California Court of Appeal Jun 3, 2025 No. E085477Unpublished
Filed 6/3/25 In re Bailey B. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re BAILEY B., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E085477
Plaintiff and Respondent, (Super.Ct.No. DPRI2300128)
v. OPINION
J.B. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Walter H. Kubelun,
Judge. Conditionally reversed with directions.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and
Appellant, J.B.
Lelah S. Forrey-Baker, under appointment by the Court of Appeal, for Defendant
and Appellant, E.C.
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Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna,
Deputy County Counsel, for Plaintiff and Respondent.
Jorge B. (Father) and Evelyn C. (Mother) appeal from the juvenile court’s order
terminating parental rights to their daughter, Bailey B. The parents argue that the court
and Riverside County Department of Public Social Services (DPSS) failed to comply
with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
In April 2023, DPSS took newborn Bailey into protective custody after Mother
and the baby tested positive for amphetamines at Bailey’s birth. Mother disclosed that
she had been using methamphetamine daily for the past five years. Father disclosed that
he had recently used methamphetamine with Mother.
Mother lived with the maternal great-aunt. Mother identified the maternal aunt as
someone willing to care for Bailey; the maternal aunt and the maternal grandmother lived
in Oregon.
Both parents denied any Indian ancestry when interviewed by the social worker,
and they filed Judicial Council ICWA-020 forms indicating the same.1
DPSS filed a petition under Welfare and Institutions Code section 300, subdivision
(b), alleging that both parents abused controlled substances. (Unlabeled statutory
1 Because ICWA uses the term “Indian,” we use it as well “to reflect the statutory language.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125, fn. 1 (Dezi C.).) No disrespect is intended.
2
references are to the Welfare and Institutions Code.) The court detained Bailey from
both parents. It found that “ICWA likely does not apply” but directed DPSS to continue
its ICWA inquiry “as to any relatives that make themselves available.”
When interviewed for the jurisdiction/disposition report, Mother said that she
occasionally spoke to the maternal grandmother. Mother again stated that she wanted the
maternal aunt to be considered for placement, and she provided the maternal aunt’s phone
number. Mother mentioned that she also had a brother, and she identified him by name.
Father reported that he wanted the paternal uncle to be considered for placement, and he
provided a phone number for the paternal uncle.
At the jurisdiction and disposition hearing in May 2023, the court found the
allegations of the petition true, adjudged Bailey a dependent of the court, removed her
from both parents’ custody, and ordered reunification services for the parents. The court
authorized the maternal aunt to be assessed for placement in Oregon under the Interstate
Compact on Placement of Children (Fam. Code, § 7900 et seq.). The court also found
that ICWA did not apply but again directed DPSS “to continue its inquiry with any
relatives that it may come across.”
The court terminated the parents’ reunification services at the contested 12-month
review hearing and set the matter for a section 366.26 hearing. Two review reports
during the reunification period listed phone numbers for the maternal aunt and the
maternal grandmother.
The court held a postpermanency review hearing in November 2024. It found that
sufficient ICWA inquiry had been made and that ICWA did not apply to Bailey.
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At the section 366.26 hearing in February 2025, the court found that Bailey was
likely to be adopted and terminated parental rights. A maternal cousin was present at the
hearing, and the court asked whether he had any Indian ancestry. The maternal cousin
replied that he did not. Although the court did not make an express ICWA finding at the
section 366.26 hearing, the order terminating parental rights “was necessarily premised
on a current finding by the juvenile court” that ICWA did not apply to Bailey. (In re
Isaiah W. (2016) 1 Cal.5th 1, 10.)
DISCUSSION
The parents argue that the court prejudicially erred by failing to ensure that DPSS
conducted an adequate ICWA inquiry. We agree. DPSS failed to discharge its duty of
initial inquiry with respect to extended family members.
The child welfare department and the juvenile court have an “affirmative and
continuing duty to inquire” whether a child in a dependency proceeding “is or may be an
Indian child.” (§ 224.2, subd. (a).) “The duty to inquire consists of two phases—the duty
of initial inquiry and the duty of further inquiry.” (In re Ricky R. (2022) 82 Cal.App.5th
671, 678 (Ricky R.), disapproved on another ground by Dezi C., supra, 16 Cal.5th at
p. 1152, fn. 18.)
“The duty of initial inquiry applies in every dependency proceeding.” (Ricky R.,
supra, 82 Cal.App.5th at p. 678.) The child welfare department’s duty to inquire begins
“when first contacted regarding a child.” (§ 224.2, subd. (b)(1).) The department must
ask the “party reporting child abuse or neglect whether the party has any information that
the child may be an Indian child,” and the department must also ask the child and the
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child’s family members, including extended family members, upon first contact with
those individuals. (Ibid.) In addition, if the child is taken into the department’s
temporary custody under section 306, “or if they were initially taken into protective
custody pursuant to a warrant described in Section 340,” then the department must ask
“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)(2).) Extended family
members include adults who are the child’s stepparents, grandparents, siblings, brothers-
or sisters-in-law, aunts, uncles, nieces, nephews, or first or second cousins. (§ 224.1,
subd. (c)(1).)
Although the child welfare department is required to conduct an ICWA inquiry of
extended family members, state law “‘does not require the agency to “find” unknown
relatives and others who have an interest in the child, merely to make reasonable
inquiries. The operative concept is those people who are reasonably available to help the
agency with its investigation into whether the child has any potential Indian ancestry
should be asked.’” (Dezi C., supra, 16 Cal.5th at p. 1140.)
Juvenile courts must conduct their own initial inquiry as well. “Federal
regulations require state courts to ask each participant ‘at the commencement’ of a child
custody proceeding ‘whether the participant knows or has reason to know that the child is
an Indian child.’” (Ricky R., supra, 82 Cal.App.5th at pp. 678-679, quoting 25 C.F.R.
§ 23.107(a) (2022).) Similarly, state law requires the court to pursue an ICWA inquiry at
the first hearing on a dependency petition (or at the first court appearance of a party or
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“other interested person[],” if the party or other interested person was not present at the
first hearing). (§ 224.2, subd. (c).) Further inquiry is required only if the court or the
child welfare department has “reason to believe” that an Indian child is involved.
(§ 224.2, subd. (e).)
The child welfare department “must on an ongoing basis include in its filings a
detailed description of all inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status.” (Cal. Rules of Court, rule
5.481(a)(5).) The juvenile court may find that ICWA does not apply to the proceedings if
it finds “that an agency’s inquiry and due diligence were ‘proper and adequate,’ and the
resulting record provided no reason to know the child is an Indian child.” (Dezi C.,
supra, 16 Cal.5th at p. 1134.)
“[T]he juvenile court’s fact-specific determination that an inquiry is adequate,
proper, and duly diligent is ‘a quintessentially discretionary function’ [citation] subject to
a deferential standard of review. [Citations.] ‘“On a well-developed record, the court has
relatively broad discretion to determine whether the agency’s inquiry was proper,
adequate, and duly diligent on the specific facts of the case. However, the less developed
the record, the more limited that discretion necessarily becomes.”’ [Citations.] [¶] If,
upon review, a juvenile court’s findings that an inquiry was adequate and proper and
ICWA does not apply are found to be supported by sufficient evidence and record
documentation as required by California law [citation], there is no error and conditional
reversal would not be warranted even if the agency did not inquire of everyone who has
an interest in the child. On the other hand, if the inquiry is inadequate, conditional
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reversal is required so the agency can cure the error and thereby safeguard the rights of
tribes, parents, and the child.” (Dezi C., supra, 16 Cal.5th at p. 1141.)
DPSS failed to inquire of several extended family members who were reasonably
available in this case. The agency had contact information for the maternal aunt, the
maternal grandmother, and the paternal uncle. But there is no evidence that DPSS
attempted to contact those relatives to inquire about possible Indian ancestry. In addition,
there is no evidence that DPSS asked for the maternal uncle’s contact information or
otherwise attempted to contact him after Mother identified him by name. The agency
erred by failing to discharge its duty of initial inquiry with respect to those extended
family members. Father contends that DPSS also erred by failing to ask the maternal
great-aunt about possible Indian ancestry, but we find no error with respect to her. She
does not qualify as an extended family member under the statutory definition. (In re D.S.
(2020) 46 Cal.App.5th 1041, 1053 [agency did not have a duty to inquire of great-
grandparents because they were not extended family members under ICWA].)
For these reasons, there is insufficient evidence to support the court’s implied
finding that DPSS conducted an adequate and proper ICWA inquiry. We therefore
conditionally reverse the order terminating parental rights and remand for DPSS to
conduct a proper inquiry. (Dezi C., supra, 16 Cal.5th at p. 1141.)
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the
juvenile court shall order DPSS to comply with its duty of initial inquiry under
subdivision (b) of section 224.2 and, if applicable, the duty of further inquiry (§ 224.2,
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subd. (e)) and the duty to provide notice to the proper tribes (25 U.S.C. § 1912(a);
§ 224.3). The court shall also order DPSS to comply with the documentation
requirements of rule 5.481(a)(5) of the California Rules of Court. If the court determines
that DPSS has complied and that ICWA does not apply, then the court shall reinstate the
order terminating parental rights. If the court determines that ICWA applies, then it shall
proceed in conformity with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the termination of parental rights because the Department of Public Social Services failed to fulfill its duty of initial inquiry under the Indian Child Welfare Act by neglecting to contact reasonably available extended family members.
Issues
Did the Department of Public Social Services and the juvenile court fail to conduct an adequate initial inquiry regarding the child's potential Indian ancestry as required by ICWA and state law?
Disposition. conditionally reversed
Quotations verified verbatim against the opinion
“DPSS failed to discharge its duty of initial inquiry with respect to extended family members.”
“The agency erred by failing to discharge its duty of initial inquiry with respect to those extended family members.”
“We therefore conditionally reverse the order terminating parental rights and remand for DPSS to conduct a proper inquiry.”