In re D.R. CA4/1

California Court of Appeal · D067669 · 2015-07-20 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. NJ14935
Trial judge: Michael J. Imhoff (commissioner)
Outcome: reversed in part — Reversed in part with directions.
Area: dependency
Panel: McINTYRE (author), Gilbert Nares, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:12Z · confidence high

The trial court found that ICWA did not apply and issued a dispositional order removing the child from the mother. The Court of Appeal conditionally reversed the order, finding the agency's ICWA inquiry was inadequate, and remanded the case for further inquiry into the child's potential Indian ancestry.

Ruling reviewed	Standard	The court	The model
The juvenile court's finding that ICWA did not apply and the resulting dispositional order. “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.”	de novo	error	agree with court The appellate court determined that the agency failed to conduct a proper inquiry into the child's potential Indian ancestry, specifically by not interviewing extended family members about their heritage despite a relative's statement suggesting Cherokee blood. Because the agency did not fulfill its duty to inquire, the court conditionally reversed the order to ensure compliance with ICWA requirements.
The Agency's argument that the mother forfeited the ICWA claim by not objecting at the trial level. “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.”	de novo	error	agree with court The court rejected the forfeiture argument, holding that parents in dependency proceedings are permitted to raise ICWA notice issues on appeal even if they did not object in the juvenile court, as parental inaction cannot excuse the court's failure to ensure proper notice to tribes.

Authorities

relied: In re Marinna J. (2001) 90 Cal.App.4th 731 — Tribes that are not notified of dependency proceedings cannot assert their rights under ICWA, and parental inaction cannot excuse the failure of the juvenile court to ensure notice.
relied: In re Alice M. (2008) 161 Cal.App.4th 1189 — 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.
relied: In re Shane G. (2008) 166 Cal.App.4th 1532 — 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.
relied: In re Jeremiah G. (2009) 172 Cal.App.4th 1514 — More than a 'bare suggestion' of Native American ancestry is needed before notice is required.
relied: In re J.D. (2010) 189 Cal.App.4th 118 — An attenuated, speculative or vague claim of Indian heritage is insufficient to trigger notice requirements under ICWA.

The appellate opinion: sound — The opinion correctly applies the standard for ICWA inquiry, distinguishing between a 'bare suggestion' that triggers a duty to inquire and a 'reason to know' that triggers a duty to notify. It properly rejects the forfeiture argument based on established California precedent regarding ICWA appeals.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The juvenile court found at the jurisdictional and dispositional hearings that a reasonable ICWA inquiry had been made, that ICWA notice was not required and ICWA did not apply, removed D.R. from Mother, and denied her reunification services. The Court of Appeal rejected the Agency's forfeiture argument, held the Agency's inquiry was inadequate because it never asked the maternal aunt and uncle about Indian heritage or asked the great-grandmother for other relatives' contact information, and conditionally reversed the ICWA finding and dispositional order with directions to conduct further inquiry and, if warranted, notice.

Ruling reviewed	Standard	The court	The model
Finding that the Agency made a reasonable inquiry into whether D.R. may be an Indian child “there is no indication in the record that these relatives were ever asked about D.R.'s Indian heritage”	unclear	error (law misapplied)	agree with court The maternal great-grandmother's statement that the family had Indian blood, possibly Cherokee, gave the Agency reason to know D.R. might be an Indian child under section 224.3, subdivision (b)(1), triggering the duty of further inquiry under section 224.3, subdivision (c) and rule 5.481(a)(4)(A). The record shows the Agency spoke with a maternal aunt and uncle but never asked them about ancestry, so the court's conclusion that the inquiry was insufficient follows from the statute and the cited cases. The opinion does not state a standard of review and does not expressly address whether the omission was prejudicial, but the result is consistent with the governing authority.
Finding that ICWA notice was not required and ICWA did not apply, and the resulting dispositional order “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”	unclear	not reached	agree with court The court did not decide whether notice was ultimately required; it conditionally reversed and directed that the notice question be resolved after proper inquiry, holding notice would not be required if nothing beyond the great-grandmother's vague statement emerges. This conditional disposition tracks In re J.D. and In re Jeremiah G., which hold that attenuated or speculative claims do not by themselves trigger notice, while ensuring the tribe's rights are protected if more information surfaces. The approach is a reasonable application of the inquiry/notice distinction in section 224.3.

Authorities

relied: In re Marinna J. (2001) 90 Cal.App.4th 731 — Parental inaction in the juvenile court does not excuse the failure to ensure ICWA notice; tribes not notified cannot assert their ICWA rights, so the issue is not forfeited.
relied: In re Alice M. (2008) 161 Cal.App.4th 1189 — Parents may raise ICWA notice issues on appeal even where the issue was not raised in the juvenile court.
relied: In re Shane G. (2008) 166 Cal.App.4th 1532 — If inquiry gives the social worker or court reason to know an Indian child is involved, notice must be given to the tribe and the Bureau of Indian Affairs.
relied: In re Jeremiah G. (2009) 172 Cal.App.4th 1514 — More than a bare suggestion of Native American ancestry is required before ICWA notice is required.
relied: In re J.D. (2010) 189 Cal.App.4th 118 — An attenuated, speculative, or vague claim of Indian heritage is insufficient to trigger ICWA notice requirements.
missed: In re Rebecca R. (2006) 143 Cal.App.4th 1426 — A parent challenging an inadequate ICWA inquiry must show prejudice, such as by asserting on appeal that the child in fact has Indian ancestry; absent such a showing the inquiry error does not warrant reversal.

The appellate opinion: sound with gaps — The court correctly rejected forfeiture under Marinna J. and Alice M., and its conclusion that a relative's claim of Cherokee ancestry triggered a duty to ask the already-contacted maternal aunt and uncle about heritage is consistent with section 224.3 and rule 5.481. It did not, however, state a standard of review or address the published line of authority (In re Rebecca R.) requiring a parent who herself denied Indian heritage to show prejudice from an inquiry omission, which the Agency could have invoked.

How this analysis was made · dispute it

Opinion

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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.R., a Person Coming Under the Juvenile Court Law. D067669 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ14935) Plaintiff and Respondent, v. DORIS R., Defendant and Appellant.

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. 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 2 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.

3 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).)

4 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 great- grandmother whether she had contact information for other extended family members that might have information about possible Indian heritage. On this record, we conclude 5 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 great- grandmother'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.

6 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.

Cites, in this corpus

In Re Jeremiah G. C058223 · 2009-04-14
In Re Shane G. D052632 · 2008-08-26
In Re Alice M. H031794 · 2008-04-09
In Re Marinna J. C036453, C036922 · 2001-07-12