California Court of Appeal Mar 17, 2026 No. E086668Unpublished
Filed 3/17/26 In re K.H. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.H. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E086668
Plaintiff and Respondent, (Super. Ct. No. DPIN2300014)
v. OPINION
M.H.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elizabeth E. Tucker,
Judge. Reversed with directions.
Leila H. Moncharsh, under appointment by the Court of Appeal, for Defendant
and Appellant.
Minh C. Tran, County Counsel, Jamila T. Purnell and Catherine E. Rupp,
Deputy County Counsel, for Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant, M.H. (Mother) appeals from findings and orders made
on June 11, 2025, terminating her parental rights to her infant twins under Welfare and 1 Institutions Code, section 366.26. Mother’s only contention on appeal is that the
Riverside County of Public Services (DPSS) failed to meet its duty of inquiry under the
Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) and related state law. We
agree, and conditionally reverse the order terminating parental rights and remand with
directions DPSS fully comply with its duties of inquiry under ICWA and related
California law.
II.
FACTS AND PROCEDURAL BACKGROUND
The twins were born in January 2023. Although Mother and the twins tested
negative for controlled substances at the time of delivery, the twins’ meconium sample
came back positive for methamphetamines. Nevertheless, the twins were discharged
from the hospital into Mother’s care. Father was currently in prison.
1 Unless otherwise noted, all statutory references are to the Welfare and Institutions Code. Because ICWA uses the term “Indian,” we do so on occasion as well, not out of disrespect, but because of the need for clarity and consistency, even though we recognize that other terms, such as “Native American” or “indigenous” are preferrable.
2
On January 17, 2023, DPSS received a referral alleging general neglect of the
twins. DPSS obtained protective custody warrants to remove the twins from Mother and
Father. DPSS filed a juvenile dependency petition on January 24, 2023, under section
300, subdivisions (a), (b), and (g). The petition alleged Mother abused substances during
pregnancy, resulting in the twins’ positive meconium drug results. Both parents allegedly
had a history of substance abuse. Father had a criminal history and was incarcerated,
which prevented him from caring for and supporting the twins.
At the contested dependency hearing on January 30, 2023, the court permitted the
twins to continue to live with Mother in the home of T.M., the twins’ maternal great aunt
(MGA), who was a drug and alcohol counselor. At the jurisdiction/disposition hearing in
April 2023, the court declared Father, who was telephonically present, to be the twins’
biological father. DPSS made multiple unsuccessful attempts to interview Father in June
2023. During the jurisdiction/disposition hearing in June 2023, the court declared the
twins dependents of the court, ordered the twins to remain in Mother’s care on family
maintenance, and ordered the twins removed from Father, who was in prison.
On December 3, 2023, DPSS received a general neglect referral regarding the
twins. Mother allegedly “pretend[ed]” to live with MGA but was actually living with her
boyfriend, who was selling drugs out of the home. Mother was working as a prostitute
and came home under the influence. There were illegal guns in the home in plain view.
Mother reportedly let the twins “cry for a long time” and was intoxicated while caring for
3
them. When DPSS attempted to contact Mother, she was evasive. MGA reported that
Mother was in Nevada and Father had been released from prison.
In January 2024, DPSS filed a section 387, supplemental juvenile dependency
petition on behalf of the twins, alleging Mother continued to abuse controlled substances
and tested positive for amphetamine and methamphetamine, rendering her incapable of
properly caring for and supervising the twins. DPSS obtained protective custody
warrants to remove the twins from Mother. The twins were placed in a foster home in
January 2024. During the hearing on the section 387 supplemental petition, the court
ordered the twins detained from Mother and Father. DPSS stated in its declaration of due
diligence, filed in February 2024, that Father had been located and had received notice of
the next hearing verbally and by text. A forensic medical exam of the twins and hair
follicle showed that one of the twins tested positive for fentanyl and the other tested
positive for methamphetamine and amphetamine.
During the section 387 jurisdiction/disposition hearing on March 25, 2024, the
court sustained the supplemental petition allegations, removed the children from
Mother’s care and ordered reunification services for Mother. Father was arrested in
August 2024. He failed to appear for another felony settlement conference, resulting in
the court issuing a bench warrant. In September 2024, DPSS encountered Father at
Mother’s last known residence. Father claimed he was the twins’ uncle, not their father.
When the social worker told him she knew he was the twins’ Father, he reportedly
“remained mute.” Meanwhile, after the 387 jurisdiction/disposition hearing, Mother’s
4
whereabouts were unknown. DPSS learned that she might be residing with a maternal
aunt. Mother did not respond to DPSS’s efforts to contact her, although she visited the
twins consistently and appeared at the six-month hearing in October 2024. During the
hearing, the court terminated Mother’s reunification services and reduced visitation.
In January 2025, the twins were placed in an adoptive home. Also in January,
Father was arrested again and incarcerated. Mother continued visiting the twins. Father
appeared at the February 24, 2025, section 366.26 hearing In April 2025, Father was
released from jail and transported to state prison. Also in April 2025, Mother filed a
section 388 petition requesting the court to reinstate her reunification services and return
the twins to her care. She asserted that she had completed her case plan services and the
twins were bonded to her. After filing her section 388 petition, Mother admitted she still
abused controlled substances, including methamphetamine, and denied receiving
substance abuse treatment. In June 2025, Mother’s hair follicle test showed she was
negative for all substances.
On June 11, 2025, the court denied Mother’s section 388 petition on the grounds
there were not changed circumstances and granting the petition was not in the twins’ best
interests. The court also terminated Mother and Father’s parental rights. Mother filed a
notice of appeal.
5
III.
ICWA NONCOMPLIANCE
Mother contends DPSS failed to satisfy its ICWA duty of inquiry. We agree.
A. Standard of Review
We apply the substantial evidence standard of review when determining whether
there was ICWA compliance, unless the facts are undisputed or ICWA compliance turns
on a legal issue, in which case we apply the de novo standard of review. (In re S.R.
(2021) 64 Cal.App.5th 303, 311-312.) Here, the facts regarding ICWA compliance are
undisputed. We therefore review the issue of ICWA compliance de novo.
B. Procedural Background
Although DPSS stated in the juvenile dependency petition filed on January 24,
2023, that DPSS had completed inquiry, form ICWA-010(A), attached to the petition,
states that inquiry of Mother was not made because she had not made herself available to
DPSS. Inquiry had also not been completed as to Father because he was currently
incarcerated.
On January 25, 2023, Mother filed an ICWA-020 form, entitled Parental
Notification of Indian Status. Mother left blank the section on “Indian Status.” Mother’s
attorney acknowledged at the contested detention hearing the inadvertent omission and
stated that Mother intended to check the box on the form that indicated that there was no
Native American ancestry. Father’s attorney stated he had not had any contact with
Father.
6
During the contested detention hearing on January 30, 2023, the court asked
Mother if she had any Native American ancestry. She responded, “I’m not too sure.”
She also said she had never lived on tribal land or received any medical benefits or
assistance from the Bureau of Indian Affairs, and she was not aware of any of her
ancestors ever claiming any Indian ancestry.
The court also asked the twins’ maternal great aunt, MGA, who was present at the
hearing, if she had any Native American ancestry, and she responded, “Don’t know.” She
further stated she had never lived on a reservation or received any benefits from the
Bureau of Indian Affairs. In response to being asked if any of her ancestors had ever
claimed Native American ancestry, MGA replied, “My dad used to say that his mom had
Cherokee [I]ndian in him, but I don’t know. I grew up in New York. We grew up in New
York City.” MGA said her dad (MGF) was no longer living.
The court stated that it had completed ICWA inquiry and concluded that there was
no reason to know the twins were Native American children. The court further stated that
Mother had declared she did not have any reason to believe that the twins were Indian
children. The court ordered DPSS to complete a further ICWA inquiry regarding Father
and any additional relatives named by Mother.
DPSS reported in its jurisdiction/disposition report filed on March 10, 2023, that
ICWA “does or may apply.” DPSS reported that on March 6, 2023, Mother denied
Native American ancestry and tribal affiliation. As to Father, DPSS reported that he was
7
currently incarcerated and therefore DPSS had not completed an inquiry as to his Native
American ancestry.
Father appeared telephonically at the jurisdiction/disposition hearing on March 15,
2023. During the hearing, his attorney told Father to try to contact him, and he would
also try to reach Father. The social worker also needed to talk to Father. Father asked
what it was all about. His attorney explained that it was a juvenile dependency
proceeding involving the twins, and that a DNA test was required to confirm he was their
father.
Father appeared telephonically at the April 25, 2023 hearing. DPSS requested the
court continue the hearing because DPSS was unable to contact Father to interview him.
Father requested to attend the next hearing on June 9, 2023. The court granted his
request.
At the June 9, 2023 hearing, Father’s attorney noted that DPSS had not
interviewed Father yet. DPSS stated that it had been attempting to contact Father, but
had not succeeded because it was difficult to do so while he was in prison. DPSS had
emailed and called in an attempt to contact Father. Father’s attorney stated that he had
been able to talk to Father while he was incarcerated, and told Father to call DPSS for his
interview. Father tried to but was unsuccessful. The court suggested Father’s attorney
talk to him following the hearing, but his attorney said the prison would not allow him to.
Calls had to be set up ahead of time. On June 9, 2023, the court found that DPSS
conducted a sufficient inquiry as to whether the twins might have Indian ancestry.
8
DPSS reported in its family maintenance status review report filed on November
27, 2023, that ICWA did not apply. DPSS reported that on November 15, 2023, Mother
denied any knowledge of Native American ancestry. On December 7, 2023, DPSS
conducted a California Corrections Department search for Father and did not locate him
in prison. On December 11, 2023, Mother again denied Native American ancestry.
DPSS reported that it had not been able to make another inquiry to determine if ICWA
applied because Mother only communicated with the social worker by text messages and
had not made herself available for an interview because she works. MGA told DPSS that
Father had been released from prison. MGA said she did not know where the paternal
relatives lived or if they had any Native American Ancestry.
On January 22, 2024, Mother filed an updated form ICWA-020 in which she
denied Native American ancestry and tribal membership. Also on January 22, 2024,
during the section 387 supplemental detention petition hearing, the court found that
ICWA did not apply, and there was no reason to know that the twins were Indian children,
DPSS conducted an adequate inquiry, and ICWA did not apply. Father was not present.
On February 22, 2024, DPSS filed a declaration of due diligence stating that on February
20, 2024, DPSS submitted a request for Person Locator assistance for Father. The report
stated that Father was located on February 21, 2024. DPSS contacted him on February
21, 2024, and he provided his phone number and current address in the due diligence
declaration.
9
On March 19, 2024, Mother denied Native American ancestry. The hearing was
continued to allow paternal DNA testing, and resumed on April 25, 2023, after which
DNA testing established that Father was the twins’ biological father. At the
jurisdiction/disposition hearing on March 24, 2024, the court found ICWA did not apply,
there was proper further inquiry, and due diligence was conducted. Therefore, there was
no reason to know the twins were Native American.
During the jurisdiction hearing on March 25, 2024, Mother told the court her
mother (MGM) had died. Father’s attorney told the court she had not had any contact
with him. On September 3, 2024, DPSS made face-to-face contact with Father at
Mother’s last known address. He refused to identify himself. The social worker told him
she recognized him as the twins’ father and explained that she was contacting him about
visitation, but Father “remained mute.”
During the contested 6-month review hearing on the supplemental dependency
petition on October 28, 2024, the court concluded that ICWA did not apply. The court
found that further inquiry and due diligence was conducted, and there was no reason to
know the twins were Indian children. Sufficient inquiry was made and there was no new
information indicating that ICWA applied. Father was not present at the hearing. Mother
was present. At the contested status review hearing on October 30, 2024, the court found
that ICWA did not apply.
10
On February 24, 2025, Father appeared in-custody at the section 366.26 hearing
on the original dependency petition. The court continued the hearing. On April 7, 2025,
DPSS reported that Mother denied Native American ancestry, that additional ICWA
inquiry attempts regarding Father had been unsuccessful, and there was no new
information suggesting ICWA applied. On April 28, 2025, the court again found that
ICWA did not apply. Mother was present at the hearing but Father was not. The court
continued the section 366.26 hearing to June 11, 2025, and ordered Mother and Father to
appear at the hearing.
On June 11, 2025, Mother appeared at the section 366.26 hearing and hearing on
her section 388 petition, which the court denied. Father did not appear. The court found
that there was sufficient ICWA inquiry and ICWA did not apply, and terminated parental
rights.
C. Applicable ICWA Law
After the federal ICWA regulations were adopted in 2016, California amended its
statutes to conform with ICWA’s inquiry and notice requirements. (In re Dezi C. (2024)
16 Cal.5th 1112, 1131 (Dezi C.).) This resulted in agencies having a broader duty of
inquiry. (Ibid.) Section 224.2 codifies and expands on ICWA’s duty of inquiry to
determine whether a child is an Indian child. “Agencies and juvenile courts have ‘an
affirmative and continuing duty’ in every dependency proceeding to determine whether
ICWA applies by inquiring whether a child is or may be an Indian child. (§ 224.2, subd.
(a).) This ‘duty to inquire begins with the initial contact, including, but not limited to,
11
asking the party reporting child abuse or neglect whether the party has any information
that the child may be an Indian child.’ (Ibid.; see also rule 5.481(a); [In re] Isaiah W.
[2016] 1 Cal.5th [1,] 14 [‘juvenile court has an affirmative and continuing duty in all
dependency proceedings to inquire into a child’s Indian status’].)” (Dezi C., supra, at pp.
1131-1132.)
“[S]ection 224.2 is broadly construed “to require the county welfare department to
conduct an extended-family inquiry in all cases in which a child is placed into its
temporary custody, regardless of how the child is removed from the home.” (In re Ja.O.
(2025) 18 Cal.5th 271, 290-291 (Ja.O.).) Although this duty of inquiry is sometimes
referred to as the initial duty of inquiry, the duty continues throughout the dependency
proceedings. (Dezi C., supra, 16 Cal.5th at p. 1132.)
Under section 224.2, subdivision (b), “once a child is placed into the temporary
custody of a county welfare department, the duty to inquire ‘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.’” (Dezi C., supra, 16 Cal.5th at p. 1132;
see also Cal. Rules of Court, rule 5.481(a)(1).) “Extended family member” means “a
person who has reached the age of eighteen and who is the Indian child’s grandparent,
aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2); Dezi C., supra, at p. 1132; see also
12
§ 224.1, subd. (c) [adopting ICWA definition of “extended family member”]; see also In
re Claudia R. (2025) 115 Cal.App.5th 76, 85-86.)
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.’” (In re Ricky R. (2022) 82 Cal.App.5th 671, 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
“other interested person[],” if the party or other interested person was not present at the
first hearing). (§ 224.2, subd. (c).)
“‘[R]eason to believe that an Indian child is involved’ triggers the duty of further
inquiry. [Citation.] ‘[R]eason to believe’ exists whenever the court or DPSS has
‘information suggesting that either the parent of the child or the child is a member [or
citizen] or may be eligible for membership [or citizenship] in an Indian tribe.’” (In re
Ricky R., supra, 82 Cal.App.5th at p. 679, quoting § 224.2, subd. (e), 1st par. & (e)(1).)
The juvenile court may find that ICWA does not apply 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.)
The “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.” (Id. at p. 1141)
13
“‘“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 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.)
D. Discussion
We conclude DPSS did not sufficiently comply with its ICWA duty of inquiry.
Neither the court nor DPSS asked Father about his or Mother’s Native American
ancestry, or for relatives’ contact information. They also did not request him to fill out
the ICWA inquiry forms, and did not adequately follow up on MGA’s statement that her
father might have Cherokee ancestry. Although the court asked Mother and MGA about
their Native American ancestry at the contested detention hearing on January 30, 2023,
DPSS did not ask any other maternal relatives and did not interview MGA. Mother had
six siblings and DPSS reported that a Family Connections referral revealed that maternal
relatives were located in New York, with the search ongoing.
14
There is also no mention that DPSS asked Mother about Native American ancestry
or requested extended relative contact information during her interview on March 6,
2023. In addition, there is no indication that on March 11, 2024, DPSS asked Mother for
extended relative contact information when it asked Mother to provide names for possible
relative placement.
We recognize that Mother and Father were often difficult to contact during the
juvenile dependency proceedings, and this interfered with ICWA inquiry compliance. At
times, it was unknown where they were residing and they did not consistently cooperate
in providing the court and DPSS with their current locations. Father was in and out of
prison. When in prison, communication was difficult and, often times, DPSS’s efforts to
communicate with him were unsuccessful. Mother’s residence changed without notice,
and she was not always responsive or forthright when DPSS asked her where she was
living. Nevertheless, the record does not demonstrate adequate ICWA compliance
efforts.
Even though Father appeared in court several times, in person and telephonically,
he was never asked about his Native American ancestry or to provide contact information
for relatives who might have Native American ancestry information. The court did not
ask him during his initial in-person appearance on February 24, 2025, about his Native
American ancestry, as required under section 224.2, subdivision (c). The court also did
not do so during his other telephonic court appearances on March 15, April 25, or June 9,
2023. Nor did the court order Father to complete form ICWA-20 (Cal. Rules of Court,
15
rule 5.481(a)(2(C)). The record does not include any evidence that Father was provided
with, or filled out, any ICWA inquiry forms (ICWA-010 and 020). Because DPSS and
the court did not ask anyone, other than Mother and MGA, about the twins’ Native
American ancestry, we conclude that DPSS has not met its burden of establishing
compliance with ICWA’s inquiry requirements.
DPSS and Mother agree that the proper disposition on appeal is to conditionally
reverse the order terminating parental rights, with directions to the juvenile court and
DPSS to comply with their ICWA duties of inquiry. We agree a conditional reversal here
is appropriate under Dezi C., (2024) 16 Cal.5th at page 1152. (see also Ja.O., supra, 18
Cal.5th at pp. 290-291.)
In Dezi C., supra, 16 Cal.5th 1112, the mother appealed an order terminating
parental rights based on ICWA noncompliance of the initial inquiry requirement. The
sole question before the California Supreme Court was “whether a child welfare agency’s
failure to make a proper inquiry under California's heightened ICWA requirements
[(section 224.2)] constitutes reversible error.” (Id. at p. 1128.) The Dezi C. court held
that, “[w]hen there is an inadequate inquiry and the record is underdeveloped, it is
impossible for reviewing courts to assess prejudice because we simply do not know what
additional information will be revealed from an adequate inquiry. We therefore hold that
an inadequate Cal-ICWA inquiry requires conditional reversal of the juvenile court’s
order terminating parental rights with directions to the agency to conduct an adequate
inquiry, supported by record documentation.” (Dezi C., supra, 16 Cal.5th at p. 1125.)
16
Consistent with Dezi C., we conclude the appropriate disposition here is
conditional reversal, with directions that the juvenile court and DPSS fully comply with
their ICWA duties of inquiry.
IV.
DISPOSITION
The order terminating parental rights is conditionally reversed, and the matter is
remanded to the juvenile court for compliance with inquiry and notice requirements
(§§ 224.2 & 224.3). If the juvenile court thereafter finds there has been proper and
adequate ICWA inquiry compliance and ICWA does not apply (§ 224.2, subd. (i)(2)), the
juvenile court shall reinstate the order terminating parental rights. If the juvenile court
concludes ICWA applies, it shall proceed in conformity with ICWA and California
Dezi C., supra, 16 Cal.5th at p. 1141; Ja.O., supra, 18 Cal.5th 271.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that the Department of Public Social Services (DPSS) failed to satisfy its affirmative and continuing duty of inquiry under the Indian Child Welfare Act (ICWA) and related state law, necessitating a conditional reversal of the order terminating parental rights.
Issues
Did the Department of Public Social Services (DPSS) and the juvenile court satisfy their affirmative and continuing duty of inquiry under ICWA and section 224.2?
Does an inadequate ICWA inquiry require conditional reversal of an order terminating parental rights when the record is underdeveloped?
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“We conclude DPSS did not sufficiently comply with its ICWA duty of inquiry.”
“Because DPSS and the court did not ask anyone, other than Mother and MGA, about the twins’ Native American ancestry, we conclude that DPSS has not met its burden of establishing compliance with ICWA’s inquiry requirements.”
“We therefore hold that an inadequate Cal-ICWA inquiry requires conditional reversal of the juvenile court’s order terminating parental rights with directions to the agency to conduct an adequate inquiry, supported by record documentation.”