In re S.F. CA2/3

Filed 8/25/22 In re S.F. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE

In re S.F. et al., Persons Coming Under B318021
the Juvenile Court Law.
_____________________________________
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. 18CCJP03034A–
C)
Plaintiff and Respondent,

v.

I.F.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Steff R. Padilla, Commissioner. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel for Plaintiff and Respondent.
_________________________
 I.F. (mother) appeals from juvenile court orders
terminating her parental rights to her children under Welfare
and Institutions Code1 section 366.26. Mother’s sole contention2
is the juvenile court erred by finding that the Los Angeles County
Department of Children and Family Services (DCFS) adequately
investigated the children’s possible Indian ancestry, as required
by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.)
and related state statutes. We affirm the orders.
BACKGROUND
Mother has three children: S.F. (born August 2013), J.R.
(born February 2017), and J. (born June 2018). Jonathan G. is
S.F.’s alleged father. Arthur R. is J.R.’s father. And Fernando V.
is J.’s father.
In May 2018, DCFS filed a petition under section 300 as to
S.F. and J.R. alleging that mother’s use of methamphetamine
rendered her incapable of caring for them and placed them at risk
of serious physical harm. ICWA-010 forms attached to the

1 All further statutory references are to the Welfare and
Institutions Code.
2 Mother states in her opening brief that she also appeals
from orders denying her section 388 petitions but does not
otherwise address the petitions. Any issue as to the petitions is
therefore forfeited. (See generally Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784–785 [failure to support a point
with reasoned argument and citations to authority forfeits
issue]; see Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate brief
must “[s]tate each point under a separate heading or subheading
summarizing the point, and support each point by argument and,
if possible, by citation of authority.”].)

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petition stated that ICWA inquiries had been made as to both
children. And, according to the May 2018 detention report,
mother told a social worker that she did not have Indian
ancestry. On May 14, 2018, mother filled out ICWA-020 forms
for S.F. and J.R. stating mother had no Indian ancestry as far as
mother knew. That same day, the juvenile court held a detention
hearing at which it found there was no reason to know that S.F.
and J.R. were Indian children.
A month after S.F. and J.R. were detained, J. was born in
June 2018, and a dependency petition was filed as to her. In
addition to allegations against mother, the petition alleged that
J.’s father, Fernando, had a history of drug-related convictions.
At the June 11, 2018 detention hearing, the trial court found
there was no reason to know J. was an Indian child, noting that
mother and Fernando had signed ICWA-020 forms that day for
J., each stating they had no Indian ancestry as far as they knew.
On June 21, 2018, mother again denied having any Indian
ancestry in her family.
In August 2018, the petitions were sustained.3 Only
mother and Fernando (J.’s father) were granted reunification
services.
S.F.’s alleged father Jonathan never filled out an ICWA-
020 form. He never appeared in the action and his whereabouts
remained unknown throughout the proceedings, despite DCFS’s
efforts to locate him.
J.R.’s presumed father, Arthur, signed an ICWA-020 form
on April 22, 2019, stating he had no Indian ancestry as far as he

3 Amended petitions were later filed and sustained as to all
children.

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knew. The juvenile court again found that ICWA did not apply to
J.R..
The juvenile court terminated reunification services in
December 2019. In January 2020, the juvenile court terminated
parental rights to all three children and identified adoption as
the permanent plan for them.4
DISCUSSION
Mother identifies three extended family members with
whom DCFS had contact and of whom she argues DCFS should
have inquired as to the children’s possible Indian ancestry: the
children’s maternal grandmother and J.R.’s paternal
grandmother and paternal aunt.
I. Legal standards
A. ICWA
ICWA was enacted “ ‘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 . . . .’ [Citation.]” (In
re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.)
“Juvenile courts and child protective agencies have ‘an
affirmative and continuing duty to inquire’ whether a dependent
child is or may be an Indian child.” (In re Michael V. (2016) 3

4 The children had been placed together with a prospective
adoptive family with whom they had bonded.

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Cal.App.5th 225, 233; see also Isaiah W., supra, 1 Cal.5th at
pp. 9–11; § 224.2, subd. (a).) An “Indian child” is “any unmarried
person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].)
The affirmative duty to inquire has several elements. If a
child is removed from his or her parents and placed in the
custody of a county welfare department, the department must
inquire whether a child is an Indian child. Such inquiry
“includes, but is not limited to, asking 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).) The court also must make an ICWA
inquiry when the parents first appear in court: The court “shall
ask each participant present in the hearing whether the
participant knows or has reason to know that the child is an
Indian child” (§ 224.2, subd. (c)), and must require each party to
complete California Judicial Council Form ICWA-020, Parental
Notification of Indian Status (Cal. Rules of Court, rule
5.481(a)(2)(C)).
If the court or social worker has “reason to believe that an
Indian child is involved in a proceeding,” the court or social
worker must “make further inquiry regarding the possible Indian
status of the child” by, among other things, interviewing the
parents and extended family members, and contacting any tribe
that may reasonably be expected to have information about the
child’s membership, citizenship status, or eligibility. (§ 224.2,

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subd. (e)(2).) There is “reason to believe” a child involved in a
proceeding 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).)
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings must be
provided to the parent, legal guardian, or Indian custodian and
the child’s tribe. (§ 224.2, subd. (f).) There is “reason to know” a
child is an Indian child if any one of six statutory criteria is
met—e.g., if the court is advised that the child “is an Indian
child,” the child’s or parent’s residence is on a reservation, the
child is or has been a ward of a tribal court, or either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) Thereafter,
the court shall confirm that the agency used due diligence to
identify and work with all of the tribes of which there is reason to
know the child may be a member, or eligible for membership, to
verify whether the child is in fact a member or whether a
biological parent is a member and the child is eligible for
membership. (§ 224.2, subd. (g).) A determination by an Indian
tribe that a child is or is not a member of, or eligible for
membership in, that tribe “shall be conclusive.” (§ 224.2,
subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section 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 to the proceedings, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)

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 B. Standard of review
As noted above, section 224.2, subdivision (i)(2), sets out
two statutory predicates to a juvenile court’s finding that ICWA
does not apply. First, the court must determine whether there is
“reason to know” whether the child is an Indian child. Second,
the court must decide whether a “proper and adequate further
inquiry and due diligence as required in this section have been
conducted.” If the court finds an adequate inquiry has been
conducted and there is no reason to know a child is an Indian
child, the court may make a finding that ICWA does not apply to
the proceedings. (§ 224.2, subd. (i)(2).)
The first element––whether there is reason to know
whether the child is an Indian child––requires the juvenile court
to determine, based on the evidence before it, whether any one of
six statutory criteria is met—e.g., (1) the court has been advised
that the child “is an Indian child,” (2) the child or parent resides
on a reservation, (3) any participant in the proceeding informs
the court that it has discovered information indicating the child
is an Indian child, (4) the child gives the court reason to know
that he or she is an Indian child, (5) the child is or has been a
ward of a tribal court, or (6) either parent or the child possess an
identification card indicating membership or citizenship in an
Indian tribe. (§ 224.2, subd. (d).) If none of these six factors is
met, the court must make a finding that there is no reason to
know the child is an Indian child. Because this determination is
fundamentally factual, we review it for substantial evidence. (In
re Ezequiel G. (July 29, 2022, B314432) __ Cal.App.5th __ [2022
WL 3009914, *4] (Ezequiel G.); In re Josiah T. (2021) 71
Cal.App.5th 388, 401; In re D.F. (2020) 55 Cal.App.5th 558, 565;
but see In re I.F. (2022) 77 Cal.App.5th 152, 163 [independently

7
reviewing whether ICWA’s requirements satisfied where facts
undisputed].) In other words, we “ ‘should “not reweigh the
evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts,” ’ but should uphold the lower court’s
determinations ‘ “if . . . supported by substantial evidence, even
though substantial evidence to the contrary also exists and the
trial court might have reached a different result had it believed
other evidence.” ’ ” (Ezequiel G., 2022 WL 3009914, at *7]; In re
J.N. (2021) 62 Cal.App.5th 767, 774; In re Noe F. (2013) 213
Cal.App.4th 358, 366.)
The second element––whether a “proper and adequate
further inquiry and due diligence as required in this section have
been conducted”––is somewhat different. Deciding whether an
inquiry was “adequate” and an agency acted with appropriate
diligence requires more of a court than simply applying a
statutory checklist to undisputed facts. Instead, it requires the
court to “engage in a delicate balancing” (In re Caden C. (2021) 11
Cal.5th 614, 640) to assess whether an ICWA inquiry was
appropriate and sufficient in light of the facts of a particular case.
In short, the statute directs the juvenile court to perform a
quintessentially discretionary function, and thus we review it for
abuse of discretion. (Ezequiel G., supra, 2022 WL 3009914, at
*6–*7.)
If we conclude that the trial court erred in finding that an
adequate ICWA inquiry was conducted, we will return the case to
the juvenile court only if the error was prejudicial––that is, if
“the record contains information suggesting a reason to believe
that the child may be an ‘Indian child’ within the meaning of
ICWA, such that the absence of further inquiry was prejudicial to
the juvenile court’s ICWA finding.” (In re Dezi C. (2022) 79

8
Cal.App.5th 769, 779.) This test is “outcome focused,” asking
whether “it is reasonably probable that an agency’s error in not
conducting a proper initial inquiry affected the correctness (that
is, the outcome) of the juvenile court’s ICWA finding,” and
remanding only in those cases “in which the record gives the
reviewing court a reason to believe that the remand may
undermine the juvenile court’s ICWA finding.” (Id. at pp. 781–
782.)
II. The trial court did not prejudicially err in finding that the
children are not Indian children and ICWA does not apply
to this case.
Mother, Fernando, and Arthur denied Indian ancestry
below.5 Mother nonetheless contends on appeal that DCFS’s
failure to make an ICWA inquiry of maternal grandmother and
J.R.’s paternal grandmother and paternal aunt was reversible
error. We disagree.

5 Although mother mentions Jonathan in her factual
statement, she does not thereafter discuss him and makes no
specific ICWA claim about him. Jonathan was merely an alleged
father, he was not on S.F.’s birth certificate, he had no contact
with S.F. since her birth, DCFS unsuccessfully searched for him,
the record contains no information about Jonathan’s family
history, and he never appeared in the proceedings. Because
mother makes no specific argument about Jonathan, including
discussing what implication his alleged father status might have
on an ICWA inquiry, we do not address any issue as to him. (See
generally 25 U.S.C. § 1903(9) [under ICWA, “parent” does not
include unwed father whose paternity not acknowledged or
established]; In re Daniel M. (2003) 110 Cal.App.4th 703, 707–
709 [alleged father had no standing to challenge alleged ICWA
notice violations].)

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 As to the first element of the ICWA finding, substantial
evidence supported the juvenile court’s finding that there is no
reason to know the children are Indian children. DCFS made an
initial ICWA inquiry before filing the petition as to S.F. and J.R.,
and it attached to the petition an ICWA-010 form attesting that
an Indian child inquiry had been made of mother. The detention
report clarified that mother had denied Indian ancestry.
Subsequently, mother signed three ICWA-020 forms, one as to
each child, stating under penalty of perjury she did not have
Indian ancestry. In June 2018, mother repeated, presumably to a
social worker, that she did not have Indian ancestry. Arthur and
Fernando also signed ICWA-020 forms stating under penalty of
perjury that they did not have Indian ancestry. At no point––
including now, on appeal—has mother suggested her and the two
fathers’ responses were inaccurate. No member of mother’s,
Arthur’s, or Fernando’s extended families has ever told DCFS
that the children have Indian ancestry. (But see In re J.C. (2022)
77 Cal.App.5th 70, 79 [welfare agency’s failure to make ICWA
inquiry of extended relatives violated § 224.2, subd. (b)]; In re
Antonio R. (2022) 76 Cal.App.5th 421, 431 [§ 224.2, subd. (b),
requires DCFS to inquire of child’s extended family members].)
Accordingly, all the evidence before the juvenile court required
the conclusion that there was no reason to know the children are
Indian children.
As to the second element of the ICWA finding, the juvenile
court did not abuse its discretion in concluding that DCFS
conducted an adequate inquiry. In reviewing a juvenile court’s
ICWA findings for abuse of discretion, the key question for a
reviewing court is whether the ICWA investigation has reliably
answered the question at the heart of the ICWA inquiry:

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Whether a child involved in a proceeding “is or may be an Indian
child” (§ 224.2, subd. (a))––that is, whether he or she either (a) “is
a member of an Indian tribe” or (b) “is 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 also § 224.1, subds.
(a)–(b)). In other words, the focus of the court’s analysis is not on
the number of individuals interviewed, but on whether the
agency’s ICWA inquiry has yielded reliable information about a
child’s possible tribal affiliation. (Ezequiel G., supra, 2022 WL
3009914, at *9.)
As we recently explained, “ ‘ICWA does not apply simply
based on a child or parent’s Indian ancestry.’ ” (Ezequiel G.,
supra, 2022 WL 3009914, at *9, citing U.S. Dept. of Interior,
Bureau of Indian Affairs, Guidelines for Implementing the Indian
Child Welfare Act (Dec. 2016) (BIA Guidelines).) Instead, the
definition of “Indian child” is “based on the child’s political ties to
a federally recognized Indian Tribe, either by virtue of the child’s
own citizenship in the Tribe, or through a biological parent’s
citizenship and the child’s eligibility for citizenship.” (Indian
Child Welfare Act Proceedings, 81 Fed.Reg. 38795 (June 14,
2016) (BIA ICWA Proceedings), italics added.) In other words, an
Indian child is one with a tribal affiliation, not merely Indian
ancestry.
“Tribal citizenship (aka Tribal membership) is voluntary
and typically requires an affirmative act by the enrollee or her
parent.” (BIA ICWA Proceedings, supra, 81 Fed.Reg. at
p. 38783.) Specifically, “Tribal laws generally include provisions
requiring the parent or legal guardian of a minor to apply for
Tribal citizenship on behalf of the child. [Citation.] Tribes also
often require an affirmative act by the individual seeking to

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become a Tribal citizen, such as the filing of an application.
[Citation.] As ICWA is limited to children who are either
enrolled in a Tribe or are eligible for enrollment and have a
parent who is an enrolled member, that status inherently
demonstrates an ongoing Tribal affiliation.” (Ibid., italics added;
see also BIA Guidelines, supra, at p. 10 [“Most Tribes require
that individuals apply for citizenship and demonstrate how they
meet that Tribe’s membership criteria.”].) Because membership
in an Indian tribe therefore requires that an individual or his or
her parent apply for tribal membership, a child’s parents will, in
most cases, be the most reliable source of information for
determining whether a child is an Indian child.
In the present case, nothing in the record gives us reason to
doubt the accuracy of mother’s and the two fathers’ denials of a
tribal affiliation. Mother lived with her biological parents
growing up and said she was close to maternal grandmother,
whom at one point mother wanted to care for the children. In
view of mother’s relationship with maternal grandmother, the
possibility that mother might unknowingly be a member of tribe
appears trivially small. The record also shows that Arthur and
Fernando had contact with their biological relatives.6 Arthur’s
mother (J.R.’s paternal grandmother) visited the children.
Fernando, although incarcerated for some of the juvenile court
proceedings, remained in contact with family members. Notably,
mother names no extended family member of Fernando’s that she
claims DCFS should have interviewed. Although the record does

6 This is so even though, in 2003, when Arthur was 15 years
old, a dependency petition was sustained as to him, and he did
not reunify with his parents.

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not show that DCFS asked family members about possible Indian
ancestry, the chance that these fathers were unknowingly tribal
members also is remote. (Compare In re Y.W. (2021) 70
Cal.App.5th 542, 548 [mother was adopted and had no
information about biological relatives]; In re Benjamin M. (2021)
70 Cal.App.5th 735, 740, 745 [father never appeared, and mother
had no reason to know father’s ancestry]; In re A.C. (2022) 75
Cal.App.5th 1009, 1017 [parent growing up in foster care may be
unaware of cultural heritage].)
Further, at no time did mother, Arthur, or Fernando or
their attorneys object or indicate that the information was
incorrect or that their clients were unsure about their ancestry.
(See Super. Ct. L.A. County, Local Rules, rule 7.17(a) [“An
attorney representing a client in dependency court shall
affirmatively inquire of their client as to whether the client has
reason to believe that any child appearing in the dependency
court has Indian heritage under the ICWA. Every effort should
be made by counsel to assist confirmation of a child’s Indian
status and tribal membership.”] The juvenile court therefore did
not abuse its discretion by concluding that DCFS conducted an
adequate ICWA inquiry as to mother, Arthur, and Fernando.
For all the same reasons, even if the juvenile court erred by
finding DCFS’s inquiry adequate, it is not reasonably probable
that any error in not “conducting a proper initial inquiry affected
the correctness (that is, the outcome) of the juvenile court’s ICWA
finding.” (In re Dezi C., supra, 79 Cal.App.5th at p. 781.)
Nothing in the juvenile court record gives us a reason to doubt
the accuracy of mother’s, Arthur’s, and Fernando’s denials that
they or the children were members of or eligible for membership
in an Indian tribe, and mother has not made a proffer on appeal

13
that she or the two fathers have Indian heritage. No remand
therefore is warranted.
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORT

EDMON, P. J.

I concur:

EGERTON, J.

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LAVIN, J., Dissenting:

For the reasons set forth in my dissent in In re Ezequiel G.
(July 29, 2022, B314432) ___Cal.App.5th___ [2022 WL 3009914],
I would conditionally affirm the orders and remand for further
proceedings.

LAVIN, J.

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