In re G.O. CA4/1

Filed 4/13/21 In re G.O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 G.O., a Person Coming Under
the Juvenile Court Law.
D078108
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J519705)

Plaintiff and Respondent,

v.

V.V.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Conditionally reversed and remanded with
directions.
Clare M. Lemon, under appointment by the Court of Appeal, for
Defendant and Appellant V.V. (Mother).
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and
Respondent.
 V.V. (Mother) appeals from an order of the juvenile court terminating
her parental rights with respect to minor child, G.O. Mother asserts that the
juvenile court and the San Diego County Health and Human Service Agency
(the Agency) failed to comply with the requirements of the Indian Child
Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) by failing to adequately inquire
as to whether G.O.’s biological father has any Indian ancestry. We agree that
the juvenile court and the Agency did not conduct adequate inquiry. We
therefore conditionally reverse the order and remand the matter for the
limited purpose of compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Given the limited scope of this appeal, we provide an abbreviated
summary of the dependency proceedings and focus on the facts relevant to
the ICWA findings at issue.
The Agency filed a juvenile dependency petition on behalf of G.O. in
March 2018 and alleged that Mother was unable to care for G.O. due to
mental illness. The Agency conducted an initial ICWA inquiry at the outset
of the case. Mother denied having any Indian heritage and indicated that she
did not have any information regarding the identity of G.O.’s biological
father.
Ismael I. was identified as a potential father and the juvenile court
ordered genetic testing to confirm paternity. Mother and Ismael filled out

written ICWA-020 Parental Notification of Indian Status forms.1 Consistent
with her previous statements, Mother indicated that she did not have any

1 We hereby grant the Agency’s unopposed request that we take judicial
notice of the ICWA-020 Judicial Council form. (See Evid. Code, §§ 452, 453,
459, subd. (d); Cal. Rules of Court, rule 8.252(a)(3); Linda Vista Village San
Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234
Cal.App.4th 166, 184-185.)
2
Indian ancestry. Ismael indicated that he may have Cherokee ancestry.
Accordingly, in a jurisdiction and disposition report dated April 16, 2018, the
Agency indicated that ICWA “does or may apply.”
On April 16, 2018, the juvenile court noted that Ismael had no further
contact with the Agency and made a finding that ICWA did not apply,
without prejudice to alleged father Ismael should he come forward. That
same month, the Agency received the results of the paternity testing, which
indicated that Ismael was not the biological father of G.O. Based on those
results, the juvenile court made a finding of non-paternity as to Ismael.
Thereafter, the court found that reasonable inquiry had been made and that
ICWA did not apply to G.O.
In August 2019, Mother identified another individual, I.V., as a
potential biological father to G.O. Mother indicated that I.V. was
incarcerated. The Agency attempted to contact I.V. in early November, but
the prison indicated that the Agency would not be able to speak with him
until a clearance was completed. Per the prison’s recommendation, the
Agency social worker sent a letter via certified mail to I.V. the next day. The
letter informed I.V. that the Agency was inquiring about a child that might
be his and asked him to contact the social worker via telephone as soon as
possible.
I.V. contacted the Agency social worker the following month. He said
that he would like a DNA test to determine if G.O. was his child and that he
would like to have parental rights if the testing confirmed his paternity. A
protective services social worker from the guardianship unit spoke with I.V. a
few days later. I.V. reiterated that he wanted a paternity test, and further
stated that Mother contacted his family members and indicated that G.O.

3
might be his child. He also stated that he would like to be represented by
counsel at the next hearing.
The juvenile court ordered paternity testing, and, in January 2020, the
Agency social worker sent I.V. another letter. In that letter, the Agency
informed I.V. that they were working to arrange the paternity testing and
that counsel had been appointed to represent I.V. in the juvenile dependency
matter. In addition, the letter indicated that the Agency would not be
providing reunification services to I.V. given the length of his incarceration
and asked if he agreed with the current placement for G.O. Finally, the
letter asked whether I.V. had any Native American ancestry and whether
there were family members that may have relevant knowledge in the event
that he did not know. There is no indication in the record that I.V. ever
responded to the letter.
The Agency received the results of the paternity test the next month.
The results indicated a high probability that I.V. was G.O.’s biological father.
The Agency maintained its position that reunification services were not
appropriate given the anticipated length of I.V.’s incarceration. The Agency
informed I.V. via letter that there would be a special hearing on March 25,
2020 to address the results of the paternity test. The hearing was
subsequently postponed due to the Covid-19 pandemic, but the court entered
a written order that same day, March 25, indicating that the parties had
stipulated that I.V. was the biological father of G.O.
In a report submitted on May 20, 2020, the Agency indicated that the
juvenile court had previously found that ICWA did not apply. Regarding I.V.,
the Agency indicated that he had not had any contact with G.O. and that,
therefore, there was no parent-child relationship between them. The Agency

4
reported that G.O. was secure in her placement with a relative caregiver and
recommended termination of both Mother’s and I.V.’s parental rights.
At a hearing on August 12, 2020, the juvenile court noted that I.V. had
attempted to appear telephonically from prison but that he was disconnected
when the court tried to place him on hold prior to the matter being called.
The court made several attempts to call the prison but was ultimately unable
to reconnect with I.V. and proceeded without him. During the hearing, the
juvenile court reconfirmed its finding that I.V. was the biological father of
G.O. The record does not reflect when, if ever, the results of the paternity
testing, or the court’s associated paternity finding, were communicated to I.V.
The section 366.26 hearing was held on October 14, 2020. The Agency
continued to recommend termination of Mother’s and I.V.’s parental rights.
The juvenile court issued an order for I.V. to appear at the hearing, but his
counsel reported, and the court confirmed, that he declined to participate.
After receiving evidence and hearing argument by the parties, the juvenile
court terminated Mother’s and I.V.’s parental rights. The court did not
address ICWA at the hearing but stated, in the associated written order, that
notice pursuant to ICWA was not required because the court knows the child
is not an Indian child, and that reasonable inquiry had been made pursuant
to ICWA.
Mother appeals.
DISCUSSION
Mother’s sole contention on appeal is that the juvenile court and the
Agency did not fulfill their duties of inquiry under ICWA because they failed
to adequately inquire whether I.V. has Indian heritage.

5
I. Relevant Law and Standard of Review
Congress enacted ICWA in 1978 to address concerns regarding the
separation of Indian children from their tribes through adoption or foster
care placements with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th
1, 7, 10.) The federal statute establishes minimum standards for the removal
and placement of children that are members of or eligible for membership in
an Indian tribe to ensure the placements reflect the unique values of their
Indian culture. (25 U.S.C. §§ 1901(3), 1902, 1903(4); In re A.W. (2019) 38
Cal.App.5th 655, 662 (A.W.).)
California adopted the main provisions of ICWA into California
statutory law in 2006. (In re Autumn K. (2013) 221 Cal.App.4th 674, 703-
704.) Following the enactment of new federal regulations concerning ICWA
in 2016, California amended its own statutes, including portions of the

Welfare and Institutions Code2 related to the notice and inquiry provisions of
ICWA. (25 C.F.R. § 23.107(c); 81 Fed. Reg. 38803 (June 14, 2016); In re
Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. 7; A.W., supra, 38 Cal.App.5th
at p. 662, fn. 3; Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) Those changes
became effective January 1, 2019. (A.W., at p. 662, fn. 3.)
The Welfare and Institutions Code now creates three distinct duties
regarding ICWA in dependency proceedings. (In re D.S. (2020) 46
Cal.App.5th 1041, 1051-1052 (D.S.).) Of relevance here, beginning with the
initial contact, the juvenile court and the Agency have an affirmative and
continuing duty to inquire whether the child may be an Indian child.
(§ 224.2, subd. (a); D.S., at p. 1051; In re W.B. (2012) 55 Cal.4th 30, 53; In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1165; Cal. Rules of Court, rule

2 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
6
5.481(a).) That inquiry includes, but is not limited to, asking the child’s
parents whether the child is, or may be, an Indian child. (§ 224.2, subd. (b).)
In addition, the California Rules of Court require, at the first appearance of a
parent in a juvenile dependency proceeding, that the juvenile court order the
parent to fill out the ICWA-020 Parental Notification of Indian Status form.
(Cal. Rules of Court, rule 5.481(a)(2)(C).) If the parent does not appear in
court, the juvenile court must order the Agency to use reasonable diligence to
find and inform the parent to fill out the ICWA-020 form. (Id., rule
5.481(a)(3).)
If the initial inquiry creates a “reason to believe” the child is an Indian
child, then the court and the Agency have a duty to make further inquiry to
determine whether there is “reason to know” the child is an Indian child.
(§ 224.2, subd. (e).) If there is “reason to know” the child is an Indian child,
the court and Agency then have a duty to provide formal notice to any
affected tribes as set forth in section 224.3. (§ 224.2, subds. (c), (d); § 224.3
[ICWA notice is required if there is a “reason to know” a child is an Indian
child as defined under § 224.2, subd. (d)].)
On appeal, we review the juvenile court’s ICWA findings for substantial
evidence. (D.S., supra, 46 Cal.App.5th 1041, 1051; In re Hunter W. (2011)
200 Cal.App.4th 1454, 1467.) Where the facts are undisputed, we
independently determine whether ICWA’s requirements have been satisfied.
(D.S., at p. 1051.)
II. Discussion
The juvenile court and the Agency failed to comply with the inquiry
provisions of ICWA in this case.
The juvenile court made an initial finding, on April 16, 2018, that
ICWA did not apply, without prejudice to then alleged father Ismael should

7
he come forward. Thereafter, paternity testing confirmed that Ismael was
not G.O.’s biological father and the court made subsequent findings, in
October 2018 and June 2019, that ICWA did not apply. At the time the court
made those findings, Mother was the only identified parent of G.O. and she
denied having any Indian heritage. Accordingly, the juvenile court’s initial
ICWA findings were appropriate.
However, the juvenile court and the Agency had an affirmative and
ongoing duty of inquiry under ICWA. (§ 224.2, subd. (a); D.S., supra, 46
Cal.App.5th at p. 1051.) Pursuant to that duty, and once I.V. was identified
and confirmed as a biological parent of G.O., the juvenile court and the
Agency had a duty to inquire whether I.V. had Indian heritage. (§ 224.2,
subd. (a); D.S., at p. 1051.) The court and the Agency failed to fulfill that
duty.
An Agency social worker spoke with I.V. on the phone in December
2019 but did not ask whether he had Indian heritage. A protective services
social worker spoke with I.V. a few days later and also did not inquire as to
his Indian heritage.
The Agency did send I.V. a letter in January 2020 that included an
inquiry as to I.V.’s Indian heritage, but that letter was not sufficient to fulfill
the Agency’s or the juvenile court’s duty of inquiry under ICWA. As noted in
the letter, the Agency was still trying to coordinate paternity testing at that
time and thus, I.V. did not yet know whether G.O. was his child. There is no
indication that I.V. responded to the questions in the letter regarding Indian
heritage, and there is no indication that the Agency followed up in any way.
In addition, the letter did not include an ICWA-020 form or a request that
I.V. submit an ICWA-020 form. Despite the lack of response, neither the

8
court nor the Agency made any further attempts to inquire whether I.V. had
Indian heritage.
After his paternity was confirmed, I.V. attempted to appear in court
telephonically, but he was disconnected from the call. The juvenile court
proceeded without him and reconfirmed his paternity on the record but did
not address ICWA. Specifically, the court did not ask the Agency or I.V.’s
counsel whether they had made any further inquiry or whether I.V. had
disclosed any Indian heritage. In addition, the court did not order the Agency
to make efforts to have I.V. fill out an ICWA-020 form. The Agency asserts
that I.V. never appeared and thus was not available to fill out the ICWA-020
form, but in the absence of an appearance, the juvenile court was required to
order that the Agency use reasonable diligence to locate I.V. and have him fill
out the ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(3).) The court did
not do so, and it appears that the Agency never made any attempt to have
I.V. fill out the form.
Thereafter, there was no further discussion of ICWA and, specifically,
no indication or inquiry as to whether I.V. had responded to the Agency’s
January 2020 letter or otherwise disclosed any Indian heritage. The Agency
asserts that I.V. had become disinterested in the case and was not
communicating with his counsel, based on counsel’s statement at the hearing
on October 7, 2020, “[s]o he can have another chance to reject me.” However,
as the court never inquired, there is no record as to whether I.V. was actually
refusing to speak to counsel or the Agency and, similarly, no record as to any
diligence the Agency may have undertaken to fulfill its duty of inquiry under
ICWA beyond the single letter it sent in January 2020, before I.V.’s paternity
was confirmed. (See In re N.G. (2018) 27 Cal.App.5th 474, 484 [“In the
absence of an appellate record affirmatively showing the court’s and the

9
agency’s efforts to comply with ICWA’s inquiry and notice requirements, we
will not, as a general rule, conclude that substantial evidence supports the
court’s finding that proper and adequate ICWA notices were given or that
ICWA did not apply.”].)
Despite the lack of inquiry, on October 14, 2020, the juvenile court
made additional findings that reasonable inquiry had been made pursuant to
ICWA and that ICWA did not apply and terminated Mother’s and I.V.’s
parental rights. Because we have concluded that reasonable inquiry was not
made with respect to I.V.’s Indian heritage, and there is no evidence in the
record that would support the court’s findings, we must reverse the juvenile
court’s order. (See In re N.G., supra, 27 Cal.App.5th at p. 484 [failure to
comply with ICWA inquiry and notice provision is, as a general rule,
prejudicial error requiring reversal].)
We are cognizant of the need for permanency for G.O., and the fact
that this decision may delay that permanency. However, the purpose of
ICWA is to protect the rights of Indian children and the tribes to which they
may belong, and it is therefore necessary that the juvenile court and the
Agency fulfill their obligations to conduct adequate inquiry. (See In re Alice
M. (2008) 161 Cal.App.4th 1189, 1197.)
DISPOSITION
The order terminating Mother’s and I.V.’s parental rights is
conditionally reversed, and the matter is remanded to the juvenile court with
directions for the juvenile court to vacate its ICWA findings and to direct the
Agency to complete ICWA inquiry with respect to I.V. If, after the Agency
does so, the court finds that G.O. is an Indian child, the court shall proceed in
conformity with ICWA. If the court finds that G.O. is not an Indian child, the

10
court’s order terminating Mother’s and I.V.’s parental rights shall be
reinstated.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

11