Filed 3/30/23 In re D.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.A., Jr., a Person Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

D.A. (Father),

Defendant and Appellant.

 D081298

 (Super. Ct. No. J518811B)

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

Browder A. Willis, Judge. Conditionally reversed and remanded with 

directions.

William Hook, under appointment by the Court of Appeal, for 

Defendant and Appellant.
2

Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy 

County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff 

and Respondent.

Defendant and appellant D.A. (Father) appeals from an order issued at 

a Welfare and Institutions Code1 section 366.21 six-month review hearing in 

the section 300 dependency proceedings pertaining to his son D.A., Jr. 

Father argues the San Diego County Health and Human Services Agency 

(Agency) failed to comply with its initial inquiry obligations under the Indian 

Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and Welfare and 

Institutions Code section 224.2, and the juvenile court failed to ensure the 

Agency did so. The Agency concedes that its ICWA inquiry was deficient and 

agrees a conditional reversal with a limited remand is appropriate in this 

case. Father and the Agency have submitted a joint stipulation for issuance 

of an immediate remittitur pursuant to California Rules of Court, rule 

8.272(c)(1). We conditionally reverse the order and remand for the limited 

purpose of ensuring compliance with ICWA and section 224.2.

FACTUAL AND PROCEDURAL BACKGROUND

On November 11, 2021, law enforcement responded to a call reporting 

that D.A., Jr., who was one year old at the time, was left unattended in a car 

with the doors unlocked and unrestrained in his car seat. While officers were 

on scene, Father arrived and could not explain why he left D.A., Jr.,

unattended. Officers found a glass methamphetamine pipe in Father’s 

pocket and arrested him for drug paraphernalia and child endangerment. 

1 All further section references are to the Welfare and Institutions Code, 

unless otherwise indicated.
3

D.A., Jr., was transported to a hospital where he tested positive for 

methamphetamine and fentanyl. D.A., Jr.’s mother (Mother)2 arrived at the 

hospital and D.A., Jr., was medically cleared, however, Mother was not given 

custody of him because she lived in the same household as Father and had a 

misdemeanor warrant for drug charges. Father admitted to ongoing use of 

methamphetamine, which Mother was aware of but nonetheless allowed him 

to care for D.A., Jr.

The Agency filed a dependency proceeding on behalf of D.A., Jr., under 

section 300, subdivision (b). In its detention report filed on November 16, 

2021, the Agency reported that D.A., Jr., was at Polinsky Children’s Center.

The Agency reported that both Father and Mother denied having any 

Indian ancestry.

During the course of its investigation, the Agency spoke with maternal 

grandmother several times, however, there is no indication that the Agency 

asked her about D.A. Jr.’s potential Indian ancestry. Maternal grandmother 

informed the Agency that maternal uncle J.C. lived with her. The Agency 

attempted to contact maternal uncle J.C. by telephone in December 2021, 

however, he did not answer the Agency’s call. Mother also informed the 

Agency of another maternal uncle and a maternal aunt.

Father informed the Agency that both paternal grandparents lived in 

San Diego. Father denied having any siblings. During the course of its 

investigation, the Agency spoke with paternal great-aunt, however, there is 

no indication that the Agency asked her about D.A., Jr.’s potential Indian 

ancestry.

The court found without prejudice that ICWA did not apply to the 

proceedings at the January 18, 2022 pretrial status conference in advance of 

2 Mother is not a party to this appeal.
4

the jurisdiction and disposition hearing, and at the January 28, 2022 

contested jurisdiction and disposition hearing.

At the six-month review hearing on November 28, 2022, the court again 

found without prejudice that ICWA did not apply. Father appealed from this 

order.

DISCUSSION

Father argues the Agency failed to comply with its initial inquiry 

duties under section 224.2, subdivision (b) because it neglected to interview

extended family members about D.A., Jr.’s possible Indian ancestry. As the 

Agency concedes, we conclude the Agency failed to comply with its initial 

ICWA inquiry obligations and substantial evidence therefore does not 

support the court’s ICWA finding. As such, we conditionally reverse the 

juvenile court’s order and remand for the limited purpose of ensuring ICWA 

compliance.

A. Applicable Law

Congress enacted ICWA to address concerns regarding the separation 

of Indian children from their tribes through adoption or foster care placement

with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under 

California law adopted pursuant to ICWA, the juvenile court and Agency 

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

may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W., at p. 9.) An 

“ ‘Indian child’ ” is defined under California law in the same manner as under 

federal law, i.e., as “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); accord § 224.1, subd. (a) [adopting the federal 

definition].)
5

As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041 (In re

D.S.), “section 224.2 creates three distinct duties regarding ICWA in 

dependency proceedings.” (Id. at p. 1052.) First, from the Agency’s initial 

contact with a minor and his family, the statute imposes a duty of initial 

inquiry, including but not limited to asking the reporting party whether the 

child may be an Indian child. (§ 224.2, subds. (a).) “If [the] child is placed 

into the temporary custody of a county welfare department pursuant to 

Section 306 or county probation department pursuant to Section 307,” this 

initial inquiry duty includes “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 and where the child, the parents, or Indian 

custodian is domiciled.” (§ 224.2, subd. (b).)3

3 Section 306, subdivision (a)(1) provides that a county welfare 

department may receive and maintain temporary custody of a child who is 

described in section 300 and who has been delivered by a peace officer. 

Section 306, subdivision (a)(2) provides that a county welfare department 

may take into and maintain temporary custody of, without a warrant, a child 

who has been declared a dependent under section 300, or who the social 

worker has reasonable cause to believe is a person described in section 300, 

subdivision (b) or (g), and the social worker has reasonable cause to believe 

the child has an immediate need for medical care, or is in immediate danger 

of physical or sexual abuse, or the physical environment poses an immediate 

threat to the child’s health or safety. The record here does not definitively 

show whether the Agency took temporary custody of D.A., Jr., pursuant to 

section 306. If it did not, then the Agency’s duty to question extended family 

members imposed by section 224.2, subdivision (b) arguably was not 

triggered. (See In re Adrian L. (2022) 86 Cal.App.5th 342, 355-359 (conc. opn. 

of Kelley, J.).) Because the record is not clear on the matter and the parties 

have not raised the issue, we assume without deciding that the Agency took 

temporary custody of D.A., Jr., pursuant to section 306 and therefore had a 

duty to question his extended family members about his Indian ancestry.
6

“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.’ ([§ 224.2], 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.” (In re D.S., supra, 46 Cal.App.5th at 

p. 1052.)

ICWA defines “ ‘extended family member’ ” by “the law or custom of the 

Indian child’s tribe” or, absent such law or custom, as “a person who has 

reached the age of eighteen and who is the Indian child’s grandparent, aunt 

or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, 

first or second cousin, or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) 

[“ ‘extended family member’ . . . defined as provided in [§] 1903” of ICWA].)

“On appeal, we review the juvenile court’s ICWA findings for 

substantial evidence.” (In re D.S., supra, 46 Cal.App.5th at p. 1051.) 

However, where the facts are undisputed, we independently determine 

whether ICWA’s requirements have been satisfied. (Ibid.)

B. Analysis

Father argues the Agency failed to satisfy its initial inquiry obligations 

because the Agency failed to ask any extended family members about D.A., 

Jr.’s potential Indian ancestry. Specifically, Father contends maternal 

grandmother and paternal great-aunt were involved in the dependency 

proceedings and were in contact with the Agency. Father also argues that 

during the course of the Agency’s investigation, he identified the paternal 

grandparents, and Mother identified a maternal aunt and two maternal 

uncles, however, the Agency made no effort to contact these family members 

to conduct an ICWA inquiry.
7

The Agency concedes it had contact information for and spoke with 

maternal grandmother and paternal great-aunt. The Agency also concedes it 

should have followed up on its effort to contact maternal uncle J.C., who lived 

with maternal grandmother. Finally, the Agency concedes it could have 

asked maternal grandmother or Mother for contact information for the other 

maternal uncle and maternal aunt, and it could have asked Father for 

contact information for paternal grandparents.

In its initial inquiry, the Agency is not obligated to conduct an ICWA 

inquiry of all family members—only those who qualify as “ ‘extended family 

member[s]’ ” as defined under ICWA. (See 25 U.S.C. § 1903(2); § 224.1, 

subd. (c).) Additionally, the Agency “is not required to ‘cast about’ for 

information or pursue unproductive investigative leads.” (In re D.S., supra,

46 Cal.App.5th at p. 1053.)

Based on our review of the record, we agree the Agency failed to satisfy 

its initial inquiry obligation because it had contact with but did not conduct 

an ICWA inquiry of maternal grandmother, who qualifies as an “extended 

family member.” A great-aunt does not qualify as an “extended family 

member” as defined under ICWA; therefore, the Agency was not required to 

conduct an ICWA inquiry of paternal great-aunt. To the extent the Agency is 

able to make contact with maternal uncles, maternal aunt, and/or paternal 

grandparents, who all qualify as “extended family members,” the Agency 

should ask them about D.A., Jr.’s potential Indian ancestry on remand.

DISPOSITION

The order issued at the November 28, 2022, contested section 366.21

hearing is 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 
8

ICWA and section 224.2, subdivision (b). 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 after investigation neither the Agency nor the juvenile court has 

reason to believe or to know D.A., Jr., is an Indian child, the November 28, 

2022 order shall be reinstated. Alternatively, if after completing the inquiry, 

the Agency or the juvenile court has reason to believe or to know D.A., Jr., is 

an Indian child, the juvenile court shall proceed in conformity with ICWA 

and related California law. The remittitur shall issue immediately.

IRION, Acting P. J.

WE CONCUR:

DATO, J.

BUCHANAN, J.