Filed 10/31/22 In re B.A. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re B.A., a Person Coming Under

the Juvenile Court Law.

 B318626

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANTOINETTE R.,

Defendant and Appellant.

 Los Angeles County

 Super. Ct. No. 18CCJP06007A

APPEAL from an order of the Superior Court of Los Angeles 

County. Marguerite Downing, Judge. Affirmed.

William Hook, under appointment by the Court of Appeal,

for Defendant and Appellant.

Dawyn Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Kimberly Roura, Deputy County 

Counsel, for Plaintiff and Respondent.

___________________________
2

Mother Antoinette R. appeals the order terminating her 

parental rights to her daughter, B.A. Mother’s sole claim of error 

is that the Los Angeles County Department of Children and 

Family Services (Department) made an inadequate initial inquiry 

concerning B.A.’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 four years ago, in 2018, 

when B.A. was an infant. She was detained from her parents for a 

litany of reasons, including ongoing Department cases concerning 

three of her siblings and a half sibling. 

B.A. was initially placed with her maternal grandmother. 

She was later removed from maternal grandmother’s home and 

placed in the care of a family friend who also had custody of B.A.’s 

siblings. 

The parents failed to reunify with B.A. and the court 

terminated reunification services in July 2019. The family friend 

caring for B.A. wanted to adopt her. However, he passed away 

while the proceedings were pending, and B.A. and her siblings 

were placed with a relative of the family friend, Ms. B. Ms. B 

agreed to adopt B.A. After a series of delays to resolve 

impediments to adoption, the court terminated parental rights and 

ordered adoption by Ms. B. as B.A.’s permanent plan. 

2. Facts Relevant to ICWA Inquiry

In September 2018, at the initial appearance hearing, 

mother filed a parental notification of Indian status form

(ICWA-020) indicating “I have no Indian ancestry as far as 

I know.” 
3

Father did not appear at the initial appearance hearing, and 

the Department reported difficulty locating him. In an October 

2018 report, the Department referred the court to prior findings of 

no reason to know that B.A.’s full siblings are Indian children or 

that two half siblings of B.A.’s—one maternal and one paternal—

are Indian children. In the proceeding concerning the paternal 

half sibling, the Department noted that father had appeared and 

denied Native American heritage. 

Father was later located. In advance of a scheduled hearing 

in October 2018, at which father personally appeared father filed a 

form ICWA-020 indicating “I have no Indian ancestry as far as 

I know.” On the record before it, the court found that it “ha[d] no 

reason to know that the [ICWA] applies or that [B.A.] is an Indian 

child.” By its minute order of the same date, the court admonished 

parents to keep their attorneys and the court aware of any new 

information relating to possible ICWA status. 

According to a report the Department filed in October 2018, 

mother reported she grew up in Los Angeles where she was raised, 

together with a brother and two sisters, by her mother and 

stepfather. When her family moved to Lancaster, she dropped out 

of school and returned to Los Angeles to live with an aunt, but she 

later returned to her mother’s house in Lancaster. Maternal 

grandparents are now both deceased. Although it is unclear when 

he died, we are directed to no record of contact between the 

Department and mother’s stepfather. The maternal grandmother

died in 2019 while these proceedings were pending. The 

Department had contact with the maternal grandmother prior to 

her death but there is no record that it asked the maternal 

grandmother about Indian heritage.
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Aside from his ICWA-20, father’s family history is 

undeveloped in the record, apparently owing to difficulty in 

locating father throughout the proceedings and obtaining 

information from him. 

We are directed to no evidence in the record that the 

Department ever asked any extended family members about the 

children’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 subject 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. § 23.107 (2022); Welf. & 

Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481.)

The duty of inquiry has three “phases.” Father claims error 

with the first. This 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 D.F. (2020) 55 Cal.App.5th 558, 566.)

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 juvenile court a “reason to 
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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 their 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’s 

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.)

The Department was required as part of its initial inquiry to 

ask extended family members “whether the child is, or may be, an 

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

In re S.S. (2022) 75 Cal.App.5th 575, 581.) Although the 

Department asked the parents about Indian heritage, it failed to

inquire of extended family members with whom the Department

had contact.

In the absence of any evidence the Department complied 

with its Welfare and Institutions Code section 224.2, 

subdivision (b), duty to inquire of extended family members, the 

juvenile court’s finding that ICWA does not apply is error. (See 

In re Darian 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 

regarding Indian ancestry].) 

However, 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.)
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Courts 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 or 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 

excused 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.) The Fourth Appellate

District in Benjamin M., supra, 70 Cal.App.5th 735, took a third

approach, concluding 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 that 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 juvenile court or a proffer of evidence made on

appeal suggests a reason to believe that the child may be an Indian

child. (In 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 three lines of cases, the

juvenile 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 B.A. has Indian ancestry. Mother and father appeared

and unequivocally denied knowledge of any Indian ancestry. Prior

proceedings involving other children of both parents (and each
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parent) have resulted in findings of no reason to know their

children have Indian ancestry. Nothing in the record concerning

the parents’ background indicates there is reason to believe B.A.

has Indian ancestry.

In her opening brief, mother only argued that “[a]n inquiry of

[B.A.’s] maternal grandmother would have been easy and was

likely to bear meaningfully upon whether [B.A.] was an Indian

child.” But mother failed to acknowledge that maternal

grandmother is now deceased. For the first time in her reply brief,

mother argued the Department might have also inquired with

mother’s siblings and aunt or father’s brothers, who were known to

the family friend that initially sought to adopt her. But there is no

record that these people were available to the Department during

the proceedings, and the record reflects that DCFS had a difficult

time maintaining contact with the parents so as to ask if they had

any contact information for any of these extended family members. 

Indeed, as mother concedes, father “made himself unavailable to

the department” and the family friend who may have had

information as to the whereabouts of father’s brothers is now

deceased. Further, the record contains no basis to conclude the

parents’ respective siblings or mother’s aunt would have more

information about parents’ heritage than they do.

Nor has anyone so much as suggested there is reason to

believe B.A. might have Indian ancestry. Certainly, mother has

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

and father both certified they have no information B.A. 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
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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.App.5th at p. 744.) No such facts are

present here.

Given the absence of any evidence or claim that B.A. might

have Indian ancestry, mother’s “unvarnished contention that

additional interviews of [relatives] would have meaningfully

elucidated [B.A.’s] Indian ancestry” does not support a finding of

prejudice. (In re Darian R., supra, 75 Cal.App.5th at p. 510.)

DISPOSITION

The order terminating parental rights is affirmed.

GRIMES, J.

I CONCUR:

STRATTON, P. J. 
1

WILEY, J., Dissenting.

I agree with Justice Lavin’s analysis. (In re Ezequiel G.

(2022) 81 Cal.App.5th 984, 1015–1025 (dis. opn. of Lavin, J.).) 

I adhere to the views I have stated in my previous 10 dissents on 

this issue.

WILEY, J.