Filed 9/16/22 In re H.R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re H.R., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

N.J., 

Defendant and Appellant.

 D080481

 (Super. Ct. No. J520473)

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

Marissa A. Bejarano, Judge. Affirmed. 

Linda Rehm, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

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

County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff 

and Respondent. 

 
2

I.

INTRODUCTION

N.J. (Mother) appeals from a Welfare and Institutions Code1 section 

366.26 order terminating her parental rights over her now two-year-old

daughter, H.R. Mother’s sole complaint on appeal is that the San Diego 

County Health and Human Services Agency (the Agency) failed to satisfy its 

initial inquiry duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et 

seq.) (ICWA) and Welfare and Institutions Code section 224.2 because it did 

not interview maternal grandmother about H.R.’s possible Native American 

ancestry. 

The Agency contends its initial inquiry was sufficient and that, 

regardless, any error was harmless. We agree in part. We conclude that the 

Agency’s failure to conduct an ICWA inquiry with maternal grandmother 

violated section 224.2, subdivision (b), but that, applying the prejudicial error 

standard adopted in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin 

M.), the error was harmless. Therefore, we affirm the order. 

II.

FACTUAL AND PROCEDURAL BACKGROUND2

In July 2020, the Agency petitioned the juvenile court under section 

300, subdivision (b)(1) on behalf of newborn H.R. Among the Agency’s 

allegations was that during Mother’s pregnancy with H.R., Mother abused 

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

otherwise specified. 

2 Because Mother’s only contention on appeal concerns ICWA, we limit

our factual background accordingly. 
3

alcohol and/or controlled substances, including amphetamine and 

methamphetamine, making her unable to provide regular care for H.R. 

The Agency reported in its detention report that, at a meeting between 

the Agency and Mother in late July 2020, Mother denied having any Native 

American ancestry. 

At the August 2020 detention hearing, the juvenile court asked Mother

directly if she had any Native American ancestry in her family and if she had 

any reason to believe that the alleged father, L.R. (Father), had any Native 

American ancestry in his family.3 Mother responded “no” to both questions. 

The court ordered Mother to complete the “Parental Notification of Indian 

Status” form and submit it to the Agency. The record does not reflect that 

any such form was completed. The court also ordered Mother to disclose to 

the Agency the names, residences, and any known identifying information of 

H.R.’s maternal and paternal relatives. The court deferred ruling on whether 

ICWA applied. 

In the Agency’s jurisdiction/disposition report, the social worker noted 

that at two August 2020 meetings between Mother and the Agency, Mother 

again denied having any Native American ancestry in her family. The social 

worker also noted that, in July 2020, she called and left voice messages for 

maternal grandmother twice and visited maternal grandmother’s last known 

address, but was unable to reach her. The report stated that the Agency had 

not been able to reach Father to conduct an ICWA inquiry with him. 

3 Although Father is only the alleged father of H.R. because he declined 

to take a paternity test, we refer to him as Father for readability. Father is 

not a party to this appeal, and we discuss him as needed. 
4

In the Agency’s subsequent addendum report, the social worker noted 

that Mother did not identify any relatives or extended family members who 

could care for H.R. 

In the Agency’s September 2020 declaration of due diligence, the 

Agency stated that, as of September 2020, Father still could not be located, 

and that Mother said Father did not wish to speak with the Agency or attend 

court. 

Mother did not attend the October 27, 2020 contested 

jurisdiction/disposition hearing. There, the juvenile court found without 

prejudice that there was no reason to believe H.R. was an Indian child and

that ICWA did not apply. In addition, the court again ordered Mother to 

disclose to the Agency the names, residences, and any known identifying 

information of all maternal and paternal relatives of H.R. 

In the Agency’s June 2021 addendum report, the social worker noted 

that the Agency was still unable to reach Father. At the related contested 

hearing, the juvenile court reiterated its finding without prejudice that ICWA 

did not apply. 

In the Agency’s October 2021 WIC report, the Agency reported that in 

August and September 2021, it had been in contact with maternal 

grandmother about H.R.’s placement. In September 2021, maternal 

grandmother notified the Agency that she was feeling “pressure” because 

Mother said she wanted H.R. to be placed with family. Maternal 

grandmother stated that she did not want to be considered for H.R.’s 

placement but wished to have a relationship with H.R. There is no indication 

in the record that the Agency ever asked maternal grandmother about H.R.’s 

potential Native American ancestry. 
5

In the Agency’s subsequent addendum report, the social worker noted 

that when she called maternal grandmother in September 2021, maternal 

grandmother stated that she was no longer in contact with Mother because 

Mother was upset that maternal grandmother was not being assessed for 

H.R.’s placement. Maternal grandmother also disclosed that Mother would 

be giving birth soon. 

In the Agency’s January 2022 addendum report, the social worker 

noted that, in October 2021, Mother had informed the Agency that she was 

staying with maternal grandmother. Maternal grandmother confirmed to the 

Agency that Mother was staying with her. 

On April 6, 2022, the juvenile court terminated Mother’s parental 

rights, selected adoption as H.R.’s permanent plan, and designated H.R.’s 

caregivers as her prospective adoptive parents. The court again found 

without prejudice that ICWA did not apply. Mother timely appealed from 

that order.

III.

DISCUSSION

Mother contends that the juvenile court erred by finding ICWA 

inapplicable before the Agency asked maternal grandmother about H.R.’s 

possible Native American ancestry. Mother raises no other appellate issue

concerning the section 366.26 order that she is appealing. The Agency 

concedes that it never conducted an ICWA inquiry with maternal 

grandmother but contends that this was not error and, regardless, the error 

was harmless. We agree in part. Although we conclude that the Agency’s 

initial inquiry under ICWA was deficient, we conclude the error was 

harmless and affirm. 
6

A. ICWA Inquiry Duties

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.) Under 

California law adopted pursuant to ICWA, the juvenile court and 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.) 

“[S]ection 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.” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1052 (D.S.).) 

A juvenile court finding that ICWA is inapplicable generally implies

that the Agency has fulfilled its inquiry duty. (See In re Austin J. (2020) 

47 Cal.App.5th 870, 885 (Austin J.) [a finding that “ICWA does not apply” 

implies social workers and court “did not know or have a reason to know the 

children were Indian children and that social workers had fulfilled their duty 

of inquiry”].) (Id. at p. 885) We review ICWA findings for substantial 

evidence, but “where the facts are undisputed, we independently determine 

whether ICWA’s requirements have been satisfied.” (D.S., supra, 46 

Cal.App.5th at p. 1051.) 
7

B. Initial Inquiry

The first stage of initial inquiry “ ‘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 p. 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-inlaw 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].) 

Mother asserts that the Agency’s initial inquiry violated section 224.2, 

subdivision (b) because the Agency failed to ask maternal grandmother about 

H.R.’s potential Native American ancestry, despite the Agency having spoken 

with maternal grandmother on multiple occasions. The Agency, however, 

contends that its initial inquiry was sufficient because in July 2020, it called 

maternal grandmother several times and visited her last known address but 

could not locate her. 

We agree with Mother that the Agency’s initial inquiry efforts fell 

short. Grandparents are “extended family members” for ICWA purposes. 

(See 25 U.S.C. § 1903(2).) It is true that the Agency tried to contact maternal 

grandmother early in its investigation, but those efforts did not extinguish 

the Agency’s inquiry obligations under ICWA. Rather, the Agency’s duty of

inquiry is a continuing and affirmative one. (Isaiah W., supra, 1 Cal.5th at 

p. 9; § 224.2, subd. (a).) Thus, when the Agency finally reached maternal 

grandmother in August, September, and October 2021, it could have—and 
8

should have—asked her about H.R.’s potential Native American ancestry. 

(25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c); D.S., supra, 46 

Cal.App.5th at pp. 1048–1049; see In re J.C. (2022) 77 Cal.App.5th 70, 78–79 

[error in finding ICWA did not apply where agency had regular contact with 

paternal grandmother and maternal grandmother was readily accessible, but 

it did not ask them about possible Native American ancestry]; In re Darian R.

(2022) 75 Cal.App.5th 502, 509 (Darian R.) [error in finding ICWA did not 

apply where agency had contact with maternal aunt and maternal 

grandfather but did not ask them about possible Native American ancestry]; 

Y.W., supra, 70 Cal.App.5th at p. 556 [“[T]he point of the statutory 

requirement that the social worker ask all relevant individuals whether a 

child is or may be an Indian child [is] to obtain information the parent may 

not have.”].) 

Because substantial evidence does not support the juvenile court’s 

implicit finding that the Agency complied with its duty of initial inquiry 

under section 224.2, subdivision (b), we conclude the court erred by finding 

that ICWA did not apply to H.R.’s case. 

C. Harmless Error

Next, we consider the appropriate remedy. Mother contends that the 

initial inquiry error was prejudicial and requires reversal. The Agency, on 

the other hand, contends the error was harmless. We agree with the Agency 

and therefore affirm. 

There is a split of authority in the California courts of appeal as to the 

proper standard for prejudicial error under ICWA. (See Dezi C., supra, 79 

Cal.App.5th at pp. 777–782 [discussing the “continuum” of three rules for 

“assessing whether a defective initial inquiry is harmless” (“ ‘automatic 

reversal,’ ” “ ‘readily obtainable information,’ ” and “ ‘presumptive 
9

affirmance’ ”) and proposing a fourth (“ ‘reason to believe’ ”)].) Because the 

California Supreme Court has yet to resolve this split, we recently evaluated 

each of these approaches in In re Y.M. (Sept. 2, 2022, D080349) __ 

Cal.App.5th __ [2022 WL 4007600] (Y.M.)). For the same reasons discussed 

in Y.M., we again decline to apply the presumptive affirmance approach (In 

re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430–1431), the automatic 

reversal approach (Y.W., supra, 70 Cal.App.5th at p. 556 and In re Antonio R.

(2022) 76 Cal.App.5th 421, 432–437), or the reason to believe approach (Dezi 

C., supra, 79 Cal.App.5th at p. 779), and instead, apply the readily obtainable 

information approach employed in Benjamin M., supra, 70 Cal.App.5th at 

p. 744. (See ibid.)

In Benjamin M., the agency could not locate the minor’s father and did 

not obtain any information about Native American ancestry from the minor’s 

paternal side. Although the agency had access to the father’s brother and 

sister-in-law, it failed to ask them about potential Native American ancestry. 

In concluding that this error was prejudicial, the appellate court reasoned 

that the missing information was “readily obtainable” and “likely to bear 

meaningfully upon whether the child is an Indian child.” (Id. at p. 744.) 

Here, because the record indicates that the Agency had multiple 

contacts with maternal grandmother, we conclude that any information 

maternal grandmother could have provided was “readily obtainable” under 

Benjamin M. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) The record 

does not show, however, that information from maternal grandmother was 

likely to “bear meaningfully” on whether H.R. is an Indian child under ICWA.

(Ibid.) Mother’s conclusory assertion to the contrary—that simply because 

ICWA information “could easily be obtained from [maternal] grandmother,” 
10

there was a reasonable probability of obtaining meaningful information—is 

not persuasive. 

First, there is not even a suggestion in the record that H.R. might have 

potential Native American ancestry, and Mother has consistently and 

repeatedly denied—both to the Agency and to the court—any knowledge of 

possible Native American ancestry. Further, the record indicates that 

Mother was in touch with maternal grandmother at various points during the 

dependency proceeding, and even lived with maternal grandmother at least 

in September and October 2021, prior to and after giving birth to H.R.’s 

younger sibling. The record also indicates that Mother wanted maternal 

grandmother to adopt H.R. Therefore, presumably, Mother had a motive to 

ask, and easily could have asked, maternal grandmother about any possible 

Native American ancestry that may have provided her with additional rights 

or protection under ICWA. (See Darian R., supra, 75 Cal.App.5th at p. 510 

[because mother lived with maternal grandfather and maternal aunt, mother 

did not meet her burden on appeal to show that agency’s inquiry of those 

extended family members “would have meaningfully elucidated the children’s 

Indian ancestry”]; Y.M., supra, __ Cal.App.5th __ [2022 WL 4007600] 

[agency’s failure to conduct ICWA inquiry with paternal grandmother and 

uncle was harmless error under Benjamin M., where mother and father 

denied Native American ancestry, father lived with paternal grandmother 

and uncle, and father had close and regular proximity to paternal 

grandmother and could have asked her about Native American ancestry].) 

Thus, we cannot say that inquiring of maternal grandmother is likely to shed 

meaningful light on whether H.R. is or may be an Indian child. (Benjamin 

M., supra, 70 Cal.App.5th at p. 744.) 
11

Accordingly, considering Mother’s consistent denials of any Native 

American ancestry, the utter lack of any suggestion in the record that H.R. 

might have Native American ancestry, and our conclusion that an inquiry of 

maternal grandmother is not likely to bear meaningfully on whether H.R. is 

an Indian child, we conclude that the Agency’s inquiry error was harmless 

and affirm. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) 

DISPOSITION

The order is affirmed. 

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

HALLER, J.