In re J.K.

Filed 9/16/22

CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re J.K., 2d Juv. No. B319316
(Super. Ct. No. 21JV00074)
A Person Coming Under The (Santa Barbara County)
Juvenile Court Law.
______________________________

SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,

Plaintiff and Respondent,

v.

S.K.,

Defendant and Appellant.

This is yet another in a series of conflicting dependency
appeals following a termination of parental rights in which the
juvenile court and county welfare department failed to satisfy
their expanded duties of initial inquiry under the Indian Child
Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.) and related
California law (Welf. & Inst. Code, § 224.2). 1 S.K. (mother), who

All undesignated references are to the Welfare and
1

Institutions Code.
appeals the order terminating parental rights to her minor child
J.K. with a permanent plan of adoption (§ 366.26), contends the
juvenile court erred in finding ICWA did not apply because Santa
Barbara County Child Welfare Services (CWS) and the juvenile
court failed to ask J.K.’s extended family members about his
possible Indian status. 2 Mother asks us to order that the matter
be remanded so these duties can be satisfied.
We conclude the juvenile court errs in finding ICWA does
not apply where, as here, the record does not establish that the
expanded duty of initial inquiry set forth in section 224.2,
subdivision (b), has been satisfied. We also conclude that a
conditional affirmance with a limited remand for full satisfaction
of the duties of inquiry and notice is necessary and appropriate
because (1) CWS and the juvenile court have “an affirmative and
continuing duty” to inquire into J.K.’s potential Indian status
(§ 224.2, subd. (a), italics added); and (2) the record on appeal
does not “affirmatively reflect[] that the protections intended to
be afforded through the exercise of that duty have been
provided.” (In re Rylei S. (2022) 81 Cal.App.5th 309, 325 (Rylei
S.).) Accordingly we conditionally affirm the judgment and
remand the matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
Mother and A.A. (father, who is not a party to this appeal)
are the natural parents of J.K., born in February 2021. CWS
filed a section 300 petition alleging among other things that J.K.
tested positive for drugs after his birth. CWS asserted in its
detention report that ICWA did not apply because both parents

2 “[B]ecause ICWA use the term ‘Indian,’ we do the same
for consistency, even though we recognize that other terms, such
as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In
re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn.1.)

2
had denied Indian ancestry and that mother’s parental rights to
J.K.’s half-sibling Z.V.K. had recently been terminated.
Both parents appeared at the detention hearing, denied
Indian ancestry, and completed and filed the Parental
Notification of Indian Status form (ICWA-020) to attest that they
had no Indian ancestry. At the request of CWS’s counsel, the
court found ICWA did not apply and took judicial notice of the
recent finding that ICWA did not apply in Z.V.K.’s dependency
case. The court also took judicial notice of the reports in Z.V.K.’s
case, which contained no indication that CWS had made ICWA-
related inquiries of the maternal grandmother or the maternal
relatives with whom Z.V.K. was placed.
J.K. was placed with non-relative extended family
members. The court directed the parents to provide CWS with
the names and addresses of all relatives to assist in investigating
J.K.’s possible placement with an extended family member.
On March 30, 2021, the social worker reported that the
paternal grandmother had stated she had no Indian ancestry.
The social worker also contacted the paternal grandfather,
father’s and mother’s siblings, and other maternal relatives, but
there is no indication that she made any inquiries of them
regarding J.K.’s possible Indian status. In the court’s April 27,
2021 dispositional orders and findings — which were prepared on
form JV-415 by CWS’s attorney — the section that is supposed to
identify the relatives the social worker asked about J.K.’s
possible Indian status was blank.
At the conclusion of the jurisdiction and disposition
hearing, father was offered reunification services but services
were bypassed as to mother. We subsequently dismissed
mother’s appeal challenging the order bypassing services. (Dept.
of Social Services, County of Santa Barbara v. S.K. (B311988,
Aug. 31, 2021) [nonpub. opn.]). In referring to ICWA in its report

3
for the section 366.26 hearing, CWS stated that both parents had
denied Indian ancestry and had each completed the requisite
forms. At the conclusion of the six-month review hearing, the
court terminated services as to father and set the matter for a
section 366.26 permanency planning hearing. At the conclusion
of the section 366.26 hearing, at which neither parent appeared,
the court terminated parental rights to J.K. and selected
adoption as the child’s permanent plan.
DISCUSSION
Mother contends the juvenile court erred in finding ICWA
did not apply because the record does not reflect that CWS and
the court satisfied their duties of inquiry under section 224.2,
which required CWS to ask J.K.’s extended family members
whether they had any information regarding the child’s possible
Indian status. As part of its affirmative and continuing duty of
inquiry, the juvenile court was required to ensure that this
information was presented and included in the record prior to
making any ICWA finding. Mother asks us to remand the matter
to the juvenile court for the limited purpose of allowing CWS and
the court to satisfy these duties. We agree with the contention of
error and shall issue a conditional affirmance with a limited
remand.
I.
We generally review ICWA findings for substantial
evidence. (In re A.M. (2020) 47 Cal.App.5th 303, 314.) Because
the material facts at issue here are undisputed, “‘we review
independently whether ICWA requirements have been satisfied.’”
(In re J.L. (2017) 10 Cal.App.5th 913, 918.)
“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 a state court must follow before removing an Indian

4
child from his or her family.” (In re T.G. (2020) 58 Cal.App.5th
275, 287 (T.G.).) 3 “Congress enacted ICWA in 1978 in response to
‘rising concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).)
“ICWA significantly limits state court actions concerning
out-of-family placements for Indian children. ‘When ICWA
applies, a state court may not . . . terminate parental rights to an
Indian child unless the court is satisfied “that active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family
and that these efforts have proved unsuccessful.” [Citations.]’”
(T.G., supra, 58 Cal.App.5th at p. 287.) “ICWA and the
controlling federal regulations [citation] simply set a floor for
minimal procedural protections for Indian children, their families
and their tribes; the statute authorizes states to provide ‘a higher
standard of protection to the rights of the parent or Indian
custodian of an Indian child than the rights provided under’
ICWA. [Citations.]” (T.G., at p. 288.) “In addition to
significantly limiting state court actions concerning out-of-family
placements for Indian children [citation], ICWA permits an
Indian child’s tribe to intervene in or, where appropriate, exercise
jurisdiction over a child custody proceeding [citations].” (Rylei S.,
supra, 81 Cal.App.5th at p. 316.)

3 ICWA defines an Indian child as an unmarried individual
under the age of 18 who is either a member of a federally-
recognized Indian tribe or is eligible for membership in such a
tribe and is the biological child of a member. (25 U.S.C.S.
§ 1903(4) & (8); § 224.1, subd. (a).)

5
 Pursuant to ICWA and related California law, “[t]he
[juvenile] court[ and] county welfare department . . . have an
affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . may be, or has been, filed,
is or may be an Indian child. The duty to inquire begins with the
initial contact, including, but not limited to, asking the party
reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2,
subd. (a).) This duty applies to “[t]he court, court-connected
investigator, . . . the county welfare department, . . . licensed
adoption agency, adoption service provider, [and] investigator.”
(Cal. Rules of Court, rule 5.481.)
Section 224.2, subdivision (b), which went into effect on
January 1, 2019, provides that “[i]f a child is placed into the
temporary custody of a county welfare department pursuant to
Section 306 or county probation department pursuant to Section
307, the county welfare department or county probation
department has a duty to inquire whether that child is an Indian
child. Inquiry includes, but is not limited to, asking the child,
parents, legal guardian, . . . 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
and where the child, the parents, or [the] Indian custodian is
domiciled.” (§ 224.2, subd. (b).) Extended family members
include grandparents, aunts and uncles, siblings, brothers-in-law
and sisters-in-law, nieces and nephews, first and second cousins,
and stepparents. (25 U.S.C.S. § 1903(2); § 224.1, subd. (c).)
Prior to the enactment of section 224.2, subdivision (b), the duty
of initial inquiry could be satisfied by asking the child’s parents
whether the child is or may be an Indian child. (Former § 224.3.)
If information obtained through the initial inquiry gives the
juvenile court or the social worker “reason to believe” the child is

6
or may be an Indian child, “the court[ or] social worker . . . shall
make further inquiry regarding the possible Indian status of the
child . . . as soon as practicable.” (§ 224.2, subd. (e).) “The duty to
develop information concerning whether a child is an Indian child
rests with the court and the [county welfare department], not the
parents or members of the parents’ families.” (In re Antonio R.
(2022) 76 Cal.App.5th 421, 430.)
If the initial or further inquiry gives rise to a “reason to
know” the child is an Indian child, notice of the proceedings must
be given to the tribes of which the child may be a member or
eligible for membership. (25 U.S.C.S. § 1912(a), italics added;
§§ 224.2, subd. (f), 224.3.) “This notice requirement . . . 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.” (Isaiah W., supra, 1 Cal.5th at p. 5.)
II.
Our Legislature unanimously enacted section 224.2,
subdivision (b) after the California ICWA Compliance Task Force
(the Task Force) – which is chaired by and comprised of tribal
leaders and other tribal representatives and advocates — issued
a report advocating for the new law (the Task Force Report).
Among other things, the Task Force explained that “[w]hen
parents are the sole target of the initial inquiry, it should be
understood that there are a variety of reasons why relying on the
parents does not necessarily protect the child’s best interests, or
the rights of the tribe. Parents may simply not have that
information, or may possess only vague or ambiguous
information. [¶] The parents or Indian custodian may be fearful
to self-identify, and social workers are ill-equipped to overcome
that by explaining the rights a parent or Indian custodian has
under the law. Parents may even wish to avoid the tribe’s
participation or assumption of jurisdiction.’ [Citation.]” (Cal.

7
ICWA Compliance Task Force, Rep. to Cal. Atty. Gen.’s Bur. of
Children’s Justice (2017) p. 28.)
Section 224.2, subdivision (b) makes clear that CWS’s duty
of initial inquiry required it to ask J.K.’s extended family
members about J.K.’s potential Indian status. And the juvenile
court, pursuant to its affirmative and continuing duty of inquiry
(§ 224.2, subd. (a)), was required to ensure that CWS had
satisfied its initial inquiry duties and that the record so reflect
(see, e.g., Rylei S., supra, 81 Cal.App.5th at pp. 322-323, and
cases cited therein.) Those duties were not satisfied here. Other
than the paternal grandmother, no information was sought from
any of J.K.’s extended family members about his possible Indian
status. Although the court took judicial notice of the prior finding
that ICWA did not apply to J.K.’s half-sibling Z.V.K., that finding
has no bearing on whether J.K. has Indian ancestry through his
paternal relatives. Moreover, it appears from the record that
CWS may have also failed to conduct a sufficient initial ICWA
inquiry as to Z.V.K. Notwithstanding CWS’s claim to the
contrary on appeal, the record is thus insufficient to support the
juvenile court’s finding that ICWA did not apply.
III.
Because the record demonstrates that CWS and the
juvenile court failed to satisfy their statutorily-mandated duties
under section 224.2, the matter must be remanded to remedy this
error. We agree with our colleagues in Rylei S. that when, as
here, a statutorily-mandated duty has not been performed, the
matter must be remanded for satisfaction of the duty unless the
record “affirmatively reflects that the protections intended to be
afforded through the exercise of that duty have been provided.”
(Rylei S., supra, 81 Cal.App.5th at p. 325.)
We also agree that the appropriate remedy is to issue a
conditional affirmance with a limited remand. (Rylei S., supra,

8
81 Cal.App.5th at pp. 326-327.) Although conditional affirmances
are rare, they have previously been issued in various types of
cases by both the appellate courts and our Supreme Court. 4 We
issue such a disposition here because time is of the essence and a
conditional affirmance provides the best opportunity for the error
to be handled expeditiously without unduly prolonging the
finality of the proceedings. Appeals from orders terminating
parental rights are governed by section 395, so they “have
precedence over all other cases in the court to which the appeal is
taken.” (§ 395, subd. (a)(1).) Moreover, the appealed order or
judgment is not stayed while the appeal is pending. (Ibid.) With
a conditional affirmance, the judgment remains in place on

4 (See, e.g., In re Z.O. (2022) 79 Cal.App.5th 1, 11
[conditionally affirming judgment terminating parental rights
and remanding for “the trial court [to] expeditiously hold
proceedings and/or make findings regarding the need, or lack
thereof, of a GAL [guardian ad litem] for mother as of the time
the GAL was originally appointed”]; People v. Magana (2022) 76
Cal.App.5th 310, 328 [conditionally affirming order declaring
appellant to be a sexually violent predator under Sexually
Violent Predator Act (SVPA) and remanding to give him “an
opportunity to raise an equal protection challenge to the SVPA’s
jury waiver provisions”]; In re Marriage of Ramer (1986) 187
Cal.App.3d 263, 278-280 [conditionally affirming modified
judgment in marital dissolution case]; Jehl v. Southern Pac. Co.
(1967) 66 Cal.2d 821, 835-836 [conditionally affirming order
granting new trial limited to damages]; see also Mercer v. Perez
(1968) 68 Cal.2d 104, 122, fn. 7 [noting that in Jehl the
challenged order was “conditionally affirmed”].)

9
remand. 5 When a judgment is conditionally reversed, the
judgment is reinstated on the date the underlying condition is
satisfied. (See People v. Gaines (2009) 46 Cal.4th 172, 181-182.) 6
Although parents subject to dependency proceedings have
no duty to conduct the initial inquiry on the county welfare
departments’ behalf, they are obligated to provide any and all
information they have regarding their extended family members
and to apprise their attorneys and the social worker of any new
information relating to extended family members or their
knowledge regarding their children’s possible Indian status. In
this case, it appears the parents have already identified all of
their relatives and the social worker has already had contact with
them. If these extended family members all deny any knowledge
that J.K. is or may be an Indian child, the error will be quickly
corrected without disturbing or unduly prolonging the finality the
judgment. Accordingly, a conditional affirmance with a limited

5Because a conditional affirmance does not “set aside” the
judgment, the constitutional “miscarriage of justice” provision
(Cal. Const., art. VI, § 13) does not apply.

6 Although mother will have a right to appeal from any
juvenile court order updating its ICWA findings on remand, that
order will not be stayed pending any appeal. (§ 395, subd. (a)(1).)
Moreover, we presume that counsel representing mother in such
an appeal would only raise nonfrivolous claims on her behalf. We
also note that with regard to ICWA notices parents in
dependency proceedings may be sanctioned if they “knowingly
and willfully falsif[y] or conceal[] a material fact concerning
whether the child is an Indian child, or counsels a party to do so.”
(§ 224.3, subd. (e).)

10
remand will best serve J.K.’s interests in achieving permanency,
stability, and the finality of these proceedings. 7
The issuance of a conditional affirmance with a limited
remand is a proper, appropriate, and necessary exercise of our
supervisory authority over the juvenile courts. (See Riverside
County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 635.) In
enacting section 224.2, the Legislature expanded the county
welfare departments’ initial duty of inquiry to include asking the
child’s extended family members if they have any information
indicating that the child is or may be an Indian child. The
juvenile court has a duty to ensure that this information was
presented to and considered by the court in making its ICWA
findings.
CWS and the juvenile court also have an affirmative and
continuing duty to inquire into J.K.’s potential Indian status.
(§ 224.2, subd. (a).) Declining to issue a remand in these

7 It has been suggested that the duty of initial inquiry set
forth in section 224.2 may be difficult to satisfy. But the wisdom
or workability of the statute is none of our concern. (People v.
Raybon (2021) 11 Cal.5th 1056, 1084; County of Sacramento v.
Hickman (1967) 66 Cal.2d 841, 854.) In any event, in
interpreting statutes “[t]he court will apply common sense to the
language at hand and interpret the statute to make it workable
and reasonable.” (Wasatch Property Management v. Degrate
(2005) 35 Cal.4th 1111, 1122.) County welfare department
employees conducting the initial inquiry compelled by section
224.2 need not undergo overly voluminous record searches,
attend family reunions, conduct stakeouts, or search
Ancestry.com. Nor are they required to interview young children
or other extended family members who would not be expected to
have any information regarding the child’s Indian status. They
merely need to make reasonable and diligent efforts to conduct
the required inquiry and report those efforts and the results
thereof to the court.

11
circumstances would effectively absolve the juvenile court and
CWS of their statutorily-mandated duties under section 224.2. A
duty that is unenforceable is but a chimera.
We cannot interpret statutes in a manner that renders
language in the statute a nullity. (Tuolumne Jobs & Small
Business Alliance v. Superior Court (2014) 59 Cal.4th 1029,
1039.) Moreover, our Supreme Court has held it is improper for
courts to “‘frustrate the creation of a statutory duty by refusing to
enforce it through the normal judicial means.’” (City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 869.) Because the record
does not affirmatively reflect that the protections intended to be
afforded through the exercise of the statutory duties set forth in
section 224.2 have been provided (Rylei S., supra, 81 Cal.App.5th
at pp. 316-317), and CWS and the juvenile court each have a
continuing obligation to satisfy those duties, a conditional
affirmance and limited remand for CWS and the juvenile court to
satisfy their respective duties is required.
III.
Our Supreme Court has made clear that ICWA issues may
be raised for the first time by parents appealing the termination
of their parental rights. (Isaiah W., supra, 1 Cal.5th at p. 9.) The
court reasoned: “We are mindful of the child’s need for a
permanent and stable home, and we agree that a swift and early
resolution of ICWA notice issues is ideal. But the federal and
state statutes were clearly written to protect the integrity and
stability of Indian tribes despite the potential for delay in placing
a child. The [relevant] provisions . . . recognize the importance of
properly determining a child’s Indian status even when a
dependency proceeding has progressed beyond the initial stages.
[Citations.]” (Id. at p. 12, italics added.).
The court went on to note that ICWA and related California
law give tribes the right to intervene at any point in the

12
dependency proceedings, even after parental rights have been
terminated. (Isaiah W., supra, 1 Cal.5th at p. 13, citing 25
U.S.C.S. § 1911(c); §224.4.) The court also recognized that the
relevant law, “considered as a whole, make[s] clear that Indian
tribes have interests protected by ICWA that are separate and
distinct from the interests of parents of Indian children.
[Citation.] ICWA’s notice requirements are ‘intended to protect
the interests of Indian children and tribes despite the parents’
inaction.’ [Citations.]” (Ibid.)
Of course, juvenile court judges and county welfare
departments have no duty to give any such notice unless there is
a “reason to know” the child is an Indian child. But the
determination of this “reason to know” presumes that the county
welfare department has satisfied its duties of initial inquiry
under section 224.2, and that the juvenile court has correctly
found so based on evidence in the record. This initial inquiry
may be the source of knowledge giving rise to a “reason to know.”
As we have noted, the statute expressly recognizes that a child’s
extended family members may have information giving rise to
not merely a “reason to believe” the child is or may be an Indian
child, but a “reason to know” the child is an Indian child.
(§ 224.2, subd. (d)(1).)
If the statutorily-mandated duties of inquiry are not
satisfied, the court’s finding that there is no “reason to know” the
child is an Indian child is fatally uninformed. “‘[T]he 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.’
[Citations.]” (Isaiah W., supra, 1 Cal.5th at pp. 13-14.) Here, one
can merely speculate that a proper inquiry under section 224.2
would not have uncovered information giving rise to a “reason to
know” that J.K. is an Indian child.

13
 In light of these principles, we are not persuaded by CWS’s
assertion that remanding the matter for satisfaction of the duties
set forth in section 224.2 would be contrary to J.K.’s interests in
permanency and stability. Moreover, CWS has contributed to the
delay in the finality of these proceedings by opposing the appeal
rather than stipulating to a remand. J.K.’s interests are best
served by a full resolution of all ICWA-related issues, and “Indian
tribes have interests protected by ICWA that are separate and
distinct from the interests of parents of Indian children.” (Isaiah
W., supra, 1 Cal.5th at pp. 12-13.)
Parents who are committed to reunifying with their
children must also be committed to acting in the children’s best
interests. But parents are not likely to know the law unless their
attorneys tell them. The juvenile court is also reasonably
expected to be currently apprised of the law, particularly as it
relates to the court’s statutorily-mandated duties. Here,
however, the attorneys and juvenile court judge either were
unaware of the provision or simply overlooked it.
It is also clear that counsel for CWS now knows that CWS
failed to satisfy its continuing duty of inquiry under section
224.2. As we have noted, this dereliction of duty is not in J.K.’s
best interests and can likely be rectified on remand with only a
minor delay in the proceedings.
DISPOSITION
The order terminating parental rights is conditionally
affirmed. The matter is remanded to the juvenile court for the
limited purpose of allowing CWS and the juvenile court to satisfy
their statutorily-mandated inquiry and notice duties under
section 224.2 by, among other things, soliciting information (or
making reasonable efforts to do so, supported by a showing of
reasonable and due diligence) from J.K.’s extended family
members regarding the child’s possible Indian status. All such

14
duties shall be promptly performed and completed with
reasonable and due diligence.
After satisfying its initial inquiry duties in accordance with
section 224.2, subdivision (b), CWS and the social worker shall
file a report with the juvenile court (with any necessary
attachments) setting forth the details and results of its inquiry,
its reasonable and diligent efforts to contact the extended family
members identified by the parents or any other individuals
identified by the parents or extended family members who might
be reasonably expected to have information about J.K.’s potential
Indian status, and its findings and recommendations regarding
whether ICWA applies or may apply.
If the report and its attachments demonstrate that CWS
has satisfied its duty of initial inquiry, the court shall so find and
then proceed to find whether this new information gives the
social worker or the court a “reason to believe” J.K. is or may be
an Indian child, or a “reason to know” J.K. is an Indian child. If
the court concludes there is still no “reason to believe” that J.K. is
or may be an Indian child, it shall enter a new order finding that
ICWA does not apply and the judgment (order terminating
parental rights) shall become final as of that date.
If the court finds that the new information gives rise to a
“reason to believe” that J.K. is or may be an Indian child, the
court shall find that ICWA may apply and further inquiry shall
be conducted in accordance with section 224.2, subdivision (e). If
such further inquiry dispels the reason to believe that J.K. is or
may be an Indian child, the court shall enter a new order finding
that ICWA does not apply and the judgment (order terminating
parental rights) shall become final as of that date.
If the information obtained during the initial or further
inquiry gives the court or the social worker a “reason to know”
that J.K. is an Indian child, the court shall ensure that proper

15
notice of the proceedings is sent in accordance with section 224.2,
subdivision (f) and section 224.3. If the court subsequently finds
in accordance with section 224.2, subdivision (i)(2) that ICWA
does not apply, it shall enter an order to that effect and the
judgment shall become final as of that date.
If on remand a tribe informs the court that J.K. is a
member of the tribe or eligible for membership and that the tribe
intends to intervene in the proceedings, the court shall find that
ICWA applies and enter an order to that effect. If the court
issues such an order, the judgment (order terminating parental
rights) is reversed as of that date. If the judgment is so reversed,
the court shall promptly hold a new section 366.26 hearing in
compliance with ICWA and related California law.
CERTIFIED FOR PUBLICATION.

PERREN, J. *

I concur:

GILBERT, P.J.

* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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GILBERT, P.J.
I concur.
I do not support the rigid application of ICWA promulgated
by In re Rylei S. (2022) 81 Cal.App.5th 309. Nevertheless, I
believe a limited remand here is appropriate for the reasons
stated in In re Benjamin M. (2021) 70 Cal.App.5th 735, 744,
readily obtainable information that is likely to bear on whether
the child is an Indian child.
I agree that the result here is appropriate. I take issue,
however, with footnote 5 in the majority opinion. (Ante, p. 10.)
In my view the perceived differences between a conditional
affirmance and a conditional reversal do not determine whether
there is a “miscarriage of justice.” (Cal. Const., art. VI, § 13.)
Juliet’s oft-quoted comments about a rose is apt.
I also wish to caution that against the backdrop of ICWA
what is of paramount concern is the best interest of the child.
(See In re Josiah Z. (2005) 36 Cal.4th 664, 673.) ICWA
consideration is important, but it does not supersede the child’s
best interest. (Welf. & Inst. Code, § 202, subd. (d).)
CERTIFIED FOR PUBLICATION.

GILBERT, P.J.
YEGAN, J., Dissenting:
I respectfully dissent. The continuing appellate
controversy which is now dominating the advance sheets
concerns the Indian Child Welfare Act (ICWA) and the
appropriate standard of appellate review. Strict and inflexible
ICWA enforcement at the Court of Appeal level strikes at the
heart of two basic aspects of the California Constitution: First,
the oath of judicial office, which directs justices to “support and
defend” the California Constitution, not a statute. Second,
reversal of a superior court judgment only where an error is
prejudicial, i.e., where it is reasonably probable that a different
result will obtain upon reversal. There is no California Supreme
Court case which has held that the ICWA error is “structural
error.” And I doubt that such an opinion could be written given
the Supreme Court rules on when this extraordinary appellate
rule can be applied.
The primary and overarching dispute to be decided in
dependency cases is between the parent or parents of the child or
children, and the State of California, whose job it is to secure the
safety and well-being of children. The caption of a dependency
case is telling. It does not mention an Indian tribe. An Indian
tribe is neither a party nor a real party in interest in a
dependency case.
I entertain a real doubt that the cases automatically
reversing a judgment because of an ICWA violation, accomplish
the goal of ICWA. The Legislature has not purported to declare
that ICWA error is always prejudicial. I doubt that it could
lawfully do so. And I am fairly certain that the inevitable delay
caused by ICWA reversals is counterproductive. Childhood is not
“stayed” while the superior court revisits ICWA upon a Court of
Appeal order to do so. Dependent children need the stability of a
superior court final order and “new” parents now. New parents
are presumptively ready and able to shepherd children in a safe
and caring environment. It is hard enough for a child to grow up
in a functional family environment. It is harder still in a non-
functional family environment. A dependent child cannot, and
should not, have to wait because of the delay caused by reversals
of judgments which, in the vast majority of cases, will not result
in placement with an Indian family. The primary goal of
dependency court is the safety and well-being of children. Any
other goal, including an ICWA goal, is secondary.
The various districts and divisions of the Court of Appeal
have conflicting approaches to how this troublesome issue is to be
treated on appeal. In my view, the issue is straight forward. The
Court of Appeal does not reverse a superior court judgment based
upon a silent record, i.e., the absence of Indian ancestry proof.
Error by the superior court is never presumed. Error by the
superior court must be affirmatively shown. This is true even if
the child welfare investigators could have undertaken a more
robust investigation concerning Indian heritage. Any
investigation could always be more robust. And the trial court
has a duty to monitor that inquiry. That monitoring too, can
always be more robust. Perhaps there should be a rule requiring
an ICWA objection in the superior court before a parent can raise
and ICWA issue on appeal, and perhaps the superior court should
develop a form showing compliance with the search for Indian
ancestry listing all of the parents’ extended family which have
been contacted. Such a checklist would hopefully put an end to
needless litigation at the Court of Appeal.
The goal of ICWA is laudable. But, the late Justice
Macklin Fleming would ask: How much time, money,

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investigation efforts, attorney time, and judicial resources is to be
spent trying to achieve “perfect justice?”
The Court of Appeal is tasked to affirm a judgment unless
there has been a miscarriage of justice, in which case we reverse.
There is no showing of an actual miscarriage of justice in this
case. There isn’t even a suggestion that upon further inquiry,
there may be some evidence of Indian ancestry. If there were, I
would vote to reverse. Of course, upon further investigation,
there may be proof that there is, or is not, evidence of Indian
ancestry. And even if there is some proof of Indian ancestry, that
does not automatically mean that a child will be placed with an
Indian family. This is all speculative. So, should there be a
reversal, conditional reversal, or “conditional affirmance,” based
upon speculation? My answer now is, No.
The oath of judicial office does not say that appellate courts
have a duty to support and defend a statute. This is a glaring
omission in the oath and the only inference that can be drawn is
that the judicial oath of office is not directed to a statute. Of
course, we strive to uphold the letter and spirit of a statute. And,
we do so in almost every case. But, the Constitution takes
precedence over a statute. This is not a novel statement. Any
negligent violation of statute in almost any context does not
inexorably result in reversal. Such a violation, an error, must be
prejudicial within the meaning of the California Constitution to
warrant reversal of a judgment.
The Court of Appeal should not continue to slavishly
adhere to the ICWA rules at the expense of the California
Constitution. There is no ICWA exception to the California
Constitution. As indicated, we strive to follow any statute,
including the ICWA statute. And, at least in Division Six of the
Second Appellate District, we have always and strictly applied

3
ICWA and reversed upon a showing of “ICWA error.” That time,
for me, is now over. Rather than championing the rights of an
Indian tribe, we should be championing the rights of a dependent
child.
The prior Court of Appeal opinions, and the majority
opinion here, does not solve this administration of justice
problem. The new opinion authored by Justice Hoffstadt, In re
Dezi C. (2022) 79 Cal.App.5th 769, does solve the problem. This
scholarly opinion is consistent with the oath of office, follows the
Constitutional mandate of when and when not to reverse a
judgment, and is a pragmatic solution for the ICWA issue at the
Court of Appeal level. It dictates that we affirm in this case.
CERTIFIED FOR PUBLICATION.

YEGAN, J.

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 Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________

Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein,
Deputy County Counsel, for Plaintiff and Respondent.