Filed 10/2 8 /22 In re T.W. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re T

. W ., a Person Coming

Under the Juvenile Court Law. B316647

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

TRACY B. et al.

,

Defendant and Appellant. Los Angeles County

Super. Ct. No. 20CCJP02568A

APPEAL from an order of the Superior Court of

Los Angeles County. Stephen C. Marpet

, Judge

. Affirmed

. Linda J. Vogel , under appointment by the Court of Appeal,

for Defendant and Appellant T racy B.

Jacob I. Olson, under appointment by the Court of Appeal,

for Defendant and Appellant T roy W.2 Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,

Assistant County Counsel, and Jessica S. Mitchell

, Deputy

County Counsel, for Plaintiff and Respondent.

* * * * * * * * *

Mother

, T racy B.

, and father

, T roy W.

, appeal the juvenile

court’s order terminating their parental rights to their child

, T.W.

Parents’ sole claim of error is that the Los Angeles County

Department of Children and Family Services (Department ) made

an inadequate initial inquiry concerning T.W.’s ancestry for

purposes of the Indian Child Welfare Act (ICWA; 25 U.S.C.

§ 1901 et seq.). We affirm

.

BACKGROUND

1. Overview of Proceedings

This dependency proceeding began in May 2020 , nearly

two

- and

- a

- half years ago , when T.W . was 18 months old

.

She was detained from mother for a litany of reasons following a

report that mother, while intoxicated, threw T.W. onto a tile floor

during an argument with a third party

. The court placed T.W. in

fo ster care.

The court denied reunification services to parents. As to

mother, the court noted her history of drug use and unsuccessful

participation in treatment programs. As to father, his

incarceration was scheduled to continue for the duration of the

statutory reunification period.

T.W.’s foster parents expressed interest in adopting T.W.

T he court terminated parental rights and ordered adoption by

her foster parents as T.W .’s permanent plan.

2. Facts Relevant to ICWA Inquiry

The Department filed a form Indian child inquiry

attachment (ICWA

- 010(A)) to the petition reflecting that it3

questioned mother in May 2020 about possible Indian ancestry

and she responded that T.W. has no known Indian ancestry.

On August 13, 2020, mother file d an unsigned form

parental notification of Indian status (ICWA

- 20) with the box

corresponding to “I have no Indian ancestry as far as I know”

checked. At her arraignment hearing the same day, mother’s

counsel confirmed to the court that “[mother] informe d [counsel]

to [mother’s] knowledge [mother] has no native American

ancestry.” Father was not present at the hearing because he was

incarcerated and no arrangements had been made for him to

appear. On the basis of mother’s statement , the court found “it ’ s

not an ICWA case as I have no reason to know.” This finding was

reiterated in its minute order of the same date, together with an

admonishm ent to the parents that they keep the Department,

their attorneys, and the court aware of an y new information

relating to possible ICWA status.

Later in August 2020 , the Department made a new report

that “the mother denied having any ICWA ancestry, stating, ‘No,

not at all’ ” and that mother also “denied that the child’s father

had any ICWA ance stry stating, ‘No he does not.’ ” At this time,

the Department had still been unable to speak with father

directly but had determined he was incarcerated at a state

correctional facility in Soledad.

The Department eventually made contact with father, who

made his first appearance telephonically from prison at the

March 12, 2021 adjudication hearing. The court questioned

father about heritage relevant to ICWA. Father’s counsel

responded for father: “Father’s indicating he has no native

American ancestry that he knows about.” Father never

submitted an ICWA

- 20. Nevertheless, based on the record the4

court found “as to [T.W.], as to father, it ’ s not an Indian case,

pursuant to ICWA, as I have no reason to know.”

The Department had limited contact with ot her family

members during the course of its investigation. The record

reflects that maternal grandmother also had substance abuse

and mental health issues , which led mother to live with her aunt

until she was 15. Despite thereafter living in foster care, mother

maintains a good relationship with her aunt and is in contact

with her mother. There is no record of contact between the

Department and these women. Maternal grandfather is

deceased.

Father’s family history is undeveloped but the Department

did try to contact some of his relatives

. It interviewed T.W.’s

paternal aunt in May 2020 and discussed possible placement

with her

, but the paternal aunt discontinued contact with the

Departm ent. The Department also attempted to communicate

with paternal g randmother but without success

.

We are directed to no evidence in the record that the

Department ever asked any extended family members about

T.W.’s possible Indian heritage.

DISCUSSION

Congress enacted ICWA “ ‘to protect the best interests of

Indian children and to promote the stability and security of

Indian tribes and families.’ ” ( In re Isaiah W. (2016) 1 Cal.5th 1,

8.) It is incumbent upon a state court administering a proceeding

where child custody is at issue to inquire whether the subj ect

child is an Indian child. The scope of the duty on the court, as

well as certain participants in the proceeding, is defined by

federal regulations and related state law. (See, e.g., 25 C

. F

. R

.5

§ 23.107 (2022) ; Welf. & Inst. Code, § 224.2; Cal. Rules o f Court,

rule 5.481.)

T he duty of inquiry has three “phases.” Parents claim error

with the first. Th is phase

— the “initial inquiry”

— applies in every

case. The initial inquiry requires the court and the Department

to ask certain persons related to the proceedings about the child’s

possible Indian ancestry. ( See Welf. & Inst. Code, § 224.2,

subds. (a), (b), (c); In re S.S. (2022) 75 Cal.App.5th 575, 581 ; In re

D.F. (2020) 55 Cal.App.5th 558, 566.) Th e state law initial

inquiry requirements exceed those imposed by federal law, which

merely require the court to “ask each participant in an emergency

or voluntary or involuntary child

- custo d y proceeding whether the

participant knows or has reason to know that the child is an

Indian child” and instruct the pa rties to inform the court if they

subsequently receive information that provides reason to know

the child is an Indian child. (25 C

. F

. R

. § 23.107 (a) (2022) .)

Where the “initial inquiry” gives “reason to believe” the

child is an Indian child, but there is insufficient information to

make a definitive determination, the second phase

— “further

inquiry”

— comes into play. ( Welf. & Inst. Code, § 224.2,

subd. (e)(2).) Further inquiry requires more robust investigation

into possible Indian ancestry. ( See ibid .; In re D.F.

, supra

,

55 Cal.App.5th at p. 566.) If further inquiry gives the court a

“reason to know” a child is an Indian child, the third phase is

triggered. This phase requires that notice pursuant to ICWA be

sent to the tribes to facilitate the ir participation in the

proceedings. (§ 224.3, subd. (a)(1); In re D.F. , at p. 568.)

“ ‘ “ [W]e review the juvenile court’s ICWA findings under

the substantial evidence test, which requires us to determine if

reasonable, credible evidence of solid value supports the court’s6

order. [Citations.] We must uphold the court’s orders and

findings if any substantial evidence, contradicted or

uncontradicted, supports them, and we resolve all conflicts in

favor of affirmance.” ’ ” ( In re Josiah T. (2021) 71 Cal.App.5th

388, 401 .)

T he record here reflects that the Department failed in its

initial inquiry obligation imposed by California law to ask

“extended family members” whether T.W. is, or may be, an

Indian child. ( Welf. & Inst. Code, § 224.2, subd. (b) .)

T he Department only asked mother about Indian heritage and

the court asked both parents about Indian heritage. While these

steps satisfied the lower federal initial inquiry requirements, i n

the absence of any evidence the Department complied with its

s ection 224.2, subdivision (b) , duty to inquire of extended family

members with whom it had contact , the court’s finding that

ICWA does not apply is error

. (See In re Daria n R. (2022)

75 Cal.App.5th 502, 509 [finding error where evidence showed

Department had contact with maternal aunt and maternal

grandfather but failed to inquire of them rega rding Indian

ancestry].)

However, because the court’s error is one of state law, we

can reverse only if the error was prejudicial. ( In re Benjamin

M. (2021) 70 Cal.App.5th 735, 742 ( Benjamin M. ) , citing

Cal. Const., art. VI, § 13 ; see also In re E.H. (2018)

26 Cal.App.5th 1058, 1072 [explaining differential error analysis

for federal versus state errors] .)

C ourts are divided on what showing of prejudice warrants

reversal for initial inquiry errors

. “ Some courts have addressed

this problem by requiring an appellant who asserts a breach of

the duty of inquiry to, at a minimum, make an offer of proof or7

other affirmative assertion of Indian heritage on appeal. ” ( In re

S.S.

, supra, 75 Cal.App.5th at pp. 581

– 582 , citing cases .) Others

have excuse d such a showing, effectively treating failure to

inquire as error per se. (See, e.g., In re Y.W. (2021)

70 Cal.App.5th 542, 556; In re J.C. (2022) 77 Cal.App.5th 70, 80. )

T he Fourth Appellate District in Benjamin M

., supra

,

70 Cal.App.5th 735, took a third approach, conclud ing that

“a court must reverse 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 tha t was likely to bear meaningfully upon whether

the child is an Indian child.” ( Id

. at p. 744.) Our court recently

took a fourth approach, concluding initial inquiry errors require

reversal only when the record of proceedings in the court or a

proffer of evidence made on appeal suggests a reason to believe

that the child may be an Indian child. ( I n re Dezi C. (2022)

79 Cal.App.5th 769, 779

, review granted Sept. 21, 2022,

S275578 .)

We have previously rejected the error per se line of cases.

( In re M.M

. (2022) 81 Cal.App.5th 61

, 71

, review granted Oct. 12,

2022, S276099 .) Under any of the other t hree lines of cases, the

court’s error here was harmless.

On the record before us, there is no reason to believe there

is readily available information that is likely to bear

meaningfully on whether T.W. has Indian ancestry. Mother and

father appeared and denied knowledge of any Indian ancestry.

There is no reason to believe that the one extended family

member with whom DCFS communicated

, T.W.’s paternal aunt,

would have better information about father’ s Indian heritage

than he did. Indeed, the paternal aunt did not even know where8

father was incarcerated. T hat she did not know where her

brother was incarcerated suggests a lack of concern with familial

ties. M oreover, the paternal aunt stopped communi cating with

the Department, casting doubt on whether she is accessible to the

Department for any further questioning

. The Department

similarly attempted to communicate with paternal grandmother

without success.

Likewise

, there is no reason to believe that maternal

grandmother or maternal aunt would have more information

about mother’s heritage than she does. Mother has been through

repeated cases with the Department where the question of Indian

heritage has been at issue

. 1 S he is in contact with her mother

and aunt. Presumably, given the repeated significance of the

issue to her parental rights, she would have asked them about

Indian heritage

. But in serial Department cases, no Indian

heritage has been claimed.

Moreover, no one has even suggested there is any reason to

believe T

. W

. might have Indian ancestry. Certainly, her parents

have made no offer of proof that she is an Indian child. Instead,

1 Pursuant to Evidence Code section 452, subdivision (d), we

grant the Department’s request for judicial notice of minute

orders entered in prior dependency cases involving mother’s other

three children. The juvenile court took judicial notice of the cases

in which the orders were entered, including the minute orders.

M other expressly stated that she does not oppose the request for

judicial notice . Father did not file a reply or otherwise respond to

the request.

The orders contain findings that mother “[is ] not [a]

member[] of any American Indian tribe” (in 2013) and that the

court had no reason to know that a subject child “[wa]s an Indian

Child, as defined under ICWA” (in 2015).9

both parents represented on the record they have no information

that T.W

. may have Indian heritage. As such, this case is unlike

Benjamin M. There, the father was entirely absent from the

proceedings and no person from the father’s side of the family

had been asked about Indian ancestry. With information about

ancestry on the father’s side completely “missing,” inquiry with a

person sharing the father’s ancestry “ would likely have shed

meaningful light on whether there [wa] s reason to believe

Benjamin [wa] s an Indian child. ” ( Benjamin M

. , supra

,

70 Cal.A pp.5th at p. 744.) No such facts are present here.

Given the absence of any evidence or claim that T.W

. might

have Indian ancestry, parents’ “ unvarnished contention that

additional interviews of [relatives] would have meaningfully

elucidated [T.W.’s] Indian ancestry ” does not support a finding of

prejudice. ( In re Darian R.

, supra, 75 Cal.App.5th at p. 510.)

Finally, we reject mother’s suggesti on that our disposition

will inhibit, rather than advance, the interest of finality of T.W.’s

placement by leaving the juvenile court’s orders subject to

collateral attack. As mother’s own citation reflects, only

deficiencies in compliance with federal ly imposed ICWA inquiry

and notice requirements render an order subject to collateral

attack. ( In re E.H

. , supra

, 26 Cal.App.5th at p. 1 072

[“ ‘ [V]igilance in ensuring strict compliance with federal ICWA

notice requirements is necessary because a violatio n renders the

dependency proceedings, including an adoption following

termination of parental rights, vulnerable to collateral attack if

the dependent child is, in fact, an Indian child ’ ”].) There was no

failure to comply with federal law in this case. The court

satisfied its federal initial inquiry obligation by asking the

parents about any heritage relevant to ICWA and directing10

parents to share any related new information that may later

come to light

. (See 25 C

. F

. R

. § 23.107 (a) (2022) .) Its error un der

state law does not create the risk of collateral attack.

DISPOSITION

The Department’s request for judicial notice is granted.

The juvenile court’s order terminating parental rights is

affirmed.

GRIMES, Acting P. J.

I CONCUR:

HARUTUNIAN, J. 

 Judge of the San Diego Superior Court, assigned by the

Chief Justice pursu ant to article VI, section 6 of the California

Constitution.1

WILEY, J., Dissenting.

Justice Lavin urged the Supreme Court to review the issue

at stake in this case. ( In re Ezequiel G. (2022) 81 Cal.App.5th

984, 1015

– 1025 (dis. opn. of Lavin, J.).) The Supreme Court then

granted review in In re Dezi C . on September 21, 2022, S275578.

I join with Justice Lavin’s sound analysis. This is my 10th

dissent on this strangely persistent issue. I am hopeful the

Department soon may decide to comply with its statutory

obligations and make this controversy moot.

WILEY, J.