 366.26, subd. (c)(1); In re K.H. (2011) 201 

Cal.App.4th 406, 416.)

C. Due Process and Offer of Proof

A parent has a due process right to present evidence at a 

section 366.26 hearing. This due process right “includes a 

meaningful opportunity to be heard, present evidence, and 

confront witnesses. However, these procedural rights are subject 

to evidentiary principles. Due process is ‘a flexible concept 

dependent on the circumstance.’ (In re Tamika T. (2002) 97 

Cal.App.4th 1114, 1122.) Since due process does not authorize a 

parent ‘to introduce irrelevant evidence, due process does not 

require a court to hold a contested hearing if it is not convinced 

the parent will present relevant evidence on the issue he or she 

seeks to contest.’ (Ibid.) ‘The trial court can therefore exercise its 

power to request an offer of proof to clearly identify the contested 

issue(s) so it can determine whether a parent’s representation is 

sufficient to warrant a hearing involving presentation of evidence 
12

and confrontation of witnesses.’ (Ibid.) The parent’s offer of proof 

must be specific, setting forth the actual evidence to be produced, 

not merely the facts or issues to be addressed and argued.’ (Id. at 

p. 1124.)” (In re Grace P., supra, 8 Cal.App.5th at p. 612; see also 

In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) The parent 

must have “relevant evidence of significant value to the issue 

before the court.” (In re Tamika T., supra, 97 Cal.App.4th at 

p. 1122.)

Unlike a criminal defendant, a parent in a dependency 

proceeding does not have a right ‘to full confrontation and crossexamination’ under the Sixth Amendment of the federal 

Constitution or article I, section 15 of the California Constitution. 

[Citations.]” (In re Daniela G. (2018) 23 Cal.App.5th 1083, 1092; 

Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-

1147 (in dependency proceedings, a parent’s due process rights do 

not necessarily include the opportunity for full confrontation and 

cross-examination].) “[T]he state’s strong interest in prompt and 

efficient trials permits the nonarbitrary exclusion of evidence 

[citation], such as when the presentation of the evidence will 

‘necessitate undue consumption of time.’ (Evid. Code, § 352.)”

(Ibid.)

D. Denial of a Contested Hearing Was Not an Abuse of 

Discretion

Father contends his offer of proof was sufficient to trigger a 

contested hearing to establish the relative caretaker exception.

He argues Grace P., supra, 8 Cal.App.5th 605, and A.G., supra, 

58 Cal.App.5th 973, are directly on point and it was abuse of 

discretion for the juvenile court to deny him the opportunity to 

question PGM on the record regarding her true feelings about 
13

adoption and whether the Department pressured her into 

accepting adoption over legal guardianship. Father also argues 

on appeal that he implicitly requested cross-examination of the 

preparer of the reports to ascertain how, when, and why PGM

changed her position on legal guardianship. 

In Grace P., father offered to testify about detailed and 

specific evidence related to the quality of his visitation and 

parenting of his children during his visits. (In re Grace P., supra, 

8 Cal.App.5th at p. 614.) He also offered testimony by one of his 

children on how she enjoyed visits by her father and how she 

would feel if the visits were terminated. (Ibid.) This evidence was 

offered to prove the child’s “benefit from continuing the 

relationship” and the detrimental impact on the child should the 

visits terminate, the second prong of the parental benefits 

exception under section 366.26, subd. (c)(1)(B)(i). (Ibid.) In 

reversing the trial court’s rejection of this offer of proof, the Grace 

P. court reasoned that father’s offer of proof “was consequential to 

and probative of the issue of his relationship with the children 

and the detriment they would suffer by its severance.” (Ibid.)

In A.G., mother identified nine potential witnesses to 

testify about regular contact with her children and the nature 

and quality of the parental relationship. (In re A.G., supra, 58 

Cal.App.5th at pp. 990, 1007.) In rejecting the trial court’s finding 

that the offer of proof lacked specificity, the A.G. court reasoned 

that although the offered testimonies arguably lacked specificity, 

there were other materials that demonstrated sufficient 

specificity. (Ibid.) Moreover, “the offer of proof was “plainly 

relevant to the two components of the parental relationship 

exception.” (Ibid.) The A.G. court then cautioned, in the parental 

benefit exception context where a parent addressed regular 
14

visitation and the existence of a beneficial parent-child 

relationship, trial courts should be more lenient on reviewing 

legal sufficiency of the parent’s offer of proof. (Id. at p. 1009.)

In contrast, here, father’s offer of proof in the relative 

caregiver exception context is devoid of the level of specificity and 

relevance shown in Grace P. and A.G. Critically, father fails to 

identify the witnesses he would call to testify and the content of 

their testimonies. Father’s counsel stated during the section 

366.26 hearing, “The father – I spoke to him this morning, he 

believes that the wishes of the paternal grandmother/caretaker, 

that he’s very close to, is legal guardianship and she’s being 

pressured by the social worker.” While father argues on appeal

that he proposed to call PGM and implicitly the preparer of the 

report during the hearing, he made no such request on the 

juvenile court. In fact, father did not mention any specific witness 

or the substance of any testimony during his proffer. The court 

could reasonably infer that father was offering himself as a 

witness to testify to his own belief that PGM was being pressured 

by the Department to adopt when she preferred legal 

guardianship. In his opening brief, father states multiple times 

his offer of proof was based on direct conversations with PGM. 

Notably, this is not supported by the record either. The 

foundation offered at the hearing for father’s beliefs were based 

purely on his perception that he had a close relationship with 

PGM. Such an offer of proof is speculative at best and does not 

identify relevant, admissible evidence.

Moreover, father’s counsel made unsupported statements to 

the juvenile court as a basis for requesting a contested hearing. 

Counsel stated, “[t]he caretaker had been going back and forth 

for sometime. And if you look at prior notes from, I believe, 
15

January, my notes it does state you ordered the caretaker to 

come back previously because they weren’t sure whether it was 

going to be legal guardianship or adoption.” On the contrary, the 

record reveals once PGM decided she was willing to adopt, she 

maintained that position throughout. The only hesitation was 

when PGM expressed preference for legal guardianship because 

father did not want her to adopt. She never expressed an 

unwillingness to adopt, however. Based on the record, it appears 

counsel’s perception that PGM was indecisive was due to J.J.’s 

counsel making a request on October 5, 2022 for a follow-up by 

the Department to clarify whether PGM wanted legal 

guardianship or adoption. This is why the juvenile court turned 

to J.J.’s counsel for a response during the section 366.26 hearing, 

at which time, J.J.’s counsel confirmed that she “spoke with the 

caretaker yesterday. She was still on board with the plan of 

adoption. In fact, she thought the adoption was happening today 

based on her conversation with the social worker. I haven’t 

spoken to her about legal guardianship as an alternative, at this 

point, because the plan was always adoption.” The uncertainty 

expressed by J.J.’s counsel was the basis for father’s offer of 

proof. That uncertainty proved to be inaccurate, leaving the offer 

of proof hollow.

Even if the offer of proof was that PGM told father her wish 

or preference was legal guardianship and she would testify

accordingly, it was not arbitrary or capricious for the juvenile

court to have concluded that such testimony was inadequate.

The court could reasonably conclude that such testimony would 

only be peripheral to the issue of whether PGM was unwilling to 

adopt despite her preference, and thus, would not rebut J.J.’s 

adoptability. (See In re Tamika T., supra, 97 Cal.App.4th at pp.
16

1118-1119 (affirming juvenile court’s denial of contested hearing 

because mother made no showing rebutting minor’s 

adoptability).) Given the statutory preference for adoption and 

the record supporting PGM’s consistent willingness to adopt,

whether PGM wished or preferred legal guardianship would not 

have been “plainly relevant” or “probative of the issue” of her 

willingness to adopt. Indeed, when J.J.’s counsel offered to 

discuss legal guardianship even though PGM was “on board” with 

adoption, the court stated, “It’s not a matter of on board. She’s 

ready, willing and able to adopt. There’s no legal basis to 

continue this matter over, as she indicates, she’s ready to adopt.” 

The inadequate offer of proof, coupled with extensive 

evidence in the record showing PGM’s consistent willingness to 

adopt, demonstrates that it was not an abuse of discretion for the 

juvenile court to deny father’s request for a contested hearing on 

the application of the relative caretaker exception.

2. ICWA

“Congress enacted ICWA in 1978 in response to ‘rising 

concern in the mid-1970’s over the consequences to Indian 

children, Indian families, and Indian tribes of abusive child 

welfare practices that resulted in the separation of large numbers 

of Indian children from their families and tribes through 

adoption or foster care placement, usually in non-Indian homes.’” 

(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California 

law define an “‘Indian child’” as a child who is either a member of 

an Indian tribe or 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); § 224.1, subds. (a) & (b); see In re 

Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)
17

California statutory law incorporates the requirements of 

ICWA and imposes some additional requirements. (In re Abbigail 

A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021) 

70 Cal.App.5th 735, 741–742.) State and federal law require the 

court to ask parties and participants at the outset of an 

involuntary child custody proceeding whether they have reason to 

know a minor is an Indian child, and to “instruct the parties to 

inform the court if they subsequently receive information that 

provides reason to know the child is an Indian child.” (25 C.F.R. 

§ 23.107(a); § 224.2, subd. (c); see Benjamin M., at p. 741.) Initial 

inquiry also includes requiring each party to complete the 

parental notification of Indian status (ICWA-020) form. (Cal. 

Rules of Court, rule 5.481(a)(2)(C).)

State law imposes on the Department a first-step inquiry 

duty to “interview, among others, extended family members and 

others who had an interest in the child.” (In re H.V. (2022) 

75 Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal 

regulations explain that the term “extended family member is 

defined by the law or custom of the Indian child’s Tribe or, in the 

absence of such law or custom, is a person who has reached 

age 18 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 C.F.R. § 23.2 (2017).) 

When there is “reason to believe that an Indian child is involved 

in a proceeding,” further inquiry is also required. (§ 224.2, 

subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) “We 

review claims of inadequate inquiry into a child’s Indian ancestry 

for substantial evidence.” (In re H.V., at p. 438.) 

The Department concedes on appeal that the further 

inquiry requirements of ICWA and related state law were not 
18

met in this case and asks us to either conditionally affirm or 

reverse the juvenile court’s order terminating parental rights, 

with instructions limiting remand of the matter to ordering the 

juvenile court to ensure compliance with ICWA’s requirements.

We agree that the juvenile court erred in finding ICWA 

inapplicable. The record shows mother and PGM claimed Indian 

ancestry after the court’s November 24, 2020 finding, yet the 

court proceeded in the absence of any evidence that the 

Department asked available extended family members about the 

possibility that minor has Indian ancestry. (See, e.g., In re H.V.,

supra, 75 Cal.App.5th at p. 438 [prejudicial error when 

Department fails to discharge its first step duty of inquiry]; In re 

Benjamin M., supra, 70 Cal.App.5th at p. 741 [court must ask 

each participant in child custody proceeding].)

DISPOSITION

The juvenile court’s April 26, 2023 order terminating 

parental rights under Welfare and Institutions Code section 

366.26 is conditionally affirmed with directions. The juvenile 

court is directed to ensure that additional inquiry under section 

224.2, subdivision (e) is made with available paternal and 

maternal relatives, as the court in the first instance deems 

appropriate, and that any necessary notice be made. Thereafter, 

if the court determines that no further inquiry under section 

224.2, subdivision (e), or notice to tribes under section 224.3 is 

necessary, then the jurisdiction and disposition orders shall 

remain in place. If the court determines the Department’s 

investigation was adequate and there is a reason to know the 

child is an Indian child as that term is defined under ICWA, then 

the jurisdiction and disposition orders are reversed and the 
19

Department shall provide adequate ICWA notice to the tribe or 

tribes, mother, father, and the regional Bureau of Indian Affairs 

and shall proceed thereafter in compliance with ICWA and

related California statutes.

NOT TO BE PUBLISHED

LEE, J.

WE CONCUR:

MOOR, Acting P. J. KIM, J.

 Judge of the San Bernardino Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.