In re F.N. CA4/1

Filed 7/16/21 In re F.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 F.N., a Person Coming Under
the Juvenile Court Law.
D078573
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520491)

Plaintiff and Respondent,

v.

M.N.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Reversed and remanded with directions.

Jacob I. Olson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of County Counsel, Caitlin E, Rae, Chief Deputy County Counsel
and Georgia Braun, Deputy County Counsel for Plaintiff and Respondent.
 M.N. (Mother) appeals from a January 2021 jurisdiction/disposition

hearing under Welfare and Institutions Code1 sections 300 regarding her son
F.N. Mother challenges the juvenile court’s November 2020 finding that
there was no reason to know that F.N. was an Indian child under the Indian
Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq.,
and section 224 et seq. She also contends the San Diego County Health and
Human Services Agency (Agency) was required by section 224.2 subdivision
(f) and section 224.3, subdivision (a)(1) to provide formal notice to three
Indian tribes, which she contends the Agency failed to do. We conclude the
Agency was not required to make formal notice to the three Indian tribes.
Nevertheless, because we determine there is an apparent error or
inconsistency in the juvenile court’s January 21, 2021 minute order regarding
applicability of ICWA to these proceedings, we conditionally reverse and
remand to the juvenile court with direction to clarify its finding as to whether
ICWA applies.
PROCEDURAL AND FACTUAL BACKGROUND
Because Mother does not substantively challenge the juvenile court’s
jurisdiction/disposition findings, we restrict our recitation of the facts to those
relevant to the limited issues on appeal regarding compliance with ICWA.
In March 2017, the San Diego County Health and Human Services
Agency (Agency) first opened a voluntary case with Mother and F.N. after
Mother tested positive for methamphetamines during her first trimester of
pregnancy with F.N. and F.N. tested positive at birth. In August 2020, the
maternal grandmother of F.N. notified the Agency of an incident of domestic

1 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.

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violence between Mother and Mother’s 17-year-old daughter. Maternal
grandmother also notified the Agency of Mother’s ongoing substance abuse
and declining mental health. During its investigation of this report, the
Agency initiated a safety plan for F.N. The Agency contacted F.N.’s
presumed father, who indicated that due to his own issues, he was not in a
place to care for F.N. The father acknowledged that the maternal
grandmother served as F.N.’s primary caregiver and that father’s
involvement with F.N. had been limited to supervised visitation.
Due to ongoing substance abuse, mental health issues, and domestic
violence, the Agency believed F.N. to be “at further risk of maltreatment,
severe neglect, injury or death.” In late August 2020, the Agency petitioned
the juvenile court for three-year-old F.N. under section 300, subdivision (b)
and applied for a protective custody warrant. The Agency recommended that
F.N. be detained with his maternal grandmother to mitigate the safety
threats brought about by the Mother. (CT 15, 27.) As noted in its August
2020 initial detention report, the Agency interviewed the Mother and father
of F.N. and both reported they did not have any Native American heritage.
At the August 27, 2020 initial detention hearing, Mother appeared but
was not yet represented by counsel. Father attended with counsel, who
informed the court that father has been found to be F.N.’s father in other
family court proceedings and that there was an existing child support and
visitation order for father in that case. Father denied the allegations in the
section 300 petition but joined the request to have F.N. detained with the
maternal grandmother. Counsel also informed the juvenile court that Father
had “Native American heritage,” stating Father’s “maternal grandmother
was on the registry. She has passed away. She was on the registry for Creek
and Cherokee.”

3
 Before continuing the hearing for one day to allow Mother to obtain
counsel, the court made a “temporary” finding the Agency had made an
adequate showing that F.N. was a child described by section 300, subdivision
(b). At the hearing the following day, Mother was not present, but she was
represented by counsel. The court confirmed its finding that the Agency had
made a prima facie showing that F.N. was a child described by section 300,
subdivision (b). The court ordered F.N. detained in out-of-home care until the

Agency could place him with his maternal grandmother.2 The court ordered
separate supervised visitation for the parents. The court also ordered the
parents to complete the “Parental Notification of Indian Status” form and
submit it to the Agency. The court deferred on the ICWA issue and set the
matter for a jurisdiction and disposition hearing in September 2020.
In advance of the September hearing, the Agency made further inquiry
of F.N.’s Indian heritage, interviewing Father and the maternal
grandmother. Mother had previously disclosed she had no relevant
information. In the Agency’s September 2020 jurisdiction/disposition report,
the Agency included information on ICWA status stating, “The Indian Child
Welfare Act does or may apply.” Father reported his mother was affiliated
with “Creek Cherokee,” although she passed away in 2010, and his
grandmother was “full Creek Indian and the tribe was from Muskogee,
Oklahoma.” Father himself was not registered with any Indian tribe and he
confirmed that no other relative in his family would have further information
about tribal affiliation. He denied having lived on an Indian reservation and

2 The maternal grandmother’s home was not yet approved for placement,
so the court authorized an extended visit to the grandmother’s home and
granted the Agency discretion to place F.N. once the grandmother’s home was
approved.

4
denied he had any other reason to believe F.N. was an Indian child. The
maternal grandmother denied any Indian heritage and had no information
about tribal affiliation. As such, the Agency’s report included the following
recommendation as to the ICWA: “Notice pursuant to the Indian Child
Welfare Act is required because the court has reason to know the child may
be an Indian child. Reasonable Inquiry has been made to determine whether
the child is or may be an Indian child.” The Agency further recommended
that the court make a true finding on the section 300 petition for F.N.,
remove custody from the mother, and find detriment to place with the father.
The Agency recommended reunification services for both parents and
separate supervised visitation.
In September 2020, the court held the jurisdiction and disposition
hearing. Father was present with counsel. The Mother did not attend the
hearing, but she was represented by counsel. Through counsel, Mother
denied the allegations in the Agency’s section 300 petition and requested the
matter set for trial. Her counsel also asked “that the court defer on the issue
of the Indian Child Welfare Act. I do need to follow up with [Mother] on that
a little bit more.” The Agency also acknowledged “[i]t is possible that this
will become a case where the Indian Child Welfare Act does apply, but I’d ask
the court at this time to defer pending the Agency’s ongoing communications
with the Cherokee Tribes, and I would ask the court to not yet order that the
Agency notice any tribes.” The court continued to defer on ICWA “while we
collect more information.” The court set a pretrial settlement conference for
October 2020 and the contested trial for November 2020.
The Agency continued its ICWA inquiry efforts. As detailed in the
Agency’s October 2020 addendum report, the Agency called the Muscogee
Creek Nation, which informed the Agency in a phone call that it had looked

5
up the family’s information and “there was nothing for them in their
database.” The Agency reported it also received an email from the Creek
Nation stating, “Based on the information provided by your notice of ICWA
proceedings, the child(ren) on this case are ineligible for ICWA in
relationship to the Muscogee (Creek) Nation.” The Nation also informed the
Agency that “there were no other tribes with Creek in their name in that
state.”
The Agency also called the Cherokee Nation and the United Keetoowah
Bank of Cherokee Indians in Oklahoma and conducted email communication
with the Eastern Band of Cherokee Indians. Each requested the Agency send
the “ICWA-030” form with the family’s information so the tribes could
confirm eligibility. The Agency’s report further detailed that it had sent the
required forms on October 12, 2020 to all three. The October 2020
addendum, however, did not attach the three ICWA-030 forms.
At the October 2020 pretrial status conference, the father was present
with counsel. The Mother did not attend the conference, but she was
represented by counsel, who confirmed Mother was requesting the matter be
set for trial. Father also confirmed the matter for trial. Counsel for the
Agency notified the court that it had contacted the Muscogee Creek Nation,
who “indicated that the great-grandmother was not a member.” The Agency
reported that the Nation had “checked their records, and it does not sound
like [the] family would be eligible for membership in this tribe.” The Agency
further informed the court that it had “reached out to the three Cherokee
tribes as there was an indication that the family may have Cherokee history.”
The Agency asked the “[c]ourt continue to defer on ICWA until the trial date.
The Agency would like to make some additional efforts to get in touch with
the Cherokee tribe, and we can provide those updates at trial.” The court

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confirmed trial for November 2020 and stated “[a]t that time, we will address
the Indian Child Welfare Act.”
In advance of the November 2020 hearing, the Agency submitted a
November 2020 addendum report. The Agency confirmed it maintained its
recommendations from the September 2020 jurisdiction and disposition
report. The Agency’s addendum included no further information about the
ICWA or about the Agency’s inquiry efforts.
At the contested November 2020 adjudication hearing, the Mother’s
counsel requested a continuance. Before continuing the hearing, the Agency
and court addressed ICWA. As it had done at the September 2020 hearing,
the Agency represented that it had reached out to the Muscogee Creek Tribe,
which “confirmed that there is not any record of that relative and that they
have no evidence that the father or child would be eligible for membership.”
The Agency also reiterated that they had “reached out to all three Cherokee
Tribes, the United Keetoowah Tribe, the Cherokee Nation, and the Eastern
Band of Cherokee, and [the Agency] did send written 030s more than a
month ago. [The Agency] ha[s] not received any response.” The Agency
requested a finding that ICWA inquiry was sufficient at that point in time
and that “the [c]ourt has no reason to know that this minor is an Indian
child.” The Agency also stated that it would continue to report on any further
information received as a result of inquiry under the ICWA. The other
parties did not address ICWA or respond to the Agency’s representations.
The court found that the Agency’s ICWA inquiry had “been sufficient to
that point” and that “[r]ight now[,] there is no reason to know [F.N.] is an
Indian child.” The court concluded, “This finding is made without prejudice.
If we get additional information, we can reopen inquiry.” The court’s minute
order from the hearing further reflected its ICWA findings, stating: (1)

7
“Notice pursuant to the Indian Child Welfare Act is not required because the
court has reason to know the child is not an Indian child. Reasonable inquiry
has been made to determine whether the child is or may be an Indian child”;
and (2) “The court finds without prejudice that the Indian Child Welfare Act
does not apply to this proceeding.” The court then continued the contested
hearing until January 2021.
Prior to the January 2021 hearing, the Agency submitted two January
2020 addendum reports, providing the court further information about
parents and the issues leading to the dependency proceedings. These reports
included no further information about ICWA or the Agency’s inquiry efforts.
Again, the Agency confirmed it maintained its recommendations from the
September 2020 jurisdiction/disposition report.
In January 2021, the court held the contested adjudication hearing.
Both parents attended with counsel and the trial proceeded by way of
document trial and stipulated testimony from the maternal grandmother.
The court admitted the August 2020 initial detention report, the September
2020 jurisdiction/disposition report, and the Agency addendum reports from

September, October, and November 2020, a December 2020 addendum,3 and

3 Mother moved to augment the record on appeal in this matter to
include documents missing from the record: the December 2020 Agency
addendum report and the three ICWA 030 forms the Agency purportedly sent
in October 2020. We granted Mother’s request, but the clerk of the superior
court subsequently notified this court that “[a]fter a diligent search of the
court files as well as other applicable areas of the juvenile court business
office, [the clerk] ha[s] been unsuccessful in locating” these items. In its
response brief, the Agency contends that when counsel for the Agency
requested the December 2020 addendum be admitted to evidence, it
incorrectly referred to the “JV-285 Relative Information form” as an
addendum. The Agency explained that form (and not any addendum) “is the
only record in evidence which was filed with the court on that date.”

8
the two January 2021 addendum reports. The grandmother’s stipulated
testimony was as follows: “The mother . . . visits [F.N.] on a daily basis. The
mother does not show any signs of substance abuse at the visits. The mother
regularly calls to get updates about [F.N.’s] health, development, and well-
being, and since the case started, the mother has shown big improvements in
her consistency and attitude.” Neither the court nor any of the parties
addressed ICWA at the hearing.
The court adopted many of the recommendations included in the
Agency’s initial September 2020 jurisdiction/disposition report, finding the
petition true by clear and convincing evidence, removing custody from the
mother, and ordering reunification services for both parents. The court made
no explicit mention about ICWA on the record.
However, the minute order for the hearing stated, “Notice pursuant to
the Indian Child Welfare Act is required because the court has reason to
know the child may be an Indian child. Reasonable inquiry has been made to
determine whether the child is or may be an Indian child.” At the conclusion
of the hearing, the court set a six-month review hearing for July 19, 2021.
Mother timely appealed the juvenile court’s January 2021 order. Father did
not appeal or otherwise join in Mother’s arguments on appeal.
The Agency subsequently filed a motion to augment the record on
appeal, which includes a July 2021 Agency addendum report, submitted to
the juvenile court in advance of F.N.’s six-month review hearing scheduled to
occur in July 2021. The report attaches the ICWA-030 form the Agency sent
to the three Cherokee tribes in October 2020, with certified mail receipts.
The report also attaches an April 2021 response from the Cherokee Nation
stating that the Nation examined its tribal records and, based on its
examination, F.N. is “NOT an ‘Indian child/children’ in relation to the

9
Cherokee Nation as defined in the Federal Indian Child Welfare Act, 25
U.S.C. Section 1903(4).”
DISCUSSION
A. Issues on Appeal
Mother’s February 2021 notice of appeal challenges the juvenile court’s
January 2020 findings related to ICWA, which stated, “Notice pursuant to
the Indian Child Welfare Act is required because the court has reason to
know the child may be an Indian child.” The court also determined that
“[r]easonable inquiry has been made to determine whether the child is or
may be an Indian child.” On appeal, however, Mother focuses on an earlier
hearing and claims the court erred in November 2020 by initially finding
there was no reason to know F.N. was an Indian Child. Mother also argues
that at the same November 2020 hearing, the court erroneously found the
Agency’s inquiry and notice efforts “sufficient up to this point.” She argues
the Agency was required to provide notice under the ICWA because there was
reason to know F.N. was an Indian child. She further claims the Agency
failed to provide adequate notice under ICWA because “[t]here is no evidence
in the record that the Agency sent ICWA-030 forms and requested family
information to the Cherokee Nation, Eastern Band of Cherokee Indians, and
United Keetoowah Band of Cherokee in Oklahoma.
B. ICWA Inquiry and Notice Requirements
In 1978 Congress enacted ICWA “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the removal
of Indian children from their families and the placement of such children in
foster or adoptive homes which will reflect the unique values of Indian
culture.” (25 U.S.C. § 1902.) ICWA defines an “Indian child” as an

10
“unmarried person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.” (25 U.S.C. § 1903, subd. (4);
see § 224.1.)
In every dependency proceeding, the trial court and Agency have an
affirmative and continuing duty to determine if ICWA applies. (§ 224.2,
subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 10–11.) If there is “reason to
believe” a child is an Indian child, section 224.2, subdivision (e) requires the
court or social worker to “make further inquiry regarding the possible Indian
status of the child. . . .” (§ 224.2, subd. (e); In re T.G. (2020) 58 Cal.App.5th
275, 290.) There is a “reason to believe” a child is an Indian child whenever
the court or social worker has “information suggesting that either the parent
of the child or the child is a member or may be eligible for membership in an
Indian tribe.” (§ 224.2, subd. (e)(1); see also § 224.2, subd. (d)(1)-(6); Cal. Rule

of Court,4 rule 5.481.) This further inquiry is to enable the court to
“determine whether there is reason to know a child is an Indian child.”
(§ 224.2, subd. (e)(2).) “Contact with a tribe shall include sharing information
identified by the tribe as necessary for the tribe to make a membership or
eligibility determination, as well as information on the current status of the
child and the case.” (§ 224.2, subd. (e)(2)(C).)
If further inquiry reveals reason to know the child is an Indian child
under ICWA, the court and Agency must comply with the formal notice
requirements of section 224.3. (§ 224.2, subd. (f); see also rule 5.481,
subds. (a)(4) and (c)(1).) The Indian tribe determines whether the child is an
Indian child under ICWA. (T.G., supra, 58 Cal.App.5th at p. 294.) A tribe’s

4 Further undesignated rule references are to the California Rules of Court.

11
determination “that a child is or is not a member of, or eligible for
membership in, that tribe . . . shall be conclusive.” (Ibid.; § 224.2, subd. (h).)
As such, meaningful notice must be provided to the relevant Indian
tribe(s). (25 U.S.C. § 1912(a); In re Karla C. (2003) 113 Cal.App.4th 166, 175
(Karla C.); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253
(Dwayne P.), [“ ‘Of course, the tribe’s right to assert jurisdiction over the
proceeding or to intervene in it is meaningless if the tribe has no notice that
the action is pending’ [Citation.]”].) ICWA requires the Agency to notify the
“parent or Indian custodian and the Indian child’s tribe, by registered mail
with return receipt requested, of the pending proceedings and of their right of
intervention.” (25 U.S.C. § 1912(a); § 224.3, subd. (a).) “ The notice must
include the name, [birth date], and birthplace of the Indian child; his or her
tribal affiliation; a copy of the dependency petition; the petitioner’s name; a
statement of the right to the tribe to intervene in the proceeding; and
information about the Indian child’s biological mother, biological father,
maternal and paternal grandparents and great-grandparents or Indian
custodians, including maiden, married and former names or aliases; [birth
dates]; places of birth and death; current and former addresses; tribal
enrollment numbers, and/or other identifying information.” (In re Louis S.
(2004) 117 Cal.App.4th 622, 630; see § 224.3, subd. (a)(5)(A)-(H).)
Specifically, rule 5.481, subdivision (c) requires the Agency to send form
“ICWA-030” to the “parent or legal guardian and Indian custodian of an
Indian child, and the Indian child’s tribe.” And “[n]otice shall be sent . . . for
every hearing that may culminate in an order for foster care placement,
termination of parental rights, preadoptive placement, or adoptive
placement . . . unless it is determined that [ICWA] does not apply to the case
in accordance with section 224.2.” (§ 224.3, subd. (b).)

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 To enable a court to determine if sufficient notice was given, the
Agency must file the ICWA notice, return receipts, and responses received
from the tribe(s) with the juvenile court. (Karla C., supra, 113 Cal.App.4th at
pp. 175, 178–179.) ICWA notice requirements are strictly construed. (In re
G.S.R. (2008) 159 Cal.App.4th 1202, 1216.) “When proper notice is not given
under the ICWA, the court’s order is voidable.” (Karla C., at p. 174, citing 25
U.S.C. § 1914; Dwayne P., supra, 103 Cal.App.4th at p. 260.)
“We review the trial court’s findings whether proper notice was given
under ICWA and whether ICWA applies to the proceedings for substantial
evidence.” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 (D.N.).)
C. Mother’s Appeal of the Court’s Finding That There Was No
Reason to Know the Child was an Indian Child is Untimely
and Moot

Mother contends the court erred in finding there was no reason to
know F.N. is an Indian child in November 2020. She argues that the record
reveals the court had “reason to know” F.N. was an Indian child, thus
triggering section 224.3’s notice requirements. We disagree.
First, Mother’s appeal of this finding is untimely. (See Van Beurden
Ins. Servs., Inc. v. Customized Worldwide Weather Ins. Agency (1997) 15
Cal.4th 51, 56 [This court lacks jurisdiction to review an order where the
notice of appeal was not timely filed as to the order].) Mother’s notice of
appeal filed in February 2020 purports to challenge the court’s January 21,
2021 jurisdictional/dispositional order. Yet, on appeal, the Mother challenges
the court’s findings as to ICWA made at a November 2020 hearing. To the
extent Mother challenges the court’s November 2020 order, her notice of
appeal was filed more than 60 days after that order. (Rule 8.104.)
Second, at the January 2021 contested hearing—the hearing from
which Mother’s appeal extends—the court made a contrary finding. There,

13
the court found “Notice pursuant to the Indian Child Welfare Act is required
because the court has reason to know the child may be an Indian child.”
Ordinarily, the court’s subsequent finding would render Mother’s challenge
moot. (See In re Kristin B. (1986) 187 Cal.App.3d 596, 604–605.)
Problematically, however, the Agency asks us to ignore the courts finding,
arguing “that the inclusion of this ICWA notice order was merely an
oversight on the part of the juvenile court.” We decline the Agency’s request
and instead, remand to the juvenile court to clarify and correct, if necessary,
its findings as to whether or not there is reason to know F.N. may be an
Indian child.
Remand is the correct remedy for the court to correct any errors in its
minute order. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [“ ‘It is not open
to question that a court has the inherent power to correct clerical errors in its
records so as to make these records reflect the true facts. [Citations.] The
power exists independently of statute and may be exercised in criminal as
well as in civil cases. [Citations.]’ ”].) Where an error is raised on appeal,
“the appellate court itself should order the trial court to correct” the error.
(Id. at p. 188.) While we cannot ignore the court’s present January 2021
minute order, we agree the record contains sufficient evidence of a likely
error by the trial court, and as such, conditionally reverse and remand so the
juvenile court can correct the record.
The likely error derives from the Agency’s early inquiry efforts
regarding applicability of ICWA to F.N. At the August 2020 initial detention
hearing for F.N., counsel for father informed the court that father had
“Native American heritage” and that F.N.’s great-grandmother was “on the
registry for Creek and Cherokee.” In conducting further inquiry in
September 2020, father reported to the Agency that his mother was affiliated

14
with “Creek Cherokee” and his grandmother was “full Creek Indian and the
tribe was from Muskogee, Oklahoma.” Based on this information, the Agency
informed the court in its September jurisdiction/disposition report, ICWA
“does or may apply.” The Agency further recommended in its report that the
court find “Notice pursuant to the Indian Child Welfare Act is required
because the court has reason to know the child may be an Indian child.”
At the September jurisdictional hearing, however, the Agency
requested the court defer on making its finding regarding ICWA. The Agency
argues that when the Agency made this request, the Agency was “clarif[ying]
its recommendation regarding ICWA” to the court and was “assert[ing] that
further inquiry was all that was required in [F.N.’s] case.” The record does
not support the Agency’s argument. At the September hearing, the Agency
asked, “to defer pending the Agency’s ongoing communications with the
Cherokee tribes,” and more specifically, that the court “not yet order that the
agency notice any tribes.” Thus, there is no indication in the record that at
this time, the Agency changed its recommendation that the court require
notice under ICWA.
The Agency also contends it “never renewed the recommendation that
the court make a formal order for ICWA notice.” The Agency ignores its
October, November, and January addendum reports, all of which informed
the court that the Agency “maintain[ed] the recommendations stated in the
Jurisdiction and Disposition Report dated 9/21/2020,” the report which
recommended the court order formal notice.
The record does show, however, that at the November 2020 hearing,
the Agency informed the court of its belief that “the Court has no reason to
know that this minor is an Indian child.” The Agency thus asked the court to
find that the Agency’s efforts were “sufficient to date.” The court ultimately

15
agreed, finding “there is no reason to know [F.N.] is an Indian child” and that
Agency’s ICWA inquiry had “been sufficient to this point.” The court’s
minute order further stated, “[t]he court finds without prejudice that the
Indian Child Welfare Act does not apply to this proceeding.”
As stated ante, however, at the contested January 2021 hearing, the
court’s minute order includes a contrary finding, that, “Notice pursuant to the
Indian Child Welfare Act is required because the court has reason to know
the child may be an Indian child.” The Agency contends the court must have
“inadvertently adopted” this recommendation from the September
jurisdiction/disposition report because there was no further testimony,
evidence, or argument about ICWA at the January hearing. This error could
also have been avoided had the Agency revised its recommendations to the
court following its inquiry efforts and after the court made its finding in
November 2020 that ICWA did not apply.
Based on our review of the record, it appears the court’s finding may
have indeed been inadvertent. While announcing its findings, the court only
implicitly referred to ICWA when it stated, “I’ll adopt 2 through 4,” referring
to recommendations two through four in the Agency’s September 2020
jurisdiction/disposition report. Recommendation number three was the
finding requiring ICWA notice. We cannot simply ignore the minute order as
there is no inconsistency between the court’s findings on the record (adopting
recommendation three) and the court’s minute order including that finding.
(C.f. T.G., supra, 58 Cal.App.5th at p. 299, quoting In re Nia A. (2016) 246
Cal.App.4th 1241, 1247, fn. 1 [“ ‘ When there is a discrepancy between the
minute order and the oral pronouncement of judgment, the oral
pronouncement controls ’ ”].) Nevertheless, we recognize there is
inconsistency between the record from November 2020—in which the court

16
found ICWA did not apply to the proceedings—to January 2021 where the
court found notice under ICWA was required. Between this time, none of the
parties introduced additional evidence to the court about ICWA. Neither the
parties nor the court made any other statements about ICWA at the January
2021 hearing.
Accordingly, we conditionally reverse the juvenile court’s January 2021
jurisdiction/disposition order and remand with direction to the trial court to
clarify its finding as to ICWA, in particular, as to whether or not there is
reason to know F.N. is an Indian child and ICWA applies.
D. ICWA’s Notice Requirements Were Not Triggered
Mother contends the Agency was required under sections 224.2,
subdivision (f) and 224.3, subdivision (a)(1) to send “notice” to the three
Cherokee tribes using the ICWA-030 forms and that the court could not make
a finding that there was no reason to know F.N. was an Indian child in their
absence. We disagree.
As discussed ante, we have remanded to the juvenile court to clarify its
January 2021 finding requiring notice under ICWA. Nevertheless, because
both the court’s November 2020 and January 2021 orders include findings
that the Agency’s inquiry efforts, finding respectively that inquiry “been
sufficient to that point” and that “[r]easonable inquiry has been made,” we
turn to the merits of Mother’s argument that notice under ICWA was
triggered.
The court and Agency have “reason to know” a child is an Indian child
if any of the following occur: (1) a designated individual “informs the court
that the child is an Indian child,” (2) the residence or domicile of the child,
the child’s parents, or Indian custodian is on a reservation or in an Alaska
Native village”; (3) a designated individual “informs the court that it has

17
discovered information indicating that the child is an Indian child”; (4) the
child themself “gives the court reason to know that the child is an Indian
child”; (5) “[t]he court is informed that the child is or has been a ward of a
tribal court”; or (6) “[t]he court is informed that either parent or the child
possess an identification card indicating membership or citizenship in an
Indian tribe.” (§ 224.2, subd. (d)(1)-(6).) On appeal, Mother does not contend,
and indeed the substantial evidence does not show, that any of these
occurred.
Instead, the only information about Indian heritage came from F.N.’s
father about possible Indian heritage through the Cherokee tribes and the
Muscogee Creek Nation. While father denied ever living on a reservation or
being a member of any Indian tribe, he did state his belief that his mother
and maternal grandmother were registered members. Where a parent only
lists a child’s grandparent’s name as a member of an Indian tribe, this does
not establish a reason to know a child is an Indian child, nor does it trigger
the noticing requirement. (See In re A.M. (2020), 47 Cal.App.5th 303, 321
[rejecting mother’s claim that she may have Indian heritage rose to the level
of “ ‘information indicating that the child[ren] [are] . . . Indian [child]ren’
(Citations omitted.)”].)
Accordingly, the information provided to the Agency was sufficient to
establish the Agency and court “had reason to believe” F.N. may be an Indian
child, thus triggering only the duty to conduct further inquiry with the
relevant Indian tribes. (A.M., supra, 47 Cal.App.5th at pp. 322–323; In re
D.S. (2020) 46 Cal.App.5th 1041, 1052.) We conclude that substantial
evidence supports the Agency complied with its inquiry obligations pursuant
to section 224.2, subdivision (e).

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 The Agency conducted further interviews with the maternal
grandmother, who denied any knowledge of F.N. having Indian heritage. The
Agency could not interview father’s mother or paternal grandmother as both

were deceased.5 (See § 224.2, subd. (e)(2) [stating further inquiry
“[i]nterviewing the parents, Indian custodian, and extended family members
to gather the information” about whether the child is, or may be, an Indian
child].)
As to the known Indian tribes, the Agency was required to “[c]ontact[ ]
the tribe or tribes,” which included “telephone, facsimile, or electronic mail”
to “shar[e] information identified by the tribe as necessary for the tribe to
make a membership or eligibility determination, as well as information on
the current status of the child and the case.” (§ 224.2, subd. (e)(2)(C).) The
Agency contacted the Muscogee Creek Nation, which informed the Agency in
a phone call that it had looked up the family’s information and “there was
nothing for them in their database.” The Agency reported it also received an
email from the Creek Nation stating, “Based on the information provided by
your notice of ICWA proceedings, the child(ren) on this case are ineligible for
ICWA in relationship to the Muscogee (Creek) Nation.” The Nation also
informed the Agency that “there were no other tribes with Creek in their
name in that state.”
The Agency also contacted the Cherokee Nation, United Keetoowah
Bank of Cherokee Indians, and Eastern Bank of Cherokee Indians in
Oklahoma. Each requested the Agency send the “ICWA-030” form with the

5 The record does not contain completed Parental Notification of Indian
Status forms (ICWA-20) from either parent, despite the court’s order they
submit them. These forms should be completed. (Rule 5.481(a)(2)(c).)

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family’s information so the tribes could confirm eligibility. The Agency
reported that it had sent these forms in October 2020.
Although the Agency could have attached the three ICWA-030 forms
with its October addendum, thereby better documenting its efforts, the
substantial evidence shows it provided sufficient information to support the
court’s findings that the Agency’s inquiry efforts were sufficient. (D.S.,
supra, 46 Cal.App.5th at p. 1054.) Section 224.2, subdivision (g) does not
require the court review the actual forms to determine if the Agency “used
due diligence to identify and work with all of the tribes.” Rather, “the court
shall confirm [sufficient inquiry], by way of a report, declaration, or testimony
included in the record.” (§ 224.2, subd. (g).) Here, there is no dispute the
Agency’s report and information provided to the court detailed its inquiry
efforts.
Based on our decision, we deny the Agency’s request to augment the
record on appeal to include the ICWA-030 form it sent to the Cherokee
Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of
Cherokee in Oklahoma in October 2020. We note that the Agency recently
filed these forms, along with an April 2021 response from the Cherokee
Nation, with the trial court for the upcoming July 2021 six-month review
hearing for F.N. The April 2021 response is new evidence the juvenile court
has not yet had an opportunity to review. As we are remanding to the trial
court to clarify its January 2021 finding related to applicability of ICWA, and
given this additional new information from the Cherokee Nation, which
includes the Nation’s determination that F.N. is “NOT an ‘Indian
child/children’ in relation to the Cherokee Nation as defined in the Federal
Indian Child Welfare Act, 25 U.S.C. Section 1903(4),” the juvenile court will

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make additional findings related to ICWA. We leave it to the juvenile court’s
discretion to do so in the first instance.
DISPOSITION
The juvenile court’s January 2021 jurisdictional and dispositional order
is conditionally reversed. The case is remanded to the juvenile court with
directions to clarify its finding as to whether or not ICWA applies to these
proceedings. If the court finds that there is no reason to know F.N. is an
Indian child, the remainder of the jurisdictional and dispositional order shall
be reinstated. Remittitur shall issue immediately.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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