In re K.F. CA5

Filed 6/28/22 In re K.F. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re K.F., a Person Coming Under the Juvenile
Court Law.

STANISLAUS COUNTY COMMUNITY F083814
SERVICES AGENCY,
(Super. Ct. No. JVDP-20-000195)
Plaintiff and Respondent,

v. OPINION
MARIO F.,

Defendant and Appellant.

THE COURT *
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel,
for Plaintiff and Respondent.
-ooOoo-

* Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.
 Appellant Mario F. (father) is the biological father of K.F. (the child), who is the
subject of a dependency case. Father challenges the juvenile court’s orders terminating
his parental rights at a Welfare and Institutions Code1 section 366.26 hearing. Father’s
sole claim is that the juvenile court failed to ensure compliance with the inquiry and
notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND 2
On July 24, 2020, the child was taken into protective custody, pursuant to a
warrant, by Alameda County Social Services (ACSS). ACSS filed a petition alleging the
child was at substantial risk of suffering serious physical harm under section 300,
subdivision (b) as a result of mother’s alcohol abuse and domestic violence between
mother and father. Father’s whereabouts were unknown at the time of the child’s
removal, and he was identified as an alleged father.
The child was placed with the maternal grandmother pursuant to an emergency
resource family approval. Father had prior child welfare case history as a minor, and
Stanislaus County had responded to two separate referrals for alleged emotional abuse
and general neglect by father towards three of his other children. Mother informed the
emergency response social worker from ACSS that the family had no known Indian
ancestry.
At the detention hearing held on July 29, 2020, mother was present via phone and
appointed counsel while father did not appear. While under oath, mother indicated that
she was in contact with father’s relatives and she would provide information on her
attempts to contact them to her attorney. In reference to father’s relatives, mother

1 All further statutory references are to the Welfare and Institutions Code.
2 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts
to those bearing on that issue.

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claimed, “He doesn’t really mess with them. It’s a very messy situation .…” Mother
also claimed she had Indian ancestry through her great-grandmother with a tribe in
Arizona that her great-grandparents left. Mother denied having any knowledge that
father had Indian ancestry. The Alameda County Juvenile Court ordered that ACSS
retain temporary custody pending disposition, and it set a contested hearing on
August 19, 2020.
On August 26, 2020, ACSS sent formal notice, pursuant to ICWA, to the Bureau
of Indian Affairs (BIA) and three bands of the Cherokee tribe regarding mother’s claim
of Indian ancestry. Father was listed as the child’s biological and legal father on the third
and eighth pages of the notice with no paternal relatives identified. The notice also
identified the child’s maternal grandmother and maternal great-grandfather as family
members with potential Indian ancestry through the Cherokee tribe.
In the report prepared for a continued hearing on jurisdiction and disposition,
ACSS recommended the juvenile court find the allegations of the petition true and order
reunification services to mother. Father’s whereabouts remained unknown, and ACSS
requested that the case be transferred to Stanislaus County where mother resided. At the
continued jurisdiction and disposition hearing on September 10, 2020, the Alameda
County Juvenile Court found that the child came within the provisions of section 300,
subdivisions (b) and (g), ordered reunification services to mother, denied reunification
services to father based upon his status as an alleged father, and transferred the matter to
Stanislaus County. There were no findings made regarding ICWA, and the Alameda
County Juvenile Court requested that the Stanislaus County Juvenile Court (juvenile
court) be alerted to the need to follow up on ICWA.
At the transfer-in hearing held on October 1, 2020, the juvenile court accepted the
case and set a transfer-in review hearing for October 29, 2020. The Stanislaus County
Community Services Agency (agency) prepared a report for acceptance of the case,
which indicated that father was not in contact with the agency or able to be located.

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Mother denied having contact information for father, but the child believed she heard
father in the background during a phone visit with mother. The agency indicated that it
would complete and send any new information regarding ICWA that may be necessary.
On September 30, 2020, mother filed a Parental Notification of Indian Status form
(ICWA-020) reiterating her belief that she may have Indian ancestry though the Cherokee
tribe.
On February 10, 2021, the agency mailed an additional formal notice, pursuant to
ICWA, to the BIA and three bands of the Cherokee tribe. The notice identified father as
the “alleged biological father” with unknown tribal ancestry. The child’s maternal
grandparents and great-grandparents were listed as individuals with possible Cherokee
ancestry. The child’s maternal great-grandmother was also listed as a great-great-
grandmother under “other relative information” along with another maternal relative.
The child’s paternal grandparents and great-great-grandfather were identified with names,
dates of birth, and unknown tribal ancestry. The paternal great-great-grandfather’s last
name was spelled differently from the paternal grandfather’s last name. The great-great-
grandfather and grandfather’s dates of birth shared the same last two digits.
The agency’s report prepared for the six-month review hearing indicated that
father was located in custody after a domestic violence incident with mother. Father was
appointed counsel and genetic testing was ordered during his first appearance at a
continued six-month review hearing in March 2021. Father did not know if he had any
Indian ancestry, and he claimed his deceased mother once told him that he might have
Indian ancestry. When asked if there was anyone the juvenile court could ask about
possible Indian ancestry, father stated, “Nope. Everybody is dead.” The juvenile court
found there was no reason to believe that ICWA was applicable after concluding its
inquiry of father. Mother’s reunification services were eventually continued with a
12-month review hearing set for September 2, 2021.

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 On August 6, 2021, the juvenile court found ICWA was not applicable based upon
the agency’s motion, which included responses from each of the Cherokee tribes
indicating the child was not an Indian child. In the report for the 12-month review
hearing, the agency recommended that mother’s reunification services be terminated and
a section 366.26 hearing be set. The genetic testing revealed father was the child’s
biological father, and father was transferred to custody in state prison. The child
remained placed with the maternal grandmother who was open to providing a permanent
plan of adoption or guardianship. According to the child’s Court Appointed Special
Advocate (CASA), the child wanted a restraining order preventing contact between her
and father because she was terrified of father.
On September 2, 2021, the juvenile court found father was the biological father of
the child based upon the genetic testing results, and mother requested a contested hearing
on the 12-month review. At the continued 12-month review hearing held on
September 13, 2021, the juvenile court terminated mother’s reunification services and set
a section 366.26 hearing for January 11, 2022. The report for the section 366.26 hearing
recommended that parental rights for mother and father be terminated and a plan of
adoption be selected. The child’s maternal grandmother was identified as the prospective
adoptive parent. The juvenile court’s previous finding from August 6, 2021, that ICWA
was not applicable was noted with no new information provided.
Mother, father, and the child were all present for the section 366.26 hearing.
Father’s counsel entered an objection to the recommendation, and the juvenile court
found the child was likely to be adopted and terminated the parental rights of mother and
father.
DISCUSSION
Father contends the juvenile court’s finding that ICWA did not apply was not
supported by sufficient evidence because the agency failed to conduct an adequate
inquiry of father’s claim of unknown Indian ancestry. Father also argues the notice

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contained inaccurate information and an updated notice was required based upon father’s
claim of unknown Indian ancestry.
A. Legal Principles
ICWA reflects a congressional determination to protect Indian children and to
promote the stability and security of Indian tribes and families by establishing minimum
federal standards that a state court, except in emergencies, must follow before removing
an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1
Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s
tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to
invalidate any foster care placement of an Indian child made in violation of ICWA
(25 U.S.C. § 1914; see § 224.2, subd. (e)). An “Indian child” is defined in ICWA as an
unmarried individual under 18 years of age who is either (1) a member of a federally
recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe
and is the biological child of a member of a federally recognized tribe. (25 U.S.C.
§ 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the agency and the juvenile court have an
“affirmative and continuing duty to inquire whether a child is or may be an Indian
child .…” (Cal. Rules of Court, rule 5.481(a); see also § 224.2, subd. (a); In re W.B.
(2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The
continuing duty to inquire whether a child is or may be an Indian child “can be divided
into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to
provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).)
The initial duty to inquire arises at the referral stage when the reporting party is
asked whether it has “any information that the child may be an Indian child.” (§ 224.2,
subd. (a).) Once a child is received into temporary custody, the initial duty to inquire
includes asking the child, parents, legal guardian, extended family members, and others

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who have an interest in the child whether the child is, or may be, an Indian child.
(§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance
of each parent to ask whether he or she “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete
an ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the social service agency or the
juvenile court has “reason to believe” the proceedings involve an Indian child but “does
not have sufficient information to determine that there is reason to know that the child is
an Indian child.” (§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason
to believe” exists when the court or the social service agency “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.” (Id. subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the court or the social
service agency “shall make further inquiry regarding the possible Indian status of the
child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e); In re Y.W.
(2021) 70 Cal.App.5th 542, 552.) Further inquiry includes, but is not limited to,
“[i]nterviewing the parents, Indian custodian, and extended family members,” and
contacting the BIA, the State Department of Social Services, and the tribes and any other
person who may have information. (§ 224.2, subd. (e)(2)(A)–(C).)
The final duty component arises when the court or agency has “reason to know”
the child is an Indian child. (D.F., supra, 55 Cal.App.5th at p. 567.) A “reason to know”
exists if one of the following circumstances is present: “(1) A person having an interest
in the child … informs the court that the child is an Indian child[;] [¶] (2) The residence
… of the child [or] the child’s parents … is on a reservation or in an Alaska Native
village[;] [¶] (3) Any participant in the proceeding … informs the court that it has
discovered information indicating that the child is an Indian child [;] [¶] (4) The child …
gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is

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informed that the child is or has been a ward of a tribal court[; or] [¶] (6) The court is
informed that either parent or the child possess[es] an identification card indicating
membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d).)
“The duty to provide notice is narrower than the duty of inquiry. Although the
duty of inquiry applies to every ‘child for whom a petition under Section 300, 601, or 602
may be or has been filed’ [citation], and the duty of further inquiry applies when there is
a ‘reason to believe that an Indian child is involved in a proceeding’ [citation], the duty to
provide notice to Indian tribes applies only when one knows or has a ‘reason to know …
an Indian child is involved,’ and only ‘for hearings that may culminate in an order for
foster care placement, termination of parental rights, preadoptive placement, or adoptive
placement.’ ” (In re Austin J. (2020) 47 Cal.App.5th 870, 884.)
“Once [the agency] or the juvenile court has a reason to know an Indian child is
involved, notice pursuant to ICWA must be sent to the pertinent tribe(s) via registered or
certified mail.… [¶] … [¶] It is this ‘notice requirement, which … enables a tribe to
determine whether the child is an Indian child and, if so, whether to intervene in or
exercise jurisdiction over the proceeding.’ ” (D.F., supra, 55 Cal.App.5th at p. 568,
italics omitted.)
An Indian tribe’s determination that a child is or is not a member of, or eligible for
membership in, that tribe is conclusive. Information that the child is not enrolled or is not
eligible for enrollment in the tribe is not determinative unless the tribe also confirms in
writing that enrollment is a prerequisite for membership under tribal law or custom.
(§ 224.2, subd. (h).)
If the juvenile court makes a finding that proper and adequate further inquiry and
due diligence have been conducted and there is no reason to know whether the child is an
Indian child, the court may make a finding that ICWA does not apply, subject to reversal
if the court subsequently receives information providing reason to believe the child is an

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Indian child. If the court receives such information, it must direct the social worker or
probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. Standard of Review
A juvenile court’s finding that ICWA is inapplicable is reviewed under the
substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
Thus, we must uphold the juvenile court’s orders and findings if any substantial evidence,
contradicted or uncontradicted, supports them, and we must indulge all legitimate
inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
C. Analysis
In the present case, father was not present during the child’s removal, and his
whereabouts remained unknown for the first nine months of the dependency matter.
Father informed the juvenile court that he did not know if he had any Indian ancestry
during his first appearance in the matter at a six-month review hearing. However, he did
claim that his deceased mother once told him that he might have Indian ancestry. In
response to the juvenile court’s inquiry into whether any other persons had information
about any possible Indian ancestry in his family, father merely responded, “Nope.
Everybody is dead.” Despite the lack of evidence in the record that paternal relatives
were available to the agency during its initial inquiry, father now suggests that the initial
inquiry was inadequate absent specific documentation that the agency asked father for
information about his living and deceased relatives, attempted to locate or interview
paternal relatives regarding potential Indian ancestry, or reviewed information from
father’s child welfare history as a minor.
Father cites to the case of In re Antonio R. (2022) 76 Cal.App.5th 421, 430
(Antonio R.), which expressly held it was prejudicial error for the agency not to inquire of
extended family members. However, in that case the appellate court found prejudicial
error because there were available or readily available extended family members that the
agency failed to inquire of. (Id. at p. 431)

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 In Antonio R., the juvenile court found ICWA did not apply based on mother,
father, and paternal great-grandmother’s denials of Indian ancestry, but there were still
known and available extended family members that the agency could have contacted to
inquire about possible Indian ancestry. (Antonio R., supra, 76 Cal.App.5th at p. 431.)
Specifically, the maternal grandmother was interviewed by the agency prior to the
detention hearing, the child was later placed with the maternal grandmother, and multiple
maternal relatives were present at the disposition hearing. (Ibid.) None of those
identified and readily available relatives were questioned regarding potential Indian
ancestry. (Ibid.) On appeal, the court found the error prejudicial. (Id. at p. 426.)
Antonio R. is distinguishable from the present case because there is no evidence in
the record that paternal relatives were present during the child’s initial removal, attended
hearings in the matter, or were even considered for placement of the child. In fact, father
explicitly stated that any of his relatives having information on possible Indian ancestry
were deceased. To the extent that father also argues that these alleged deficiencies
extend to a required further inquiry, we reject such a contention. (See In re D.S. (2020)
46 Cal. App. 5th 1041, 1053 [“no further inquiry was needed because there was no
further information of value to obtain”].) Although a review of father’s juvenile records
as a child could have contained information about possible Indian ancestry, the lack of
documentation that such a step was taken does not render the agency’s inquiry inadequate
under the circumstances.
Father’s reliance upon In re I.F. (2022) 77 Cal.App.5th 152, 164 is similarly
unpersuasive. In that case, mother claimed she had been told by the maternal grandfather
(her father) that she had Indian ancestry through the child’s maternal great-grandfather,
and the child’s maternal grandfather confirmed that his father told him the family had
Indian ancestry in Minnesota. (Id. at pp. 157, 159–160.) Under these circumstances, the
appellate court found that the duty of further inquiry was triggered based upon a “reason
to believe” the children were Indian children. (Id. at p. 164.) Therefore, upon remand

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the department was required to gather biological information related to the maternal
great-grandfather and provide the information to the BIA and the federally recognized
tribes in Minnesota. (Id. at p. 166.)
Here, there is no evidence that any living relatives with knowledge of father’s
possible Indian ancestry were available for the agency to interview. Father’s claim that
mother was in contact with father’s relatives and able to provide information to the
agency is unavailing. Mother agreed to provide any information on her attempts to
contact relatives to her attorney. Without such information being placed on the record,
we can reasonably infer that she was unable to provide information on relatives who
would shed light on father’s unknown claim of Indian ancestry. (See In re I.J. (2013) 56
Cal.4th 766, 773 [“we draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record in the light most
favorable to the court’s determinations”].) Furthermore, the agency did provide formal
notice to the BIA with the biographical information it was able to obtain from father.
This differs significantly from In re I.F., supra, 77 Cal.App.5th 152 where the parent was
challenging the child welfare agency’s failure to obtain biological information from a
relative who was available and already interviewed by social workers.
While it is well established that the “duty to develop information concerning
whether a child is an Indian child rests with the court and the [agency], not the parents or
members of the parents’ families” (Antonio R., supra, 76 Cal.App.5th at p. 430), the court
and agency often cannot satisfy this duty without participation from the parents. Given
father’s express statement that all persons that had information about his family’s
possible Indian ancestry were deceased, the agency had no additional leads to pursue.
In the present case, the agency had no duty to locate or interview paternal relatives
without knowledge that available paternal relatives had meaningful information regarding
claimed Indian ancestry. (See, e.g., In re Michael V. (2016) 3 Cal.App.5th 225, 233
[Department made no effort to locate and interview children’s maternal grandmother

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“even though it was she who reportedly had the direct link to a tribe”].) “ICWA does not
obligate the court or [agency] ‘to cast about’ for investigative leads. [Citation.] There is
no need for further inquiry if no one has offered information that would give the court or
[agency] reason to believe that a child might be an Indian child. This includes
circumstances where parents ‘fail[] to provide any information requiring followup’
[citations], or if the persons who might have additional information are deceased
[citation], or refuse to talk to [the agency].” (In re A.M. (2020) 47 Cal.App.5th 303, 323.)
“[T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute
Native American ancestry.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)
Finally, father also contends that the agency had reason to know the child was an
Indian child such that its failure to send an updated notice after he was elevated to
biological father resulted in reversible error. He also argues that the agency’s notice
listed an incorrect name and date of birth for the child’s paternal great-great-grandfather.
Even if notice was required, the discrepancies alleged by father did not render the notice
inadequate. The BIA had previously received a notice regarding the child indicating
father was the biological and legal father, and father’s claim that the great-great-
grandfather’s name and date of birth was incorrect is based on speculation without
citation to an alternative and conflicting last name or date of birth.
We reject father’s claim that his statement to the juvenile court that his mother
once told him he might have Indian ancestry provided a reason to know that the child was
an Indian child. At most, father’s statement suggested the possibility that the child may
have Indian ancestry. Indian ancestry, however, is not among the six enumerated
statutory criteria for determining whether there is a reason to know a child is an Indian
child. (§ 224.2, subd. (d)(1)–(6).) “[V]ague information or ‘ “family lore” ’ indicating a
child ‘ “may” ’ have Indian ancestry [is] insufficient to” establish a statutory reason to
know the child is Indian. (In re A.M., supra, 47 Cal.App.5th at p. 322.) ICWA notice is
required only if after initial and further inquiries there is “reason to know” that an Indian

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child is involved in the proceeding. (§ 224.2, subd. (f).) Any insufficiencies regarding
father’s claim of unknown Indian ancestry in the notices sent, therefore, were legally
irrelevant. Accordingly, we conclude the juvenile court did not err in finding ICWA did
not apply to the child and affirm.
DISPOSITION
The order appealed from is affirmed.

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