In re Ashton C. CA4/2
Opinion
BACKGROUND
Mother’s parental rights to two previous children were terminated in 2013.
Mother tested positive for opiates and methamphetamine when she gave birth to Ashton
in September 2020.
On September 14, 2020, DPSS applied for a protective custody warrant as to
Ashton. On the same day, the superior court issued the warrant, and the child was taken
into protective custody. On September 16, 2020, DPSS filed a petition as to Ashton
under section 300. The Judicial Council Indian Child Inquiry Attachment form (ICWA-
010(A)) attached to the petition states that the social worker inquired about Indian
ancestry and that the child has no known Indian ancestry.
Both parents were present at the detention hearing on September 17, 2020.
Counsel for both parents confirmed orally on the record that the parents have no Indian
ancestry. The court then inquired of each parent, and both parents confirmed orally on
the record that they have no Indian ancestry. Mother also filed a Parental Notification of
Indian Status form (ICWA-020), stating under penalty of perjury that none of the options
on the form (which indicate the child may be an Indian child) applied.
The court found that DPSS had conducted a sufficient inquiry regarding whether
Ashton may have Indian ancestry, and the court found that ICWA does not apply. The
court found Father to be Ashton’s presumed father and detained Ashton from both
parents.
3 The jurisdiction/disposition report states that on October 5, 2020, the paternal
grandmother “denied she or her family had Native American ancestry.” The report also
states that DPSS repeatedly tried to interview the parents concerning Native American
ancestry but was unable to contact them. DPSS mailed relative placement letters to the
paternal great-uncle and the paternal aunt, but there is no evidence that the agency
attempted to ask those relatives about Indian ancestry. The paternal grandmother, who
lived in Kansas, wanted to be assessed for placement. She and “her husband” had a visit
with Ashton while they were visiting California.
At the jurisdiction and disposition hearing on October 30, 2020, the court again
found that DPSS had made a sufficient inquiry regarding Indian ancestry and again found
that ICWA does not apply. The court found true the allegations of the first amended
petition (which was filed the same day as the hearing), removed Ashton from parental
custody, and ordered reunification services for both parents.
The status review report for the six-month review hearing states that on January 4,
2021, the social worker asked both parents “about Native American ancestry and tribal
affiliations,” and both parents again said they had none. The paternal grandmother
indicated that she was no longer interested in placement. She and her husband thought
that Ashton was placed in a good home, and “she acknowledged her age.”
At the six-month review hearing on April 14, 2021, the court found that ICWA
does not apply, DPSS had made sufficient inquiry, and no new information indicated that
4 ICWA may apply. The court further found that (1) the parents had not participated
regularly and made substantive progress in their services, (2) the parents had made no
progress in addressing the issues that led to Ashton’s removal, and (3) there was no
substantial probability that Ashton might be returned to parental custody within another
six months. The court accordingly terminated reunification services for both parents and
set a selection and implementation hearing under section 366.26.
The report for the section 366.26 hearing states that on July 26, 2021, the paternal
grandmother denied any Native American ancestry or tribal affiliation. The report also
states that the parents did not request any visitation with Ashton during the reporting
period and that the social worker attempted to contact the parents about visitation but was
unable to reach them.
At the selection and implementation hearing on September 19, 2022, the court
terminated the parental rights of both parents as to Ashton. Although the court did not
make an express ICWA finding at the section 366.26 hearing, the order terminating
parental rights “was ‘necessarily premised on a current finding by the juvenile court’”
that ICWA did not apply to Ashton. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 740,
disapproved on another ground by Dezi C., supra, 16 Cal.5th at p. 1152, fn. 18.) Both
parents timely appealed.
5
DISCUSSION
Both parents argue that DPSS and the juvenile court did not conduct an adequate
initial inquiry to determine whether Ashton is an Indian child within the meaning of
ICWA, because DPSS did not ask various extended family members whether they had
any Indian ancestry. In response, DPSS acknowledges that it had a duty to inquire of
extended family members under section 224.2, subdivision (b). (Ja.O., supra, 18 Cal.5th
at pp. 278-279.) But DPSS argues that the court nevertheless did not abuse its discretion
by implicitly finding that the agency conducted an adequate and proper ICWA inquiry.
We agree with DPSS.
To be an Indian child within the meaning of ICWA, a child must be either (1) a
member or citizen of a federally recognized Indian tribe, or (2) eligible for membership
or citizenship in such a tribe and the biological child of a member or citizen. (25 U.S.C.
§ 1903(4), (8); § 224.1, subds. (a)(4), (b)(1); In re Jonathon S. (2005) 129 Cal.App.4th
334, 338.) The child welfare department 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).)2 “The duty to inquire consists of two phases—the
duty of initial inquiry and the duty of further inquiry.” (In re Ricky R. (2022) 82
After we filed our previous opinion in this case, the Legislature enacted Assembly Bill No. 81 (2023-2024 Reg. Sess.), which amended section 224.2 effective September 27, 2024. (Stats. 2024, ch. 656, § 3.) We quote that version of the statute because, for purposes of this case, it is not materially distinguishable from prior law as interpreted by Ja.O.
6 Cal.App.5th 671, 678 (Ricky R.), disapproved on another ground by Dezi C., supra, 16
Cal.5th at p. 1152, fn. 18.)
“The duty of initial inquiry applies in every dependency proceeding.” (Ricky R.,
supra, 82 Cal.App.5th at p. 678.) The child welfare department’s duty to inquire begins
“when first contacted regarding a child.” (§ 224.2, subd. (b)(1).) The department must
ask the “party reporting child abuse or neglect whether the party has any information that
the child may be an Indian child,” and the department must also ask the child and the
child’s family members, including extended family members, upon first contact with
those individuals. (Ibid.) In addition, if the child is taken into the department’s
temporary custody under section 306, “or if they were initially taken into protective
custody pursuant to a warrant described in Section 340,” then the department must ask
“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.” (§ 224.2, subd. (b)(2).) Extended family
members include adults who are the child’s stepparents, grandparents, siblings, brothers-
or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (§ 224.1,
subd. (c)(1).)
Although the child welfare department is required to conduct an ICWA inquiry of
extended family members, state law “‘does not require the agency to “find” unknown
relatives and others who have an interest in the child, merely to make reasonable
inquiries. The operative concept is those people who are reasonably available to help the
7 agency with its investigation into whether the child has any potential Indian ancestry
should be asked.’” (Dezi C., supra, 16 Cal.5th at p. 1140.)
Juvenile courts must conduct their own initial inquiry as well. “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.’” (Ricky R., supra, 82 Cal.App.5th at pp. 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]eason to believe that an Indian child is involved’ triggers the duty of further
inquiry. [Citation.] ‘[R]eason to believe’ exists whenever the court or [the child welfare
department] has ‘information suggesting that either the parent of the child or the child is a
member [or citizen,] or may be eligible for membership [or citizenship], in an Indian
tribe.’” (Ricky R., supra, 82 Cal.App.5th at p. 679, quoting § 224.2, subd. (e), 1st par. &
(e)(1).)
The juvenile court may find that ICWA does not apply to the proceedings if it
finds “that an agency’s inquiry and due diligence were ‘proper and adequate,’ and the
resulting record provided no reason to know the child is an Indian child.” (Dezi C.,
supra, 16 Cal.5th at p. 1134.) The “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.” (Id. at p. 1141.) “‘“On a well-developed
8 record, the court has relatively broad discretion to determine whether the agency’s
inquiry was proper, adequate, and duly diligent on the specific facts of the case.
However, the less developed the record, the more limited that discretion necessarily
becomes.”’ [Citations.] [¶] If, upon review, a juvenile court’s findings that an inquiry
was adequate and proper and ICWA does not apply are found to be supported by
sufficient evidence and record documentation as required by California law [citation],
there is no error and conditional reversal would not be warranted even if the agency did
not inquire of everyone who has an interest in the child. On the other hand, if the inquiry
is inadequate, conditional reversal [of an order terminating parental rights] is required so
the agency can cure the error and thereby safeguard the rights of tribes, parents, and the
child.” (Ibid.)
The parents argue that DPSS had a duty to ask Mother for contact information for
maternal relatives so that the agency could ask them about possible Indian ancestry.
They contend that in the absence of such a request, DPSS failed to discharge its duty of
initial inquiry. The argument lacks merit, because “section 224.2 ‘does not require the
agency to “find” unknown relatives and others who have an interest in the child.” (Dezi
C., supra, 16 Cal.5th at p. 1140.)
The parents also argue that DPSS’s initial inquiry was inadequate because the
agency failed to ask the paternal great-uncle, the paternal aunt, and the paternal
grandfather about possible Indian ancestry. The paternal great-uncle does not qualify as
an extended family member under the statutory definition, so we find no error with
respect to him. (In re D.S. (2020) 46 Cal.App.5th 1041, 1053 [agency did not have a
9 duty to inquire of great-grandparents because they were not extended family members
under ICWA].) The person whom the parents identify as the paternal grandfather is the
paternal grandmother’s husband, but he does not appear to be biologically related to
Father. He and Father do not share a last name (whereas Father and the paternal great-
uncle have the same last name). At the detention hearing, Father indicated through
counsel that the “only relative” available for placement was the paternal grandmother.
The record repeatedly refers to the “paternal grandmother” being assessed for relative
placement and only once refers to the “paternal grandparents” when discussing
placement. In the respondent’s brief, DPSS argues that the paternal grandmother’s
husband was not a biological relative. The parents do not dispute that or otherwise
address the argument in their reply briefs or their supplemental briefs. The paternal
grandmother’s husband is not an extended family member under the statutory definition,
so we find no error with respect to him either. (In re D.S., supra, 46 Cal.App.5th at
p. 1053.)
The paternal aunt does qualify as an extended family member. But Father
repeatedly denied any Indian ancestry, and the paternal grandmother likewise denied any
Indian ancestry. The record on Father’s ancestry is well developed, and reversal is not
required merely because “every possible extended family member has not been asked
about the child’s Indian ancestry.” (Dezi C., supra, 16 Cal.5th at p. 1140.) Under these
circumstances, the court did not abuse its discretion by finding the ICWA investigation
adequate and proper.
10 The parents raise two other arguments, but both of them fail. Father asserts that
the lack of inquiry as to certain extended family members also violated DPSS’s and the
court’s “continuing duty to inquire” about the child’s Indian status under subdivision (a)
of section 224.2. Father does not develop the argument or explain how, under the
circumstances of this case, the continuing duty to inquire could have been violated even
if the duty of initial inquiry was not. We conclude that there was no such violation. The
initial inquiry investigation revealed no evidence of any possibility that Ashton might be
an Indian child within the meaning of ICWA. On the basis of that investigation, the court
found that ICWA did not apply. Thereafter, neither DPSS nor the court received any new
information suggesting that Ashton might be an Indian child, so there was no need to
conduct any additional inquiry. We accordingly conclude that DPSS and the court did
not violate their continuing duty to inquire.
Finally, Mother argues that DPSS violated its duty to report on its ICWA inquiry
efforts, because DPSS “provided no further updates on the ICWA after October 30, 2020,
in its Jurisdiction/disposition report.” The argument is meritless. DPSS did continue to
inquire about ICWA after the jurisdiction and disposition hearing and did report on those
efforts, including updates in the status review report for the six-month review hearing and
the report for the section 366.26 hearing. Mother has not shown any violation of DPSS’s
duty to report on its ICWA inquiry efforts.
11 For all of these reasons, we conclude that the juvenile court did not abuse its
discretion by implicitly finding that DPSS conducted an adequate and proper ICWA
investigation.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
12