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.

2025(In re H.M. (2025) 109 Cal.App.5th 1171 , 1184, review denied (July 9, 2025) [further inquiry statute “does not detail what specific documentation is required when conducting further inquiry”; In re M.W. (2020) 49 Cal.App.5th 1034 , 1046 [statute “does not require that any extensive or particular formal documentation of ICWA inquiry be provided to the tribe”].) With respect to father’s contention regarding the absence of express ICWA findings at the section 366.26 hearing, the “juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child’s Indian

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.

2023Instead, as a general rule, we will find the appellant’s claims of ICWA error prejudicial and reversible.” (In re N.G. (2018) 27 Cal.App.5th 474, 484 .) While we disagree with Mother on this record that ICWA-030 notices had to be sent because there was reason to know the Children had Indian ancestry; since there was reason to believe the Children may have Indian ancestry, the Department was required by section 224.3, subdivision (e)(2)(B), to make further inquiry with the BIA.

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

2016(Pedro N., supra, at p. 189 .) We concluded mother had not timely raised the ICWA issue because “all persons involved were aware at the dispositional hearing, and earlier” of the ICWA issue, and mother did not raise the issue until two years after the dispositional order.

2016(Pedro N., supra, at pp. 189-190 .) Having failed to raise the ICWA issue timely by appealing from the dispositional order, we concluded mother was foreclosed from raising the issue in an appeal from the order terminating her parental rights.

2026(In re E.W. (2009) 170 Cal.App.4th 396, 404 .) When a child welfare agency conducts an inadequate ICWA inquiry, and the record is thus underdeveloped as to what information might exist about a child’s Indian ancestry, a harmless error analysis is not feasible.

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.

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

2024(See Francisco W., supra, 139 Cal.App.4th at p. 705 [noting limited reversal allows ICWA error to be cured while affording child protection of juvenile court].) In contrast, if the inquiry reveals a reason to know the dependent child is an Indian child, the tribe has been notified (see § 224.3, subd. (a); 19 U.S.C. § 1912 ), and the tribe determines the child is a member or citizen, or eligible for membership or citizenship, of an Indian tribe (see § 224.1, subd. (b); 25 U.S.C. § 1903 (4)), ICWA applies, and the judgment must be reversed.

2024(See In re Terrance B. (2006) 144 Cal.App.4th 965, 972 [“The remittitur defined the scope of the juvenile court’s jurisdiction by ordering the court to reinstate the judgment terminating parental rights, thereby foreclosing the right to a new selection and implementation hearing, if ICWA did not apply.”]; In re Francisco W. (2006) 139 Cal.App.4th 695, 707 [“Curing the ICWA error is distinct and separate from the section 366.26 protections”].) Thus, the cited cases are inapplicable.

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.

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.

2024ICWA Finally, we address father’s challenge to the sufficiency of the Department’s ICWA inquiry. “‘[T]o have standing to appeal, a person generally must be both a party of record and sufficiently “aggrieved” by the judgment or order.’ [Citation.] An alleged father who has not acknowledged or established he is a parent within the meaning of title 25 United States Code section 1903 (9) lacks standing to challenge a violation of the ICWA notice provisions. [Citations.]” (In re Daniel M. (2003) 110 Cal.App.4th 703, 709 .) Because father lacks standing to raise a challenge to the Department’s compl

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.

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

2022While it may be such an oversight could be deemed harmless in a situation where evidence conclusively demonstrates no Indian ancestry (see In re D.N. (2013) 218 Cal.App.4th 1246, 1251 [“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”]), this is not such a case.2 The ICWA inquiry obligation in each case is an ongoing one.

2022While it may be such an oversight could be deemed harmless in a situation where evidence conclusively demonstrates no Indian ancestry (see In re D.N. (2013) 218 Cal.App.4th 1246, 1251 [“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”]), this is not such a case.2 The ICWA inquiry obligation in each case is an ongoing one.

2024(See 25 U.S.C. § 1903 (9) [defining “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”]; In re C.A. (2018) 24 Cal.App.5th 511, 519-521 [ICWA notice not required for a presumed father who was not biological or adoptive father]; In re E.G. (2009) 170 Cal.App.4th 1530 , 1533 [“Until biological paternity is established, an alleged father’s claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indi

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.

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

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.

2024Code, § 459, subd. (d).) 9 ICWA because this fact was noted in the Agency’s response to mother’s writ petition, and in our order denying the petition, in which we expressly found that the ICWA claim was premature, “because it does not appear the juvenile court made an ICWA ruling at or before the challenged dispositional hearing as to whether ICWA applied to the proceedings.” We further included in our order the remark that we “encourage[d] the juvenile court and the child welfare agency to ensure full compliance with all applicable ICWA statutes as early in the remainder of the proceedings as

2024Code, § 459, subd. (d).) 9 ICWA because this fact was noted in the Agency’s response to mother’s writ petition, and in our order denying the petition, in which we expressly found that the ICWA claim was premature, “because it does not appear the juvenile court made an ICWA ruling at or before the challenged dispositional hearing as to whether ICWA applied to the proceedings.” We further included in our order the remark that we “encourage[d] the juvenile court and the child welfare agency to ensure full compliance with all applicable ICWA statutes as early in the remainder of the proceedings as

2026Any ICWA inquiry and notice compliance issues are thus not yet ripe for review and mother’s claim of ICWA error is premature. “ ‘Ripeness’ refers to the requirements of a current controversy.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 .) An issue is not ripe for review unless and until it is “sufficiently concrete to allow judicial resolution even in the absence of a precise factual context.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 ; see id. at pp. 170-172.) As this court explained in J.J. v. Superior Court (2022) 81 Cal.App.5th 447 ,

2026Any ICWA inquiry and notice compliance issues are thus not yet ripe for review and mother’s claim of ICWA error is premature. “ ‘Ripeness’ refers to the requirements of a current controversy.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 .) An issue is not ripe for review unless and until it is “sufficiently concrete to allow judicial resolution even in the absence of a precise factual context.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 ; see id. at pp. 170-172.) As this court explained in J.J. v. Superior Court (2022) 81 Cal.App.5th 447 ,

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

2026In opposing the request, Father relies on In re Zeth S. (2003) 31 Cal.4th 396, 413 , in which the Supreme Court prohibited “consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights.” (Ibid.; see also In re Kenneth D. (2024) 16 Cal.5th 1087 , 1103 [reviewing court may not rely on postjudgment evidence following termination of parental rights to determine juvenile court’s ICWA inquiry was sufficient because reviewing court may not substitute its judgment for that of the juvenile court].) However, neither Zeth S. nor Kenneth D. addressed

2024Contrary to the department’s suggestion, routinely allowing evidence of postjudgment ICWA inquiry to cure defects in the inquiry performed before judgment would not promote “the state’s strong interest in the expeditiousness and finality of juvenile dependency proceedings . . . .” (Zeth S., supra, 31 Cal.4th at p. 412 ; see Josiah Z., supra, 36 Cal.4th at p. 676 .) As we have noted, “Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children.” (Isaiah W., supra, 1 Cal.5th at p. 13 .) “The relevant rights under ICWA belong to I