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Filed 9/25/23 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Placer)

----

In re R.W., a Person Coming Under the Juvenile 

Court Law.

C098398

PLACER COUNTY DEPARTMENT OF HEALTH 

AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

J.W.,

Defendant and Appellant.

(Super. Ct. No. 53005303)

Appellant J.W., mother of the minor, appeals from the juvenile court’s orders 

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

§§ 366.26, 395; statutory section citations that follow are found in the Welfare and 

Institutions Code unless otherwise stated.) Mother contends the Placer County 
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Department of Health and Human Services (Department) and the juvenile court failed to 

comply with the initial inquiry requirements of the Indian Child Welfare Act of 1978 

(25 U.S.C. § 1901 et seq.) (ICWA) and related California law. The Department does not 

dispute the inquiry in this case was inadequate and does not oppose a conditional 

affirmance with instructions for compliance with the ICWA. We conditionally affirm the 

juvenile court’s order, subject to ICWA compliance.

We note that, under these circumstances, a joint application for a conditional 

affirmance and limited remand from the parties also would have been appropriate and 

would have permitted this court to issue the remittitur forthwith. (See Cal. Rules of 

Court, rule 8.272(c)(1).)

We will incorporate the relevant facts into our discussion of the issue.

DISCUSSION

Mother argues that, although parents, the paternal grandparents, and the maternal 

great-grandmother were asked about and denied Native American ancestry, the 

Department and the juvenile court nonetheless failed to fully comply with the initial 

inquiry requirements of the ICWA because the Department did not establish it tried to 

contact the maternal grandparents about possible Native American ancestry. We accept 

the Department’s concession that conditional affirmance and remand for further ICWA 

compliance is appropriate. 

“The ICWA protects the interests of Indian children and promotes the stability and 

security of Indian tribes by establishing minimum standards for removal of Indian 

children from their families, and by permitting tribal participation in dependency 

proceedings. [Citations.] A major purpose of the ICWA is to protect ‘Indian children 

who are members of or are eligible for membership in an Indian tribe.’ ” (In re A.W. 

(2019) 38 Cal.App.5th 655, 662.) The ICWA defines an “ ‘Indian child’ ” as a child who 

“is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian 
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tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) 

The juvenile court and the Department 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).) 

The juvenile court must also ask participants in a dependency proceeding upon each 

party’s first appearance whether the participant knows or has reason to know that the 

child is an Indian child and order the parent to complete an ICWA-020 form. (In re 

Austin J. (2020) 47 Cal.App.5th 870, 883; see also 25 C.F.R. § 23.107(a) (2023); § 224.2, 

subd. (c); Cal. Rules of Court, rule 5.481(a).)

Due to changes in California law over the past few years, agencies now have a 

broader duty of inquiry and a duty of documentation (§ 224.2, subd. (b); Cal. Rules of 

Court, rule 5.481(a)(5)), and courts have been tasked with determining how to assess 

error when the agency fails to discharge its now-broad duty of inquiry. We review claims 

of inadequate inquiry into a child’s Native American ancestry for substantial evidence. 

(In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Not every error by an agency in 

discharging its duties under section 224.2, subdivision (b) will undermine the juvenile 

court’s ICWA finding under section 224.2, subdivision (i)(2), but the court’s ability to 

exercise discretion in this regard is dependent on adequate record development by the 

department or agency. Agencies have often conceded error and, therefore, disposition of 

the issue on appeal has often turned on whether the error was prejudicial.

Although reviewing courts have generally agreed that reversal is dependent on 

showing prejudice, or a miscarriage of justice, approaches for assessing prejudice have 

varied. (See, e.g., In re E.V. (2022) 80 Cal.App.5th 691, 698; In re Dezi C. (2022) 

79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578; In re J.C. (2022) 

77 Cal.App.5th 70, 80; In re A.C. (2021) 65 Cal.App.5th 1060, 1069; In re Benjamin M.

(2021) 70 Cal.App.5th 735, 744; In re G.A. (2022) 81 Cal.App.5th 355, review granted 

Oct. 12, 2022, S276056.)
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The California Supreme Court has granted review in In re Dezi C., supra, 

79 Cal.App.5th 769, and we anticipate further clarification of this issue. Until then, we 

accept the Department’s concession that conditional affirmance and remand for further 

ICWA compliance is appropriate.

A section 300 petition was filed on behalf of the then eight-month-old minor on 

March 14, 2022, who had been left without care. Both parents were appearing in 

criminal court at the time of the initial detention hearing and were not present. The 

juvenile court inquired of the paternal grandmother, who was present, whether, to her 

knowledge, father or minor have any Native American ancestry and she said they did not. 

The hearing was continued. Mother was present at the continued detention hearing. Her 

counsel confirmed that she did not have any Native American ancestry. The juvenile

court asked the paternal grandparents, who were both present, about possible Native 

American ancestry and the paternal grandmother again confirmed that father had no 

Native American ancestry that would qualify him to be a registered tribe member. The 

hearing was again continued in order to secure father’s attendance. At the continued

detention hearing, on April 5, 2022, father confirmed for the court that he had no Native 

American ancestry. Mother also confirmed again that she had no Native American 

ancestry. The juvenile court then found that the ICWA did not apply. 

The subsequent jurisdiction/disposition report stated that, on two additional 

occasions, both paternal grandparents denied Native American ancestry. Mother and 

father had also denied Native American ancestry and, subsequent to the detention 

hearings, the social worker had contacted the maternal great-grandmother who also stated 

they did not have Native American ancestry. On April 27, 2022, at the 

jurisdiction/disposition hearing, the juvenile court found again that the ICWA did not 

apply.

The report prepared for the six-month review hearing stated that on September 14, 

2022, both paternal grandparents had again denied Native American ancestry. On 
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September 21, 2022, father had again denied Native American ancestry and on 

September 27, 2022, the maternal great-grandmother denied any Native American 

ancestry. The maternal great-grandmother did not know if the maternal grandfather had 

any Native American ancestry, and she did not have any contact with him. 

The report prepared for the February 22, 2023, section 366.26 hearing, reported

that on February 15, 2023, the paternal grandparents had again denied Native American 

ancestry. On February 22, 2023, the juvenile court again found that the ICWA does not

apply.

While the Department and the juvenile court inquired of the parents, the paternal 

grandparents, and the maternal great-grandmother about possible Native American 

ancestry on numerous occasions and each denied Native American ancestry, the 

Department did not establish it tried to contact the maternal grandparents about possible 

Native American ancestry. The detention report reflects that the paternal grandmother, 

and presumably mother, were in contact with the maternal grandmother since the 

maternal grandmother had contacted the paternal grandmother just days before the filing

of the section 300 petition and borrowed $600 to bail mother out of jail. A social history 

from mother’s prior dependency case in 2020, attached to the jurisdiction/disposition 

report in this case, provided the maternal grandfather’s name (with whom mother then 

maintained contact through Facebook) and reflected that mother was then in contact with 

the maternal grandmother. The Department concedes that conditional affirmance and 

remand for additional inquiry of available extended family members is appropriate. 

In light of the Department’s concession, the record, and the remedial purpose 

underlying the ICWA and related California law intended to protect third party rights, we 

apply the analytical framework set forth by the California Supreme Court in In re A.R. for 

assessing harm and we conclude the error is prejudicial. (In re A.R. (2021) 11 Cal.5th 

234, 252-254.) Although the parents and several extended family members were asked 

about Native American ancestry, the failure to attempt to contact other family members 
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may have resulted in an unreliable finding that the ICWA does not apply; remanding for 

an adequate inquiry in the first instance is the only meaningful way to safeguard the 

rights at issue. (In re A.R., at pp. 252-254.) Accordingly, we remand the case to the 

juvenile court for further proceedings to address compliance with the inquiry and notice 

provisions of the ICWA and entry of new orders regarding the applicability of the ICWA.

DISPOSITION

The orders terminating parental rights are conditionally affirmed, subject only to 

full compliance with the ICWA as described by this opinion. If, on remand, the juvenile 

court determines the ICWA applies, the court shall vacate its previous orders terminating 

parental rights and conduct further proceedings consistent with the ICWA, including a 

new section 366.26 hearing. (25 U.S.C. § 1914; § 224, subd. (e).) On remand, the 

parents shall have counsel reappointed and be provided due process, including notice and 

the right to be heard, for all ICWA compliance proceedings. 

 

HULL, J.

We concur:

 

EARL, P. J.

 

ROBIE, J.