In re G.F. CA4/3

Opinion

Filed 8/20/26 In re G.F. CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re G.F., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent, G066623 v. (Super. Ct. No. 25DP0338)

K.D., OPINION Defendant and Appellant.

Appeal from orders of the Superior Court of Orange County, Jennifer McCartney and Benjamin Azar, Judges. Affirmed in part, reversed in part, and remanded. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Debbie Torrez and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor. K.D. (Father) appeals from the juvenile court’s finding at the time of disposition that the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) does not apply. Father contends the Orange County Social Services Agency (the Agency) and the court failed to comply with their inquiry duties under ICWA and the California Indian Child Welfare Act (Cal- ICWA) (Welf. & Inst. Code, § 224 et seq.; all undesignated statutory references are to this code).1 Based on the limited inquiry conducted as to Father prior to the disposition hearing and order, we agree the court erred in finding ICWA did not apply. We vacate the ICWA finding and remand for the court and the Agency to conduct the required ICWA inquiry. In all other respects, the jurisdiction and disposition orders are affirmed. FACTS AND PROCEDURAL HISTORY Days after G.F. (the child) was born, the Agency sought a protective custody warrant pursuant to section 340 to remove the child from the care of L.F. (Mother) and J.F., who the Agency initially thought was the child’s father. The basis for the Agency’s request was its contention both Mother and J.F. had unresolved mental health and substance abuse issues, as well as extensive criminal arrest histories. The Agency alleged a nurse reported the child’s preliminary urine screen was positive for amphetamines and fentanyl and the child showed mild signs of withdrawal. While Mother had been given fentanyl during surgical delivery of the child, there was no apparent medical explanation for the amphetamine. The child also had two 1 Because ICWA and section 224.2 use the term “Indian,” we will do the same for consistency. But “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 half siblings; both of whom were removed from Mother’s care and parental rights previously terminated. At the detention hearing on the initial child welfare petition in March 2025, the juvenile court ordered the child “detained under the protective custody of [the Agency].” The court reserved the issue of parentage and authorized paternity testing for J.F. As to ICWA, Mother’s counsel indicated that in the sibling cases, there was a prior finding that ICWA did not apply. The court deferred a finding on the applicability of ICWA and ordered the parties to inform the court as to any additional ICWA information. At the jurisdiction hearing in July 2025, the juvenile court denied J.F.’s request for a continuance to allow time for paternity testing. The court found the allegations of the petition to be true by a preponderance of the evidence. As to ICWA, the court found it did not apply but noted the Agency had an affirmative and continuing duty of inquiry. Paternity test results received after the jurisdiction hearing indicated J.F. was not G.F.’s biological father and he was ordered excluded from all further proceedings. Mother then named K.D. (Father) as the biological father, and the Agency set about locating him. Father was located and first appeared in juvenile court in September 2025. Father indicated no Indian ancestry. The court ordered paternity testing which confirmed Father’s paternity. Father expressed an interest in the child and having the child in his care. At the disposition hearing in January 2026, the juvenile court found by clear and convincing evidence section 361, subdivision (c)(1) applied and declared the child a dependent child pursuant to section 360, subdivision (d). The court ordered the child removed from the custody of the parents and 3 vested authority with the Agency to find a suitable placement. Although the court did not find Father to be a presumed parent pursuant to section 7611, the court found it would still be in the best interests of the child to order reunification services for Father. As to ICWA, the juvenile court asked Father whether he was aware of “any Native American ancestry” to which Father responded, “Not that I know of, no.” Father added, “I have one aunt in Palm Desert that may know something, but I don’t.” The court then stated it was “going to find that ICWA [did] not apply at [that] time.” The court said to Father, “If you reach out to your aunt or give her contact information to the social worker and you find out that there is Native American ancestry, please let the [c]ourt know as soon as possible.” The juvenile court’s minute order indicated, “Father denie[d] that the child is or may be an Indian child” and found “there is no additional information that was previously available to the [A]gency or the court, and that . . . ICWA . . . [did] not apply.” The court also noted, “[The Agency] has an affirmative and continuing duty of inquiry” and that it was to “inquire of [F]ather as to ICWA.” Based on the record before us, no ICWA inquiry was made as to any of the child’s known extended paternal family members. The record reflects only that in February 2026, the Agency requested from Father “additional family members to contact regarding Native American heritage” and Father “stated he has family on his paternal side” but “prefers to keep his dependency case private.” He provided contact information for a cousin, who the Agency subsequently contacted, but had not yet received a response.

4 DISCUSSION Father challenges the adequacy of the juvenile court’s and Agency’s ICWA inquiry as it did not include any of the child’s paternal extended family, including the aunt Father mentioned, and he argues the court placed the burden on him to come forward with information relevant to the inquiry. The Agency concedes “none of Father’s extended family members had been questioned” at the time of the disposition hearing. I. ICWA DUTY TO INVESTIGATE “In 1978, Congress enacted . . . ICWA . . . to ‘formalize[] federal policy relating to the placement of Indian children outside the family home.’ [Citation.] Under ICWA’s state analogue, . . . Cal-ICWA . . . , courts and child welfare agencies are charged with ‘an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child’ in dependency cases.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1124–1125 (Dezi C.).) “Child welfare agencies discharge this state law duty by ‘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.’” (Dezi C., supra, 16 Cal.5th at p. 1125.) “‘Extended family member’” is defined to have “the same meaning as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached 18 years of age 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.” (§ 224.1, subd. (c)(1).)

5 “The duty to develop information concerning whether a child is an Indian child rests with the court and the [child welfare agency], not the parents or members of the parents’ families.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430 (Antonio R.).) “Thus, a juvenile court errs in making a finding ICWA does not apply to the proceedings without first ensuring that the [child welfare agency] has made an adequate inquiry under ICWA and California law, and if necessary, the court must continue the proceedings and order the [child welfare agency] to fulfill its responsibilities.” (Id. at p. 431.) “A juvenile court’s finding that ICWA does not apply implies ‘that social workers had fulfilled their duty of inquiry.’” (In re Dominick D. (2022) 82 Cal.App.5th 560, 567 (Dominick D.).) Courts have reviewed “whether the child welfare agency has engaged in a ‘proper and adequate further inquiry and due diligence as required’ . . . for an abuse of discretion.” (In re C.L. (2025) 116 Cal.App.5th 53, 66.) “The juvenile court’s factual finding that ICWA does not apply is ‘subject to reversal based on sufficiency of the evidence.’” (Dezi C., supra, 16 Cal.5th at p. 1134.) II. THE JUVENILE COURT ERRED IN FINDING ICWA DID NOT APPLY The parties agree “none of Father’s extended family members had been questioned” at the time the juvenile court found ICWA did not apply. The Agency did not have sufficient time to conduct an ICWA inquiry as to Father. (See Dominick D., supra, 82 Cal.App.5th at p. 567 [“juvenile court’s finding that ICWA does not apply implies ‘that social workers had fulfilled their duty of inquiry’”].) Moreover, inasmuch as the court implied the burden was on Father to provide information that might change this conclusion, this 6 was a misstatement. The duty “rests with the court and the [child welfare agency], not the parents.” (Antonio R., supra, 76 Cal.App.5th at p. 430.)2 We infer the juvenile court’s finding was based on Father’s individual denial of any knowledge of Indian heritage, but parental denial alone is insufficient. As is well established, “‘[t]he parents or Indian custodian may be fearful to self-identify, and social workers are ill-equipped to overcome that by explaining the rights a parent or Indian custodian has under the law.’” (Antonio R., supra, 76 Cal.App.5th at p. 432.) Indeed, “‘[p]arents may even wish to avoid the tribe’s participation or assumption of jurisdiction.’” (Ibid.) Moreover, “parents may not know their possible relationship with or connection to an Indian tribe.” (In re Y.W. (2021) 70 Cal.App.5th 542, 554.) It is important for any ICWA inquiry to address “the realities of generational loss of information.” (C.L., supra, 116 Cal.App.5th at p. 70.) Consequently, the court’s finding was not a proper exercise of its discretion or “supported by sufficient evidence.” (Dezi C., supra, 16 Cal.5th at p. 1141.) Father does not request a remedy other than a remand with instructions to the juvenile court to ensure full compliance with ICWA. As an alternative request, the Agency acknowledges we can vacate the ICWA 2 This does not absolve Father of any responsibility to assist with the inquiry. Inasmuch as there is some indication in the record Father has not been entirely forthcoming in providing contact information for extended family members, stating he wished to keep the proceedings private, this may limit the Agency’s ability to conduct an extensive inquiry. (See In re Q.M. (2022) 79 Cal.App.5th 1068, 1082 [where “a parent largely fails to cooperate with [the child welfare agency] or to provide names and contact information for extended family members, [the child welfare agency]’s ability to conduct an exhaustive ICWA inquiry necessarily is constrained”].)

7 finding but asks us to otherwise affirm the dispositional orders. We conclude the Agency’s request is the appropriate result. Where, as here, proceedings are at the dispositional phase, an error regarding ICWA inquiry or notice “is not jurisdictional.” (In re Veronica G. (2007) 157 Cal.App.4th 179, 187.) As such, “ICWA inquiry and notice errors do not warrant reversal of the juvenile court’s jurisdictional or dispositional findings and orders other than the ICWA finding itself.” (Dominick D., supra, 82 Cal.App.5th at p. 567.)3 Thus, in Dominick D., which like this appeal did not raise any substantive challenges to the dispositional order, the court vacated the “finding that ICWA does not apply” but affirmed “the dispositional findings and orders.” (Id. at p. 568.) This is consistent with our Supreme Court’s rationale supporting conditional reversal, as opposed to outright reversal, of an order terminating parental rights as likely to “inject far less delay.” (Dezi C., supra, 16 Cal.5th at p. 1143.) Accordingly, we vacate the juvenile court’s finding ICWA did not apply and affirm the court’s other orders. We remand for further proceedings and for a complete ICWA inquiry.

3 By contrast, when the juvenile court has made no finding as to the applicability of ICWA at the dispositional stage, “ICWA issues are not ripe for review.” (J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 461.)

8 DISPOSITION The juvenile court’s finding ICWA did not apply is vacated. We remand and the court is directed to ensure the Agency has made an adequate inquiry under ICWA and Cal-ICWA. In all other respects, the disposition findings and orders are affirmed.

MOTOIKE, P. J.

WE CONCUR:

SERVINO, J.

SCHWARM, J.* *Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.