Filed 10/6/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re G.H., a Person Coming Under the 

Juvenile Court Law.

ORANGE COUNTY SOCIAL 

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

A.H. et al.,

 Defendants and Appellants.

 G061166

 (Super. Ct. No. 20DP0284)

 O P I N I O N

Appeals from an order of the Superior Court of Orange County, Daphne G. 

Sykes, Judge. Reversed and remanded with instructions. Respondent’s motion to take 

additional evidence denied.

Pamela Rae Tripp, under appointment by the Court of Appeal, for 

Defendant and Appellant A.H.
2

Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant 

and Appellant J.H.

Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, 

Deputy County Counsel, for Plaintiff and Respondent.

* * *

A.H. (Mother) and J.H. (Father) appeal from the juvenile court’s order 

terminating their parental rights to their two-year-old son, G.H., at the permanent plan 

selection and implementation hearing held under Welfare and Institutions Code1

section 366.26. G.H. was detained from his parents’ custody two days after he was born 

when both he and Mother tested positive for methamphetamine. Mother and Father were 

homeless at the time, and had been struggling with methamphetamine abuse for 

approximately eight years. Father admitted he did not discourage Mother’s drug use 

during pregnancy. The day before G.H. was detained, Mother, G.H.’s maternal great 

aunt, and his maternal grandmother denied Native American ancestry. Father claimed he 

was a “small percent” Cherokee, but he acknowledged he was not registered as a member 

of the tribe. 

On appeal, Mother and Father contend the juvenile court erred in finding 

that a statutory exception to terminating the parental rights of an adoptable child did not 

apply. (§ 366.26, subd. (c)(1)(B)(i).) 

They also contend the Orange County Social Services Agency (SSA) and 

the court did not meet their obligations under the Indian Child Welfare Act of 1978

(ICWA; 25 U.S.C. § 1901 et seq.) and related state law to investigate G.H.’s Native 

American background. As we have explained in prior cases, those obligations are not 

primarily for the parents’ sake, but instead implement federal and state public policy 

protecting “the broad interest of Native American tribes in maintaining cultural 

1

All further undesignated statutory references are to this code.
3

connections with children of Native American ancestry.” (In re A.R. (2022) 

77 Cal.App.5th 197, 201 (A.R.).) 

Father informed the court and SSA he had contacted his mother on the 

social media platform, LinkedIn. As we explain, because nothing in the record suggests 

SSA or the court made any effort to take advantage of that contact method for the 

paternal grandmother, we conditionally reverse and remand for the agency and the court 

to do so. 

FACTUAL AND PROCEDURAL BACKGROUND

We limit our summary here to the factual and procedural history relevant to 

ICWA issue and related state law. We discuss the background pertinent to the benefit 

exception, on which the parents raise purely legal issues, in our discussion of those issues 

below.

At the detention hearing, the juvenile court asked Father about his 

“representation . . . to the social worker about Cherokee heritage.” Father explained that 

“[t]here was a word-of-mouth understanding in the maternal side of my family that there 

is . . . a very, very, very small amount, but there’s no registry. I don’t have any details 

about it . . . .” Father initially represented that “none of my ancestral members are even 

alive on that side of my family to provide any further information,” but then he 

mentioned his mother. 

When the court asked, “And your maternal relatives are all deceased,” 

Father answered, “Well, my mother is still alive, but my mother has not been a part of my 

life since age two . . . .” Father told the court his mother lived in “Tampa, I believe, but 

I’m not sure.” He gave the court two last names for his mother, and when asked for an 

address, Father said, “I think I can probably get one.” He added, however, that “there’s 

no contact so I’m not really sure.” 
4

The court followed up: “Who would you get it from?” Father responded he 

“ha[d] some information from an attempt that I made a few years back to try to contact 

her. I would just have to dig it up.” Father added that he had in fact contacted his mother

using social media: “Last time I attempted to contact her, I did reach her via [a] LinkedIn 

message. It led to a phone call, that then led to no return, and terminated any motivation 

for me to want a relationship.” (Italics added.) Father gave the court the last name he 

“believe[d]” was the one under which he had reached his mother on the social media 

platform. 

The court recognized that, “[i]n light of that information, even though the 

chances are slim, the law is very clear that we have to do an investigation . . . .” The 

court ruled that “the I.C.W.A. issue will remain viable” and “direct[ed] the agency to 

follow up to see if there is a possibility of reaching [Father’s mother] to clarify and verify 

that information that the I.C.W.A. heritage is so minute that it would not apply to this 

case.” Counsel for SSA acknowledged, “Thank you, Your Honor.” 

It appears that later that same day, according to a report SSA subsequently 

prepared for the ensuing jurisdiction and disposition hearing, Father “was unable to 

provide contact information for the paternal grandmother or any other relative for further 

information.” Two weeks later, on a social worker’s “follow up call,” Father “stated 

there is Catawba Indian heritage in the family of origin but [he] did not know of any 

relatives registered with the Tribes.” 

The social worker wrote in the report that Father “was unable to provide 

contact information for relatives with further information” and added, “SSA has spoken 

to available family member [sic] in regards to ICWA. SSA has been provided with all 

information that the family was able or willing to provide at this time.” 

Two months later, at the June 2020 jurisdiction hearing, the court found 

pursuant to Father’s and Mother’s stipulation that “the Indian Child Welfare Act (ICWA) 

does not apply.” 
5

After more than 18 months of ensuing reunification services, a different 

judge conducted the hearing under section 366.26 (.26 hearing). The court opened the 

hearing observing, “To begin with, has the ICWA issue been resolved—I don’t think it 

has—with respect to these parties?” Counsel for SSA responded, “Your Honor, I believe 

that there was a ruling that ICWA did not apply as of March 6th of 2020,” which was the 

date of the original detention hearing. The court made reference to a document or 

documents submitted by “both parents” (presumably their stipulation for the jurisdiction 

hearing that ICWA did not apply), and proceeded to conduct the .26 hearing. At the 

close of the hearing, the court found the issues that necessitated the dependency had not 

been resolved, G.H. could not be safely returned to the parents, he was likely to be 

adopted, and terminated Father’s and Mother’s parental rights. They now appeal.

DISCUSSION

1. Benefit Exception

Father contends a statutory parent-child benefit exception precluded 

terminating his and Mother’s parental rights. He argues the exception applied because 

“the record shows that the parents were loving and attentive during the[ir] visits, that the 

minor called appellant dada, and that the minor had difficulty separating from appellant at 

the end of the visits . . . .” Mother joins Father’s arguments. We find no error.

“If the court cannot safely return a dependent child to a parent’s custody 

within statutory time limits, the court must set a hearing under section 366.26.” (In re 

Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) The purpose of the hearing is “to 

select . . . a permanent plan for the child.” (Ibid.) Section 366.26 lists permanent plans in 

order of preference, with adoption having the highest priority. (§ 366.26, subd. (b)(1); 

In re Edward R. (1993) 12 Cal.App.4th 116, 122.)

Section 366.26 provides that if the court finds the child is likely to be 

adopted, “the court shall terminate parental rights” (subd. (c)(1)) unless an exception 
6

applies. One exception includes when “[t]he court finds a compelling reason for 

determining that termination would be detrimental [because] [¶] (i) The parents have 

maintained regular visitation and contact with the child and the child would benefit from 

continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)

A parent “who has failed to reunify with an adoptable child may not derail 

an adoption merely by showing the child would derive some benefit from continuing a 

relationship maintained during periods of visitation with the parent.” (In re Angel B. 

(2002) 97 Cal.App.4th 454, 466 (Angel B).) The parent bears the burden of proving that 

termination of parental rights would be detrimental to the child. (Ibid.) Friendly or 

affectionate visits are not enough. (Id. at p. 468.) 

“To overcome the preference for adoption and avoid termination of the 

natural parent’s parental rights, the parent must show that severing the natural

parent-child relationship would deprive the child of a substantial, positive emotional 

attachment such that the child would be greatly harmed.” (Angel B., supra, 

97 Cal.App.4th at p. 466, italics in original.) The benefit exception is established only if 

“the relationship promotes the well-being of the child to such a degree as to outweigh the 

well-being the child would gain in a permanent home with new, adoptive parents.” (In re 

Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) 

There are “three elements the parent must prove to establish the exception: 

(1) regular visitation and contact, and (2) a relationship, the continuation of which would 

benefit the child such that (3) the termination of parental rights would be detrimental to 

the child.” (Caden C., supra, 11 Cal.5th at p. 631, italics in original.) 

A hybrid standard governs our review. (Caden C., supra, 11 Cal.5th at 

p. 641.) The first two elements involve factual determinations to which the substantial 

evidence standard of review applies. (Id. at pp. 639-640.) The final step, determining 

whether termination of parental rights would be detrimental to the child, is reviewed for 

abuse of discretion. (Caden C., supra, 11 Cal.5th at p. 640.)
7

Against a backdrop of conflicting evidence, including a social worker’s 

testimony that the parents’ visits were not consistent, the juvenile court found that the

parents kept “generally consistent” contact with G.H. 

Father argues that the court erred by further finding that, though consistent, 

the visits were not at a “level which has strengthened the bond between . . . parent and 

child.” The court noted it was “troubled” by the parents’ “seeming[] rejection” of some 

visits at “alternative locations” because they were “perhaps not optimal.” According to 

Father, this included declining visits at a fast food restaurant that did not have a play area, 

which Father justifies on appeal as a disagreement over “the suitability and safety” of 

visitation at a dining establishment without that feature. 

In particular, Father says the court’s alleged error was conflating the 

visitation prong of the benefit exception with its second prong regarding whether the 

relationship the parent has with the child is in fact beneficial to the child. Father faults 

the court for assessing the strength or “benefit” (or lack thereof) of the parents’ bond with 

G.H. based on, at least in part, the nature and consistency of their visitation. Father 

contends that, in doing so, the court committed reversible error by misapplying the 

analytical framework governing the benefit exception. In other words, according to 

Father, the court applied the wrong legal standard. We disagree.

Father’s attempt to draw a strict line between the prongs of the benefit 

exception is without merit. They naturally inform and lead into each other. Whether a 

parent or parents’ regular visitation and contact (the first prong) builds a relationship that 

is beneficial to the child (the second prong) depends on the nature and quality of the 

visits. As Autumn H. explained, the visitation/contact requirement and the beneficial 

relationship requirement are related and overlap because “[t]he [benefit] exception 

applies only where the court finds regular visits and contact have continued or developed 

a significant, positive, emotional attachment from child to parent.” (Autumn H., supra, 

27 Cal.App.4th at p. 575.) 
8

The Supreme Court in Caden C. described Autumn H. as “the seminal 

decision interpreting the [benefit] exception.” (Caden C., supra, 11 Cal.5th at p. 631.) 

Father does not contend as a factual matter that benefits from the parents’ relationship 

with G.H. outweighed any benefits that might arise from adoption. Instead, Father again 

makes a legal argument regarding language used at the .26 hearing. He suggests the 

language meant the juvenile court committed legal error by requiring that Father and 

Mother’s relationship with G.H. must rise to the level of a parental relationship to qualify 

for the benefit exception, instead of a beneficial relationship of any kind, as provided in 

the statute. 

We are not persuaded. The fact that the court lauded Father and Mother for 

maintaining a parental role with G.H. despite “limited time[]” with him, “were 

appropriate with their child generally,” and “attended to his emotional needs during their 

time with him, as well as his physical needs” is not evidence that the court misapplied the 

benefit exception. Any doubt on this score, and we have none, must be resolved under 

the standard of review in favor of the court’s decision. There was no error.

2. ICWA and Related State Law

“Congress enacted ICWA in 1978 in response to ‘rising concern in the 

mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes 

of abusive child welfare practices that resulted in the separation of large numbers of 

Indian children from their families and tribes through adoption or foster care placement, 

usually in non-Indian homes.’”2 (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) 

ICWA permits an Indian child’s tribe to intervene “at any point” in child welfare 

2

Because ICWA and related California statutes use the term “Indian,” we do 

the same for consistency, but we acknowledge other terms are preferred. (In re 

Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
9

proceedings; additionally, in appropriate circumstances, a tribal court may receive 

transfer of jurisdiction over the proceedings. (25 U.S.C. § 1911(b), (c).) 

ICWA has had far-reaching effects, including the enactment of related state 

legislation. For example, the Legislature has provided that a juvenile court may order 

“tribal customary adoption” as the permanent plan for a dependent child (§ 366.26, 

subd. (b)(2)), meaning “adoption by and through the tribal custom, traditions, or law of 

an Indian child’s tribe” (§ 366.24, subd. (a)(1)). Because section 366.26 lists permanent 

plans in order of preference (§ 366.26, subd. (b)), a tribal customary adoption takes 

statutory priority over other permanent plans such as appointment of “a relative or 

relatives with whom the child is currently residing as legal guardian or guardians for the 

child” (id., subd. (b)(3)); “a nonrelative legal guardian for the child” (id., subd. (b)(5));

and/or over “permanently plac[ing the child] with a fit and willing relative, subject to the 

periodic review of the juvenile court . . .” (id., subd. (b)(6)).

In enacting ICWA, Congress found “that there is no resource that is more 

vital to the continued existence and integrity of Indian tribes than their children and that 

the United States has a direct interest, as trustee, in protecting Indian children who are 

members of or are eligible for membership in an Indian tribe.” (25 U.S.C. § 1901(3).) 

California public policy echoes this commitment to fostering “the continued existence 

and integrity of Indian tribes” by protecting—including in juvenile court proceedings—

children “who are members . . . or are eligible for membership . . . in, an Indian tribe.” 

(§ 224, subd. (a)(1).)

“Because ICWA defines ‘Indian child’ in terms of tribal membership, not 

race or ancestry, ‘the question of membership is determined by the tribes.’” (In re K.T.

(2022) 76 Cal.App.5th 732, 742.) “‘Only the Indian tribe(s) . . . may make the 

determination whether the child’ is an Indian child under ICWA.” (Isaiah W., supra, 

1 Cal.5th at p. 8; see Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65-66, fn. 21

[tribes are final arbiters of their membership rights].) 
10

The juvenile court nevertheless must explore whether a child in a 

proceeding before it may be an Indian child.3 The juvenile court’s responsibility under 

ICWA is to assess whether it “has reason to know” an Indian child is involved in the 

proceedings; that standard is of course satisfied by actual knowledge that the child “is” an 

Indian child, but by its terms is not limited to actual knowledge. (25 U.S.C. § 1912(a).) 

Under a related requirement, the Legislature has articulated in slightly different language

that the juvenile court must assess whether the child “may be an Indian child” or, in fact, 

“is” an Indian child. (§ 224.2, subd. (a).) “In any involuntary proceeding in a State 

court, where the court knows or has reason to know that an Indian child is involved, the 

party seeking the foster care placement of, or termination of parental rights to, an Indian 

child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered 

mail with return receipt requested, of the pending proceedings and of their right of 

intervention.” (25 U.S.C. § 1912(a).)

In California, “[s]ection 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 [Bureau of Indian Affairs].” (Isaiah W., supra, 1 Cal.5th at p. 9.) Thus, 

state law “broadly imposes on social services agencies and juvenile courts (but not 

parents) an ‘affirmative and continuing duty to inquire’ whether a child in the 

dependency proceeding ‘is or may be an Indian child.’ (§ 224.2, subd. (a).)” 

(Benjamin M., supra, 70 Cal.App.5th at pp. 741-742.) 

The inquiry and notice requirements mandated by ICWA and related state 

law ensure Indian tribes can exercise their rights in dependency proceedings promised by 

those laws. As this court recently observed, federal and related state law “make clear 

3

Under ICWA, “‘Indian child’ means any unmarried person who is under 

age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for 

membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 

(25 U.S.C. § 1903(4).) State law uses the same definition. (§ 224.1, subd. (a).)
11

[that] the primary parties protected under ICWA are the Native American tribes, whose 

right to intervene in an appropriate case will likely never be discovered absent the 

statutorily required inquiry and notice procedures.” (A.R., supra, 77 Cal.App.5th at 

p. 204.) A tribe’s rights under ICWA, and similarly under related state law, are 

“meaningless if the tribe has no notice that the action is pending.” (In re Junious M.

(1983) 144 Cal.App.3d 786, 790-791.) “Thus, the law allows a parent to raise failure to 

comply with ICWA on appeal, even if the issue was not raised in the trial court, because 

‘[t]he parent is in effect acting as a surrogate for the tribe in raising compliance issues on 

appeal.’” (A.R., at p. 204.) 

“If ICWA is not complied with, ‘“the dependency proceedings, including 

an adoption following termination of parental rights, [are] vulnerable to collateral attack 

if the dependent child is, in fact, an Indian child.”’” (A.R., supra, 77 Cal.App.5th at 

pp. 204-205.) That attack may be launched from several quarters under state law: “Any 

Indian child, the Indian child’s tribe, or the parent or Indian custodian from whose 

custody the child has been removed, may petition the court to invalidate an action in an 

Indian child custody proceeding for foster care or guardianship placement or termination 

of parental rights if the action violated Section 1911, 1912, or 1913 of the federal Indian 

Child Welfare Act of 1978.” (§ 224, subd. (e).) 

A family member’s belief that a child may have Indian ancestry or heritage 

must be investigated. The duty to inquire “obligates the juvenile court and child 

protective agencies to ask all relevant involved individuals whether the child may be an 

Indian child.” (In re T.G. (2020) 58 Cal.App.5th 275, 290; § 224.2, subds. (a)-(c).) The 

agency’s duty to inquire expressly includes asking “extended family members” whether 

they know or have reason to know that the child is an Indian child. (§ 224.2, subd. (b).)
12

Father contends, and we agree, that SSA did not meet this duty of inquiry 

as to the paternal grandmother in particular.4 The record before us does not demonstrate

SSA attempted to contact the paternal grandmother after Father told the court (and the 

agency) of the “word-of-mouth understanding in the maternal side of [his] family” that he 

had Cherokee heritage. 

SSA must ask a range of people, including extended family members, about 

a child’s lineage because “[i]t isn’t easy to track tribal affiliations and those connections 

are easily lost. ‘Oral transmissions of relevant information from generation to generation 

and the vagaries of translating from Indian languages to English combine to create the 

very real possibility that a parent’s or other relative’s identification of the family’s tribal 

affiliation is not accurate. Accordingly, just as proper notice to Indian tribes is central to 

effectuating ICWA’s purpose, an adequate investigation of a family member’s belief a 

child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice 

will receive it.’” (In re S.R. (2021) 64 Cal.App.5th 303, 314.)

SSA contends it had no duty to attempt to contact the paternal grandmother 

because “Father provided no means or guidance by which to do so.” We disagree.

SSA relies on cases in which the reviewing court held “social workers are 

not required ‘“to cast about”’ for investigative leads to satisfy their duties of inquiry.” 

(In re Allison B. (2022) 79 Cal.App.5th 214, 220, quoting In re A.M. (2020) 

47 Cal.App.5th 303, 323; see also In re Q.M. (2022) 79 Cal.App.5th 1068, 1084.) In 

these cases, however, a parent made only vague references to “unidentified ‘cousins,”’

deceased grandparents who had been the parent’s only known relatives, or relations 

4 Mother again joins in Father’s arguments, including Father’s contention 

that while Mother and two members of her extended family denied any Indian 

background, SSA and the court failed to make any ICWA inquiry of several of Mother’s 

known relatives. As we note below, SSA contends it rectified the omission during the 

pendency of the appeal, but since remand is required, the juvenile court should evaluate 

in the first instance the adequacy of these additional efforts.
13

somewhere ‘“in Louisiana.”’ (Allison B., at p. 219; A.M., at p. 323; Q.M., at 

pp. 1083-1084.)

Here, Father identified his mother as a source of information about his 

Indian heritage and told the court (and the agency) he had successfully contacted her 

through the social media platform, LinkedIn. Father’s contact with his mother apparently 

resulted in further estrangement between the two. But these circumstances only reinforce 

the wisdom of the statutory requirement that the inquiry duty rests with the agency and 

the court, not the parent. (§ 224.2, subds. (a), (b).)

Parents or other relatives may have a less than favorable relationship with 

each other, or may be less interested in or committed to federal and state policies of 

protecting the continued existence and integrity of tribes—even perhaps viewing 

potential tribal involvement consciously or unconsciously as a source of competition for 

custody. (See § 366.26, subd. (b)(1).) But “the right at issue in the ICWA context is as 

much an Indian tribe’s right to ‘a determination’ of a child’s Indian status as it is a right 

of any sort of favorable outcome for the litigants already in a dependency case.”

(Benjamin M., supra, 70 Cal.App.5th at p. 743.) ICWA and related state law therefore

“‘“recognize[] that the tribe has an interest in the child which is distinct from but on a 

parity with the interest of the parents”’” and other relatives. (Isaiah W., supra, 1 Cal.5th 

at p. 9.) That interest is compromised when the social service agency and the juvenile 

court fail to perform their inquiry duties.

“[T]he juvenile court ‘has a responsibility to ascertain that [the child 

protective agency] has conducted an adequate investigation’” (In re D.F. (2020) 

55 Cal.App.5th 558, 568), and must determine whether ICWA applies to the child’s 

proceedings (In re Y.W. (2021) 70 Cal.App.5th 542, 552). The court may conclude 

ICWA does not apply to the proceedings if it finds the child protective agency has 

satisfied its duty of inquiry and due diligence as required in section 224.2, and there is no 

reason to know the child is an Indian child. (§ 224.2, subd. (i)(2).)
14

Here, we conclude SSA did not conduct an adequate inquiry regarding the 

paternal grandmother for three reasons. First, the juvenile court specifically “direct[ed]” 

the agency at the detention hearing “to follow up to see if there is a possibility of 

reaching [Father’s mother] . . . .” Second, Father told the court (and the agency) 

specifically the means by which he had reached his mother: via LinkedIn. Third, the 

agency (and the court) knew from the colloquy at the detention hearing that Father was 

now estranged from his mother.

The estrangement was such that Father apparently did not want his mother 

in his life. The natural inference is that he would not want her in his child’s life either, 

including as the sole surviving conduit to the family’s reputed Native American 

background on his mother’s side. Under these circumstances, SSA should not have 

simply relied on its jurisdiction and disposition report in which it concluded Father “was 

unable to provide contact information for the paternal grandmother.” 

SSA’s report did not describe any search efforts on the social media 

platform that Father used to contact his mother. SSA likewise did not enlist the court’s 

aid to obtain any additional information from Father if needed; the court also failed to

follow up on its contact order to confirm it was enforced. We therefore remand the case 

for SSA and the court to fulfill these inquiry duties.

By statute, the substantial evidence standard governs whether reversal is 

required. (§ 224.2, subd. (i)(2).) “The California Constitution prohibits a court from 

setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’

(Cal. Const., art. VI, § 13.)” (In re Celine R. (2003) 31 Cal.4th 45, 59-60.) The Supreme 

Court “ha[s] interpreted that language 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” and “the same test [applies] in dependency matters.” (Id. at 

p. 60.)
15

In A.R., no inquiry whatsoever was made into whether ICWA applied; it 

was “undisputed that at no point during the proceedings did either SSA or the court 

conduct any inquiry into whether the children had Native American heritage.” (A.R., 

supra, 77 Cal.App.5th at p. 203.) When there has been no investigation, it cannot be said 

“there is no reason to know whether the child is an Indian child.” (§ 224.2, subd. (i)(2).) 

Similarly here, when a parent discloses to the court and the agency that 

there may be Indian heritage in the family, and that the parent has been in contact with 

the one person who could shed light on the matter, and the court and the agency do not 

make a reasonable effort to contact that person by the same means the parent did, it 

cannot be said there remains “no reason to know whether the child is an Indian child.” 

(§ 224.2, subd. (i)(2).) 

When “ICWA requirements have been ignored” (A.R., supra, 

77 Cal.App.5th at p. 207), either outright and entirely as in A.R., or effectively here as to 

the family member most likely able to provide relevant information, “the failure to 

conduct the inquiry in each case constitutes a miscarriage of justice” (id. at p. 202). 

Thus, we adhere to “a clear rule that requires reversal in all cases where the ICWA 

inquiry rules were not followed.” (In re E.V. (2022) 80 Cal.App.5th 691, 694 (E.V).)

On appeal, SSA filed a motion asking this court to take additional evidence 

regarding its outreach to Father’s and Mother’s extended family members, allegedly 

demonstrating that any error regarding its earlier ICWA inquiry duties has been rendered 

harmless. While Code of Civil Procedure section 909 permits appellate courts to take 

postjudgment evidence for the purpose of making independent factual determinations or 

“for any other purpose in the interests of justice,” this authority must be used 

“‘sparingly.’” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) 

We deny respondent’s motion as the proposed evidence says nothing about 

any effort by SSA to contact the paternal grandmother by the means known to have been 

successful in the past. Because remand is necessary, the juvenile court should evaluate 
16

the ICWA evidence regarding Mother’s extended family members “in the first instance.” 

(E.V., supra, 80 Cal.App.5th at pp. 700-701.)

DISPOSITION

The order is conditionally reversed, and the case is remanded with 

instructions—to both SSA and the juvenile court—to fulfill their ICWA inquiry duty as 

to the paternal grandmother as soon as possible. If that inquiry reveals evidence of 

Native American heritage, then ICWA’s corresponding notice requirements must be 

complied with. If it does not, and if the court finds SSA has complied with its inquiry 

duties regarding Mother’s extended family, the order shall be reinstated forthwith. 

GOETHALS, ACTING P. J.

WE CONCUR:

SANCHEZ, 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.