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Filed 5/17/23 In re T.L. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Amador)

----

In re T.L., a Person Coming Under the Juvenile Court 

Law.

C097010

AMADOR COUNTY DEPARTMENT OF SOCIAL 

SERVICES,

Plaintiff and Respondent,

v.

M.L.,

Defendant and Appellant.

(Super. Ct. No. 21-DP-00827)

Appellant M.L. (father), father of the minor, appeals from the juvenile court’s 

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

§§ 366.26, 395.)1 Father contends the juvenile court and the Amador County Department 

of Social Services (Department) failed to comply with the requirements of the Indian 

1 Further undesignated statutory references are to the Welfare and Institutions Code.
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Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The Department 

concedes error in its initial inquiry. We will conditionally affirm and remand for limited 

ICWA proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A detailed recitation of the facts and non-ICWA related procedural history is 

unnecessary to our resolution of this appeal.

Father is the biological father of the minor. On August 17, 2021, the Department 

filed a dependency petition on behalf of the minor pursuant to section 300, subdivision 

(g), alleging the minor was left without provision or support after mother was killed in a 

single car accident and father was incarcerated in state prison.

The detention report stated the ICWA may or does apply based on the following 

information: The social worker spoke with maternal uncle K.F., who advised that the 

family had Miwok and Washoe ancestry and, although they “did not have a tribal 

contact,” the family was “active in the Native culture.” The social worker contacted 

paternal great-grandmother C.F., who also stated the family had Miwok and Washoe 

heritage. The paternal great-grandmother stated that the family was still grieving the loss 

of their granddaughter and would find additional information and contact the social 

worker. The Department had not been able to inquire of father regarding possible Indian 

heritage.

The detention report noted the family’s previous dependency action in Amador 

County involving two of mother’s siblings. In that 2004 case, it was reported that the 

maternal grandfather, C.F., Sr., was a descendent of a Miwok Indian and a Washoe 

Indian. At that time, a representative of the Washoe Tribe of Nevada and California 

informed the social worker that C.F., Sr., was registered as 7/16ths Washoe but had 

removed himself from the rolls of that tribe and registered with another tribe. The 

Washoe tribe stated C.F., Sr.’s, children would therefore not be eligible for services 

through the Washoe tribe. Notwithstanding that information, the agency in that 
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dependency noticed all Washoe and Miwok tribes and concluded mother’s siblings were 

not eligible for enrollment.

At the detention hearing in the current matter, the juvenile court noted “some 

limited ICWA inquiries have been made, and there was previous tribal affiliation” and 

ordered the Department to investigate further.

Father was not present at the September 9, 2021, jurisdiction hearing, but paternal 

grandmother T.L. and the maternal great-aunt M.F. were present. The juvenile court 

found true the allegations in the petition and made the following ICWA finding: “It 

looks like ICWA does not apply. It looks like there was some maybe tribe -- prior tribal 

affiliations, but then those were severed. So they are not eligible for -- or she is not 

eligible for registration at this time. I think we inquired of [father], too, last time when 

we were here. He said no for him. But I will find that it doesn’t apply unless we get new 

information.”

The disposition report reiterated the juvenile court’s previous finding of ICWA

inapplicability at the jurisdiction hearing and noted any additional evidence would be 

provided to the court.

Father was present in person at the disposition hearing on November 18, 2021, 

having recently been released from prison. The Department informed the juvenile court 

that paternity testing had yet to be completed and, as such, father was still considered an 

alleged father. The court continued the disposition hearing.

On January 13, 2022, the juvenile court found father to be the biological father of 

the minor.

Father, maternal aunt S.F., and maternal great-aunt M.F. were present for the 

continued disposition hearing on March 24, 2022. The juvenile court adjudged the minor 

a dependent of the court, found there was “no reason to know that the child may be an 

Indian child,” and also found that, unless new information was received, the “ICWA does 

not apply.” The court made visitation orders, including supervised visitation between the 
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minor and the maternal grandmother and grandfather and the maternal greatgrandmother, and set the matter for a section 366.26 hearing.

The section 366.26 report reiterated the juvenile court’s prior finding that the 

ICWA does not apply. The report and the attached adoption assessment identified and 

discussed various extended relatives, including maternal and paternal grandmothers, the

maternal great-aunt and great-uncle, two maternal uncles, and the maternal greatgrandparents.

Father and paternal grandmother T.L. were present at the contested section 366.26 

hearing on August 25, 2022. Father testified; however, he was not asked about Indian 

ancestry or anything having to do with the ICWA. The juvenile court terminated parental 

rights and ordered adoption as the permanent plan. The court noted the minor would 

remain placed with the maternal great-aunt and great-uncle. The ICWA was not 

mentioned by the court or any party during the hearing.

DISCUSSION

Father contends the Department failed its initial and continuing duty to inquire of 

him and available extended family members, including the paternal aunt and uncle, the 

paternal grandmother, the maternal uncle, the maternal grandparents, the maternal greataunt and great-uncle, and the maternal great-grandmother, about Indian ancestry. He 

further contends the juvenile court failed to comply with its own statutory duty of inquiry 

and failed to ensure that the Department complied with its duties.

The Department concedes it failed its duty of initial inquiry as to father and known 

extended relatives and asserts the proper remedy is to conditionally affirm the case and 

remand to ensure there is no information that would undermine the juvenile court’s 

finding that the ICWA does not apply. We accept the Department’s concession and agree 

the case must be remanded for further ICWA proceedings.

The ICWA’s purpose is to protect the interests of Indian children and promote the 

stability and security of Indian tribes by establishing minimum standards for, and 
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permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 

1903(1), 1911(c), 1912; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The juvenile court and 

the Department have “an affirmative and continuing duty to inquire” whether a child is, 

or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); see 

In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) If, after the petition is filed, the 

juvenile court knows or has reason to know that an Indian child is involved (25 U.S.C. 

§ 1912(a)), notice of the pending proceeding and the right to intervene must be sent to the 

tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. (See §§ 224.2, 

subds. (d) & (f), 224.3; Cal. Rules of Court, rule 5.481(b); In re Robert A. (2007) 

147 Cal.App.4th 982, 989.) “At that point, the social worker is required, as soon as 

practicable, to interview the child’s parents, extended family members, the Indian 

custodian, if any, and any other person who can reasonably be expected to have 

information concerning the child’s membership status or eligibility.” (In re Michael V.

(2016) 3 Cal.App.5th 225, 233; see Cal. Rules of Court, rule 5.481(a)(4)(A); § 224.2, 

subd. (b).)

ICWA notices must include all the following information, if known: the child’s 

name, birthplace, and birth date; the name of the tribe in which the child is enrolled or 

may be eligible for enrollment; names and addresses of the child’s parents, grandparents, 

great-grandparents, and other identifying information; and a copy of the dependency 

petition. (§ 224.3, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)

No one disputes that father was not asked about potential Indian ancestry despite 

his appearance in juvenile court on more than one occasion both before and after being 

found to be the minor’s biological father. On this record, it appears that inquiry was not 

made of several known relatives, some of whom were present during court hearings 

and/or participated in visitation with the minor. For example, paternal grandmother T.L. 

was present on September 9, 2021, when the court found the ICWA does not apply, but 

no inquiry was made of her at the time or at any other time. Paternal great-grandmother 
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C.F. gave initial information that the family had Miwok and Washoe heritage but, 

because the family was still grieving the loss of their granddaughter, she stated she would 

find additional information and contact the social worker. The record does not show that 

paternal great-grandmother contacted the social worker thereafter or that the social 

worker made any attempt to contact paternal great-grandmother to make further inquiry.

Despite its concession of error, the Department asserts that, when the juvenile 

court stated its belief that the minor “is not eligible for registration at this time” and 

“[t]here’s no reason to know that the [minor] may be an Indian child,” neither father nor 

any of the relatives present objected or in any way disabused the court of that belief. 

While it would certainly be helpful to the ICWA investigation and inquiry process if 

relatives present in court proceedings spontaneously offered whatever information they 

had regarding the family’s Indian heritage or lack thereof, it is the juvenile court and 

social services agencies who have “an affirmative and continuing duty to inquire” 

whether a child is, or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, 

rule 5.481(a); see In re K.M., supra, 172 Cal.App.4th at pp. 118-119.)

Further, while the Department “is not required to ‘cast about’ for information or 

pursue unproductive investigative leads” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053), 

it is required to include in its reports a discussion of what efforts it undertook to locate 

and interview family members who might have pertinent information and, “[i]n the 

absence of an appellate record affirmatively showing the court’s and the agency’s efforts 

to comply with ICWA’s inquiry and notice requirements, we will not, as a general rule, 

conclude that substantial evidence supports the court’s finding that proper and adequate 

ICWA notices were given or that ICWA did not apply.” (In re N.G. (2018) 

27 Cal.App.5th 474, 484; accord, In re K.R. (2018) 20 Cal.App.5th 701, 709.) Here, the 

record makes no such affirmative showing with regard to father or any paternal relatives.

Deficiencies in ICWA inquiry and notice are reviewed for harmless error. Those 

deficiencies “may be deemed harmless error when, even if proper notice had been given, 
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the child would not have been found to be an Indian child.” (In re D.N. (2013)

218 Cal.App.4th 1246, 1251.) However, error is not presumed. It is father’s obligation 

to present a record that affirmatively demonstrates error. (In re D.W. (2011) 

193 Cal.App.4th 413, 417-418.) Father has done so here. If we conclude the juvenile 

court did not comply with the ICWA provisions, we “reverse only if the error is 

prejudicial.” (In re A.L. (2015) 243 Cal.App.4th 628, 639.) In light of the Department’s 

concession, and given the state of the record, we cannot say with certainty that there was 

no prejudice to any relevant tribes.

The Department either did not take sufficient affirmative steps to investigate the 

minor’s possible Indian ancestry or did not document its efforts to do so, and the juvenile 

court failed to ensure that an adequate investigation had been conducted. In the absence 

of evidence of the Department’s efforts to fulfill its continuing duty of inquiry, we cannot 

say the failure of ICWA compliance was harmless. We agree with the parties that the 

Department was required to make additional efforts to inquire about possible Native 

American ancestry from the parents’ known relatives and that remand is necessary for the 

Department to inquire further. (See § 224.2, subd. (b); see also In re Y.W. (2021) 

70 Cal.App.5th 542, 554; In re A.C. (2022) 75 Cal.App.5th 1009, 1016-1018.) 

Accordingly, we will conditionally affirm the juvenile court’s order terminating parental 

rights, and 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.

Father raises concern that a conditional affirmance, as opposed to conditional 

reversal, may result in the denial of due process and reappointment of counsel on remand 

because his parental rights will not have been reinstated during the further ICWA 

compliance proceedings. Although father will not have the right to appear generally as a 

party to proceedings, file petitions requesting services or placement, or otherwise 

participate in hearings regarding the minor’s placement, permanent plan, or well-being, 
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he is entitled to notice and appointment of counsel for the further ICWA proceedings.

(In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.) Further, he is entitled to participate 

fully in the ICWA compliance proceedings, as well as to appeal from the juvenile court’s 

ICWA findings and orders on remand, should the Department and court fail to comply, 

over father’s objection, with the ICWA. (Ibid.; In re X.V. (2005) 132 Cal.App.4th 794, 

804-805.) We assume the juvenile court will follow established law and afford father the 

requisite due process and direct it to do so.

DISPOSITION

The juvenile court’s order terminating parental rights is conditionally affirmed and 

the matter is remanded to the juvenile court for limited proceedings to determine 

compliance with the ICWA consistent with this opinion. If, at the conclusion of those 

proceedings, no tribe indicates the minor is an Indian child within the meaning of the 

ICWA, then the juvenile court shall make the appropriate ICWA finding and reinstate the 

order terminating parental rights. If the juvenile court finds, after proper inquiry and 

notice, that the ICWA applies, the juvenile court shall hold such further proceedings as 

are appropriate, including a new section 366.26 hearing.

 /s/

EARL, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

DUARTE, J.