Filed 12/23/21 In re A.U. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re A.U. et al., Persons Coming Under 

the Juvenile Court Law.

ORANGE COUNTY SOCIAL 

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

ERICA U.,

 Defendant and Appellant.

 G060569

 (Super. Ct. Nos. 19DP1583 

 & 19DP1584)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Antony 

C. Ufland, Judge. Affirmed in part and remanded.

Elena S. Min, under appointment by the Court of Appeal, for Defendant 

and Appellant.
2

Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. 

Morse, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minors.

* * *

INTRODUCTION

We deal here with the question of whether a juvenile dependency court’s

failure to follow its “affirmative and continuing duty to inquire” whether a subject minor 

“is or may be an Indian child” under the Indian Child Welfare Act (25 U.S.C. § 1901 et 

seq.) (ICWA) constitutes reversible error. (See Welf. & Inst. Code, § 224.2, subd. (a).)1 

ICWA was enacted to give Indian tribes concurrent jurisdiction with state courts in child 

custody proceedings involving Indian children. (See In re Benjamin M. (2021) 70 

Cal.App.5th 735, 740 (Benjamin M.).) Under federal regulations implementing ICWA, 

as well as California state statutes, dependency courts must ask participants whether they 

know or have reason to know a subject minor is an Indian child and child protective 

agencies must conduct adequate inquiries on the matter. (In re Y.W. (2021) 70 

Cal.App.5th 542, 551.) This appeal concerns two minors born to appellant Erica U. by 

two different fathers. Our record lacks evidence showing the proper inquiry was made. 

SSA argues this failure was not prejudicial because Erica offered no evidence, even on 

appeal, that either child is subject to ICWA, and there is no evidence in the record that 

ICWA applies. We sympathize with that position but believe we are bound to remand the 

matter for further proceedings in compliance with ICWA while conditionally affirming 

the juvenile court’s judgment terminating Erica’s parental rights.

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

indicated.
3

FACTS

Erica has ongoing and unresolved mental health and substance abuse 

problems.2 She also has three children who were declared dependents under section 300 

– A.U., now 12, Y.U., now 7, and a third younger child, whose proceedings were not 

appealed. A.U.’s biological father is Francisco D. and Y.U.’s alleged father is Pedro T. 

SSA filed an application for a protective custody warrant as to the three 

children on December 19, 2019. The application stemmed from an early October 2019 

incident in which A.U. became upset at school because of his mother’s behaviors at 

home. SSA’s investigation was initiated the following day, resulting in proceedings as to 

all three children. 

In the early stages of the investigation, SSA had been unsuccessful in 

reaching Francisco, and after the October 2019 incident, A.U. went to San Diego to live 

with Francisco’s mother, Delia. SSA was later able to make contact with Francisco and 

he appeared at the January 23, 2020 pretrial conference. He submitted to the court a 

parental notification of Indian status form (California Judicial Council form ICWA-020)

(“parental notification form”) stating he had no Indian ancestry as far as he knew, and the 

court accepted the form. 

Pedro, on the other hand, was never located. SSA records showed Erica

claimed in 2017 that he was deported and she had no contact with him. His last known 

address was the Santa Ana home of his parents, Yolanda and Pedro Sr., with whom Y.U. 

had lived since birth.

3

SSA included Indian child inquiry attachments (California Judicial Council 

form ICWA-010(A)) in its dependency petitions for A.U. and Y.U. Both documents 

2 The reasons for the minors’ dependency proceedings are largely irrelevant to the appeal itself, and 

so, out of respect for the dignity and privacy of those involved, we only provide details where appropriate for 

context.

3 Yolanda and Pedro Sr. had never gained legal custody of Y.U. but Erica allowed the child to live 

with them. 
4

stated inquiries had been made and the children had no known Indian ancestry. But SSA 

never provided details on what this inquiry entailed. Its detention report filed on 

December 23, 2019, with respect to both children simply stated “[t]he mother denied any 

Native American ancestry at this time.” 

At the detention hearing for both children on December 24, 2019, the 

juvenile court deferred any findings under ICWA because Erica had not appeared. The 

children were released to their respective paternal grandparents’ custody for temporary 

placement. 

Erica first made an appearance in the case on March 27, 2020, but our 

record shows no evidence of an inquiry by the juvenile court under ICWA, nor is there 

evidence she was offered, signed, or submitted a parental notification form at the 

hearing.4 She denied the petition’s allegations through her appointed counsel. 

A jurisdictional and dispositional hearing occurred as to the children on 

May 15, 2020, at which time the court sustained the allegations in SSA’s petition. Erica 

testified at the hearing, but was never asked about the children’s potential Native 

American ancestry, either through her or through their respective fathers. 

SSA’s status report filed in preparation for the November 2020 six-month 

pre-permanency planning review hearing showed ICWA findings were still deferred as of 

that point. In its status report dated February 11, 2021, SSA indicated it had attempted 

two days prior to inquire with Erica about ICWA, but had received no response from her. 

Erica was not participating in her case plan services and had not been consistently 

visiting with the children, so SSA recommended terminating reunification services. The 

juvenile court did so and set a selection and implementation hearing for July 28, 2021. 

SSA made attempts to locate and notify Pedro of the hearing but was unsuccessful. 

4 There was no transcript of the March 27 hearing because no court reporter was present. 
5

Because SSA recommended adoption as the children’s permanent plan, 

they conducted caregiver assessments of both sets of paternal grandparents, and found 

they were all from Mexico. Yolanda and Pedro Sr. traveled to Mexico with Y.U. 

occasionally and visited relatives there. 

Erica failed to appear at the selection and implementation hearing. The 

juvenile court refused to continue the hearing and terminated the parental rights of Erica, 

Francisco, and Pedro, selecting adoption by the paternal grandparents as the children’s 

permanent plan. 

DISCUSSION

The sole issue Erica raises on appeal is ICWA compliance. “‘The juvenile 

court must determine whether proper notice was given under ICWA and whether ICWA 

applies to the proceedings. [Citation.]’ (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) 

When, as is the case here, the facts are undisputed, we review independently whether the 

requirements of ICWA have been satisfied. [Citation.]” (In re A.M. (2020) 47 

Cal.App.5th 303, 314.) Here, we cannot find any indication the juvenile court ever 

determined whether ICWA applied so we must reverse. 

“The juvenile court and [the agency] have ‘an 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.’ (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 

Cal.5th 1, 9, 11–12 (Isaiah W.).) This continuing duty can be divided into three phases: 

the initial duty to inquire, the duty of further inquiry, and the duty to provide formal 

ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).) “The duty to inquire 

whether a child is an Indian child begins with ‘the initial contact,’ i.e., when the referring 

party reports child abuse or neglect that jumpstarts [the agency’s] investigation. (§ 224.2, 

subd. (a).) [The agency’s] initial duty to inquire includes asking the child, parents, legal 

guardian, extended family members, and others who have an interest in the child whether 

the child is, or may be, an Indian child. (Id., subd. (b).) Similarly, the juvenile court 
6

must inquire at each parent’s first appearance whether he or she ‘knows or has reason to 

know that the child is an Indian child.’ (Id., subd. (c).). The juvenile court must also 

require each parent to complete Judicial Council form ICWA-020, Parental Notification 

of Indian Status. (Cal. Rules of Court[fn], rule 5.481(a)(2)(C).) The parties are instructed 

to inform the court ‘if they subsequently receive information that provides reason to 

know the child is an Indian child.’ (25 C.F.R. § 23.107(a); § 224.2, subd. (c).)” (D.F., 

supra, 55 Cal.App.5th at p. 566.)

These procedures do not appear to have been rigorously observed in this 

case. The juvenile court deferred ICWA findings at the detention hearing and then did 

not return to the matter for the remainder of the proceedings. In fact, aside from 

accepting Francisco’s parental notification form at the January 23, 2020 pretrial hearing, 

the juvenile court never mentioned ICWA again. It never ordered Erica to complete a 

parental notification form, and, according to the record before us, never asked her – even 

when she appeared in court – whether she had reason to know the children were Indian 

children. 

SSA’s only documented inquiry was to ask Erica at the very beginning of 

their investigation if she had Native American ancestry.5 But SSA was unable 

subsequently to make contact with her to conduct a follow-up inquiry regarding ICWA, 

and it never seemingly spoke to her mother on the subject, although her mother was 

interviewed. 

SSA never made contact with Pedro and he never appeared. No inquiry 

was made of Pedro’s parents, Yolanda and Pedro Sr., even though SSA was in contact 

with them – and indeed, recommended them to adopt Y.U. ICWA compliance seems not 

to have been on anyone’s mind, and the statutory scheme requires that it be.

5 We think the paucity of detail in the record about this inquiry must be held against SSA, as it was 

required to “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” on an ongoing basis. (See Cal. Rules of Court, rule 5.481, subd. (a)(5).)
7

SSA argues any error was not prejudicial because such an inquiry would 

have been futile. Erica initially denied Native American ancestry and all paternal 

grandparents were from Mexico. According to SSA, Erica has not pointed to any 

evidence showing ICWA would have been applicable in this case even if an initial 

inquiry were properly made. We take those points but don’t believe they allow us to 

disregard the statutory mandate of thorough inquiry so clearly stated by the legislature.

As our high court has said, the ICWA-related inquiry and notice procedures

“make clear that Indian tribes have interests protected by ICWA that are separate and 

distinct from the interests of parents of Indian children. [Citation.] ICWA’s notice 

requirements are ‘intended to protect the interests of Indian children and tribes despite the 

parents’ inaction.’ [Citations.]” (Isaiah W., supra, 1 Cal.5th at p. 13.) They are “as much 

about effectuating the rights of Indian tribes as they are about the rights of the litigants 

already in a dependency case.” (Benjamin M., supra, 70 Cal.App.5th at pp. 740-741.) 

As such, we agree with our sister court that reversal is required “where the record 

indicates that there was readily obtainable information that was likely to bear 

meaningfully upon whether the child is an Indian child.” (Id. at p. 744.) As is evident 

from the facts in this case, SSA failed to access such readily obtainable information from 

Erica’s mother and Pedro’s parents.

We also find SSA’s logic on the issue of prejudice faulty, at least as it 

relates to Y.U. There is no way to know what Pedro might say about his ancestry 

because SSA has never been able to find him. His parents may hail from Mexico but 

SSA provides us no authority indicating this fact alone forecloses potential tribal 

membership. Accordingly, we must conditionally affirm the judgment terminating 

parental rights and remand for purposes of further proceedings to comply with ICWA and 

related statutes and rules.
8

DISPOSITION

The section 366.26 order is conditionally affirmed. The matter is remanded 

to the juvenile court for compliance with the inquiry, and if necessary, notice provisions 

of ICWA and related California law. If there is no Indian ancestry, our affirmance 

resolves the case.

BEDSWORTH, ACTING P. J.

WE CONCUR:

GOETHALS, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.