Filed 5/25/22 In re K.K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re K.K., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

M.E.,

Defendant and Appellant.

 D080068

 (Super. Ct. No. J520364)

APPEAL from an order of the Superior Court of San Diego County, Ana 

L. Espana, Judge; Michael Imhoff, Commissioner. Conditionally reversed

with directions. 

Donna B. Kaiser, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for 

Plaintiff and Respondent. 
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Mother appeals an order terminating her parental rights for infant 

K.K. pursuant to Welfare and Institutions Code section 366.26.1 The sole 

issue on appeal is whether the San Diego County Health and Human 

Services Agency (Agency) and the juvenile court failed to conduct an 

adequate initial inquiry as required by the Indian Child Welfare Act (ICWA) 

regarding any potential Indian ancestry of the child. 

Counsel for Mother and the Agency have conferred and agree that the 

Agency’s investigation under the ICWA was inadequate, under the relevant 

statutory and decisional authority. The parties filed a joint stipulation 

seeking the issuance of an immediate remittitur. We accept the stipulation, 

conditionally reverse, and remand for the limited purpose of ensuring 

compliance with ICWA’s requirements. 

BACKGROUND

When M.E. (Mother) gave birth to K.K. in April 2020, both she and 

newborn K.K. tested positive for opiates. K.K. suffered withdrawal 

symptoms and was admitted to the neonatal intensive care unit. Although 

Mother denied drug use, methamphetamine and drug paraphernalia were 

found in her purse at the hospital. Mother experienced complications after 

childbirth, was placed on a ventilator, sedated, and was cared for in the 

intensive care unit. A physician believed that she had only months to live 

due to her health issues and that she was not capable of caring for the infant. 

The Agency filed a petition alleging K.K. was a child within the 

jurisdiction of the juvenile court pursuant to section 300, subdivision (b)(1) 

because the child suffered or was at substantial risk of suffering serious 

physical harm or illness as a result of the parents’ failure or inability to 

1 Further undesignated statutory references are to the Welfare and 

Institutions Code. 
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protect or care for the child. The petition alleged the child tested positive for 

opiates and suffered withdrawal symptoms, that B.K. (Father) was 

incarcerated and Mother had an active criminal protective order protecting 

her from him. The Agency expressed concern that K.K. would not be cared 

for due to Mother’s drug use and medical condition. 

The Agency contacted maternal grandmother and paternal uncle about 

possible relative placement early in the case. There is no indication the 

Agency inquired about Native American heritage. 

At the detention hearing on April 28, 2020, Mother and Father denied 

Native American heritage. The court deferred making a finding on the issue 

pending a paternity test. The court ordered the Agency to investigate and 

report to the court whether the child had Native American heritage. The 

court found that the Agency made a prima facie showing that K.K. was a 

child within the jurisdiction of the court under section 300, subdivision (b)

and ordered K.K. detained. 

In a June 9, 2020 jurisdiction/disposition report, the social worker 

stated ICWA did not apply because Mother denied Native American heritage 

or tribal connection. The report stated a full inquiry needed to be completed 

for Father. The worker identified several maternal relatives including 

maternal grandmother, maternal grandfather, maternal uncle and maternal 

aunt regarding relative placement and support. 

At the jurisdiction hearing on July 9, 2020, the court made a true 

finding on the petition under section 300, subdivision (b)(1). The court found 

Father was K.K.’s biological father. It also found ICWA did not apply based 

on inquiry of the parents. It was not until later in August, however, that a

social worker completed an ICWA inquiry with Father. He denied Native 

American heritage or tribal connection. 
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At the contested disposition hearing on August 25, 2020, the court 

ordered that K.K. be removed from the parents’ care and placed in a licensed 

foster home. The court’s minute order stated notice pursuant to ICWA was 

not required because reasonable inquiry had been made to determine 

whether the child is or may be an Indian child and the court had reason to 

know the child was not an Indian child. The court did not make this finding 

on the record during the hearing. Instead, the court incorporated by 

reference the Agency recommendations. 

Over the following months, Mother denied drug use despite testing 

positive for amphetamines and methamphetamines on random drug tests. 

Although Mother expressed some insight into domestic violence issues with 

Father, she had ongoing contact with him. She made some progress with her 

case plan, but lacked insight into her substance abuse history and denied the 

risk and harm to K.K. 

Between November 2020 and January 2021, the Agency contacted the 

paternal grandparents, a paternal uncle, a maternal aunt and a maternal 

uncle regarding concurrent planning. There is no indication the Agency 

conducted an ICWA inquiry with these individuals. 

Mother struggled with maintaining services. After two substance 

abuse treatment programs declined to accept Mother due to her prescription 

for Ritalin and her claim that she had been sober for two years, she started 

participating in an outpatient substance abuse treatment program in 

December 2020. She did not, however, attend the required number of classes 

per week and did not acknowledge substance abuse. Mother tested positive 

for amphetamines and methamphetamine in October and November 2020, 

which she attributed to her Ritalin medication. A medical reviewer stated 

that Ritalin would not cause a false positive and that Mother tested positive 
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for a form of methamphetamine that was consistent with street drugs. 

Mother refused to test in December 2020. She denied alcohol use, but tested 

positive for alcohol several times in March 2021. She eventually 

acknowledged alcohol use in April 2021 saying she used alcohol to deal with 

panic attacks. 

Mother initially engaged in a domestic violence group, but the group

therapist reported that Mother missed nine sessions and had not attended 

since March 2021. The therapist was sympathetic to Mother’s ongoing 

medical issues and was willing to continue Mother’s services. Mother agreed 

to complete the last eight sessions. 

Father remained incarcerated. Mother said she did not plan to have a 

relationship with Father when he was released, but she continued to 

communicate with him. 

In April 2021, the court determined that Mother had made adequate

progress toward alleviating or mitigating the causes necessitating K.K.’s 

placement and in complying with her case plan. The court continued her 

reunification services. The court terminated Father’s reunification services 

after concluding that Father made no progress toward alleviating or 

mitigating the causes necessitating K.K.’s placement. 

By the end of June 2021, Mother still had not completed her domestic 

violence therapy sessions. She continued to deny substance abuse and 

minimized her recent test results that were positive for alcohol, 

methamphetamine, and fentanyl. Her participation in substance abuse 

treatment was inconsistent. She had not mitigated the safety concerns that 

brought the family to the Agency’s attention and she continued to lack 

insight into her drug history and the risk it posed to K.K.’s safety. Mother 
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stopped engaging in services after June 2021 and cancelled all meetings with 

the social worker. 

The court terminated reunification services for Mother at the contested 

12-month review hearing held on August 30, 2021, finding her progress was 

minimal. 

In January 2022, Mother submitted a section 388 request for change of 

order requesting placement of K.K. with her. She stated that she was 

scheduled to begin outpatient treatment for substance abuse and a domestic 

violence support group, she had been engaged in mental health counseling, 

she was under the care of a psychiatrist, she had provided a negative drug

test, and she was participating in substance abuse meetings. The Agency 

commended Mother for engaging in services “to get her life back on track,” 

but indicated Mother had not fully addressed the protective issue that 

brought K.K. into the court’s custody. Although her circumstances changed 

“slightly” it was not enough to warrant returning K.K. to her care since she 

was still in the beginning stages of recovery. The Agency believed the best 

interests of K.K. continued to be in the permanent plan of adoption. The 

court denied Mother’s request on January 24, 2022.2

On February 3, 2022, at a contested section 366.26 hearing, the court 

determined that K.K. was adoptable and that adoption was in the best 

interest of K.K. The court terminated the parental rights of both parents. 

The court’s minute order states the court found without prejudice that ICWA 

2 Mother’s notice of appeal indicated she was appealing this order. 

Because the opening brief does not challenge the substance of this order, we 

deem the appeal abandoned. (Cahill v. San Diego Gas & Electric Co. (2011) 

194 Cal.App.4th 939, 956.)
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did not apply to this proceeding. However, the court did not make this 

finding on the record. 

DISCUSSION

Congress enacted ICWA to address concerns regarding the separation 

of Native American children from their tribes through adoption or foster care 

placement. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under California law 

adopted pursuant to ICWA, the juvenile court and the Agency have an 

“affirmative and continuing duty to inquire” whether a child “is or may be an 

Indian child.” (§ 224.2, subd. (a); Isaiah W., at p. 9.) 

“[S]ection 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. (See § 224.2, subd. (c) [court is obligated 

to inquire at the first appearance whether anyone ‘knows or has reason to 

know that the child is an Indian child’]; id., subd. (d) [defining circumstances 

that establish a ‘reason to know’ a child is an Indian child]; § 224.3 [ICWA 

notice is required if there is a ‘reason to know’ a child is an Indian child as 

defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1052.) 

The parties agree, and we concur, that the Agency did not comply with 

its initial duty of inquiry in this case by failing to inquire of the child and 
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available extended family members regarding any potential Indian ancestry.

(§ 224.2, subds. (a) & (b); Cal. Rules of Court, rule 5.481(a)(1).) The Agency 

interviewed many relatives as part of its investigation and efforts to explore 

relative placement, including maternal grandparents, a maternal uncle, a 

maternal aunt, paternal grandparents, and a paternal uncle. However, there 

is no indication in the record that any of these extended family members 

were asked about potential Native American ancestry for the child. Before 

the juvenile court can find that the ICWA does not apply, it must make a 

finding that “due diligence as required in this section have been conducted.”

(§ 224.2, subd. (i)(2).) The record does not show that the juvenile court made 

this finding. 

Before reversing or vacating a judgment based upon a stipulation of the 

parties, an appellate court must find “both of the following: [¶] (A) There is 

no reasonable possibility that the interests of nonparties or the public will be 

adversely affected by the reversal. [¶] (B) The reasons of the parties for 

requesting reversal outweigh the erosion of public trust that may result from 

the nullification of a judgment and the risk that the availability of stipulated 

reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc., 

§ 128, subd. (a)(8).) 

The present case involves reversible error because the parties agree, 

and we concur, that the Agency failed to comply with the ICWA and related 

California provisions and “that there was readily obtainable information that 

was likely to bear meaningfully upon whether the child is an Indian child.” 

(In re Benjamin M. (2021) 70 Cal.App.5th 735, 744; In re Antonio R. (2022) 76 

Cal.App.5th 421, 435.) Because this case would be subject to reversal to 

permit compliance with the ICWA and corresponding California statutes and 

rules absent the parties’ stipulation, a stipulated remand advances the 
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interests identified by Code of Civil Procedure section 128, subdivision (a)(8). 

(See In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382.) 

DISPOSITION

The orders issued at the February 3, 2022 contested section 366.26 

hearing are conditionally reversed and the matter is remanded to the juvenile 

court with directions that within 30 days of the remittitur the Agency must 

file a report demonstrating its compliance with the inquiry provisions of the 

ICWA and section 224.2, subdivision (b), and, if required, conduct further 

inquiry under section 224.2, subdivision (e). Within 45 days of the remittitur, 

the juvenile court must conduct a hearing to determine if the Agency’s 

investigation satisfied its affirmative duty to investigate. The juvenile court 

has the discretion to adjust these time periods on a showing of good cause. 

If neither the Agency nor the juvenile court has reason to believe or to 

know that K.K. is an Indian child, the orders issued at the February 3, 2022

contested section 366.26 hearing shall be reinstated. Alternatively, if after 

completing the inquiry the Agency or the juvenile court has reason to believe 

that K.K. is an Indian child, the court shall proceed accordingly. The 

remittitur shall issue immediately. 

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.