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Filed 6/24/24 In re N.B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re N.B. et al., Persons Coming 

Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

E.S.,

Defendant and Appellant.

 A168848

 (Alameda County

 Super. Ct. No. JD036301-01, 

 JD036304-01)

In this appeal, E.S. (Mother) challenges jurisdiction and disposition 

orders issued by the juvenile court in dependency proceedings brought by the 

Alameda County Social Services Agency (Agency) on behalf of her children 

N.B. and J.B.1 The sole issue before us is whether the juvenile court erred in 

finding that the Agency complied with its duty of initial inquiry under the 

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

1 We refer to N.B. and J.B. collectively as Minors. N.B. is the subject of 

superior court case number JD036301-01, and J.B. is the subject of case 

number JD036304-01. 
2

California law. (Welf. & Inst. Code, § 224 et seq.)2 We conclude that the 

court’s finding cannot stand, and therefore we will vacate the court’s finding 

that ICWA does not apply and remand the matter for compliance with ICWA, 

but otherwise affirm the challenged orders.

FACTUAL AND PROCEDURAL BACKGROUND

A. Family Background 

In 2019, after the parental rights of their biological mother and father 

were terminated in a dependency proceeding, N.B. and J.B. were adopted by 

Mother, who was their maternal aunt.

3 At that time, N.B. was five years old 

and J.B. was four. 

B. Petition and Detention

Mother and Minors came to the attention of the Agency in June 2023, 

when Minors were detained by law enforcement after attempting to run away 

from home. Minors told the responding officers that Mother physically 

abused them. On June 6, 2023, the Agency filed a petition under section 300, 

subdivisions (b)(1) and (c), alleging that Minors were at substantial risk of 

suffering serious physical harm as a result of Mother’s using excessive 

corporal discipline and that they were at substantial risk of suffering serious 

emotional damage as a result of Mother’s parenting, which included abusive 

language and threats.4 

The petition stated that on June 3 Mother had been questioned about 

Minors’ Indian status, and that the inquiry gave the social worker no reason 

2 All unspecified statutory references are to the Welfare and 

Institutions Code.

3 The record indicates that Mother adopted the children “singly,” so 

there is no other adoptive parent. 

4 All subsequent dates are in 2023 unless otherwise stated.
3

to believe Minors were or may be Indian children. In its detention report, the 

Agency stated that on June 3, Mother had informed a social worker “that 

there is no Native American ancestry in their family.” 

At the detention hearing, held on June 7, the court asked Mother 

whether she had any Indian ancestry and Mother responded, “no.” The court 

also asked Mother whether she knew if there was any Indian ancestry on the 

biological father’s side of the family. Mother responded, “no.” The court then 

stated, “So . . ., we know that at least on the maternal side of the family 

there’s no ICWA”; asked Mother’s counsel to have Mother complete a Judicial 

Council form ICWA-20 form (“Parental Notification of Indian Status”); and 

stated “[W]e don’t know yet about dad, so we won’t make a finding.” The 

court ordered Minors detained and set a jurisdiction and disposition hearing. 

C. Jurisdiction and Disposition

In its jurisdiction/disposition report, the Agency recommended that the 

court find the allegations of the petition true, that Minors remain in out-ofhome care, and that reunification services be ordered for Mother. As to the 

application of ICWA, the report is identical to the detention report, stating 

that on June 3, Mother informed a social worker “that there is no Native 

American ancestry in their family.” The Agency recommended the court find 

that Minors are not Indian children and that no further notice under ICWA is 

required, based on Mother’s June 3 statement. 

The report noted that Minors “have maternal and paternal relatives 

who are concerned for their welfare,” and named several biological relatives 

of Minors in addition to Mother: their biological mother; their biological 

father; an adult sister, described as “Maternal bio sib”; a biological maternal 

aunt; a biological paternal aunt; and Minors’ paternal grandmother. The 

Agency had been in contact with the paternal aunt and paternal 
4

grandmother, who were being considered as possible placements for Minors. 

Nothing in the report indicated that the Agency had inquired of any of those 

relatives as to whether Minors had Indian ancestry.

A contested jurisdiction and disposition hearing was conducted over 

two days, on September 6 and 25. At the conclusion of the hearing, the court 

found true the allegations of the petition, as amended to correct the date on 

which certain events occurred. As recommended by the Agency, the court 

found that ICWA did not apply based on Mother’s June 3 statement; ordered 

that Minors remain in out-of-home care; and ordered reunification services. 

This appeal followed. 

DISCUSSION

A. Applicable Law and Standard of Review

ICWA, which “giv[es] Indian tribes concurrent jurisdiction over state 

court child custody proceedings that involve Indian children living off of a 

reservation” (In re W.B. (2012) 55 Cal.4th 30, 48), was enacted “in response to 

‘rising concern . . . 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.) 

ICWA “establishes minimum federal standards a state court must 

follow when removing an Indian child from his or her family”; “[i]n any given 

case, ICWA applies or not depending on whether the child who is the subject 

of the custody proceeding is an Indian child.” (In re Abbigail A. (2016) 1 

Cal.5th 83, 88, 90.) Under both federal and California law, an “Indian child” 

is one who is either (a) a member of a federally recognized Indian tribe or (b) 

eligible for membership in a federally recognized tribe and the biological child 
5

of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); 

§ 224.1, subds. (a) & (b).) 

“Because it typically is not self-evident whether a child is an Indian 

child, both federal and state law mandate certain inquiries to be made in 

each case. These requirements are sometimes collectively referred to as the 

duty of initial inquiry.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741 

(Benjamin M.).) Under California law, juvenile courts and social service 

agencies “have an affirmative and continuing duty to inquire whether a child 

[in a dependency proceeding] is or may be an Indian child.” (§ 224.2, subd. 

(a).) This duty “begins with the initial contact, including, but not limited to, 

asking the party reporting child abuse or neglect whether the party has any 

information that the child may be an Indian child.” (Ibid.) “When the agency 

takes the child into temporary custody, its duty to inquire ‘includes, but is not 

limited to, asking the child, parents, legal guardian, Indian custodian, 

extended family members,[5] 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.’ (§ 224.2, subd. (b).) State law also expressly requires the 

juvenile court to ask participants who appear before the court about the 

child’s potential Indian status. (§ 224.2, subd. (c).)”6 (Benjamin M., supra, 70 

Cal.App.5th at p. 742.)

5 The term “extended family member” is defined 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); see § 224.1, subd. 

(c) [adopting federal definition].)

6 “If the initial inquiry gives the juvenile court or the agency ‘reason to 

believe’ that an Indian child is involved, then the juvenile court and the 

agency have a duty to conduct “ ‘further inquiry’ [citation], and if the court or 
6

If the juvenile court finds that the county welfare department has 

complied with its duty of inquiry and that there is no reason to know that the 

child is an Indian child, the court may find that ICWA does not apply to the 

proceedings. (§ 224.2, subd. (i)(2).) Thus, a finding by the juvenile court that 

ICWA does not apply entails a finding that the department complied with its 

duty of inquiry. 

California’s appellate courts are divided as to the appropriate legal 

standard to evaluate whether ICWA inquiry errors are prejudicial, and 

therefore require a conditional affirmance or reversal of the trial court’s 

orders. (See In re K.H. (2022) 84 Cal.App.5th 566, 608-618 [discussing the 

various standards].) Determination of the proper standard is now before our 

Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted 

Sept. 21, 2022, S275578.) While we await a determination of the issue, we 

follow the approach we took in In re V.C. (2023) 95 Cal.App.5th 251 (V.C.), 

“adopt[ing] the standard of Benjamin M.: A finding that ICWA does not 

apply cannot stand ‘where the record demonstrates that the agency has not 

only failed in its duty of initial inquiry, but where the record indicates that 

there was readily obtainable information that was likely to bear meaningfully 

upon whether the child is an Indian child.’ (Benjamin M., supra, 70 

Cal.App.5th at p. 744.)” (V.C., supra, 95 Cal.App.5th at p. 262.) 

B. Analysis

Mother argues that the Agency failed to comply with its duty of initial 

inquiry because it did not ask Minor’s identified maternal biological relatives 

(other than Mother) about Minor’s potential Indian ancestry, and because it 

the agency has ‘reason to know’ an Indian child is involved, ICWA notices 

must be sent to the relevant tribes. [Citations.]” (Benjamin M., supra, 70 

Cal.App.5th at p. 742.) This appeal concerns only the duty of initial inquiry. 
7

did not ask any of Minor’s identified paternal biological relatives about 

Minors’ potential Indian ancestry. Mother contends that these extended 

family members were “identified and readily available” and that the Agency’s 

failure to make inquiry of them is prejudicial because those individuals 

possessed information “likely to bear meaningfully upon whether” Minors 

were Indian children. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Her 

argument is well-taken.

The record reveals that the Agency was aware of numerous extended 

family members who may have had information about Minors’ potential 

Indian ancestry: Minors’ biological mother; their biological father, who was 

in contact with Mother and who had reportedly told Minors that he wants 

them to live with him; Minors’ adult sister, who was in contact with Minors 

and with Minors’ biological father; a biological maternal aunt, whom Mother 

identified as part of her support network; a biological paternal aunt, who was 

being assessed for placement at Mother’s request and who, according to 

Mother, lived across the street from Minor’s biological mother and near their 

biological father; and Minor’s paternal grandmother, whom Mother suggested 

as a placement for Minors and who informed the Agency she was willing and 

able to be assessed for possible placement. Although the Agency had 

contacted Minors’ paternal aunt and paternal grandmother, there is no 

indication that the Agency asked them about Minors’ Indian ancestry. Nor is 

there any indication that the Agency made any attempt to contact any of 

Minors’ other identified relatives. The record here “ ‘indicates that there was 

readily obtainable information that was likely to bear meaningfully upon 

whether’ ” Minors were Indian children (V.C., supra, 95 Cal.App.5th at p. 

262), and therefore the juvenile court’s finding that ICWA does not apply 

cannot stand. 
8

The Agency argues that because Minors have been adopted, their 

biological parents do not constitute extended family members, and therefore 

any relatives of the biological parents who are not also relatives of Mother 

are not extended family members. The argument lacks merit. It relies on 

D.S. v. Superior Court (2023) 88 Cal.App.5th 383, 391, which holds that 

extended family members who are related to minors by adoption must be 

included in an agency’s duty of initial inquiry. Nothing in D.S. suggests that 

the Agency’s duty to make inquiry of adoptive extended family members in 

any way relieves the Agency of its duty to make inquiry of available 

biological extended family members. (See also In re Y.W. (2021) 70 

Cal.App.5th 542, 553 [department failed to satisfy duty of inquiry by making 

no “meaningful efforts to locate and interview” biological parents of Mother 

(who was adopted), for whom contact information was available]; 25 U.S.C. 

§ 1903(4) [defining “Indian child” with reference to biological parents]; 

§ 224.3, subd. (a)(5)(C) [ICWA notice must include “[a]ll names known of the 

Indian child’s biological parents, grandparents, and great-grandparents . . . 

as well as their current and former addresses . . . if known” (italics added)].) 

The Agency also argues that there can be no duty to make inquiry of 

Minors’ paternal aunt and paternal grandmother because the Agency would 

be required to obtain a court order to procure their contact information, in 

view of the fact that Minors have been adopted and any documents in the 

adoption proceeding have been sealed. No such steps are required here. Not 

only did the Agency have contact information for paternal aunt and paternal 

grandmother; it had in fact been in contact with them. This is not a case 

where the agency is being “required to ‘cast about’ for information or pursue 

unproductive investigative leads” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1053), nor a case where the Agency lacked information from Mother about 
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Minor’s family, or where any of the identified individuals were deceased, or 

where anyone refused to provide information to the Agency. (In re A.M. 

(2020) 47 Cal.App.5th 303, 323.) 

Finally, the Agency asserts that “Mother’s relationship with [Minors] 

as their maternal aunt provides her with privity to children’s familial 

ancestry due to her proximity to the children’s relatives through her 

biological relationship with them,” and that once Mother denied having 

Indian ancestry, the Agency had fulfilled its duty. We disregard this 

assertion, which is unsupported by any citation to authority, and relies on 

vague and undefined terminology. 

In sum, we conclude that the juvenile court’s finding that ICWA does 

not apply must be vacated and the matter must be remanded. When 

appellate courts remand matters with directions to comply with ICWA they 

may conditionally affirm or conditionally reverse the juvenile court’s orders. 

(See, e.g., In re H.V. (2022) 75 Cal.App.5th 433, 438 [conditionally affirming]; 

V.C., supra, 95 Cal.App.5th at p. 263 [conditionally reversing].)7 In the 

circumstances here, where Mother’s parental rights have not been 

terminated and where ICWA compliance is the only challenge to the juvenile 

court’s orders, we conditionally affirm. (See In re Veronica G. (2007) 157 

Cal.App.4th 179, 187 [concluding that reversal for failure to comply with 

ICWA is appropriate only where parental rights have been terminated].)

7 There is a third possibility: in an appeal from a dispositional order 

where the only challenge is to compliance with ICWA inquiry requirements, 

and where the social services agency concedes that it did not satisfy its 

inquiry obligations under ICWA and accepts its obligation to do so, the 

reviewing court may simply affirm the challenged order. (In re S.H. (2022) 82 

Cal.App.5th 166, 170-171.) In this case, however, the Agency makes no 

concession concerning its inquiry obligations.
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DISPOSITION

The juvenile court’s orders are affirmed except that the juvenile court’s 

finding that ICWA does not apply is vacated. The case is remanded with 

directions for the juvenile court to order the Agency to comply with the duty 

of initial ICWA inquiry (§ 224.2, subd. (b)), and any further duties imposed by 

ICWA and related California law. If the court then determines that ICWA 

does not apply, the court shall reinstate its inapplicability finding. If the 

court finds that ICWA applies, the court shall proceed in conformity with 

ICWA and related California law; and Minors, Mother and the tribe(s) may 

petition the court to invalidate any orders that violated ICWA. (25 U.S.C. 

§ 1914.) 
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_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Desautels, J.

A168848, Alameda County Social Services Agency v. E.S.