icwa inquiry in California

2026(In re Isaiah W. (2016) 1 Cal.5th 1, 10 .) DISCUSSION Mother argues that the juvenile court prejudicially erred by failing to ensure that the Department conducted an adequate ICWA inquiry.

2026(See In re Isaiah W. (2016) 1 Cal.5th 1, 10 [parent’s failure to timely appeal from ICWA finding in dispositional order did not preclude her from raising ICWA claim in appeal from order terminating parental rights].) Next, the Agency argues it was not required to make ICWA inquiry of the minor’s adoptive extended family members.

2026(See J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461; In re M.R. (2017) 7 Cal.App.5th 886, 904 [claims of ICWA error were premature where the court found ICWA may apply at the dispositional hearing but had not made a final ICWA ruling]; In re Baby Girl M. (2022) 83 Cal.App.5th 635 , 638–639 [dismissing appeal as moot at the jurisdiction/disposition stage where the juvenile court and the department remained obligated to comply with ICWA inquiry and notice requirements].) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and 9. noticing may still be

2026(See J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461; In re M.R. (2017) 7 Cal.App.5th 886, 904 [claims of ICWA error were premature where the court found ICWA may apply at the dispositional hearing but had not made a final ICWA ruling]; In re Baby Girl M. (2022) 83 Cal.App.5th 635 , 638–639 [dismissing appeal as moot at the jurisdiction/disposition stage where the juvenile court and the department remained obligated to comply with ICWA inquiry and notice requirements].) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and 9. noticing may still be

2024(See In re K.R. (2018) 20 Cal.App.5th 701 , 708–709; see also In re N.G. (2018) 27 Cal.App.5th 474, 483 .) The courts in In re Antonio R. (2022) 76 Cal.App.5th 421 and In re H.V. (2022) 75 Cal.App.5th 433 adopted similar standards in relation to the initial inquiry, holding that the agency’s failure to interview extended family members during its initial ICWA inquiry was prejudicial error and therefore either (1) reversible per se (H.V., at p. 438) or (2) above such a low bar for prejudice that it was reversible in most circumstances (Antonio R., at pp. 435−436). 13.

2023(In re K.R. (2018) 20 Cal.App.5th 701, 709 ; In re N.G. (2018) 27 Cal.App.5th 474, 484 ; Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) As this court has previously explained: “[W]here the record does not show what, if any, efforts the agency made to discharge its duty of inquiry [citations]; . . . the burden of making an adequate record demonstrating the court’s and the agency’s efforts to comply with ICWA’s inquiry and notice requirements must fall squarely and affirmatively on the court and the agency,” and “as a general rule, we will find the appellant’s claims of ICWA error prejudici

2026“Federal regulations require state courts to ask each participant ‘at the commencement’ of a child custody proceeding ‘whether the participant knows or has reason to know that the child is an Indian child.’” (In re Ricky R. (2022) 82 Cal.App.5th 671 , 678-679, quoting 25 C.F.R. § 23.107 (a) (2022).) Similarly, state law requires the court to pursue an ICWA inquiry at the first hearing on a dependency petition (or at the first court appearance of a party or “other interested person[],” if the party or other interested person was not present at the first hearing). (§ 224.2, subd. (c).) “‘[R]easo

2026“Federal regulations require state courts to ask each participant ‘at the commencement’ of a child custody proceeding ‘whether the participant knows or has reason to know that the child is an Indian child.’” (In re Ricky R. (2022) 82 Cal.App.5th 671 , 678-679, quoting 25 C.F.R. § 23.107 (a) (2022).) Similarly, state law requires the court to pursue an ICWA inquiry at the first hearing on a dependency petition (or at the first court appearance of a party or “other interested person[],” if the party or other interested person was not present at the first hearing). (§ 224.2, subd. (c).) “‘[R]easo

2025In addition, the record does not disclose that inquiry was made of any other paternal relatives as to PGM. 8 The juvenile court must make an ICWA inquiry when the parents first appear in court and “shall ask each party to the proceeding and all other interested persons present whether the child is, or may be, and Indian Child, whether they know or have reason to know that the child is an Indian child” (§ 224.2, subd. (c)) and must require each party to complete the ICWA-020 form—“Parental Notification of Indian Status” (Cal. Rules of Court, rule 5.481(a)(2)(C)). 14 DCFS must make “a meaningful

2025In addition, the record does not disclose that inquiry was made of any other paternal relatives as to PGM. 8 The juvenile court must make an ICWA inquiry when the parents first appear in court and “shall ask each party to the proceeding and all other interested persons present whether the child is, or may be, and Indian Child, whether they know or have reason to know that the child is an Indian child” (§ 224.2, subd. (c)) and must require each party to complete the ICWA-020 form—“Parental Notification of Indian Status” (Cal. Rules of Court, rule 5.481(a)(2)(C)). 14 DCFS must make “a meaningful

2026The juvenile court is required to make findings as to the applicability of the ICWA, in part because it must “make certain findings affecting an Indian child before ordering foster care or terminating parental rights.” (In re M.B. (2010) 182 Cal.App.4th 1496 , 1502; see In re Jennifer A. (2002) 103 Cal.App.4th 692 , 704–705, 709.) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and noticing may still be resolved during the normal course of the ongoing dependency proceedings.” (J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461.) However, compliance

2026The juvenile court is required to make findings as to the applicability of the ICWA, in part because it must “make certain findings affecting an Indian child before ordering foster care or terminating parental rights.” (In re M.B. (2010) 182 Cal.App.4th 1496 , 1502; see also In re Jennifer A. (2002) 103 Cal.App.4th 692 , 704–705, 709.) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and noticing may still be resolved during the normal course of the ongoing dependency proceedings.” (J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461.) However, compl

2026“The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 .) In order to be ripe, the issues raised must be “sufficiently concrete to allow judicial resolution even in the absence of a precise factual context.” (Ibid.) The question of whether the ICWA inquiry has been satisfied is not a justiciable controversy until the juvenile court makes a “final ruling” about the applicability of ICWA.

2026“The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 .) In order to be ripe, the issues raised must be “sufficiently concrete to allow judicial resolution even in the absence of a precise factual context.” (Ibid.) The question of whether the ICWA inquiry has been satisfied is not a justiciable controversy until the juvenile court makes a “final ruling” about the applicability of ICWA.

2016Mother requests that we revisit and overrule our opinion in Pedro N., supra, 35 Cal.App.4th 183, 185, 189 , which applies waiver and forfeiture to parents who wait until the termination of parental rights to first make an ICWA challenge.

2016Mother requests that we revisit and overrule our opinion in Pedro N., supra, 35 Cal.App.4th 183, 185, 189 , which applies waiver and forfeiture to parents who wait until the termination of parental rights to first make an ICWA challenge.

2019Code, § 366.26, subd. ( l )(1)-(2) ; Cal Rules of Court, rules 8.450(e)(4)(a), 8.452 ; Sara M. v. Superior Court (2005) 36 Cal.4th 998 , 1018, 32 Cal.Rptr.3d 89 , 116 P.3d 550 .) Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 , 126 Cal.Rptr.2d 639 , cited by mother (and the Isaiah court), is distinguishable in that the appeal in that case was taken from an order terminating reunification services and scheduling a selection and implementation hearing. ( Id . at p. 251, 126 Cal.Rptr.2d 639 .) The ICWA issue *897 was cognizable in the context of that order because the error under review w

2019Code, § 366.26, subd. ( l )(1)-(2) ; Cal Rules of Court, rules 8.450(e)(4)(a), 8.452 ; Sara M. v. Superior Court (2005) 36 Cal.4th 998 , 1018, 32 Cal.Rptr.3d 89 , 116 P.3d 550 .) Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247 , 126 Cal.Rptr.2d 639 , cited by mother (and the Isaiah court), is distinguishable in that the appeal in that case was taken from an order terminating reunification services and scheduling a selection and implementation hearing. ( Id . at p. 251, 126 Cal.Rptr.2d 639 .) The ICWA issue *897 was cognizable in the context of that order because the error under review w

2026(See J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461; In re M.R. (2017) 7 Cal.App.5th 886, 904 [claims of ICWA error were premature where the court found ICWA may apply at the dispositional hearing but had not made a final ICWA ruling]; In re Baby Girl M. (2022) 83 Cal.App.5th 635 , 638–639 [dismissing appeal as moot at the jurisdiction/disposition stage where the juvenile court and the department remained obligated to comply with ICWA inquiry and notice requirements].) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and 9. noticing may still be

2026(See J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461; In re M.R. (2017) 7 Cal.App.5th 886, 904 [claims of ICWA error were premature where the court found ICWA may apply at the dispositional hearing but had not made a final ICWA ruling]; In re Baby Girl M. (2022) 83 Cal.App.5th 635 , 638–639 [dismissing appeal as moot at the jurisdiction/disposition stage where the juvenile court and the department remained obligated to comply with ICWA inquiry and notice requirements].) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and 9. noticing may still be

2026(Ibid. [until an alleged father’s biological paternity is established, “neither the court nor the social worker knows or has reason to know that an Indian child is involved”]; see also In re Daniel M. (2003) 110 Cal.App.4th 703 , 707-709 [alleged father lacked standing to raise ICWA issue on appeal].) As for B.S.’s foster mother, nothing in the record suggests she had any information regarding any possible tribal affiliation of B.S.

2024ICWA defines a “parent” as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. 26 It does not include the unwed father where paternity has not been acknowledged or established.” ( 25 U.S.C. § 1903 (9).) Under California law, “[a]n alleged father may or may not have any biological connection to the child.” (In re E.G. (2009) 170 Cal.App.4th 1530 , 1533.) But “absent a biological connection, the child cannot claim Indian heritage through the alleged father.” (Ibid.; see In re Daniel M.

2023(See In re Darian R. (2022) 75 Cal.App.5th 502 , 510 [parents’ failure to come forward with any additional information regarding Indian ancestry when ordered by the juvenile court to do so indicates that there may be no Indian ancestry to report].) Finally, we are not persuaded by father’s argument that he need not demonstrate any prejudice stemming from ICWA error because he is requesting a “conditional affirmance” and not a reversal of the legal guardianship.

2022(Ibid.; In re Antonio R. (2022) 76 Cal.App.5th at pp. 435-436; see also In re N.G. (2018) 27 Cal.App.5th 474, 484 ; but see In re Darian R. (2022) 75 Cal.App.5th 502 , 509-510 [no prejudice where mother under court order to continue providing ICWA information to juvenile court]; In re A.C. (2021) 65 Cal.App.5th 1060 , 1068– 1073.) The Department does not offer any persuasive reason why the fact that a parent is appealing from a later order should lead us to depart from our conclusion in In re H.V. that “on this record, which demonstrates that the Department failed to discharge its first-step i

2024(E.g., In re Charles W. (2021) 66 Cal.App.5th 483 , 490-492 [holding that a prior finding of no ICWA concerns as to sibling means deficiencies in ICWA inquiry as to subsequent 7 sibling were harmless]; In re E.W. (2009) 170 Cal.App.4th 396, 400-402 [same as to half sibling]; In re J.M. (2012) 206 Cal.App.4th 375, 383 [same].) Mother offers nothing in the trial court record or on appeal to suggest that further inquiry would turn up any different conclusion.

2024(See Benjamin M., supra, 70 Cal.App.5th at pp. 743-744 [this court applied prejudice analysis when agency failed to conduct proper ICWA inquiry]; In re Brandon T. (2008) 164 Cal.App.4th 1400 , 1414- 1415 [harmless error analysis to deficiencies in ICWA notice]; In re D.W. (2011) 193 Cal.App.4th 413, 418 [same]; In re E.W. (2009) 170 Cal.App.4th 396, 402-403 [same].) Any error in this case is one of state law, and requires reversal only upon a showing of prejudice.

2019It is well established, and the California Supreme Court has recently affirmed, that a parent may raise an ICWA inquiry or notice violation on appeal from an order terminating parental rights, even if the parent did not appeal an earlier order finding the ICWA inapplicable. ( In re Isaiah W. (2016) 1 Cal.5th 1 , 9-15, 203 Cal.Rptr.3d 633 , 373 P.3d 444 .) Because the court's duty to inquire whether the minor is an Indian child continues until proper notice is given, any error in not giving proper notice is also continuing in nature and may be challenged at any time during the dependency procee

2019It is well established, and the California Supreme Court has recently affirmed, that a parent may raise an ICWA inquiry or notice violation on appeal from an order terminating parental rights, even if the parent did not appeal an earlier order finding the ICWA inapplicable. ( In re Isaiah W. (2016) 1 Cal.5th 1 , 9-15, 203 Cal.Rptr.3d 633 , 373 P.3d 444 .) Because the court's duty to inquire whether the minor is an Indian child continues until proper notice is given, any error in not giving proper notice is also continuing in nature and may be challenged at any time during the dependency procee

2022(In re D.S. (2020) 46 Cal.App.5th 1041 , 1051.) “Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child.” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 .) There was reason to believe the minors here were Indian children.

2022(D.S., supra, 46 Cal.App.5th at p. 1051.) “Deficiencies in [the] ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child. [Citations.]” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 .) Mother, the maternal aunt, and the maternal grandmother all indicated they had no known Indian ancestry.

2022(Isaiah W., supra, 1 Cal.5th at pp. 9-15 [continuing duty under ICWA]; In re A.M. (2020) 47 Cal.App.5th 303 , 314, fn. 4 [absence of express finding does not diminish requirement of a current ICWA finding]; In re A.W. (2019) 38 Cal.App.5th 655, 664-665 [a non-Indian parent has standing to raise an ICWA violation on appeal].) Because Father is appealing from the February 2022 order terminating his parental rights, and the juvenile court has a continuing duty to determine whether ICWA applies, we apply the federal and state statutes in effect on the date of the hearing. (§§ 224.2, 224.3 [Stats.

2022(Isaiah W., supra, 1 Cal.5th at pp. 9-15 [continuing duty under ICWA]; In re A.M. (2020) 47 Cal.App.5th 303 , 314, fn. 4 [absence of express finding does not diminish requirement of a current ICWA finding]; In re A.W. (2019) 38 Cal.App.5th 655, 664-665 [a non-Indian parent has standing to raise an ICWA violation on appeal].) Because Father is appealing from the February 2022 order terminating his parental rights, and the juvenile court has a continuing duty to determine whether ICWA applies, we apply the federal and state statutes in effect on the date of the hearing. (§§ 224.2, 224.3 [Stats.

2021The court’s finding at the section 366.26 hearing that ICWA did not apply “implie[d] that the duty of inquiry under California’s ICWA-related law had been satisfied.” (In re Austin J. (2020) 47 Cal.App.5th 870 , 887.) The record did not contain substantial evidence to support that finding, in the absence of information about DPSS’s and the court’s efforts to conduct further inquiry. (§ 224.2, subd. (i)(2) [ICWA finding “subject to reversal based on sufficiency of the evidence”]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 [ICWA findings reviewed for substantial evidence].) The ICWA error

2021The court’s finding at the section 366.26 hearing that ICWA did not apply “implie[d] that the duty of inquiry under California’s ICWA-related law had been satisfied.” (In re Austin J. (2020) 47 Cal.App.5th 870 , 887.) The record did not contain substantial evidence to support that finding, in the absence of information about DPSS’s and the court’s efforts to conduct further inquiry. (§ 224.2, subd. (i)(2) [ICWA finding “subject to reversal based on sufficiency of the evidence”]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 [ICWA findings reviewed for substantial evidence].) The ICWA error

2021(See In re Michael V. (2016) 3 Cal.App.5th 225, 233 [“the 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”].) The Department’s failure to conduct an adequate inquiry into Y.W. and Y.G.’s possible Indian ancestry makes it impossible for Deshawn and Clairessa to demonstrate prejudice. 18 (See In re N.G., supra, 27 Cal.App.5th at p. 484 [ICWA error was prejudicial where the record did not show “the court’s and the agency’s e

2021(See In re Michael V. (2016) 3 Cal.App.5th 225, 233 [“the 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”].) The Department’s failure to conduct an adequate inquiry into Y.W. and Y.G.’s possible Indian ancestry makes it impossible for Deshawn and Clairessa to demonstrate prejudice. 18 (See In re N.G., supra, 27 Cal.App.5th at p. 484 [ICWA error was prejudicial where the record did not show “the court’s and the agency’s e

2026(See J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461; In re M.R. (2017) 7 Cal.App.5th 886, 904 [claims of ICWA error were premature where the court found ICWA may apply at the dispositional hearing but had not made a final ICWA ruling]; In re Baby Girl M. (2022) 83 Cal.App.5th 635 , 638–639 [dismissing appeal as moot at the jurisdiction/disposition stage where the juvenile court and the department remained obligated to comply with ICWA inquiry and notice requirements].) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and 9. noticing may still be

2026(See J.J. v. Superior Court (2022) 81 Cal.App.5th 447 , 461; In re M.R. (2017) 7 Cal.App.5th 886, 904 [claims of ICWA error were premature where the court found ICWA may apply at the dispositional hearing but had not made a final ICWA ruling]; In re Baby Girl M. (2022) 83 Cal.App.5th 635 , 638–639 [dismissing appeal as moot at the jurisdiction/disposition stage where the juvenile court and the department remained obligated to comply with ICWA inquiry and notice requirements].) Where “the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and 9. noticing may still be

2023(In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 .) Petitioner argues we must remand to require the Agency make an ICWA inquiry of the following individuals to whom petitioner claims the Agency has access, but did not previously ask about the minors’ possible Native American ancestry: (1) father; (2) the maternal uncle, Aa.S.; (3) the maternal grandfather; (4) the paternal grandparents; and (5) the paternal aunt.

2023(In re K.R. (2018) 20 Cal.App.5th 701, 706 .) We review claims of inadequate ICWA inquiry for substantial evidence (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 ; § 224.2, subd. (i)(2) [ICWA findings “subject to reversal based on sufficiency of the evidence”]), which requires us to determine if reasonable, credible evidence of solid value supports the juvenile court’s order.

2024(In re A.J. (2019) 44 Cal.App.5th 652 , 665-666; In re J.P. (2017) 15 Cal.App.5th 789, 797 .) Thus, “the test for prejudice is generally whether ‘it is reasonably probable that a result more favorable to [the appellant] would have been reached in the absence of the error.’” (In re A.R. (2021) 11 Cal.5th 234 , 252, quoting People v. Watson (1956) 46 Cal.2d 818, 836 .) C.P.-S. asserts that because he did not have counsel or access to the case file, he was “unable to raise significant shortcomings with the ICWA notices.” He also notes that at the hearing on November 9, 2023, he told the court tha

2024(In re A.J. (2019) 44 Cal.App.5th 652 , 665-666; In re J.P. (2017) 15 Cal.App.5th 789, 797 .) Thus, “the test for prejudice is generally whether ‘it is reasonably probable that a result more favorable to [the appellant] would have been reached in the absence of the error.’” (In re A.R. (2021) 11 Cal.5th 234 , 252, quoting People v. Watson (1956) 46 Cal.2d 818, 836 .) C.P.-S. asserts that because he did not have counsel or access to the case file, he was “unable to raise significant shortcomings with the ICWA notices.” He also notes that at the hearing on November 9, 2023, he told the court tha

2026Where, 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 dis

2024(See In re Veronica G. (2007) 157 Cal.App.4th 179, 187 [concluding that reversal for failure to comply with ICWA is appropriate only where parental rights have been terminated].) 7 There is a third possibility: in an appeal from a dispositional order where the only challenge is to compliance with ICWA inquiry requirements, and where the social services agency concedes that it did not satisfy its inquiry obligations under ICWA and accepts its obligation to do so, the reviewing court may simply affirm the challenged order.