Filed 8/28/23 In re B.R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

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

Court Law.

KERN COUNTY DEPARTMENT OF HUMAN 

SERVICES,

Plaintiff and Respondent,

v.

B.R.,

Defendant and Appellant.

F086057

(Super. Ct. No. JD143529-00 )

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Christie Canales 

Norris, Judge.

Monica Vogelmann, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County 

Counsel, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Meehan, J.
2.

INTRODUCTION

J.B. (mother) and B.R.R. (father) are the parents of B.R. (born September 2021). 

Father appeals from the juvenile court’s order terminating his parental rights pursuant to 

Welfare and Institutions Code section 366.26.1 He contends the Kern County 

Department of Human Services (department) and the court failed to comply with the 

inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) 

and related California law because proper inquiry was not conducted of extended family 

members, and, as a result, notice to the tribes was incomplete.

2

 The department 

concedes.

Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and 

In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude “the error is prejudicial 

because neither the [department] nor the court gathered information sufficient to ensure a 

reliable finding that ICWA does not apply and remanding for an adequate inquiry in the 

first instance is the only meaningful way to safeguard the rights at issue. ([In re] A.R. 

[(2021)] 11 Cal.5th [234,] 252–254.) Accordingly, we conditionally reverse the juvenile 

court’s finding that ICWA does not apply and remand for further proceedings consistent 

with this opinion, as set forth herein.” (K.H., at p. 591; accord, E.C., at pp. 157–158.)

1 All further statutory references are to the Welfare and Institutions Code.

2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even 

though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are 

preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
3.

FACTUAL AND PROCEDURAL BACKGROUND3

Petition and Detention

On June 24, 2022, the department filed a petition on behalf of B.R. pursuant to 

section 300, subdivision (b). The petition contained an Indian Child Inquiry Attachment 

form (ICWA-010(A)) stating mother gave no reason to believe B.R. was or could be an 

Indian child. 

Neither parent appeared at the detention hearings in July 2022. The juvenile court

found a prima facie case had been established and ordered B.R. detained. 

Jurisdiction and Disposition

On August 19, 2022, mother filed a Parental Notification of Indian Status form 

(ICWA-020) denying Indian ancestry. That same day, the juvenile court held a combined 

jurisdiction and disposition hearing. Both parents were present along with maternal 

grandfather and maternal step-grandmother. The court conducted ICWA inquiries with 

mother, father, and maternal grandfather. Mother again denied having Indian ancestry; 

however, maternal grandfather stated the family had Cherokee ancestry through his 

mother Martha H. (i.e., maternal great-grandmother). He provided her name and date of 

birth, but stated she was deceased. He said his sister D.Q. and brother E.B. (i.e., maternal 

great-aunt and great-uncle) might have more information about the family’s Indian 

ancestry. He did not know if maternal grandmother had Indian ancestry. Father denied 

having Indian ancestry. The court ordered the department to conduct further ICWA 

inquiry and found the allegations in the petition true. The disposition hearing was 

continued. 

Prior to the disposition hearing, the department, in support of its ICWA inquiry,

filed a declaration of the department paralegal assigned to investigate the claim of Indian 

3 Because the sole issue on appeal concerns ICWA, we restrict our facts to those 

bearing on that issue or helpful for clarity.
4.

ancestry. Maternal grandfather, maternal great-uncle Brian G., and maternal aunt 

Megan B. claimed Indian ancestry through the Cherokee tribe. Paternal great-uncle V.P. 

and paternal aunt S.E. also claimed Cherokee tribal affiliation. The department paralegal 

spoke with maternal grandfather and confirmed maternal great-grandmother’s maiden 

name. The department then sent a Notice of Child Custody Proceeding for Indian Child 

(ICWA-030) to the Eastern Band of Cherokee Indians, the United Keetoowah Band of 

Cherokee Indians, and the Cherokee Nation. As of the date of the declaration, the

department had not received responses from the tribes. The notice was missing maternal 

great-aunt D.Q. and great-uncle E.B.’s names. 

On November 29, 2022, the juvenile court held a continued disposition hearing 

and found ICWA did not apply, but noted that the department had a continuing duty 

regarding ICWA. B.R. was removed from parental custody, the parents were bypassed 

for reunification services, and the court set a section 366.26 hearing. 

Section 366.26

The department’s section 366.26 report stated ICWA was found not to apply, and 

new information had not been received. On March 29, 2023, the juvenile court 

terminated parental rights. 

On April 4, 2023, father filed a notice of appeal. 

DISCUSSION

I. ICWA

A. Legal Principles

“ ‘ICWA is a federal law giving Indian tribes concurrent jurisdiction over state 

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

[citations], in furtherance of ‘federal policy “ ‘that, where possible, an Indian child should 

remain in the Indian community’ ” ’ [citations]. ‘ICWA establishes minimum federal 

standards, both procedural and substantive, governing the removal of Indian children 

from their families’ [citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to 
5.

intervene in or exercise jurisdiction over the proceeding.’ ” (K.H., supra,

84 Cal.App.5th 566, 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, 

fn. omitted.)

“ ‘In 2006, California adopted various procedural and substantive provisions of 

ICWA.’ [Citations.] The Legislature’s ‘primary objective ... was to increase

compliance with ICWA. California Indian Legal Services (CILS), a proponent of the 

bill, observed that courts and county agencies still had difficulty complying with ICWA 

25 years after its enactment, and CILS believed codification of [ICWA’s] requirements 

into state law would help alleviate the problem. [Citation.]’ ” (K.H., supra, 

84 Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138–139.)

“ ‘In 2016, new federal regulations were adopted concerning ICWA compliance. 

[Citation.] Following the enactment of the federal regulations, California made 

conforming amendments to its statutes, including portions of the Welfare and Institutions 

Code related to ICWA notice and inquiry requirements. [Citations.] Those changes 

became effective January 1, 2019 ....’ [Citation.] Subsequently, the Legislature 

amended section 224.2, subdivision (e), to define ‘reason to believe,’ effective 

September 18, 2020.” (K.H., supra, 84 Cal.App.5th at pp. 595–596, fn. omitted; accord, 

E.C., supra, 85 Cal.App.5th at p. 139.)

1. Summary of Duties of Inquiry and Notice

“[W]hether a child is a member, or is eligible for membership, in a particular tribe 

is a determination that rests exclusively with the tribe, and neither the [department] nor 

the court plays any role in making that determination. [Citations.] ‘ “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.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596; 

accord, E.C., supra, 85 Cal.App.5th at pp. 139–140.)

“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of 

notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the 
6.

[Bureau of Indian Affairs].’ ” (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California 

law imposes “an affirmative and continuing duty [on the court and the county welfare 

department] to inquire whether a child for whom a petition under [s]ection 300 ... may be 

or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).)

“The [state law] duty to inquire 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.” (§ 224.2, subd. (a).) “If a child is 

placed into the temporary custody of a county welfare department pursuant to 

[s]ection 306[,] ... the county welfare department ... has a duty to inquire whether that 

child is an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian is domiciled.” 

(§ 224.2, subd. (b).) Additionally, “[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.” (§ 224.2, subd. (c).)

“If the initial inquiry provides ‘reason to believe’ that an Indian child is involved 

in a proceeding—that is, if the court or social worker ‘has information suggesting that 

either the parent of the child or the child is a member or may be eligible for membership 

in an Indian tribe’—then the court or social worker ‘shall make further inquiry’ regarding 

the child’s possible Indian status as soon as practicable.” (In re Ezequiel G. (2022) 

81 Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) “Further inquiry 

‘includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, 

Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of 

Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the 
7.

tribe or tribes and any other person that may reasonably be expected to have information 

regarding the child’s membership, citizenship status, or eligibility.’ ” (Ezequiel G., at 

p. 999.)

“If there is ‘reason to know’ a child is an Indian child, the [department] shall 

provide notice to the relevant tribes and agencies in accordance with section 224.3, 

subdivision (a)(5).” (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, 

subd. (f).) “There is ‘reason to know’ a child is an Indian child if any one of six statutory 

criteria is met—i.e., if the court is advised that the child ‘is an Indian child,’ the child’s or 

parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or 

either parent or the child possess an identification card indicating membership or 

citizenship in an Indian tribe.” (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)

County welfare departments “must on an ongoing basis include in its filings a 

detailed description of all inquiries, and further inquiries it has undertaken, and all 

information received pertaining to the child’s Indian status, as well as evidence of how 

and when this information was provided to the relevant tribes. Whenever new 

information is received, that information must be expeditiously provided to the tribes.” 

(Cal. Rules of Court, rule 5.481(a)(5).)4

B. Standard of Review

“The juvenile court’s finding that ICWA does not apply to the proceeding rests on 

two elemental determinations, ‘subject to reversal based on sufficiency of the 

evidence.’ ” (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord, 

E.C., supra, 85 Cal.App.5th at pp. 142–143.) First, “[t]he court must find there is ‘no 

reason to know whether the child is an Indian child,’ which is dependent upon whether 

any of the six circumstances set forth in subdivision (d) of section 224.2 apply.” (K.H., at 

p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.) Second, “[t]he juvenile 

4 All further references to rules are to the California Rules of Court.
8.

court must ... find a ‘proper and adequate further inquiry and due diligence ....’ ” (K.H., 

at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.)

Under the substantial evidence standard, “ ‘a reviewing court should “not reweigh 

the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.” 

[Citation.] The determinations should “be upheld if ... supported by substantial 

evidence, even though substantial evidence to the contrary also exists and the trial court 

might have reached a different result had it believed other evidence.” ’ [Citations.] The 

standard recognizes that ‘[t]rial courts “generally are in a better position to evaluate and 

weigh the evidence” than appellate courts’ [citation], and ‘an appellate court should 

accept a trial court’s factual findings if they are reasonable and supported by substantial 

evidence in the record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it may make 

credibility determinations, to which an appellate court would generally defer.’ ” (K.H., 

supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)

The juvenile court’s finding on the second element, however, “is ultimately 

discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’ 

various factors in assessing whether the [department’s] inquiry was proper and adequate 

within the context of ICWA and California law, and whether the [department] acted with

due diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021) 

11 Cal.5th 614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 

81 Cal.App.5th at pp. 1004–1005.) Therefore, we employ a hybrid standard and review 

the court’s determination for substantial evidence and abuse of discretion. (K.H., at 

p. 601; accord, E.C., at pp. 143–144; Ezequiel G., at pp. 1004–1005.)

“ ‘Review for abuse of discretion is subtly different [from review for substantial 

evidence], focused not primarily on the evidence but the application of a legal standard. 

A court abuses its discretion only when “ ‘ “the trial court has exceeded the limits of legal 

discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ” 

[Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the 
9.

facts, the reviewing court has no authority to substitute its decision for that of the trial 

court[.]” ’ ” [Citations.] [¶] While each standard here fits a distinct type of 

determination under review, the practical difference between the standards is not likely to 

be very pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 

85 Cal.App.5th at pp. 143–144.)

“Review of the juvenile court’s findings under the foregoing standards is 

deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to 

determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material 

facts are undisputed, courts have applied independent review to determine whether 

ICWA’s requirements were satisfied.” (K.H., supra, 84 Cal.App.5th at p. 602; accord, 

E.C., supra, 85 Cal.App.5th at p. 144.)

C. Analysis

1. Summary of ICWA Inquiry and Notice 

In the present case, father denied Indian ancestry in court, but the department’s 

contacts with paternal great-uncle V.P. and paternal aunt S.E. revealed Cherokee tribal 

affiliation. Mother also denied Indian ancestry, but the court’s inquiry of maternal 

grandfather also revealed Cherokee affiliation on the maternal side of the family. The 

department made contact with maternal great-uncle Brian and maternal aunt Megan, who 

also claimed tribal affiliation. Thereafter, the department sent notices to the three 

federally recognized Cherokee tribes. However, the notice was missing the names of

maternal great-aunt D.Q. and maternal great-uncle E.B. Further, the record does not 

contain information about the responses received from the tribes. Nevertheless, the court 

found ICWA did not apply. 

In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we 

explained our decision not to follow the approaches articulated by other appellate courts 

for determining whether ICWA error requires reversal and concluded that the Supreme 

Court’s decision in In re A.R. supplies the appropriate framework for assessing prejudice 
10.

in this context. (K.H., supra, 84 Cal.App.5th at pp. 607–608, citing In re A.R., supra, 

11 Cal.5th at pp. 252–254; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the 

standards we articulated in K.H. and E.C., as we discuss below, we conclude the 

department’s error is prejudicial and remand for the department to conduct a proper, 

adequate, and duly diligent inquiry is necessary.

2. The Department and Juvenile Court Erred

As previously mentioned, when “a child is placed into the temporary custody of a 

county welfare department[,] ... the county welfare department ... has a duty to inquire 

whether [the] child is an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian 

is domiciled.” (§ 224.2, subd. (b).) Extended family members include adult 

grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and 

first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) 

Here, the department failed to inquire of maternal great-aunt D.Q. and maternal 

great-uncle E.B., who maternal grandfather identified as possibly having more 

information. This fell short of complying with the plain language of section 224.2, 

subdivision (b). There may be cases in which there is no one else to ask, but if that is so, 

the record must be developed to reflect that fact and be supported by documentation. 

(Rule 5.481(a)(5).) “On a well-developed record, the court has relatively broad 

discretion [in such cases] to determine [that] the [department’s] inquiry was proper, 

adequate, and duly diligent on the specific facts of the case.” (K.H., supra, 

84 Cal.App.5th at p. 589; accord, E.C., supra, 85 Cal.App.5th at p. 157.) In addition, 

there is no mention in the record of the responses received by the tribes. Accordingly, the 

juvenile court’s finding that ICWA did not apply was not supported by substantial 

evidence, and its contrary conclusion was an abuse of discretion. (§ 224.2, subd. (i)(2).)
11.

3. Prejudice

“Where, as here, the deficiency lies with the [department’s] duty of ... inquiry and 

a juvenile court’s related finding of ‘proper and adequate further inquiry and due 

diligence’ (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra, 

70 Cal.App.5th at p. 742). Under the California Constitution, ‘[n]o judgment shall be set 

aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of 

the improper admission or rejection of evidence, or for any error as to any matter of 

pleading, or for any error as to any matter of procedure, unless, after an examination of 

the entire cause, including the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” 

(K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)

“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must 

clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of 

justice’ [citations], and California law generally interprets its constitutional miscarriage 

of justice requirement ‘as permitting reversal only if the reviewing court finds it 

reasonably probable the result would have been more favorable to the appealing party but 

for the error.’ ” (K.H., supra, 84 Cal.App.5th at pp. 606–607; accord, E.C., supra, 

85 Cal.App.5th at pp. 151–152.)

However, in In re A.R., the Supreme Court “recognized that while we generally 

apply a Watson[5]likelihood-of-success test to assess prejudice, a merits-based 

outcome-focused test is not always appropriate because it cannot always adequately 

measure the relevant harm. [Citation.] In other words, where the injury caused by the 

error is unrelated to an outcome on the merits, tethering the showing of prejudice to such 

an outcome misplaces the measure, at the expense of the rights the law in question was 

designed to protect.” (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)

5 People v. Watson (1956) 46 Cal.2d 818, 836.
12.

As we explained in K.H., “ ‘ICWA compliance presents a unique situation ....’ ” 

(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or 

protecting, a specific outcome on the merits.” (Id. at p. 609; accord, E.C., supra, 

85 Cal.App.5th at p. 154.) Rather, “ ‘[t]he purpose of ICWA and related California 

statutes is to provide notice to the tribe sufficient to allow it to determine whether the 

child is an Indian child, and whether the tribe wishes to intervene in the proceedings’

[citation], and an adequate initial inquiry facilitates the information gathering upon which 

the court’s ICWA determination will rest.” (K.H., at p. 608; accord, E.C., at pp. 152–

153.) Yet, “while the appealing party is usually a parent, parents do not bear the burden 

of gathering information in compliance with ICWA [citations], and parents may raise the 

claim of error for the first time on appeal.” (K.H., at p. 608; accord, E.C., at p. 153.) 

Further, the ultimate determination whether a child is an Indian child rests with the tribe, 

not with a parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at 

pp. 139–140.) “[W]here the opportunity to gather the relevant information critical to 

determining whether the child is or may be an Indian child is lost because there has not 

been adequate inquiry and due diligence, reversal for correction is generally the only 

effective safeguard.” (K.H., at p. 610, citing In re A.R., supra, 11 Cal.5th at pp. 252–254; 

accord, E.C., at p. 155.) 

Here, the department’s inquiry “ ‘fell well short of that required to gather the 

information needed to meaningfully safeguard the rights of the tribes, as intended under 

ICWA and California law’ ” (E.C., supra, 85 Cal.App.5th at p. 156, quoting K.H., supra, 

84 Cal.App.5th at p. 620), and “[a] finding of harmlessness on this record would 

necessarily require speculation and ‘is at odds with the statutory protections that ICWA 

and California law intend to afford Indian children and Indian tribes.’ ” (E.C., at p. 155, 

quoting K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.

Accordingly, the juvenile court’s finding that ICWA does not apply is 

conditionally reversed and the matter is remanded. The court is instructed to ensure the 
13.

department conducts “ ‘a proper, adequate, and duly diligent inquiry under section 224.2, 

subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with 

rule 5.481(a)(5).’ ” (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 

84 Cal.App.5th at p. 621.) “ ‘This should not be interpreted as requiring an exhaustive 

search for and questioning of every living relative of [B.R.]’ but ‘[w]e leave that 

determination for the juvenile court in the first instance because it is better positioned to 

evaluate the evidence provided by the [d]epartment. So long as the court ensures the 

inquiry is reasonable and of sufficient reach to accomplish the legislative purpose 

underlying ICWA and related California law, the court will have an adequate factual 

foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)’ ” (Ibid.)

DISPOSITION

The juvenile court’s finding that ICWA does not apply is conditionally reversed, 

and the matter is remanded to the court with directions to order the department to comply 

with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) 

and (e), and rule 5.481(a)(5). If, after determining that an adequate inquiry was made 

consistent with the reasoning in this opinion, the court finds that ICWA applies, the court 

shall vacate its existing order and proceed in compliance with ICWA and related 

California law. If the court instead finds that ICWA does not apply, its ICWA finding 

shall be reinstated. In all other respects, the court’s order is affirmed.