Filed 11/20/15 Amber L. v. Superior Court CA4/1

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

AMBER L.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D068782

 (San Diego County

 Super. Ct. No. EJ3765A-D)

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY et al.,

Real Parties in Interest.

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code 

section 366.26 hearing. Gary M. Bubis, Judge. Petition granted; request for stay denied.

Dependency Legal Group of San Diego and John P. McCurley for Petitioner.

No appearance by Respondent.
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Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel, and Lisa Maldonado, Deputy County Counsel, for Real Party in Interest San 

Diego County Health and Human Services Agency.

Dependency Legal Group of San Diego and Caitlin Zaback for Real Parties in 

Interest E.L., J.L., B.L. and A.L., Minors.

Amber L. seeks review of a juvenile court order setting a hearing under Welfare 

and Institutions Code section 366.26.1 She contends the San Diego County Health and 

Human Services Agency (Agency) and the juvenile court did not conduct a sufficient 

inquiry and provide notice in compliance with the Indian Child Welfare Act (ICWA), 

title 25 U.S.C. section 1901 et seq. and Welfare and Institutions Code section 224 et seq. 

Amber asks that this court conditionally reverse the order setting the hearings under 

section 366.26 with directions to conduct the necessary inquiry and provide notice to the 

appropriate tribes. The Agency concedes error. After review, we accept the Agency's 

concession and therefore grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2014, the Agency filed petitions alleging that Amber had physically 

abused one of her four children, and the other three children were at substantial risk of 

physical abuse. (§ 300, subs. (a), (j).) In its detention report, the Agency said ICWA 

does or may apply, and explained "[t]he maternal grandmother . . . reports that her 

grandfather had some Cherokee Indian [h]eritage. [She] states that her grandfather was 

 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise indicated.
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not registered as a tribal member and did not participate in tribal activities." In Indian 

child inquiry attachments to the petitions, the Agency reported "[the maternal 

grandmother] states that her grandfather had Cherokee Indian [h]eritage." 

At the detention hearing, Amber and the children's father informed the juvenile 

court that neither parent had any American Indian heritage. On their parentage inquiries, 

the parents represented that as far as they knew, they had no Indian ancestry. The 

juvenile court found that ICWA did not apply. 

In reports filed for subsequent hearings, the Agency stated: "On 01/21/2014, the 

court found the [ICWA] does not apply." The report filed for the 18-month review 

hearing states: "The [ICWA] does not apply." The juvenile court did not address ICWA 

issues, or make any ICWA findings, at any hearing after the detention hearing. At the 

18-month review hearing, the juvenile court terminated reunification services and set 

section 366.26 hearings for the children on December 15, 2015. 

DISCUSSION

The court and social worker have an affirmative and continuing duty in all 

dependency proceedings to inquire whether a dependent child is, or may be, an Indian 

child. (§ 224.3, subd. (a).) The circumstances that may provide reason to know the child 

is an Indian child include when a member of the child's extended family provides 

information suggesting the child is a member of a tribe or eligible for membership in a 

tribe, or one or more of the child's biological parents, grandparents, or great-grandparents 

are or were a member of the tribe. (Id., subd. (b).) A social worker who knows or has 

reason to know that the child is an Indian child is required to make further inquiry 
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regarding the possible Indian status of the child, and to do so as soon as practicable, by 

interviewing the parents, Indian custodian, and extended family members, to gather the 

information required for notice. (Id., subd. (c); In re A.G. (2012) 204 Cal.App.4th 1390, 

1396-1397.) 

The Agency concedes, and the record shows, that the social worker did not make 

further inquiry regarding the possible Indian status of the children. The Agency states 

that a limited remand is necessary to effect and document proper inquiry under ICWA. 

(In re J.N. (2006) 138 Cal.App.4th 450, 461-462.) We therefore grant the relief 

requested.

DISPOSITION

The order setting the section 366.26 hearings is conditionally reversed. The matter

is remanded to the juvenile court with directions to vacate its finding that ICWA does not 

apply and direct the Agency inquire into the family's alleged Indian heritage and provide 

notice to the children's Indian tribe or tribes, if any, in accordance with ICWA and 

section 224.3. If the inquiry produces evidence that the children are or may be Indian 

children, then the juvenile court should direct the Agency to give notice of the underlying 

proceedings and any upcoming hearings in compliance with ICWA and applicable state 

law to any identified tribes. (25 U.S.C. § 1912.) If, after proper inquiry (and notice, if
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indicated), the juvenile court finds that the children are not Indian children within the 

meaning of ICWA, the order setting the section 366.26 hearings shall be reinstated.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

HALLER, J.