Filed 10/13/22 In re C.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 C.M. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

L.M. et al.,

Defendants and Appellants.

 D080389

 (Super. Ct. No. J520946AB)

APPEAL from a judgment of the Superior Court of San Diego County, 

Marissa Bejarano, Judge. Affirmed with directions.

Christine E. Johnson, under appointment by the Court of Appeal, for 

Defendant and Appellant S.M.

Christy C. Peterson, under appointment by the Court of Appeal, for 

Defendant and Appellant L.M. 

Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff 

and Respondent.
2

S.M. (Father) and L.M. (Mother) appeal the jurisdictional and 

dispositional order in the Welfare and Institutions Code section 300 

dependency proceeding for their daughters, C.M. and M.M. Father argues 

the San Diego County Health and Human Services Agency (Agency) and the 

juvenile court did not comply with their initial inquiry duties under the 

Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and Welfare and 

Institutions Code section 224.2.1 Mother joins in Father’s arguments. The 

Agency concedes in a letter brief that the ICWA inquiry was deficient but 

argues reversal is not necessary because the ICWA inquiry is a continuing 

duty. The parties have stipulated to the immediate issuance of remittitur. 

We accept the Agency’s concession, conclude substantial evidence does not 

support the juvenile court’s finding that ICWA does not apply to the 

proceedings, and agree with the Agency that reversal is not necessary. As 

such, we affirm the order and direct the Agency and juvenile court to comply 

with the inquiry provisions of ICWA and section 224.2 (and, if applicable, the 

notice provisions under section 224.3) on remand.

FACTUAL AND PROCEDURAL BACKGROUND2

The Agency initiated these dependency proceedings under section 300 

subdivision (d) on behalf of C.M. and M.M. (collectively referred to as the 

children) in January 2022, alleging the children had been sexually abused, or

there was a substantial risk the children will be sexually abused as defined in 

subdivision (b) of section 11165.1 of the Penal Code by their parent or 

1 All statutory references are to the Welfare and Institutions Code unless 

otherwise specified.

2 In light of the limited scope of this appeal, we provide an abbreviated 

summary of the dependency proceedings focused on the facts relevant to the 

issues on appeal.
3

guardian or a member of the child’s household. The Agency further alleged 

the parent or guardian has failed to protect the children adequately from 

sexual abuse and the parent or guardian knew or reasonably should have 

known that the children were in danger of sexual abuse. The Agency alleged 

that Father sexually abused the children in 2018. Additionally, Mother does 

not believe the children’s disclosures and allowed Father to return to the 

family home in November 2021. The Agency alleged Father and Mother 

remain untreated and there is substantial risk the children will continue to 

be sexually abused. 

The petition stated the Agency asked Mother and Father about the 

children’s Indian status and they both gave no reason to believe the children 

are or may be Indian children. 

In its January 20, 2022 detention report, the Agency reported that 

Mother and Father were interviewed on January 12, 2022, and they both 

denied having any Indian ancestry. The Agency reported interviewing three 

maternal aunts, T.B., C.T., and Aunt M.M.,3 but did not indicate asking 

these maternal aunts about potential Indian ancestry.

Mother and Father appeared at the detention hearing by video. 

Father’s counsel informed the court that Father identified no Indian 

ancestry. Mother’s counsel likewise stated Mother denied any Indian 

ancestry. The court found that “based on the representation of counsel as 

well as the information provided in the report for today” ICWA does not apply 

to the proceedings. The court made a prima facie finding that the children 

came within section 300, subdivision (d), and ordered the children detained. 

3 Because one of the children at issue has the initials M.M., we refer to 

this maternal aunt as Aunt M.M.
4

In the course of the Agency’s investigation, Mother reported that 

maternal grandparents reside in Florida. Father reported that paternal 

grandmother resides in Alabama and paternal grandfather resides in 

Tennessee. He also reported that he has three siblings but did not indicate 

their whereabouts. 

The Agency reported that at some point, Mother wanted to send M.M. 

to live with paternal grandmother in Alabama. C.M. stated she lived with 

paternal grandmother in Alabama for “a couple months” in 2021. 

Mother stated she would want the children to be placed with paternal 

grandmother or maternal aunt, M.B. 

At the contested jurisdiction and disposition hearing, the court 

sustained the petitions, made true findings on the section 300, subdivision (d) 

allegations, declared the children dependents, and placed the children with a 

nonrelative extended family member. In its written jurisdictional and 

dispositional order, the court found “without prejudice that the Indian Child 

Welfare Act does not apply to this proceeding.” 

DISCUSSION

Father argues the Department and the juvenile court did not satisfy 

their initial inquiry obligations under ICWA and section 224.2. The Agency 

concedes error but argues reversal is not necessary. We accept the Agency’s 

concessions and agree that reversal is not necessary. Accordingly, we affirm 

the order and remand with directions for the Agency and the juvenile court to 

comply with ICWA and section 224.2 on remand.

A. Applicable Law

Congress enacted ICWA to address concerns regarding the separation 

of Indian children from their tribes through adoption or foster care placement 

with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) 
5

Under California law adopted pursuant to ICWA, the juvenile court and 

Department have an “affirmative and continuing duty to inquire” whether a 

child “is or may be an Indian child.” (§ 224.2, subd. (a); see Isaiah W., at p. 

9.) An “Indian child” is defined in the same manner as under federal law, i.e., 

as “any unmarried person who is under age eighteen and is either (a) a 

member of an Indian tribe or (b) 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); accord, § 224.1, subd. (a) [adopting the federal definition].) 

As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052 

(D.S.), “section 224.2 creates three distinct duties regarding ICWA in 

dependency proceedings. First, from the Agency’s initial contact with a 

minor and his family, the statute imposes a duty of inquiry to ask all involved 

persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) 

Second, if 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.’ (Id., subd. (e), italics added.) Third, if that further inquiry 

results in a reason to know the child is an Indian child, then the formal notice 

requirements of section 224.3 apply.” 

“On appeal, we review the juvenile court’s ICWA findings for 

substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However, 

where the facts are undisputed, we independently determine whether ICWA’s 

requirements have been satisfied. (Ibid.)

B. The Agency’s ICWA Inquiry Duties

Father argues the Agency failed to comply with its inquiry obligations 

because it failed to ask available extended family members about potential 

Indian ancestry. Specifically, the Agency interviewed three maternal aunts, 
6

T.B., C.T., and Aunt M.M., but did not conduct any ICWA inquiry. Father 

also argues the Agency failed to make any effort to locate or interview other 

family members identified by Mother and Father during the investigation. 

Specifically, the Agency did not attempt to locate a fourth maternal aunt, 

M.B., who was identified as someone to consider for placement, maternal 

grandparents who were known to reside in Florida, paternal grandmother 

who was known to live in Alabama, paternal grandfather who was known to 

live in Tennessee, and Father’s three siblings who Father mentioned during 

the investigation. 

During the first stage of initial inquiry, “[s]ection 224.2, subdivision (b) 

specifies that once a child is placed into the temporary custody of a county 

welfare department, such as the [Department], the duty to inquire ‘includes, 

but is not limited to, asking the child, parents, legal guardian, Indian 

custodian, extended family members, others who have an interest in the 

child, and the party reporting child abuse or neglect, whether the child is, or 

may be, an Indian child.’ ” (D.S., supra, 46 Cal.App.5th at pp. 1048–1049.) 

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].)

Here, the Agency concedes, and we agree, it should have conducted an 

ICWA inquiry of the three maternal aunts that the Agency interviewed 

during its investigation, T.B., C.T., and Aunt M.M. The Agency also 

concedes, and we agree, that it should attempt to contact and conduct an 
7

ICWA inquiry of the fourth maternal aunt, M.B., and paternal grandmother, 

both whom Mother requested be considered for placement. 

The Agency refuses to concede it has a duty to search for the other 

extended family members that Father identified in his opening brief, 

maternal grandparents, paternal grandfather, and Father’s three siblings 

because “it is unknown whether their contact information was readily 

available to the Agency.” We conclude the Agency did not have a duty to seek 

to interview these individuals where the record does not reveal the Agency 

had any contact information for these individuals, and the Agency is not 

required to “cast about” for information. (D.S., supra, 46 Cal.App.5th at p.

1053.)

The Agency added its own concession that it should have conducted an 

ICWA inquiry of C.M. and M.M. themselves, who are 16-years-old. We accept 

the Agency’s concession where section 224.2, subdivision (b) requires an 

inquiry of the child, with no applicable age limit. (Compare with 25 U.S.C. § 

1903(2) [defining “extended family member” as a person who has reached the 

age of 18]; § 224.1, subd. (c) [“extended family member’ . . . defined as 

provided in [§] 1903” of ICWA].)

Because the Agency failed to conduct an ICWA inquiry of available 

extended family members and C.M. and M.M. themselves, the Agency failed 

to satisfy its initial inquiry obligation under section 224.2, subdivision (b),

and the juvenile court’s ICWA finding is not supported by substantial 

evidence. 

C. Juvenile Court’s ICWA Inquiry Duties

Father argues the juvenile court failed to ask Mother and Father at the 

detention hearing about potential Indian ancestry and neither Mother nor 

Father submitted an ICWA-020 form. Father contends the court erred in 
8

relying solely on Mother’s and Father’s counsels’ representations regarding 

Indian ancestry. Father also argues the court failed to advise Mother and 

Father that if they subsequently receive information regarding Indian 

ancestry, they were required to provide that information to the court. 

Pursuant to section 224.2, subdivision (c), “[a]t the first appearance in 

court of each party, the court shall ask each participant present in the 

hearing whether the participant knows or has reason to know that the child 

is an Indian child. The court shall instruct the parties to inform the court if 

they subsequently receive information that provides reason to know the child 

is an Indian child.”

The Agency concedes the juvenile court failed to obtain ICWA-020 

forms and failed to advise Mother and Father of the need to inform the court 

if they obtained additional information about potential Indian ancestry. 

However, the Agency contends the juvenile court could properly rely upon 

Mother’s and Father’s counsels’ representations regarding Indian ancestry. 

We conclude the juvenile court was required to by statute, and thus, 

should have asked Mother and Father about Indian ancestry at the detention 

hearing and should have instructed them to inform the court if they 

subsequently receive additional information. (§ 224.2, subd. (c); Cal. Rules of 

Court, rules 5.481(a)(2)(A) and 5.481(a)(2)(B).) Additionally, the ICWA-020 

forms should be completed. (Cal. Rules of Court, rule 5.481(a)(2)(C).)

Because the juvenile court failed to satisfy its initial inquiry obligations

under section 224.2, subdivision (c), and the juvenile court’s ICWA finding is 

not supported by substantial evidence.

D. Appropriate Disposition

While the Agency concedes that it and the juvenile court failed to 

satisfy their initial inquiry duties, the Agency contends reversal of the 
9

juvenile court’s jurisdictional and dispositional order is not required because 

the ICWA inquiry is a continuing duty. 

The Agency cited In re S.H. (2022) 82 Cal.App.5th 166, where the 

Agency conceded error and the Court of Appeal nonetheless affirmed the 

dispositional order. The court there reasoned that the Agency has a 

continuing duty to inquire and the “agency acknowledges error and we thus 

have reason to believe that its duty of inquiry will be satisfied. Where there 

is such an acknowledgement, we see no reason to set aside the 

jurisdiction/disposition order—even conditionally.” (Id. at p. 176.) 

Additionally, “the juvenile court, even after it concludes that ICWA does not 

apply, retains the power (and duty) to reverse that determination ‘if it 

subsequently receives information providing reason to believe that the child 

is an Indian child.’ ” (Id. at p. 176.) The Court of Appeal reasoned the 

juvenile court was aware of this continuing duty because it made its ICWA 

finding without prejudice. (Id. at p. 177.) “So long as proceedings are 

ongoing and all parties recognize the continuing duty of ICWA inquiry, both 

the Agency and the juvenile court have an adequate opportunity to fulfill 

those statutory duties.” (Id. at p. 179.) The appellant Mother argued that 

the Court of Appeal must either conditionally reverse or conditionally affirm. 

(Id. at p. 175.) The court refused to do so, instead “hold[ing] that when a 

social services agency accepts its obligation to satisfy its inquiry obligations 

under ICWA, a reversal of an early dependency order is not warranted simply 

because a parent has shown that these ongoing obligations had not yet been 

satisfied as of the time the parent appealed.” (Id. at p. 171.) The court 

affirmed the juvenile court’s dispositional order. (Id. at p. 180.)

Similarly, here, the Agency acknowledged its initial inquiry was 

deficient and that it must conduct an ICWA inquiry of the available extended 
10

family members as well as C.M. and M.M. themselves. Additionally, in the 

jurisdictional and dispositional order from which Father and Mother appeal, 

the juvenile court found “without prejudice that the Indian Child Welfare Act 

does not apply to this proceeding.” Finally, the order at issue here is an early 

jurisdictional and dispositional order, allowing the Agency and the juvenile 

court time and opportunity to fulfill their inquiry obligations during the 

ongoing proceedings. Under these circumstances, we conclude reversal is not 

required. 

DISPOSITION

The juvenile court’s jurisdiction and dispositional order is affirmed. 

The matter is remanded with directions for the Agency and the juvenile court 

to comply with the inquiry provisions of ICWA and section 224.2 (and, if 

applicable, the notice provisions under section 224.3). If the Agency or the 

juvenile court has reason to believe or reason to know C.M. and M.M. are

Indian children, the juvenile court shall proceed accordingly. Remittitur 

shall issue immediately. 

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.