Filed 10/21/22 In re G.M. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re G.M. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

J.M. et al.,

Defendants and Appellants.

 D080052

 (Super. Ct. Nos. J520167A-B)

APPEAL from an order of the Superior Court of San Diego County, 

Michael P. Pulos, Judge. Conditionally reversed and remanded with 

directions. 

Joseph T. Tavano, under appointment by the Court of Appeal, for 

Defendant and Appellant J.M., Father. 

Suzanne M. Davidson, under appointment by the Court of Appeal, for 

Defendant and Appellant S.O.P., Mother. 
2

Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and 

Respondent. 

J.M. (Father) and S.O.P. (Mother) appeal the juvenile court’s order 

terminating their parental rights over their daughters G.M. and K.O. 

(collectively referred to as the children) pursuant to Welfare and Institutions 

Code section 366.26.1 The only issue Father raises on appeal is that the San 

Diego County Health and Human Services Agency (Agency) did not comply 

with its initial inquiry duties under the Indian Child Welfare Act (25 U.S.C. 

§ 1901 et seq.) (ICWA) and section 224.2 because the Agency failed to conduct 

an ICWA inquiry of available extended family members and failed to “make 

meaningful efforts to locate and interview all biological relatives of Father 

and Mother” who qualify as extended family members. Mother joins in 

Father’s arguments. The Agency concedes it failed to conduct an ICWA 

inquiry of available extended family members. The Agency argues the 

juvenile court’s order should nonetheless be affirmed under the hybrid 

standard of review set forth in In re Ezequiel G. (2022) 81 Cal.App.5th 984

(Ezequiel) because substantial evidence supports the juvenile court’s finding 

that there was no reason to know the children were Indian children and the 

juvenile court was within its discretion in finding that the Agency conducted 

an adequate ICWA inquiry. Alternatively, the Agency argues any error in 

failing to conduct an ICWA inquiry of the children’s available extended 

family members was harmless under In re Dezi C. (2022) 79 Cal.App.5th 769, 

review granted September 21, 2022, S275578 (Dezi C.).

1 All statutory references are to the Welfare and Institutions Code unless 

otherwise specified. 
3

We conclude the Agency violated ICWA and section 224.2 when it failed 

to conduct an ICWA inquiry of extended family members with whom the 

Agency was in contact. The Agency was not, however, required to seek to 

contact “all biological relatives of Father and Mother.” We decline to affirm 

the juvenile court’s order under Ezequiel because in the order on appeal here, 

the juvenile court found that ICWA did not apply to the proceedings, and 

substantial evidence does not support that finding. Finally, we conclude the 

Agency’s error was prejudicial under In re Benjamin M. (2021) 70 

Cal.App.5th 735 (Benjamin M.). As such, we conditionally reverse and 

remand for the limited purpose of ensuring compliance with ICWA and 

section 224.2. 

FACTUAL AND PROCEDURAL BACKGROUND2

The Agency initiated this dependency proceeding under section 300 

subdivision (b) on behalf of G.M. and K.O. in October 2019, alleging the 

children had suffered or there was a substantial risk the children would 

suffer serious physical harm or illness based on Mother’s and Father’s failure

or inability to provide adequate supervision or protection. The Agency 

alleged that in September 2020, the children were exposed to a violent 

confrontation between Mother and Father and that for the past three years, 

Mother and Father had engaged in ongoing domestic violence. The Agency 

further alleged that prior attempts to safety plan with the family had been 

unsuccessful, Father had threatened to take the children to Florida during an 

open investigation, and Mother’s and Father’s ongoing physical violence place 

the children at substantial risk of serious physical harm. 

2 In light of the limited scope of this appeal, we provide an abbreviated 

summary of the dependency proceedings focused on the facts relevant to the 

issues on appeal. 
4

The petition stated the Agency asked Mother and Father about the 

children’s Indian status and they both denied that the children have any 

Indian ancestry. Mother completed an ICWA-020 Parental Notification of 

Indian Status form (ICWA-020 form) on October 11, 2019, indicating that she 

has no Indian ancestry. In its October 11, 2019 detention report, the Agency 

reported that Mother was interviewed on October 2, 2019 and Father was 

interviewed on October 3, 2019, and they both denied that the children have 

any Indian ancestry. 

The Agency reported that the children were currently living in Mother’s 

home and Father lived elsewhere. The Agency interviewed maternal aunt 

G.O., who stated that maternal grandmother lived in the home with Mother. 

The Agency also interviewed maternal grandmother. The Agency’s report did 

not state that it asked the maternal aunt G.O. or maternal grandmother 

about the children’s potential Indian ancestry. 

The Agency reported interviewing Father, who stated he had spoken 

with paternal grandmother, who lives in Florida. He claimed he was 

considering taking the children to Florida to be cared for by paternal 

grandmother. The Agency advised Father not to take the children during the 

investigation. 

At the detention hearing, the court made a prima facie finding that the 

children came within section 300, subdivision (b)(1), and ordered the children 

detained. 

In its November 5, 2019 jurisdiction and disposition report, the Agency 

reported that Mother again denied Indian ancestry on October 14, 2019. The

Agency also reported that the children were detained at Polinsky Children’s 

Center. Mother identified maternal grandmother as her preferred 
5

permanent placement plan. She stated that her father, maternal 

grandfather was deceased. 

The Agency reported that Father stated he was adopted at the age of 

seven and he has a good relationship with his adoptive mother. He indicated

he has 10 siblings, but denied having a relationship with his siblings or his 

biological mother. Father completed an ICWA-020 form on November 5, 

2019, indicating that he has no Indian ancestry. 

At the November 5, 2019 hearing, the court found that ICWA does not 

apply to the proceedings. The court set a contested adjudication and 

disposition hearing for February 4, 2020. 

In a December 9, 2019 addendum report, the Agency reported that 

maternal grandmother’s home was being evaluated for placement. 

At the contested adjudication and disposition hearing on February 4, 

2020, the Agency reported that the children were with maternal 

grandmother. The court made true findings on the allegations in the 

petitions, found that the children were persons described within section 300, 

subdivision (b), declared the children dependents, and removed the children 

from Mother’s and Father’s custody. The court found that for both children 

“[n]otice pursuant to the Indian Child Welfare Act is not required because the 

court has reason to know the child is not an Indian child. Reasonable inquiry 

has been made to determine whether the child is or may be an Indian child.” 

In its August 3, 2020 status review report, the Agency reported that the 

children had been placed with maternal grandmother since January 31, 2020,

and maternal grandmother was willing to adopt the children if they did not 

reunify with Mother or Father. The Agency reported that on July 8, 2020, 

Mother informed the Agency that she was “couch surfing” and sometimes 

stayed with her cousin and other times stayed in a hotel. 
6

At the six-month review hearing on November 17, 2020, the court 

ordered that reunification services be terminated and set a section 366.26 

hearing to select a permanent plan for the children. The court again found 

that for both children “[n]otice pursuant to the Indian Child Welfare Act is 

not required because the court has reason to know the child is not an Indian 

child. Reasonable inquiry and the continuing duty to inquire per [Welfare 

and Institutions Code section] 224.3 has been made to determine whether the 

child is or may be an Indian child.” 

At the contested section 366.26 hearing on February 9, 2022, the court 

found that the children were adoptable because maternal grandmother 

wanted to adopt them, was capable and able to do so, and was already 

approved. The court found by clear and convincing evidence that it was in 

the best interests of the children to be adopted and terminated Mother’s and 

Father’s parental rights over the children. In its written orders for both 

children, the court found “without prejudice that the Indian Child Welfare 

Act does not apply to this proceeding.” 

DISCUSSION

Father argues the Agency failed to satisfy its initial inquiry obligations 

under ICWA and section 224.2. The Agency concedes it failed to conduct an 

ICWA inquiry of available extended family members but argues the juvenile

court’s order terminating Father’s and Mother’s parental rights should 

nonetheless be affirmed. 

A. Applicable Law

Congress enacted ICWA to address concerns regarding the separation 

of Indian children from their tribes through adoption or foster care placement 

with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) 

Under California law adopted pursuant to ICWA, the juvenile court and the 
7

Agency have an “affirmative and continuing duty to inquire” whether a child 

“is or may be an Indian child.” (§ 224.2, subd. (a); see Isaiah W., at p. 9.) An 

“Indian child” is defined under California law in the same manner as under 

federal law, i.e., as “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); accord, Welf. & Inst. Code, § 224.1, subd. (a) [adopting the 

federal definition].) 

As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052 

(D.S.), “section 224.2 creates three distinct duties regarding ICWA in 

dependency proceedings. First, from the Agency’s initial contact with a 

minor and his family, the statute imposes a duty of inquiry to ask all involved 

persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) 

Second, if that initial inquiry creates a ‘reason to believe’ the child is an 

Indian child, then the Agency ‘shall make further inquiry regarding the 

possible Indian status of the child, and shall make that inquiry as soon as 

practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry 

results in a reason to know the child is an Indian child, then the formal notice 

requirements of section 224.3 apply.”

“On appeal, we review the juvenile court’s ICWA findings for 

substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However, 

where the facts are undisputed, we independently determine whether ICWA’s 

requirements have been satisfied. (Ibid.) 

B. ICWA Inquiry Duties

Father argues the Agency failed to comply with its initial inquiry 

duties under ICWA and section 224.2 because it failed to conduct an ICWA 

inquiry of available extended family members and failed to “make 
8

meaningful efforts to locate and interview all biological relatives of Father 

and Mother” who qualify as extended family members. The Agency concedes 

it failed to conduct an ICWA inquiry of available extended family members. 

During the first stage of initial inquiry, “[s]ection 224.2, subdivision (b) 

specifies that once a child is placed into the temporary custody of a county 

welfare department, such as the Agency, 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.’ ” (D.S., supra, 46 Cal.App.5th at pp. 1048–1049.) ICWA 

defines “ ‘extended family member’ ” by “the law or custom of the Indian 

child’s tribe” or, absent such law or custom, as “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); Welf. & Inst. Code, 

§ 224.1, subd. (c) [“ ‘extended family member’ . . . defined as provided in 

[§] 1903” of ICWA].) 

Here, the Agency concedes it had contact with but did not conduct an 

ICWA inquiry of maternal grandmother, with whom the children were 

placed, as well as maternal aunt G.O. 

Father argues the Agency also failed to conduct an ICWA inquiry of 

any biological paternal relatives, despite Father stating he has 10 siblings. 

We conclude the Agency did not have a duty to seek out Father’s paternal 

relatives, including paternal grandmother and Father’s 10 siblings, where 

the record does not reveal the Agency had any contact information for these 

individuals. The Agency is not required to “cast about” for information. 

(D.S., supra, 46 Cal.App.5th at p. 1053.) Likewise, while Father does not 
9

identify in his briefing any other maternal relatives that the Agency should 

have sought to contact, we conclude the Agency had no duty to do so where 

the record does not reveal the existence of, identity of, and/or contact 

information for any other maternal relatives who qualify as “extended family 

members” under ICWA. 

Because the Agency failed to conduct an ICWA inquiry of available 

extended family members, maternal grandmother and maternal aunt G.O., 

the Agency failed to satisfy its initial inquiry obligation under section 224.2, 

subdivision (b). 

C. Appropriate Disposition

While the Agency concedes it failed to conduct an ICWA inquiry of

available extended family members, the Agency argues the juvenile court’s 

order should nonetheless be affirmed under the hybrid standard of review set 

forth in Ezequiel. The Agency asserts substantial evidence supports the 

juvenile court’s finding that there was no reason to know the children were 

Indian children and the juvenile court was within its discretion in finding 

that the Agency conducted an adequate ICWA inquiry. Alternatively, the 

Agency argues any error in failing to conduct an ICWA inquiry of available 

extended family members was harmless under Dezi C.

In Ezequiel, the mother appealed the juvenile court’s finding at the 

detention hearing that “it did not have reason to know that Ezequiel was an 

Indian child.” (Ezequiel, supra, 81 Cal.App.5th at p. 997.) The Court of 

Appeal applied section 224.2, subdivision (i)(2), which provides:

“If the court makes a finding 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 
10

finding that [ICWA] does not apply to the proceedings, 

subject to reversal based on sufficiency of the evidence.” 

(Italics added.) 

The Ezequiel court then created “a hybrid substantial evidence/abuse of 

discretion standard, reviewing for substantial evidence whether there is 

reason to know a child is an Indian child, and for abuse of discretion a 

juvenile court’s finding that an agency exercised due diligence and conducted 

a ‘proper and adequate’ ICWA inquiry.” (Ezequiel, supra, 81 Cal.App.5th at 

pp. 995–996.) 

The Agency urges this court to adopt this hybrid standard of review. 

We conclude section 224.2, subdivision (i)(2) is not applicable to the order and 

ICWA finding on appeal in this case. Here, in its termination order, the 

juvenile court found that ICWA does not apply to the proceedings. 

Substantial evidence does not support this finding because the Agency did 

not comply with its statutory obligations of initial inquiry under section 

224.2, subdivision (b).3 As discussed above, the Agency did not ask available 

known extended family members, maternal grandmother and maternal aunt 

G.O., about the children’s potential Indian ancestry. Without this initial 

inquiry, we cannot know whether there is a “reason to know” the children are 

Indian children and we cannot reach section 224.2, subdivision (i). As such, 

3 In previous orders, namely the February 4, 2020 contested adjudication 

and disposition order and the November 17, 2020 six-month review order, the 

juvenile court found that notice pursuant to ICWA was not required because 

the court had reason to know the children were not Indian children and 

reasonable inquiry had been made to determine whether the children were 

Indian children. However, here, a different finding is under review and the 

Agency has conceded that it did not comply with its initial inquiry 

obligations. 
11

we cannot affirm based on the hybrid standard of review that Ezequiel

created for section 224.2, subdivision (i)(2).4 

The Agency also argues its error in failing to conduct an ICWA inquiry 

of maternal grandmother and maternal aunt G.O. was harmless. The Agency 

urges this court to adopt the harmless error standard set forth in Dezi C., 

such that “[a]n agency’s failure to discharge its statutory duty of initial 

inquiry is harmless unless the record contains information suggesting a 

reason to believe that the children at issue may be ‘Indian child[ren],’ in 

which case further inquiry may lead to a different ICWA finding by the 

juvenile court.” (Dezi C., supra, 79 Cal.App.5th at p. 774.) In In re Y.M.

(2022) 82 Cal.App.5th 901 (In re Y.M.), this court has already declined to 

adopt Dezi C.’s standard, and instead concluded that the standard set forth in 

Benjamin M. should be applied in determining the prejudicial effect of an 

agency’s failure to comply with its section 224.2, subdivision (b) duty of initial 

inquiry. (In re Y.M., at p. 915.) The Benjamin M. standard provides that 

reversal is appropriate where “the record demonstrates that the agency has 

not only failed in its duty of initial inquiry, but where the record indicates 

that there was readily obtainable information that was likely to bear 

meaningfully upon whether the child is an Indian child.” (Benjamin M., 

supra, 70 Cal.App.5th at p. 744.) 

Here, it is clear there was readily available information to be obtained 

from maternal grandmother and maternal aunt G.O. The fact that Father 

and Mother denied Indian ancestry at the outset of the proceedings does not 

relieve the Agency of its “broad duty” to inquire of these readily ascertainable 

4 We do not wish to delay permanency by ordering futile acts, however, 

we cannot affirm the juvenile court’s finding that ICWA does not apply before 

the Agency complies with ICWA and related California law. 
12

extended family members whether the children are an Indian children. (In re 

Y.W. (2021) 70 Cal.App.5th 542, 554.) A contrary rule would “ignore[ ] the 

reality that parents may not know their possible relationship with or 

connection to an Indian tribe.” (Id. at p. 554.) As such, we conclude that an 

ICWA inquiry of maternal grandmother and maternal aunt was likely to bear 

meaningfully upon whether the children are Indian children, whatever the 

outcome of the inquiry may be. (Benjamin M., supra, 70 Cal.App.5th at 

p. 744; see also In re Ricky R. (2022) 82 Cal.App.5th 671, 680 [applying 

Benjamin M. standard and finding reversible initial inquiry error where 

agency “asked the parents about Indian ancestry” but “failed to ask extended 

family members about it”].) 

This case is distinguishable from In re Y. M. where this court found 

that the failure to conduct an ICWA inquiry of paternal grandfather and 

maternal grandmother was harmless error under the Benjamin M. standard. 

(In re Y.M., supra, 82 Cal.App.5th at p. 918.) There, the appellant father 

lived with paternal grandmother during the dependency proceedings, and 

they had a good relationship. This court reasoned that given the father’s 

“close and regular proximity to the paternal grandmother, we presume 

Father had a motive to ask, and could have easily asked, her about any 

possible Indian ancestry that may have afforded him additional rights or 

protection under ICWA.” (Id. at p. 917.) Also, during the dependency 

proceedings, the paternal grandfather had sought placement of Y.M. and was 

being assessed for placement. (Id. at pp. 906–907.) However, Y.M. was 

instead placed with a nonrelative extended family member, who was 

eventually designated as Y.M.’s prospective adoptive parents. (Ibid.) This 

court reasoned that given the paternal grandfather’s desire for Y.M. to be 

placed with him, “he presumably would have had a strong incentive to raise 
13

any Indian ancestry in support of that goal, but he did not do so.” (Id. at 

pp. 917–918.) 

Here, although maternal grandmother may have lived in the family 

home with Mother at the beginning of the proceedings, unlike in Y.M., 

Mother did not live with maternal grandmother or paternal aunt throughout 

the proceedings. Additionally, the children were initially placed with 

maternal grandmother and there is no indication in the record that 

placement with maternal grandmother was at risk. Therefore, maternal 

grandmother did have the same incentive as the paternal grandfather in In 

re Y.M. to raise any Indian ancestry. 

The Agency argues this case is similar to In re M.M. (2022) 81

Cal.App.5th 61, review granted October 12, 2022, S276099 (In re M.M.),

where both parents denied Indian ancestry, but the Agency failed to conduct

an ICWA inquiry of paternal aunt with whom M.M.was placed, or maternal

grandmother with whom the agency was in contact. (In re M.M., at p. 69.) 

The Court of Appeal rejected the error per se standard of prejudice and

concluded that the error was harmless under the other standards, including

Dezi C. and Benjamin M.. (Id. at p. 72.) The court concluded that further

inquiry was unlikely to bear meaningfully on M.M.’s Indian ancestry where

“[n]o one has suggested there is any reason to believe M.M. might have Indian

ancestry. M.M.’s parents certified they have no information M.M. may have

Indian heritage, and no relative, not even paternal aunt with whom M.M.

was placed, has provided any information to suggest M.M. has Indian

heritage.” (Ibid., italics added.) In our view, this is an application of the Dezi

C. prejudice standard, which we have already rejected. (See Dezi C., supra,

79 Cal.App.5th at p. 774 [“[a]n agency’s failure to discharge its statutory duty 

of initial inquiry is harmless unless the record contains information 
14

suggesting a reason to believe that the children at issue may be ‘Indian 

child[ren],’ in which case further inquiry may lead to a different ICWA

finding by the juvenile court,” italics added].) 

Given the importance of expediency and need for finality, we encourage 

the parties to stipulate to immediate issuance of the remittitur in this case. 

(Cal. Rules of Court, rule 8.272(c)(1).) 

DISPOSITION

The juvenile court’s order terminating parental rights is conditionally 

reversed and the matter is remanded to the juvenile court with directions 

that within 30 days of the remittitur, the Agency must file a report 

demonstrating its compliance with the inquiry provisions of ICWA and 

section 224.2, subdivision (b), including conducting an ICWA inquiry of 

maternal grandmother and maternal aunt G.O., and, if required, conduct 

further inquiry under section 224.2, subdivision (e). Within 45 days of the 

remittitur, the juvenile court must conduct a hearing to determine if the 

Agency’s investigation satisfied its affirmative duty to investigate. The 

juvenile court has the discretion to adjust these time periods on a showing of 

good cause. 
15

If after investigation neither the Agency nor the juvenile court has 

reason to believe or to know G.M. and K.O. are Indian children, the February 

9, 2022 order shall be reinstated. Alternatively, if after completing the 

inquiry, the Agency or the juvenile court has reason to believe or to know 

G.M. and K.O. are Indian children, the juvenile court shall proceed in 

conformity with ICWA and related California law. 

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.