Filed 7/20/15 In re D.R. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.R., a Person Coming Under the 

Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

DORIS R.,

Defendant and Appellant.

 D067669

 (Super. Ct. No. NJ14935)

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

Imhoff, Commissioner. Reversed in part with directions.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
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Doris R. (Mother) appeals from the dispositional order of the juvenile court on a 

juvenile dependency petition filed by the San Diego Health and Human Services Agency 

(the Agency) on behalf of her minor child, 10-year-old D.R. She contends the Agency 

failed to make a proper inquiry of D.R.'s Indian ancestry under the Indian Child Welfare 

Act (ICWA, 25 U.S.C. § 1901 et seq.). She asserts the alleged failures were prejudicial 

and requests that the matter be remanded with instructions to the lower court for 

compliance with ICWA inquiry and notice. We conclude the Agency did not make a 

sufficient inquiry regarding D.R.'s possible Indian ancestry, conditionally reverse the 

order and remand the case with directions to the juvenile court to ensure full compliance 

with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

In light of the sole issue raised on appeal, we give the facts in summary form. In

July 2014, the Agency filed a petition alleging D.R. was at substantial risk of serious 

physical harm under Welfare and Institutions Code section 300, subdivisions (b) and (g) 

due to Mother's mental illness and substance abuse. (Undesignated statutory references 

are to the Welfare and Institutions Code.) The petition further alleged D.R. was left in

the care of a maternal uncle who failed to provide him with necessities and proper care 

and supervision. The maternal great-grandmother, reported that she thought the family 

had Indian blood, and " 'thought it was Cherokee,' " but there was no known enrollment 

for anyone in the family. The parents denied having any Indian heritage. The parents 

and the maternal great-grandmother all denied that family members had ever participated 
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in tribal or cultural activities, spoke a native language, lived in an Indian community or 

on a reservation, or received tribal services, such as medical, educational, or financial.

At the jurisdictional hearing, the juvenile court found ICWA did not apply. None 

of the parties objected to this finding. At the contested dispositional hearing, the court 

concluded reasonable inquiry had been made to determine whether D.R. may be an 

Indian child, that ICWA notice was not required and ICWA did not apply. The court 

removed D.R. from Mother and found it would be detrimental to place D.R. with the 

father. The court denied Mother reunification services, but ordered services for the 

father. Mother timely appealed.

DISCUSSION

Mother contends the maternal great-grandmother's disclosure she may have 

Cherokee heritage meets the minimal showing required to trigger the ICWA inquiry and 

notice requirements. Accordingly, she asserts the Agency was required to make further 

inquiry and provide all available information to the tribe in order to effectuate meaningful 

notice; however, the Agency failed to inquire with the maternal relatives regarding 

possible Indian heritage. The Agency submits Mother should be precluded from raising 

an ICWA claim because she did not object to the juvenile court's ICWA finding. 

Assuming we consider the merits, the Agency submits the juvenile court met its initial 

duty of inquiry as to ICWA and there was no duty of further inquiry or notice under 

ICWA. We reject the Agency's forfeiture argument. We also conclude the Agency's

inquiry was inadequate, but when remedied, may obviate the need for notice.
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The recently updated "Guidelines for State Courts and Agencies in Indian Child 

Custody Proceedings" (Guidelines) provide that tribes have the sole jurisdiction and 

authority to determine whether a child is eligible for membership. (Guidelines, 80 Fed. 

Reg. 10146-02 (Feb. 25, 2015), § B.3(b) & (c), p. 10153.) Tribes that are not notified of 

dependency proceedings cannot assert their rights under ICWA. (In re Marinna J. (2001) 

90 Cal.App.4th 731, 739.) "Under these circumstances, it would be contrary to the terms 

of the Act to conclude . . . that parental inaction could excuse the failure of the juvenile 

court to ensure that notice under the Act was provided to the Indian tribe named in the 

proceeding." (Ibid.) Thus, parents in a dependency proceeding are permitted to raise 

ICWA notice issues on appeal even where no mention was made of the issue in the 

juvenile court. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) Accordingly, we 

reject the Agency's assertion that Mother forfeited any ICWA issue when she failed to 

object to the juvenile court's ICWA finding.

The notice requirements of ICWA are implemented through section 224.2 and 

California Rules of Court, rule 5.481(b), the latter of which provides that after the filing 

of a section 300 petition, the Agency must send ICWA notice to the Indian child's tribe if 

it is known or there is reason to know that an Indian child is involved in a dependency 

proceeding. (§ 224.2, subd. (a); Guidelines at § A.3(c) & (d), p. 10152.) Circumstances 

that may give the court or the Agency reason to believe that a child is an Indian child 

include a party's statement, or provision of information suggesting, that the child is an 

Indian child. (§ 224.3, subd. (b)(1); Cal. Rules of Court, rule 5.481(a)(5)(A).) 
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If the Agency has reason to know that an Indian child may be involved in 

dependency proceedings, it must take various steps to determine whether the child has 

Native American ancestry, including interviewing extended family members. (Cal. Rules 

of Court, rule 5.481(a)(4)(A).) "[E]xtended family member[s]" include a 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).) If the inquiry leads the social 

worker or the court to know or have reason to know a Native American child is involved, 

the social worker must provide notice to the tribe and the Bureau of Indian Affairs. (§ 

224.3, subd. (d); In re Shane G. (2008) 166 Cal.App.4th 1532, 1538-1539.) More than a 

"bare suggestion" of Native American ancestry is needed before notice is required. (In re 

Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.)

Here, the maternal great-grandmother's statement that she thought the family had 

Indian blood, and she " 'thought it was Cherokee,' " was sufficient to give the Agency 

reason to believe that D.R. might be an Indian child. Accordingly, the Agency had a duty 

to make further inquiries regarding D.R.'s status by interviewing extended family 

members. (§ 224.3, subd. (c).) Although the Agency had spoken to a maternal aunt 

regarding placement and also interviewed a maternal uncle about the case, there is no 

indication in the record that these relatives were ever asked about D.R.'s Indian heritage, 

if any. Nor is there any indication the Agency inquired of the maternal greatgrandmother whether she had contact information for other extended family members 

that might have information about possible Indian heritage. On this record, we conclude 
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the Agency did not conduct a proper inquiry to determine whether D.R. was a Native 

American child within the meaning of ICWA.

If, after further inquiry, no additional information is available to support the 

maternal great-grandmother's bare suggestion of Indian heritage, we conclude notice was 

not required and affirm the juvenile court's ICWA finding and the dispositional order. (§ 

224.2, subd. (a); In re J.D. (2010) 189 Cal.App.4th 118, 125 [an attenuated, speculative 

or vague claim of Indian heritage is insufficient to trigger notice requirements under 

ICWA].) If, however, new information is obtained supporting the material greatgrandmother's suggestion that D.R. has Indian heritage, that information must be 

included in notices to the relevant tribes and the Bureau of Indian Affairs. 
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DISPOSITION

The ICWA finding and dispositional order are conditionally reversed. The matter 

is remanded for the limited purpose of conducting further inquiry with extended family 

members regarding possible Indian heritage. If, after proper inquiry, the Agency

determines there is no tribe to which notice can be sent, the orders shall be reinstated. If 

the Agency's inquiry discloses a tribe which can be noticed, proper notice with all known 

ancestral information shall be sent. Thereafter, if there is no response or if the tribe 

determines the minor is not an Indian child, the orders shall be reinstated. However, if 

the tribe determines the minor is an Indian child and the court determines ICWA applies 

to this case, the juvenile court is ordered to conduct a disposition hearing in conformance 

with all provisions of ICWA.

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.