In re S.K. CA5

Filed 10/26/26 In re S.K. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT In re S.K., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN F091359 SERVICES, (Super. Ct. No. JD14562700) Plaintiff and Respondent, v. OPINION Veronica K., Defendant and Appellant. THE COURT* APPEAL from an order of the Superior Court of Kern County. Christie Canales Norris, Judge. Jesse Frederic Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. Kendra L. Graham, County Counsel, and Raymond J. Aubele, Deputy County Counsel, for Plaintiff and Respondent. -ooOoo- * Before Hill, P. J., Detjen, J. and Guerra, J.  Veronica K. (mother) is the mother of S.K. (the child), who is the subject of this dependency case. Mother challenges the juvenile court’s order issued at a Welfare and Institutions Code1 section 366.26 hearing that resulted in her parental rights being terminated. Mother contends the court and the Kern County Department of Human Services (department) failed to comply with their duty of inquiry under the Indian Child Welfare Act (ICWA) and its state counterpart. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND2 In March 2024, the department filed a dependency petition alleging the child was described by section 300, subdivision (b)(1). The allegations involved mother’s ongoing substance abuse and mental health issues. The identity of the child’s father was unknown. At the detention hearing held on March 25, 2024, mother was present and appointed counsel. Mother denied having any knowledge of Indian ancestry in her family. A Parental Notification of Indian Status (form ICWA-020) was filed by mother, which indicated she had no Indian ancestry. The juvenile court detained the child from mother’s custody, found there was no reason to believe the child was an Indian child, and set a combined jurisdiction and disposition hearing for April 15, 2024. The department’s jurisdiction report recommended that the allegations in the original petition be found true. The disposition report recommended that the child remain in out-of-home care and family reunification services be provided to mother. The ICWA section of the report noted the juvenile court’s finding that ICWA was not applicable and acknowledged the department’s continuing duty to inquire. Mother informed the social worker that all of her family lived in Georgia, and she did not have any contact with her family. She refused to provide any additional information regarding her family. 1 All further undesignated statutory references are to the Welfare and Institutions Code. 2 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts to those bearing on that issue. 2.  The disposition report provided details of the family finding social worker’s efforts to contact several extended family members in March 2024 and April 2024. Mother confirmed her previous denial of Indian ancestry, and she indicated there were no other individuals that could provide additional information. The social worker made unsuccessful attempts to contact the child’s maternal grandfather and maternal great aunt. Attempts were made to contact five potential family members of mother, but none of the individuals responded to the social worker’s messages. On April 15, 2024, the juvenile court sustained the allegations in the petition, ordered the child removed from mother’s custody, and provided family reunification services to mother. The juvenile court also found that there was no reason to know or believe the child was an Indian child, and the department had a continuing duty to inquire under ICWA. A six-month review hearing was set for October 15, 2024. In its report for the six-month review hearing, the department recommended mother receive additional reunification services. The ICWA status section of the report detailed further efforts by the department to inquire into the family’s ancestry. The child’s maternal great-aunt and maternal grandfather both denied having any Indian ancestry, but the maternal grandfather stated the child’s deceased maternal grandmother had Indian ancestry through an unknown tribe. He provided contact information for the maternal great-grandmother, who explained that the deceased maternal great-grandfather had ancestry with the “Crow Nation.” She had no contact with the maternal great-grandfather’s family. A maternal cousin also reported the same Indian ancestry through the maternal great-grandfather. At the six-month review hearing, the juvenile court ordered continued family reunification services, and a 12-month review hearing was set for April 15, 2025. The department’s report for the 12-month review hearing, dated April 4, 2025, recommended mother’s family reunification service be terminated and a section 366.26 hearing be set. The ICWA status section of the report noted the disclosure of possible Indian ancestry. 3. An ICWA inquiry was requested on April 2, 2025, and the case was assigned to a paralegal. The initial 12-month review hearing was continued, and a contested hearing was set for May 22, 2025. On May 22, 2025, the department filed a declaration of its paralegal regarding its ongoing ICWA inquiry.3 The declaration discussed the disclosure of Indian ancestry by the maternal family members. A “Notice of Child Custody Proceedings for Indian Child” (ICWA-030) form was sent to the Eastern Band of Cherokee, Cherokee Nation, United Keetoowah Band Cherokee, and Crow tribe on April 7, 2025. The notice included the names of mother, maternal grandparents, and both sets of maternal great-grandparents. Letters from the Eastern Band of Cherokee, United Keetoowah Band of Cherokee Indians, and Crow tribe informed the department the child was not an Indian child based on the information provided. At the contested hearing held on May 22, 2025, mother was present and represented by counsel. The juvenile court acknowledged that it received and reviewed the declaration regarding ICWA that was filed on the morning of the hearing. Mother’s request for a continuance of the contested hearing was granted. A supplemental declaration of the department’s paralegal was filed on October 29, 2025. The paralegal discussed the department’s efforts of inquiry into the family’s claim of Indian ancestry, and she noted the filing of a declaration in support of ICWA on May 22, 2025. The declaration included the Cherokee Nation’s response to the notice sent by the department in April 2025. The response indicated mother and the child were not registered members of the tribe. 3 The declaration was omitted from the clerk’s transcript at the time of the filing of appellant’s opening brief. We granted the department’s motion to augment the record for purposes of including the declaration. The declaration is part of the court file and a proper subject of a motion to augment. (See Cal. Rules of Court, rule 8.155(b).) 4.  After additional continuances, a contested and combined 12-month and 18-month review hearing was held on October 30, 2025. The juvenile court ordered mother’s family reunification services terminated. A finding was made that there was no reason to know or believe the child was an Indian child, and a section 366.26 hearing was set for February 26, 2026. At the section 366.26 hearing held on February 26, 2026, the juvenile court terminated the parental rights of mother and selected a permanent plan of adoption for the child. The court found that there was no reason to know or believe the child was an Indian child. DISCUSSION Mother’s opening brief claimed the juvenile court’s ICWA finding was not supported by substantial evidence because the record did not include documentation of the information provided to the tribes and the exact responses from the tribes. The department contends that all the information relevant to its inquiry was adequately set forth in a declaration that was inadvertently omitted from the original clerk’s transcript. Mother did not file a reply brief after an augmented clerk’s transcript included a copy of the ICWA declaration filed on May 22, 2025. A. Applicable Law Under ICWA’s state analogue, Cal-ICWA (§ 224 et seq.), the juvenile court and the department “have an affirmative and continuing duty to inquire whether a child,” who is the subject of a juvenile dependency petition, “is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9; Cal. Rules of Court, rule 5.481(a).)4 The department’s initial duty of inquiry includes “asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the 4 All further undesignated rule references are to the California Rules of Court. 5. child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child.” (§ 224.2, subd. (b)(2).) When initial inquiry gives rise to a “reason to believe” (but not sufficient evidence to determine there is a “reason to know”) that an Indian child is involved in a proceeding, “further inquiry regarding the possible Indian status of the child” is required, which includes gathering additional biographical information from family members and contacting relevant tribes. (§ 224.2, subd. (e)(2)(A)–(C).) “Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or citizenship eligibility determination, as well as information on the current status of the child and the case.” (§ 224.2, subd. (e)(2)(C).) The final duty component arises when the juvenile court or the department has “ ‘reason to know’ ” the child is an Indian child. (In re D.F. (2020) 55 Cal.App.5th 558, 567.) A “reason to know” exists if one of the following circumstances is present: “(1) A person having an interest in the child … informs the court that the child is an Indian child[;] [¶] (2) The residence … of the child [or] the child’s parents … is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child … gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[; or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)–(6).) The 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, as well as evidence of how and when this information was provided to the relevant tribes.” (Rule 5.481(a)(5).) Before finding ICWA inapplicable, the juvenile court must make a finding that the department conducted 6. “proper and adequate further inquiry” and exercised “due diligence” in doing so, and that “there is no reason to know whether the child is an Indian child.” (§ 224.2, subd. (i)(2).) B. Standard of Review We review the juvenile court’s finding that there is no reason to know whether a child is an Indian child under a substantial evidence standard, and the court’s finding that the department has conducted a proper and adequate inquiry and due diligence for abuse of discretion. (In re K.H. (2022) 84 Cal.App.5th 566, 600–601; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004–1005.) Regarding the juvenile court’s discretion in evaluating the department’s inquiry efforts, this court explained in K.H., “so long as the [department] conducts a reasonable inquiry and documents its results, the juvenile court will have the room to exercise its discretion in determining whether the [department’s] efforts are sufficient to satisfy the mandates of ICWA and related California law.” (In re K.H., supra, 84 Cal.App.5th at p. 604.) “The [department’s] inquiry must extend far enough to reasonably ensure that if there is information the child is or may be an Indian child, that information is gathered.” (Ibid.) An inadequate inquiry requires conditional reversal of the juvenile court’s order terminating parental rights with directions to the department to conduct an adequate inquiry, supported by record documentation. (In re Dezi C. (2024) 16 Cal.5th 1112, 1136.) C. Analysis Mother contends the department’s inquiry was inadequate because the record did not contain the declaration filed by the department’s paralegal on May 22, 2025, at the time her opening brief was filed. However, the record was subsequently augmented with the department’s May 22, 2025 declaration in support of its ICWA inquiry. The department’s further inquiry obligation included contacting relevant tribes and providing 7. information “identified by the tribe as necessary for the tribe to make a membership or citizenship eligibility determination.” (§ 224.2, subd. (e)(2)(C).) The declaration provided documentation of the notice form sent to the Eastern Band of Cherokee, Cherokee Nation, United Keetoowah Band Cherokee, and Crow tribe. In the ICWA-030 form sent to the tribes, the department provided the full names of the maternal grandparents and both sets of maternal great-grandparents. Letters from the Eastern Band of Cherokee, United Keetoowah Band of Cherokee Indians, and Crow tribe were also included in the declaration. None of the responses indicated the child was a member or eligible for membership in their tribe. Thus, the previously omitted declaration provided sufficient evidence for the juvenile court to find the department met its obligation of further inquiry of the tribes as required under section 224.2, subdivision (e)(2)(C). In sum, we conclude mother has failed to demonstrate the juvenile court and the department failed to comply with their duty to inquire. The department’s efforts were sufficient under the circumstances of this case, where maternal family members were interviewed despite mother’s refusal to identify them, and the department shared the biographical family information with the relevant tribes. We therefore conclude the department’s efforts were sufficient to fulfill the duty of inquiry, and its documentation gave the court an adequate basis for finding it had done so and that ICWA does not apply. DISPOSITION The order is affirmed. 8.