Filed 10/31/22 In re B.A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 B.A ., a Person Coming Under

the Juvenile Court Law. B318626

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A NTOINETTE 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 d aughter, 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 201 8

,

when B.A. was an infant. She was detained from h e r parents for a

litany of reasons, including ongoing Department cases concerning

t hree 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 th e 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, t he 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 lo cated . I n 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 awar e of any new

information relating to possible ICWA status.

According to a report the Department filed in October 201 8

, 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 returne d 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 m aternal 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.4 Asi de 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 ev er 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 i n 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.)

T he duty of inquiry has three “phases.” Father claims 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 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 cou rt a “reason to5

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 .)

T he 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

inqu ire 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 s ection 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 Daria n R. (2022) 75 Cal.App.5th 502, 509 [finding error

where evidence showed Department had contact with maternal

aunt and maternal g randfather 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 .)6 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 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 Ca l.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 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 belie ve 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 6 1

, 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 mea ningfully 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 each7

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.” B ut mother failed to acknowledge that maternal

grand mother is now deceased. For the first t ime 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 co ncedes, 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 o r 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. In stead, 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 side8

completely “missing,” inquiry with a person sharing the father’s

ancestry “ would like ly 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.