Filed 10/6/22 In re E.O. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re E.O., a Person Coming Under the 

Juvenile Court Law.

ORANGE COUNTY SOCIAL 

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

CARLOS O.,

 Defendant and Appellant.

 G061285

 (Super. Ct. No. 20DP0726)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Dennis J. 

Keough, Judge. Reversed and remanded with directions. Motions to take additional 

evidence, augment the record, and dismiss the appeal. Denied.

Megan Turkat Schirn, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County 

Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *
2

In this juvenile dependency case, the father appeals from an order 

terminating his parental rights. He contends the court erred by failing to make an 

adequate inquiry under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. 

Specifically, he contends SSA failed to interview extended family members regarding 

minor’s potential American Indian heritage. Social Services Agency (SSA) concedes the 

error.

After the present appeal was filed, SSA allegedly conducted the 

investigation that was initially lacking, returned to the trial court, and the trial court 

found, once again, that ICWA did not apply based on the additional evidence. SSA has 

filed a motion to receive additional evidence on appeal: the evidence revealed in the 

postappeal investigation and the court’s subsequent order.1 SSA contends the evidence 

reveals that the minor has no American Indian heritage and thus moves to dismiss the 

appeal as moot in light of the evidence they proffered. 

As this court has consistently held, the Court of Appeal is not the 

appropriate venue for assessing the adequacy of SSA’s investigation in the first instance. 

Accordingly, we deny the motion and conditionally reverse the judgment. 

FACTS

In 2020, when these proceedings arose, mother and father had been in a 

relationship characterized by domestic violence for nine years. Father’s acts of domestic 

violence against mother resulted in criminal arrests and restraining orders. Minor 

witnessed some of the acts of domestic violence. 

The present proceeding arose out of a referral on June 4, 2020, of ongoing 

domestic violence between the parents. It was reported that on May 29, 2020, the 

Huntington Beach Police Department responded to the family’s residence for a domestic 

1 The motion is made pursuant to Code of Civil Procedure section 909.
3

violence call that father punched mother. Both parents admitted drinking alcohol and 

smoking marijuana prior to the dispute. Father admitted to having taken 

methamphetamine the day prior. Father was arrested and an emergency protective order 

was issued. Maternal aunt confirmed she had been caring for the child since May 29, 

2020.

On June 10, 2020, the social worker spoke to minor, maternal aunt, and the 

parents. Minor saw father “push” mother and it made him scared. He denied any 

physical abuse. Maternal aunt reported that mother had visible injuries and SSA 

intervention was warranted since mother had resumed her relationship with father. 

Father was interviewed in jail. He admitted the child was present in the room during the 

incident, and that he and mother had been drinking alcohol that day. Mother admitted 

she had been drinking alcohol with father and had two DUI arrests, in 1998 and in 2008, 

for which she served three years in prison. Mother explained they had been fighting due 

to the stress of unemployment and COVID-19. She agreed to let minor stay with 

maternal aunt pending SSA’s investigation. 

On June 12, 2020, minor was placed in protective custody with maternal 

aunt. 

On June 15, 2020, SSA filed a petition under Welfare and Institutions Code 

section 300, subdivision (b). The petition alleged mother reported a nine-year history of 

domestic violence with father and that father may have mental health issues stemming 

from an involuntarily hospitalization due to suicidal ideation. Mother had unresolved 

problems with substance abuse and a criminal history that included arrests for DUI with 

bodily injury. 

At the June 18, 2020 detention hearing, father was found to be the 

presumed father. The juvenile court made detention findings and that the parents were 

not to visit together. Mother and father were granted reunification services. Father’s 
4

case plan included general counseling, anger management classes, parenting classes, drug 

testing, and a drug treatment program. 

The jurisdiction hearing was held on August 10, 2020, at which both 

parents pleaded no contest, and the court found the allegations in the petition to be true. 

The court noted the parents’ progress on their case plan was minimal at that time. The 

court set a six-month review hearing in February 2021.

As of February 2021, SSA recommended the parents continue receiving 

reunification services. Their progress during the first six months had been minimal. 

At the February 3, 2021, six-month review hearing, the court adopted 

SSA’s findings and recommendations and set a 12-month review hearing for August 

2021.

At the 12-month review hearing, SSA recommended terminating 

reunification services. Father was homeless and had not made progress in his case plan.

He was uncooperative in counseling, refused to enroll in anger management classes, 

refused to enroll in drug treatment, and was a no show for all of his random drug tests 

since the previous hearing. The maternal aunt, with whom minor had been placed at the 

outset of these proceedings, expressed a willingness to adopt, and minor had thrived 

under her care. The court adopted SSA’s recommendation, terminated reunification

services, and set a selection and implementation hearing pursuant to Welfare and 

Institutions Code section 366.26.

At the selection and implementation hearing in March 2022, both parents 

filed petitions for a change of order under Welfare and Institutions Code section 388; 

both were denied under the prima facie standard. The court then found the child was 

adoptable, terminated parental rights, and placed the child up for adoption. Father timely 

appealed.
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DISCUSSION

Father’s sole contention on appeal is that the court’s finding that ICWA 

does not apply was erroneous because it was based on an inadequate investigation. 

“‘[W]e review the juvenile court's ICWA findings under the substantial evidence test, 

which requires us to determine if reasonable, credible evidence of solid value supports 

the court's order. [Citations.] We must uphold the court's orders and findings if 

any substantial evidence, contradicted or uncontradicted, supports them, and we resolve 

all conflicts in favor of affirmance.” (In re Dominic F. (2020) 55 Cal.App.5th 558, 565.) 

SSA concedes the court erred in concluding ICWA does not apply because 

the court made that finding without the benefit of an adequate ICWA investigation. Both 

the court and SSA have a “affirmative and continuing duty to inquire whether a child for 

whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian 

child. The 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.” (Welf. & Inst. Code, § 224.2, subd. (a).) That 

duty of initial 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 . . . .” (Welf. & Inst. Code, § 224.2, subd. (b) [Italics added.].) It is 

undisputed that SSA never inquired of minor’s extended family members, and thus the 

investigation was inadequate to support a finding that ICWA does not apply.

Instead, SSA has filed two motions. First, it asks us to take additional 

evidence pursuant to Code of Civil Procedure section 909. After father filed his appeal in 

this matter, SSA, recognizing the inadequacy of the initial investigation, performed a 

more thorough ICWA inquiry. SSA then brought the results of that inquiry to the court, 

which once again found ICWA does not apply. SSA seeks to admit evidence on appeal 
6

of the investigation and the court’s finding. SSA then moves to dismiss the appeal as 

moot, as father has already obtained the only relief available to him.

We decline to adopt that procedure. This is an issue that this court has seen 

repeatedly and has consistently resolved in the same manner: “The Court of Appeal is 

not the appropriate venue for determining if SSA’s postjudgment investigation was 

adequate.” (In re E.V. (2022) 80 Cal.App.5th 691, 694; see also Id. at 697 [noting this 

issue “keeps surfacing in appeals with alarming frequency”].) The trial court must pass 

on that question in the first instance.

Purportedly, the trial court already did so, but it was without jurisdiction to 

rule on any further ICWA inquiry during the pendency of this appeal. (See Code Civ. 

Proc., § 916, subd. (a) [appeal stays further proceedings in the trial court “upon the 

judgment or order appealed from or upon the matters embraced therein or affected 

thereby”]; In re Natasha A. (1996) 42 Cal.App.4th 28, 39 [Code of Civ. Proc., § 916 

applies in juvenile dependency proceedings “at least to the extent not inconsistent 

therewith”].) Under Welfare and Institutions Code section 395, subdivision (a), a stay 

applies on appeal so long as the court has approved an order for “suitable provision . . .

for the maintenance, care, and custody” of the minor. Such an order was made here. 

Because the adequacy of SSA’s ICWA investigation is a matter best left to 

the trial court in the first instance, and because the trial court was without jurisdiction to 

rule on the adequacy of SSA’s postappeal investigation, we deny SSA’s motions and will 

conditionally reverse the judgment. 
7

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the 

juvenile court for the limited purpose to ensure compliance with the ICWA. After the 

court ensures compliance with the applicable inquiry and notice requirements, the court’s 

judgment shall be reinstated. SSA’s motions to admit additional evidence, augment the 

record, and to dismiss the present appeal are denied.

MARKS, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.