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Filed 11/29/22 In re T.S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re T.S., et al., Persons Coming Under 

the Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.C.,

Defendant and Appellant.

E078923

(Super.Ct.Nos. J291355, J291356 

& J291357)

OPINION

APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin, 

Judge. Affirmed.

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant 

and Appellant.
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Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for 

Plaintiff and Respondent.

In this appeal from a dispositional order, defendant and appellant K.C. (father) 

contends only that plaintiff and respondent San Bernardino County Children and Family 

Services (the department) failed to comply with its duty of further inquiry imposed by 

state statutory provisions implementing the Indian Child Welfare Act of 1978 (25 U.S.C. 

§ 1901 et seq.) (ICWA). The department contends the issue is not yet ripe because the 

inquiry is ongoing. We affirm.

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I. BACKGROUND

Father has three children, who are all the subjects of this appeal: T.S. (born 2007), 

S.C. (born 2012), and Ta.S. (born 2014). 

In November 2021, the department filed separate dependency petitions for each 

child pursuant to Welfare and Institutions Code2section 300. The next day father

informed the department and the court that he may have Indian ancestry.

The court held a contested jurisdiction/disposition hearing in February 2022. The 

court found jurisdiction over the children but continued the hearing as to disposition so

the department could conduct a further ICWA inquiry. At the continued disposition 

1 “Undesignated statutory references are to the Welfare and Institutions Code. In 

addition, because ICWA uses the term ‘Indian,’ we do the same for consistency, even 

though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are 

preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)

2

 All future statutory references are to the Welfare and Institutions Code unless 

otherwise stated.
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hearing, the court found “the children may come under the provisions of the [ICWA].” 

The court also removed the children from both parents.

Father appealed the dispositional order.

II. ANALYSIS

Father argues the department and the juvenile court did not comply with their duty 

of further inquiry under ICWA. Specifically, father argues the notices sent to the relevant 

tribes were incomplete, as they did not contain information regarding certain identified 

paternal relatives including the paternal grandfathers. The department argues the issue is 

not yet ripe for consideration because the juvenile court found ICWA may apply, so the 

inquiry is ongoing and there is no erroneous order to be corrected. Applying In re 

Dominick D. (2022) 82 Cal.App.5th 560, 563, 567 (Dominick D.) and In re S.H. (2022) 

82 Cal.App.5th 166 (S.H.), we affirm on the basis that alleged ICWA inquiry error does 

not warrant reversal of a dispositional order.

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Under California law, the juvenile court and county child welfare department have 

“an affirmative and continuing duty to inquire” whether a child subject to a section 

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 We note that courts are split on the proper disposition of cases where the parents 

appeal some order other than the order terminating parental rights, so the dependency 

remains ongoing in trial court, and the only alleged error is with the ICWA inquiry. 

Another panel of this court has held the appropriate disposition where the juvenile court 

has found that ICWA does not apply is to vacate the ICWA finding and remand, but 

otherwise affirm. (Dominick D., supra, 82 Cal.App.5th at p. 568.) At least one case has 

disagreed with this approach and instead concluded the appeal is moot and should be 

dismissed. (See In re Baby Girl M. (2022) 83 Cal.App.5th 635.) We follow the approach 

outlined in S.H., supra, 82 Cal.App.5th at pp.179-180, concluding that the appropriate 

disposition is to affirm without remand. Whether we remand as in Dominick D. or affirm 

as we do here, the case returns to trial court with an ongoing duty to comply with ICWA.
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300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 

Cal.App.5th 558, 566 (D.F.).) “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.” (D.F., at p. 566.) When the initial inquiry gives the juvenile court or 

social worker “reason to believe that an Indian child is involved,” (§ 224.2, subd. (e)) the 

court and social worker must conduct further inquiry to “determine whether there is 

reason to know a child is an Indian child.” (§ 224.2, subd. (e)(2).) The department “does 

not discharge their duty of further inquiry until they make a ‘meaningful effort’to locate 

and interview extended family members and to contact BIA and the tribes.’ ” (In re K.T. 

(2022) 76 Cal.App.5th 732, 744.)

There is a “split of authority as to whether a violation of the ICWA constitutes 

jurisdictional error,” such that any violation requires reversal. (See In re Brooke C.

(2005) 127 Cal.App.4th 377, 384 [discussing split] (Brooke C.).) This court has 

previously followed the approach taken in Brooke C. (See Dominick D., supra, 82 

Cal.App.5th at pp. 563, 567; In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) Under 

that approach, in a dependency case, “ICWA inquiry and notice errors do not warrant 

reversal of the juvenile court’s jurisdictional or dispositional findings and orders.” 

(Dominick D., at p. 567.) In other words, “the only order which would be subject to 

reversal for failure to give notice would be an order terminating parental rights.” (Brooke 

C., at p. 385.)
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Father’s current appeal is from the juvenile court’s dispositional order, not an 

order terminating parental rights. Therefore, even assuming ICWA inquiry error, such 

error is not sufficient to warrant reversing the juvenile court’s order.

Nor is remand with instructions to complete the ICWA inquiry necessary, 

regardless of the merits of father’s arguments that the department has not yet completed

its duty of further inquiry. (See S.H., supra, 82 Cal.App.5th at pp. 176-178.) This

dependency matter will not end with this appeal. The juvenile court has found the 

children may be Indian children, which requires the department to continue its inquiry

into ICWA matters. “So long as proceedings are ongoing and all parties recognize the 

continuing duty of ICWA inquiry, both the Agency and the juvenile court have an 

adequate opportunity to fulfill those statutory duties.” (S.H., at p. 179.) Here, that 

appears to be the case.

III. DISPOSITION

We affirm the juvenile court’s dispositional order.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.