In re A.S. CA4/2

Opinion

Filed 8/26/26 In re A.S. CA4/2 See Concurring Opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.S., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E087816

Plaintiff and Respondent, (Super.Ct.No. J299566)

v. OPINION S.P., Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michelle Lauron, Judge. Conditionally reversed with directions.

William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.

Laura Feingold, County Counsel and Helena Rho, Deputy County Counsel for Plaintiff and Respondent.

1 INTRODUCTION

S.P. (mother) appeals from the juvenile court’s order terminating parental rights (Welf. & Inst. Code,1 § 366.26) as to her child, A.S. (the child). Mother contends the matter must be conditionally reversed and remanded because the court failed to ask certain maternal relatives about the child’s possible Native American ancestry. We conditionally reverse the order terminating parental rights and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND2

On January 5, 2024, San Bernardino Children and Family Services (CFS) filed a petition on behalf of the child, who was eight years old at the time. The petition alleged that the child came within the provisions of section 300, subdivision (b) (failure to protect).

The social worker filed a detention report, stating that CFS received a referral alleging emotional abuse and general neglect of the child by mother. It was reported that mother was homeless, had relapsed on methamphetamine, and had been driving under the influence with the child in the car. The social worker responded to the referral and spoke with mother, who said she and the child lived with family members of the child’s father, 1 All further statutory references will be made to the Welfare and Institutions Code unless otherwise indicated.

2 Because we address only an ICWA claim, a brief synopsis of the factual and procedural history will suffice.

2 T.S. (father).3 CFS obtained a detention warrant and placed the child into protective custody.

The social worker reported that mother denied having any Native American ancestry on January 3, 2024, and father denied having any on January 4, 2024. The social worker stated that the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)

(ICWA) did not apply.

The court held a detention hearing on January 8, 2024, and detained the child in foster care. Mother filed a “Parent: Family Find and ICWA Inquiry” form, in which she stated she had no Native American ancestry and listed the names and contact information of L.F. as a “trusted friend,” and the paternal aunt, J.M. (the paternal aunt). Mother also filed an ICWA-020 form indicating she had no Native American ancestry. The child was placed in the home of the paternal aunt. The paternal aunt filed a “Relative: Family Find and ICWA Inquiry” form, indicating she had no Native American ancestry, and the child had no other relatives with Native American ancestry. The paternal aunt also listed two other adults living in her home – D.M. and J.M.

Jurisdiction/Disposition On January 24, 2024, the social worker filed a jurisdiction/disposition report, recommending that the court sustain the petition, remove the child from the custody of mother and father (the parents), declare the child a dependent, and provide the parents with reunification services. The social worker continued to state that ICWA did not 3 Father is not a party to this appeal.

3 apply, noting that, on January 3, 2024, and January 23, 2024, CFS inquired of mother if she had any known or possible Native American heritage, and she said no. On January 4, 2024, CFS inquired of father if he had any known or possible Native American heritage, and he said no. On January 23, 2024, CFS inquired of paternal cousin, D.M., paternal uncle, J.M., and the paternal aunt, about Native American heritage, and they all said no.

The social worker reported that she interviewed mother, who indicated that, in December of 2023, she and her family were evicted from their apartment because the maternal grandfather did not pay his portion of the rent. Mother said that, after being evicted, she moved in with the paternal aunt, who offered to provide her and the child a temporary home.

The social worker interviewed the paternal aunt, who said she had known mother for 12 to 13 years. Mother told the paternal aunt that she began smoking methamphetamine with the maternal grandmother at age 13. The paternal aunt said mother had a history of going into treatment programs, obtaining sobriety, maintaining sobriety for 6-18 months, and then relapsing.

The court held a jurisdiction/disposition hearing on February 27, 2024, sustained the petition, and declared the child a dependent. The court removed her from the parents and ordered reunification services. The court found that ICWA may apply and ordered CFS to continue complying with its duty of inquiry.

Sixth-month Status Review The social worker filed a six-month status review report on August 26, 2024, recommending that the court continue mother’s services. The social worker stated that 4 ICWA may or may not apply. She also reported that mother said her support network included maternal aunt, K.K. (the maternal aunt).

The court held a six-month review hearing on August 27, 2024, continued mother’s services, and set a 12-month review hearing.

Twelve-month Status Review The social worker filed a 12-month status review report on February 13, 2025, recommending that the court continue mother’s services. The social worker continued to state that ICWA may or may not apply. No new inquiries were made.

The court held a 12-month review hearing on February 13, 2025, and continued mother’s services and set an 18-month review hearing.

Eighteen-month Review Hearing The social worker filed an 18-month status review report on June 24, 2025, recommending that services be terminated and a section 366.26 hearing be set. The report indicated that CFS made additional inquiries with paternal relatives. On May 20, 2025, the social worker again inquired of the paternal aunt and paternal cousin D.M.

regarding Indian ancestry, and they both denied any. On June 12, 2025, father and paternal uncle J.M. again denied Indian ancestry. That same day, the social worker inquired of an additional relative—paternal cousin Q.B.—and he denied any Indian ancestry. The social worker now stated that ICWA did not apply.

On June 18, 2025, the social worker again inquired of mother regarding possible Indian ancestry, and mother stated, “‘I have it just never been tested [sic]. Cherokee so you might want to get her tested.’” The next day, the social worker asked mother if she 5 was registered with a federally recognized tribe or if she had an enrollment number, and she said she did not know what that was.

On August 19, 2025, the social worker filed an addendum report and stated that, on July 21, 2025, mother told her she would be traveling to another state to “be with the maternal aunt during the birth of her nephew.”

The court held a contested 18-month review hearing, beginning on August 20, 2025. At the conclusion of the hearing, the court found that the parents had not complied with their case plans and terminated reunification services. It set a section 366.26 hearing and continued the matter for an ICWA notice review.

The court held a hearing on November 20, 2025, and county counsel indicated that CFS still had some inquiries to finalize. The court continued the ICWA review to the section 366.26 hearing.

Section 366.26 and Section 388 The social worker filed a section 366.26 report on January 15, 2026, recommending that the court terminate parental rights and set adoption with the paternal aunt as the permanent plan. The social worker stated ICWA “does or may apply.” The social worker stated she contacted the paternal aunt and found out the paternal grandmother passed away on April 14, 2021. The paternal aunt said she did not have contact information for the paternal grandfather, T.S. Father also said he had no contact information for the paternal grandfather and only communicated with him through Facebook. There were no new or additional ICWA inquiries reported.

6 On January 29, 2026, mother filed a section 388 petition seeking to reinstate her reunification services. The court summarily denied the petition.

The court held a section 366.26 hearing on February 3, 2026. County counsel noted there were two aunts in the courtroom and asked to get their names. One said her name was S.S., and the court asked how she was related to the child. She indicated she was an “aunt by marriage” and not related to the child by blood. S.S. was asked if she ever heard anyone talk about having Native American ancestry at family gatherings, and she said no. The court then noted there was a cousin in the courtroom, who said her name was M.A. She also said she was related to mother by marriage, not by blood. The court asked M.A. if she was familiar with the family or had been to family gatherings, and she said no. M.A. also said she did not know if there was any Native American ancestry. The court asked for S.S. and M.A. to be excused from the courtroom, since they were not related.

Counsel for the child informed the court that the child had been clear throughout the case that she wished to be adopted. County counsel asked the court to find that CFS had complied with its duty of inquiry and that ICWA did not apply.

The court stated it had reviewed the ICWA findings, found that CFS had been diligent and had done an adequate review, and concluded that it appeared that ICWA did not apply. The court went on to adopt the social worker’s recommendations, terminated parental rights, and selected adoption as the permanent plan.

7 Mother filed a timely notice of appeal.4

DISCUSSION

CFS Failed to Comply With Its Initial Duty of Inquiry Mother argues that CFS did not comply with its initial duty of inquiry. Despite mother mentioning the maternal grandparents and the maternal aunt (the maternal relatives), CFS failed to locate and inquire of them regarding the child’s possible Indian ancestry. CFS contends the court properly found that the ICWA inquiry was sufficient, claiming the record demonstrates the maternal relatives were “either unidentified, minimally identified, unavailable, or never identified as possessing information relevant to Indian ancestry.” We conclude that CFS failed to conduct an adequate inquiry of the maternal relatives regarding the child’s possible Indian ancestry, as required by ICWA.

A. Applicable Law “ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. [Citation.] California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes.” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678, disapproved on other grounds, as stated in In re Dezi C. (2024) 16 Cal.5th 1112, 1152, fn.

4 In the notice of appeal, mother indicated she was appealing the termination of parental rights and the denial of the section 388 petition. However, the opening brief does not contain any arguments regarding the denial of her section 388 petition. Thus, we consider the issue forfeited. (Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 982 [“‘An appellant … forfeits an issue by failing to raise it in his or her opening brief.’”].)

8 18 (Dezi C.).) CFS and the juvenile court have an “affirmative and continuing duty to inquire” whether a child in a dependency proceeding “is or may be an Indian child.”

(§ 224.2, subd. (a).) “The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents’ families.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430 (Antonio R.).)

As relevant to this appeal, section 224.2, subdivision (b) specifies that once a child is taken into protective custody, CFS “has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, 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.” (§224.2, subd. (b)(2).) Extended family members include adults who are the 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.” (25 U.S.C. § 1903(2); § 224.1, subd. (c)(1).)

CFS is obligated “to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709 (K.R.).) Dezi C. recently explained that section 224.2 does not require CFS to locate and interview “every possible extended family member,” but only those who are “reasonably available to help the agency with its investigation.” (Dezi C., supra, 16 Cal.5th at p. 1140.) Further, the juvenile court “has a responsibility to ascertain that the agency has conducted an 9 adequate investigation and cannot simply sign off on the notices as legally adequate without doing so.” (K.R., supra, 20 Cal.App.5th at p. 709.)

If the court finds that CFS has complied with its duty of inquiry and there is no reason to know that the child is an Indian child, then the court may find that ICWA does not apply. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A).) “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.).)

“‘We review a court’s ICWA findings for substantial evidence.”’ (Dominick D., supra, 82 Cal.App.5th at p. 567.) However, ultimately, “the juvenile court’s fact-specific determination that an inquiry is adequate, proper, and duly diligent is 'a quintessentially discretionary function'’ [Citation] subject to a deferential standard of review.” (Dezi C., supra, 16 Cal.5th at p. 1141.)

B. The Court Abused its Discretion in Finding There Was An Adequate ICWA Inquiry Mother contends that CFS’s inquiry was deficient because it failed to ask the maternal relatives about possible Indian ancestry. CFS does not dispute that it did not inquire of the maternal relatives. Rather, CFS argues that it conducted a reasonable and duly diligent ICWA inquiry since it repeatedly questioned the parents, interviewed numerous paternal relatives, and followed up after mother referenced possible Cherokee ancestry. Mother agrees that CFS conducted an adequate inquiry regarding the paternal family. The issue is whether CFS satisfied its duty to inquire of the maternal relatives.

CFS had a duty to inquire of the maternal grandparents and maternal aunt, since they qualified as extended family members. (§ 224.1, subd. (c)(1).)

10 The record shows that mother reported she lived with the maternal grandfather in December of 2023, and she and her family were evicted from their apartment because he did not pay his portion of the rent. Mother also identified the maternal aunt as part of her support network and later informed CFS she would be traveling out of state to assist that aunt. Further, the paternal aunt informed the social worker that mother said she began smoking methamphetamine with the maternal grandmother at age 13. Despite mother mentioning the maternal grandparents and the maternal aunt, the record contains no indication that CFS ever asked her for their names and/or contact information or identifying details, for ICWA purposes.5 CFS asserts that mother “never provided” complete identifying or contact information for the maternal grandfather, maternal grandmother, or maternal aunt, and there was no indication that any of them possessed knowledge regarding Indian ancestry.

CFS similarly states that, when mother referenced having Cherokee ancestry and suggested that the child be tested, CFS followed up with her the next day, but “[m]other provided no tribal information, enrollment information, family lineage details, or any identifying information supporting additional inquiry or tribal notice.” CFS’s attempt to place the burden upon mother is contrary to the requirements of ICWA. CFS’s duty of inquiry under section 224.2, is an affirmative one. It is CFS’s obligation to inquire of parents and available extended family members regarding possible Indian ancestry. (§ 224.2, subds. (a) & (b).) In other words, “Cal-ICWA ‘broadly imposes on social services 5 We note the record does contain the name of the maternal aunt (K.K.)

11 agencies and juvenile courts (but not parents) an “affirmative and continuing duty to inquire” whether a child in the dependency proceeding “is or may be an Indian child.”

[Citations.] ‘“[T]he burden of coming forward with information to determine whether an Indian child may be involved and ICWA notice required in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family.”’” (Dezi C., supra, 16 Cal.5th at p. 1138.) Moreover, “[w]hen an inquiry is inadequate, the entities charged with the duty to conduct the inquiry must attempt to cure that error and may not avoid their duty by placing the burden on the parents to demonstrate that the error is prejudicial on an inadequate record.” (Id. at pp. 1138-1139.)

Further, CFS’s position “ignores the express obligation that section 224.2, subdivision (b), imposes on [CFS] to inquire of a child’s extended family members— regardless of whether the parents deny Indian ancestry. By requiring [CFS] to inquire of a child’s extended family members as to the child’s possible Indian ancestry, the Legislature determined that inquiry of the parents alone is not sufficient.” (Antonio R., supra, 76 Cal.App.5th at p. 431; see also In re S.S. (2023) 90 Cal.App.5th 694, 701 [“[E]xtended family members can have tribal information the parents lack, or have forgotten, or refuse to divulge”].)

We note CFS’s argument that it cannot be expected “‘to intuit the names of unidentified family members’” and that section 224.2 does not require it to “find unknown relatives.” CFS then claims mother “effectively seeks to impose an unlimited duty to locate and interview every conceivable relative regardless of whether meaningful leads existed.” However, mother does not contend that CFS was required to locate every 12 conceivable relative or pursue endless speculative leads. Rather, she argues CFS failed to take the basic inquiry steps required by section 224.2, subdivision (b), with respect to known maternal relatives—specifically, the maternal grandparents and the maternal aunt.

In sum, CFS should have attempted to locate the maternal relatives and inquire about the child’s possible Indian ancestry. (See In re K.T. (2022) 76 Cal.App.5th 732, 744 (K.T.) [“CFS does not discharge their duty of further inquiry until they make a ‘meaningful effort’ to locate and interview extended family members”].) However, the record contains no discussion of its efforts to locate and/or interview them. Because CFS did not adequately investigate the maternal relatives, we conclude that the juvenile court abused its discretion in finding that ICWA did not apply. (Ibid.)

The order terminating parental rights must therefore be conditionally reversed, and the matter remanded for CFS to make the proper inquiry. (§ 224.2, subds. (b) & (c); K.T., supra, 76 Cal.App.5th at pp. 744-745; K.R., supra, 20 Cal.App.5th at p. 709.) If the inquiry reveals a reason to believe the child is an Indian child, the court shall proceed in conformity with ICWA and California implementing provisions. (Dezi C., supra, 16 Cal.5th at p. 1152.)

DISPOSITION

The order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and of Welfare and Institutions Code section 224.2 (and, if applicable, the notice provisions as well)—specifically, to attempt to locate and inquire of the maternal grandfather, the maternal grandmother, and the maternal aunt, regarding the child’s 13 Native American ancestry. If, after completing the inquiry, neither CFS nor the court has reason to believe or know the child is an Indian child, the order terminating parental rights shall be reinstated. If CFS or the court has reason to believe that the child is an Indian child, the court shall proceed in conformity with ICWA and California implementing provisions.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

I concur:

McKINSTER Acting P. J.

14 [In re A.S., E087816]

MENETREZ, J., Concurring.

I agree with conditional reversal because (1) the only individual who both was asked about Native American ancestry and is known to be on the maternal side of the family is the mother herself, and (2) San Bernardino County Children and Family Services had the name of maternal aunt Kayla K. but did not attempt to ask her about Native American ancestry. I therefore concur in the judgment.

MENETREZ J.