Filed 2/22/21 In re L.L. CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re L.L. et al., Persons Coming Under the 

Juvenile Court Law.

MERCED COUNTY HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

JENNA L.,

Defendant and Appellant.

F081371

(Super. Ct. Nos. 20JP-00004-A & B)

OPINION

APPEAL from orders of the Superior Court of Merced County. Donald J. Proietti, 

Judge.

Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County 

Counsel, for Plaintiff and Respondent.

-ooOooJenna L. (mother) appeals from the juvenile court’s findings and orders made at 

the conclusion of the jurisdiction and disposition hearing concerning her two sons, now 

15-year-old L.L. and 12-year-old S.L., whose respective fathers are W.T. and J.L. After 

the juvenile court removed both sons from mother’s custody, it granted mother 
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reunification services with respect to S.L., and placed L.L. in his father’s custody while 

retaining limited jurisdiction for the purpose of reviewing his placement in three months, 

as provided in Welfare and Institutions Code section 361.2, subdivision (b)(2).1 While 

mother was granted visitation with her sons, the juvenile court gave them discretion to 

opt out of visits. 

On appeal, mother contends: (1) the visitation order impermissibly delegates to 

her children the authority to determine whether any visits will occur; and (2) the juvenile 

court erred by failing to comply with the notice requirements of the Indian Child Welfare 

Act (ICWA) (25 U.S.C. § 1901 et seq.). We agree with mother’s first contention and 

reverse the visitation order as to S.L., but otherwise affirm the juvenile court’s orders. 

FACTUAL AND PROCEDURAL BACKGROUND

Then 14-year-old L.L. and 11-year-old S.L. were placed in protective custody on 

January 8, 2020, after the Child Welfare Services of Merced County Human Services 

Agency (Agency) completed an investigation into three referrals alleging mother was 

physically abusing them. The Agency filed a dependency petition alleging the boys came 

within the provisions of section 300, subdivisions (a) (serious physical harm), (b)(1) 

(failure to protect) and (c) (serious emotional damage). The petition alleged multiple 

incidents of excessive physical discipline by mother, including hitting her sons with a 

cord, belt, belt buckle, paddle and her fist. Mother forced the boys to take Epsom salt 

baths to prevent bruising and used creams and oils to heal any marks or bruises. The 

petition further alleged both fathers, who admitted being aware of the excessive physical 

discipline, failed to protect the boys from it. The boys were alleged to have suffered 

serious emotional damage as a result of the excessive discipline. 

The Detention Hearing

At the January 13, 2020 detention hearing, the juvenile court elevated both fathers 

to presumed father status and conducted an inquiry into Native American ancestry. The 

1 Undesignated statutory references are to the Welfare and Institutions Code.
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Agency had completed an “Indian Child Inquiry Attachment” (unnecessary capitalization 

omitted) form (ICWA-010(A)) for each boy. L.L.’s form stated he may have Indian 

ancestry; while mother stated she did not have any Native American heritage, W.T. 

reported L.L.’s paternal grandfather told him “years ago” that he may have “a small 

percentage Cherokee, but not enough.” S.L.’s form stated he had no known Indian 

ancestry, as both mother and J.L. denied having any Native American heritage. 

The juvenile court confirmed mother did not believe she had any Indian heritage 

and W.T. was saying he thought he had some Cherokee Indian heritage on his father’s 

side, but not enough to be on any membership roll. No one had followed up on paternal 

grandfather’s claim that W.T. might have some Cherokee heritage. The juvenile court 

confirmed paternal grandfather was still alive and said it would have both parents fill out 

a “Parental Notification of Indian Status” (unnecessary capitalization omitted) form

(ICWA-020). The juvenile court further stated it was “[p]robably appropriate” to have 

W.T. fill out the “Notice of Child Custody Proceedings” (unnecessary capitalization 

omitted) form (ICWA-030) “so the Agency can follow up and make sure that we don’t 

miss something,” because even if there were a small percentage, they “should give notice

to the appropriate Indian tribe so they can make that determination whether they have any 

involvement in the case or not. We’ll have you fill out an ICWA 30 form.” According to 

the minute order of the hearing, the juvenile court reserved ICWA findings as to all 

parents, mother was provided with an ICWA-030 form and the Agency was to provide 

the ICWA-030 form to W.T., who appeared at the hearing telephonically because he 

lived in Oklahoma. 

The detention hearing was continued to the following day, as S.L.’s father wanted 

a contested hearing. At the continued hearing, the juvenile court stated it received 

information that S.L.’s father passed away the day before. The juvenile court found a 

prima facie case and placed the boys in the Agency’s care. 
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The Jurisdiction and Disposition Reports

In the jurisdiction report, the Agency recommended the juvenile court take 

jurisdiction of the boys pursuant to section 300, subdivisions (a), (b) and (c). The boys 

were placed with a relative. The report stated ICWA may or may not apply. While 

mother and S.L.’s father told the social worker they did not have Native American 

heritage, L.L.’s father told the social worker he had heard about possible Cherokee in his 

family, but he did not have “enough” for tribal membership.2 After that, W.T. filled out 

an ICWA-020 form stating he did not have any Indian ancestry. W.T. was provided with 

an ICWA-030 form on January 15, 2020. 

The report recounted the history of referrals to child protective services, a past 

case in Yolo County, and past services offered to the family on a voluntary basis, as well 

as reports from child protective services in Oklahoma and psychiatric hospital reports 

regarding S.L. Prior referrals indicated instances of the boys reporting being hit with 

spoons and a belt, and mother having the boys take long baths and then using essential 

oils and salt to help the wounds heal more quickly. 

The social worker included summaries of interviews with the boys, mother, L.L.’s 

father, and maternal grandfather. L.L. reported he had been abused his whole life; the 

first abuse he remembered occurred when he was seven years old. Mother hit him with 

objects such as a frying pan, belts, and spoons. No one believed him when he reported 

the abuse and if he told anyone, mother would not let him talk to them anymore. He 

could not take the abuse and thought of killing himself or disappearing at school. He did 

not tell his father about the abuse because he was afraid he would get hurt. S.L. also 

reported mother hitting them. Both boys reported mother would promise them money or 

video games if they stayed quiet about the abuse. Mother, however, denied physically 

abusing the boys or forcing them to take baths. W.T. saw mother hit S.L. with a belt and 

2 Mother and S.L.’s father completed ICWA-020 forms, in which they checked that 

they did not have any Indian ancestry as far as they knew. 
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he heard things from family, but he was unaware of the severity of the abuse because he 

had been kept at “arm’s length” and was incarcerated a number of years. 

In the disposition report, the Agency recommended mother be offered 

reunification services for S.L., custody of L.L. be granted to W.T., and the dependency 

dismissed with a custody and visitation order. The report stated ICWA did not apply to 

S.L., but there was “reason to believe” it may apply to L.L. On February 28, 2020, the 

Agency sent an ICWA-030 form to the three federally recognized Cherokee tribes for L.L 

via certified mail, which gave notice of the March 12, 2020 jurisdiction and disposition 

hearing.3 The report stated all tribes received the ICWA-030 form, with the last tribe 

served on March 7, 2020. Mother had biweekly supervised visits with the boys. There 

were concerns she was being manipulative, as she deleted the boys’ social media 

accounts and asked them to provide information or communicate with her in order to 

obtain the password to the accounts. In addition, mother attempted to reach the boys 

through third parties when they asked not to speak with her. 

The Jurisdiction and Disposition Hearing

A contested jurisdiction and disposition hearing was held on June 23 and 30, 2020. 

The social worker testified about the events that led to the Agency’s involvement, 

mother’s response, her interviews of the boys and others involved in the case, and 

mother’s proposed case plan. She also testified the boys’ placements and events leading 

to a change in their placement, as well as the boys’ needs. 

S.L. testified his mother had abused him his whole life by hitting him with objects 

and she made him take baths in Epsom salts to try to reduce bruising. S.L. stopped 

talking to mother about two weeks before the hearing because he did not want to talk to 

her “right now” and he had an opportunity to visit mother the day of the hearing, but he 

told them no and he was not open to visiting her later that day. S.L. ended his testimony 

3 The Agency also sent the Cherokee tribes an ICWA-030 form for S.L., even 

though his parents denied any Native American heritage. 
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by sharing a text he sent mother stating he did not want to live with her, but he was 

willing to work on their relationship if she did not “try to mess things up for me” by 

fighting with him or stopping him from moving on with his life. 

L.L. testified mother abused him his entire life by hitting him with various objects 

and made him take salt baths to make the bruises heal faster. Nothing in the world would 

make him go back to mother because he did not want to live with someone who would 

hurt him. L.L. wanted to live with his father. 

W.T. testified about his criminal history, wife and stepchildren, housing, sobriety, 

his son’s visits in Oklahoma, and his willingness to work with mother to arrange 

visitation. He was not aware of the abuse and he agreed with the Agency’s 

recommendation to have his son placed with him. After the conclusion of the first day of 

the contested hearing, the juvenile court allowed L.L. to be placed with his father, finding 

it would be in L.L.’s best interest and there was no detriment. The Agency agreed to 

attempt to arrange a visit between L.L and mother before he left California. 

At the continued hearing on June 30, 2020, mother’s attorney recalled the social 

worker, who was questioned about the boys’ educational needs and individualized 

education plans (IEP). Mother also called Wendy Westsmith, the director of services 

who oversees special education for the school district. She testified about the boys’ IEPs, 

the assessments, and mother’s active participation in the IEP process, including providing 

information when requested. Mother’s counselor, Rhonda Kinser, testified about 

mother’s background and her telephone sessions with mother. Kinser testified to 

mother’s progress in their sessions, her willingness to work with Kinser to manage 

conflicts, the improvement of her self-confidence and recognition of the appropriate 

sharing of information with the boys. 

Mother testified and continually denied physically abusing her sons, although she 

admitted spanking them with her open hand and hitting them with a belt. She also denied 

having the boys take salt baths to reduce swelling or bruising or using oils on them. She 
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testified about the boys’ educational history, her advocacy for services to meet their 

needs, and their psychological, behavioral, and medical histories. She expressed her 

concerns with the boys being placed with W.T. and relatives, and explained the classes 

and services she voluntarily engaged in. Mother wanted to reunify with both boys and 

asked that they be returned to her. 

Following argument by counsel, the juvenile court stated the boys “gave very 

powerful testimony” which it found to be “very credible,” while mother’s testimony was 

“overly justified” at times. The juvenile court was troubled mother did not have the 

capacity to describe a clear understanding of what her sons were suffering. The juvenile 

court took jurisdiction and found the boys were persons falling within section 300, 

subdivisions (a), (b) and (c). 

With respect to S.L., the juvenile court removed him from mother’s custody and 

ordered reunification services. The juvenile court ordered once monthly supervised visits 

between S.L. and mother, which may include video, audio or other means of 

communication, and ordered supervised sibling visits, which the social worker would 

coordinate with L.L.’s father. The juvenile court gave the Agency discretion to expand 

or limit S.L.’s visits with mother and L.L., considering S.L.’s best interests, and if visits 

were not occurring, the court would review the concerns. The juvenile court allowed 

mother to retain her educational rights. The juvenile court set a six-month review hearing 

for August 27, 2020. 

S.L.’s attorney then asked that S.L. “be able to opt out” of visits with mother, but 

they should “keep a close, close tab on that,” as it was not necessarily in S.L.’s best 

interests to get to a point where he was never speaking to mother again. The juvenile 

court agreed, stating it would include in the order that S.L. “is of sufficient age and 

ability to make the determination that if he wishes not to have contact he can opt out,” but 
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they needed to “keep a close tab on that” because if it was abused or misused it would 

undermine reunification.4 

With respect to L.L., the juvenile court had reservations about dismissing 

jurisdiction because it wanted to ensure L.L. would receive services. County counsel 

asked the juvenile court, if it was not inclined to terminate jurisdiction, to proceed under 

section 361.2, subdivision (b)(2), which would allow W.T. to assume custody but 

required a home visit within three months, so the Agency could be involved and ascertain 

whether L.L. was getting the services he needed. Mother’s attorney requested joint legal 

custody and her visits with L.L. be unsupervised, but if it was supervised, asked that 

W.T.’s sister supervise them. 

The juvenile court adopted county counsel’s suggestion, removed L.L. from 

mother’s custody, placed him with his father under section 361.2, subdivision (b)(2), and 

ordered a home visit to occur within three months to determine whether his father was 

meeting his needs. The juvenile court stated it was giving W.T. sole legal custody of 

L.L. and it believed L.L. “should have the ability to have visitation or contact with his 

mother, either supervised or unsupervised, given his age, at his discretion, including the 

opportunity to opt out if he chooses not have contact.”5 The juvenile court set a hearing 

for August 27, 2020, to determine whether the custody order needed to be adjusted and 

whether it would be safe to terminate jurisdiction. 

The juvenile court subsequently signed a custody order which gave W.T. sole 

legal and physical custody of L.L. The attached visitation order granted mother visitation 

4 The minute order of the hearing states visitation will be at least once a month, but 

S.L. “may opt out of the visits.” S.L.’s written visitation order issued after the hearing 

provides that the social worker will arrange visitation with mother no less than once a 

month, “as recommended and in the best interest” of S.L., but S.L. “may opt out of 

visitation,” and the social worker is authorized to expand visitation to include supervision 

by others as well as unsupervised visitation. 

5 The minute order of the hearing states that visitation with L.L. will “be at least 

once a month and will be at the discretion of the minor.” 
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at least twice a month, to be supervised through a third party in Oklahoma at mother’s 

expense, although “[v]isits may be supervised, or unsupervised, at [L.L.]’s discretion.” 

The visitation order further stated: “Visits are to take place when it is in the best interest 

of the minor, L[.]L[.]” at mother’s expense. 

DISCUSSION

I. The Visitation Orders

Mother contends the juvenile court abused its discretion when it allowed S.L. the 

ability to “opt out” of visits and L.L. to have “discretion” over whether visits occurred. 

The Agency asserts mother forfeited this claim by failing to object to the visitation order 

and, in any event, it would not be in the boys’ best interests to force them to visit mother 

and they were not given the power to veto visitation altogether.

“The superior court, sitting in dependency cases ... has the power and 

responsibility to regulate visitation between dependent children and their parents.” (In re 

Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) “Visitation is a necessary and integral 

component of any reunification plan.” (In re S.H. (2003) 111 Cal.App.4th 310, 317

(S.H.).) The juvenile court cannot delegate the power to order visitation to child 

protective services, a social worker, a counselor, the children’s caretaker, or even the 

children themselves. (In re Julie M. (1999) 69 Cal.App.4th 41, 49 (Julie M.).) In 

ordering visitation, the juvenile court may vest limited discretion with the supervising 

agency to consider the children’s desires regarding visits with a parent. (In re Danielle 

W. (1989) 207 Cal.App.3d 1227, 1237.) While “ ‘[a] visitation order may delegate to a 

third party the responsibility for managing the details of visits, including their time, place 

and manner[,] ... “the ultimate supervision and control over this discretion must remain 

with the court....” ’ ” (In re Korbin Z. (2016) 3 Cal.App.5th 511, 517.) We review the 

juvenile court’s order setting visitation terms for abuse of discretion. (In re Brittany C.

(2011) 191 Cal.App.4th 1343, 1356.)
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We first address as a threshold matter the Agency’s contention mother forfeited 

this argument by failing to raise it before the juvenile court. Mother responds that while 

her attorney did not use the word “objection,” it was clear from her attorney’s arguments 

she did not agree with the proposed visitation orders. Mother’s attorney asked the 

juvenile court to consider family maintenance and in discussing L.L.’s proposed custody 

order, which called for only supervised visitation, her attorney stated it seemed like L.L. 

and mother “should be able to talk, if it’s appropriate and L[.L.] wants to talk,” and if 

visits were supervised, a relative could do it. Asking the court to consider family 

maintenance or to allow for unsupervised visits, however, is not an objection to visitation 

orders allowing the boys to opt out of visits. 

Although we agree mother forfeited the issue by failing to raise it in the juvenile 

court, at mother’s request, we will exercise our discretion to consider the visitation orders 

as a determination on the validity of the orders would add certainty and stability to the 

boys’ visitation. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [discretion to consider 

forfeited claims should be exercised with special care in dependency cases; 

“considerations such as permanency and stability are of paramount importance”].)

S.H. is instructive on the visitation issue. There, the juvenile court ordered 

monitored visitation, but because the children feared their mother and refused visits 

during their initial detention, the visitation order specified, “ ‘if the children refuse a visit, 

then they shall not be forced to have a visit.’ ” (S.H., supra, 111 Cal.App.4th at pp. 313, 

316.) The appellate court held the order was invalid because it “impermissibly 

delegate[d] to [the] children the authority to determine whether any visits will occur.”

(Id. at p. 313.) The appellate court acknowledged the order “affirmatively determine[d]” 

mother’s right to visitation “rather than making [it] entirely contingent on the child’s 

consent” (id. at p. 318), and the juvenile court made additional orders designed to 

encourage visitation, including ordering counseling for the children and for their mother

(id. at pp. 318–319). Nevertheless, the appellate court concluded that “by failing to 
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mandate any minimum number of monitored visits per month or even to order that some

visitation must occur each month, the [juvenile] court’s abstract recognition of [the 

mother’s] right to visitation [was] illusory, transforming the children’s ability to refuse ‘a 

visit’ into the practical ability to forestall any visits at all.” (Id. at p. 319.)6

We conclude the visitation order as to S.L. similarly placed the sole discretion as 

to whether any visitation would occur in his hands. As in S.H., the juvenile court here 

affirmatively acknowledged mother’s right to visitation. Moreover, the juvenile court 

stated at the hearing it did not want S.L.’s right to refuse visits to be abused or misused. 

The written visitation order specifies the social worker will arrange visits “no less than 

one time monthly, as recommended and in the best interest” of S.L, and that visits are to 

be held at the Agency or other approve location, which may include visits via Skype or 

other modes of communication. 

Like the order in S.H., however, the visitation order here did not mandate any 

minimum number of supervised visits per month or otherwise order some visitation to 

take place. (S.H., supra, 111 Cal.App.4th at p. 319.) Rather, the court ordered that S.L. 

“may opt out of visitation.” Accordingly, the order essentially granted S.L. total 

discretion to determine whether visits would take place at all. While it is true, as the 

Agency asserts, that if S.L. opted out of a visit another would be scheduled the following 

month, by giving S.L. the ability to refuse a visit without ensuring a minimum number of 

visits actually took place, the juvenile court effectively gave S.L. the power to veto them.

We agree S.L’s wishes must be considered, particularly given his age and his 

fraught relationship with mother and his hesitancy to visit her. Nevertheless, “while the 

juvenile court may allow the child to refuse to attend a particular visit, to prevent the 

child from exercising a de facto veto power, there must be some assurance that, should 

6 Similarly, the appellate court in Julie M. held that a visitation order that gave the 

children “the option to consent to, or refuse, any future visits with their mother” was 

invalid because it essentially delegated judicial power to the children. (Julie M., supra,

69 Cal.App.4th at pp. 46, 48–49.) 
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that occur, another visit will be scheduled and actually take place.” (S.H., supra,

111 Cal.App.4th at p. 319.) As the court in S.H. so aptly stated, “In no event, however, 

may the child’s wishes be the sole factor in determining whether any visitation takes 

place, either as a formal matter or, as occurred in the case now before us, by effectively 

giving the children the power to veto all visits.” (Ibid.)

Here, S.L.’s wishes were the sole factor in determining whether supervised visits 

with mother would occur, making her right to visitation essentially illusory. Neither the 

Agency nor mother had any way of ensuring visits would take place, such as by 

rescheduling missed visits S.L. decided not to attend. We therefore conclude the juvenile 

court abused its discretion by giving S.L. the ability to “opt out” of visits, without 

ensuring that missed visits took place.

With respect to L.L., the juvenile court similarly stated on the record that it 

believed L.L. should have discretion to determine whether visits with mother should be 

supervised or unsupervised, as mother’s attorney requested, “including the opportunity to 

opt out if he chooses not to have contact.” Giving L.L. the ability to opt out of visits 

without ensuring a minimum number occurred would be improper for the same reasons 

set forth above. The written visitation order, however, does not contain any such 

provision; nowhere does it give L.L. discretion to determine whether visits occur at all. 

To the extent that the juvenile court’s oral pronouncement differed from its written order, 

the written order controls. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756, fn. 1.) In 

that case, the visitation order as to L.L. is not improper.

Accordingly, we reverse the visitation order as to S.L. and remand for a hearing on 

visitation as to him only. Our decision does not preclude the juvenile court from ordering 

S.L.’s wishes be considered with respect to scheduling visits with mother, nor should it 

be read to force him to visit her. We hold only, as courts have held before us, that his

wishes are not the sole factor in determining whether any visitation takes place. (E.g., 

S.H., supra, 111 Cal.App.4th at p. 319; Julie M., supra, 69 Cal.App.4th at pp. 50–51 
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[child’s “aversion to visiting an abusive parent may be a ‘dominant’ factor in 

administering visitation” but not “the sole factor”], citing In re Danielle W., supra, 

207 Cal.App.3d at p. 1237.)

II. ICWA

Mother contends the Agency failed to comply with ICWA’s requirements because 

(1) the ICWA-030 form did not include information available or easily available to the 

Agency, namely, the current or former address for maternal grandmother, and the prior 

address for mother or W.T.; (2) the Agency failed to file the return receipts showing 

proof of notice; and (3) the record did not contain any responses from the tribes. She 

asserts a limited remand is required for compliance with the notice requirements.

At the combined jurisdiction and disposition hearing, the juvenile court did not 

make any ICWA finding or final ruling as to whether proper notice had been completed 

and ICWA applied to the proceedings with respect to L.L. On this basis, we asked the 

parties to address whether mother’s appellate arguments are premature, citing In re M.R. 

(2017) 7 Cal.App.5th 886, 903-904. There, the juvenile court found at the dispositional 

hearing that ICWA noticing had been initiated and ICWA may apply to the children. 

(In re M.R., at p. 904.) In their appeal from the dispositional findings and orders, both 

parents challenged the adequacy of the efforts made to comply with the ICWA notice 

requirements. (In re M.R., at p. 903.) The appellate court determined the dispositional 

ICWA finding was not a final ruling as to whether proper notice had been completed or 

whether ICWA applied to the proceedings; therefore, any claim of error regarding ICWA 

compliance was “simply premature.” Accordingly, the appellate court declined to review 

the adequacy of an ICWA noticing process that was still ongoing, noting it could address 

any claims of error, including the juvenile court’s final rulings with respect to ICWA 

matters, in any subsequent appeal. (In re M.R., at p. 904 & fn. 9.)

In this case, the Agency initiated ICWA noticing by mailing out ICWA-030 forms 

to three Cherokee tribes and represented to the juvenile court that the tribes had received 
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the forms. The juvenile court did not make an ICWA finding at the dispositional hearing. 

Because the juvenile court did not make a final judgment on the adequacy of the ICWA 

notices, the issue is premature. 

Mother asserts that by proceeding with the jurisdiction and disposition hearing 

without treating L.L. as an Indian child, the juvenile court implicitly found the notices 

were proper and ICWA did not apply. We cannot infer these findings, however, because 

the juvenile court could have declined to treat L.L. as an Indian child apart from finding 

ICWA did not apply, namely, because it did not yet have “reason to know” he was an 

Indian child, which essentially requires having information that establishes L.L. is an 

Indian child.7 (§ 224.2, subds. (d) & (i)(1).) When there is reason to know the child is an 

Indian child, the juvenile court is required to treat the child as an Indian child unless and 

until the juvenile court reviews the Agency’s due diligence efforts and copies of notices 

and the tribe’s responses, and determines on the record the child does not meet the 

definition of an Indian child. (§ 224.2, subd. (i)(1).) The juvenile court may find ICWA 

does not apply to the proceedings if it finds the Agency conducted a “proper and 

adequate further inquiry” and exercised “due diligence to identify and work” with all the 

pertinent tribes to verify “whether the child is in fact a member or whether a biological 

parent is a member and the child is eligible for membership.” (§ 224.2, subds. (i)(2) &

(g).)

7 There is “reason to know” a child is an Indian child if: “(1) A person having an 

interest in the child ... informs the court that the child is an Indian child[;] [¶] (2) The 

residence or domicile of the child, the child’s parents, or Indian custodian is on a 

reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding ...

informs the court that it has discovered information indicating that the child is an Indian 

child[;] [¶] (4) The child ... gives the court reason to know that the child is an Indian 

child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal 

court[;] [¶] [and] (6) The court is informed that either parent or the child possesses an 

identification card indicating membership or citizenship in an Indian Tribe.” (§ 224.2, 

subd. (d); see 25 C.F.R. § 23.107(c) (2020).)
15.

Here, there is nothing to suggest there was reason to know at the time of the 

jurisdiction and disposition hearing that L.L. was an Indian child. Therefore, the juvenile 

court’s failure to treat him as an Indian child does not mean it impliedly found ICWA did 

not apply. Moreover, the juvenile court did not make any findings that the Agency 

conducted a proper and adequate inquiry or exercised due diligence, which under 

section 224.2, subdivision (i)(2) it must do before it may find ICWA does not apply to the 

proceedings. We decline to infer that the juvenile court made such findings.

Since we cannot infer the juvenile court found ICWA did not apply and the 

juvenile court did not make an explicit finding, we conclude mother’s ICWA contentions 

are premature and decline to address them in this appeal.

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DISPOSITION

The portion of the July 23, 2020 order in S.L.’s case regarding mother’s visitation 

is reversed, and S.L.’s case is remanded to the juvenile court to hold a new hearing on the 

issue of visitation. In all other respects, the juvenile court’s orders are affirmed.

 DE SANTOS, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

MEEHAN, J.

8 Because the appeal is premature, we deny the Agency’s request to take judicial 

notice of response letters from the tribes, which were attached to the Agency’s six-month 

status review report, and the September 3, 2020 minute order in which the juvenile court 

found ICWA did not apply to L.L., which are part of the appellate record in mother’s 

subsequent appeal in case No. F082005. We note that mother may raise any claims of 

ICWA error in the subsequent appeal.