Filed 11/23/21 In re H.L. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re H.L., a Person Coming 

Under the Juvenile Court Law.

 B311601

 (Los Angeles County

 Super. Ct. No. DK21764A)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

J.B.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Stephen C. Marpet, Judge Pro Tempore. 

Conditionally affirmed. 
2

Lisa A. Raneri, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, David Michael Miller, Deputy County 

Counsel for Plaintiff and Respondent. 

________________________________

J.B. (mother) appeals from the order terminating parental 

rights to her child, H.L. (minor), under Welfare and Institutions 

Code section 366.26.1 Mother contends the Los Angeles County 

Department of Children and Family Services (the Department) 

and the juvenile court failed to comply with the inquiry 

requirements of the Indian Child Welfare Act of 1978 (ICWA)

(25 U.S.C. § 1901 et seq.). We conditionally affirm, and remand 

for ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

Because the sole issue raised in mother’s appeal is ICWA 

compliance, we focus primarily on the facts and procedural 

background relevant to that issue.2 

Minor was taken into Department custody on February 19, 

2017, after she disclosed mother had been hitting her with an 

1 Further statutory references are to the Welfare and 

Institutions Code unless stated otherwise.

2 Minor’s alleged father, G.D., is deceased and is not a party 

to this appeal. 
3

extension cord, leaving marks.3 Ten years old at the time, minor 

told the investigating social worker she would like to reside with 

her “Aunt JJ” who lives in St. Louis. Minor did not have the 

relative’s full name or contact information. According to the 

Department’s detention report, the social worker attempted to 

reach mother by phone the day the child was taken into custody, and 

left mother a message that the child was at the police station. Mother 

called the social worker back the next day, but mother refused to 

provide even basic identifying information and terminated the 

attempted interview by disconnecting the call. The social worker 

attempted a visit to mother’s address that same day, but no one 

answered the door. The detention report noted, “[t]here were no 

relatives or parent to interview as to the status of [American 

Indian] heritage at the time of detention or later during the 

investigation.” Minor remained in foster care for the next year 

and a half until she was placed with her maternal great aunt 

Melissa L. in St. Louis, Missouri, in September 2018. 

Mother appeared at the February 23, 2017 detention 

hearing and filed a Judicial Council form titled “Parental 

Notification of Indian Status (ICWA-020)” stating she may have 

Indian ancestry through maternal great-grandmother and 

maternal great-grandfather, and that maternal grandmother 

would know the tribe. The court questioned mother, and mother 

told the court maternal grandmother’s name, and that maternal 

grandmother lived in Minnesota and mother could provide 

maternal grandmother’s new telephone number because she had 

3 The juvenile court declared minor to be a dependent 

described under section 300, subdivisions (a) and (b), based on 

mother’s physical abuse of minor. Mother was arrested for 

inflicting corporal injury on a child, and the criminal court issued 

a restraining order protecting minor from mother. 
4

it in an email. Mother stated she needed to call maternal 

grandmother because “both my grandparents, which is her 

parents, were full blooded Indian.” The court found there was no 

reason to know that minor was an Indian child,4 but directed the 

Department to investigate further and instructed mother to keep 

the Department, her attorney, and the court apprised of any new 

information relating to minor’s ICWA status. 

In June 2017, the court reiterated its order to interview the 

maternal grandmother regarding ICWA. The social worker 

followed up on July 7, 2017, and maternal grandmother stated 

she had no Indian ancestry. In a subsequent follow up, on 

August 11, 2017, maternal grandmother again denied having any 

Indian ancestry, and also stated that the biological maternal 

grandfather, who was never involved in mother’s life, had no 

Indian ancestry. 

At the adjudication hearing on August 17, 2017, mother 

and her counsel clarified mother’s claim of Indian ancestry. 

According to mother, her mother (maternal grandmother) would 

not release information about her biological father (biological 

maternal grandfather), but that mother’s great-grandparents told 

mother’s grandparents that biological maternal grandfather was 

a “full-blooded Indian.” Based on the evidence before it, the court 

found there was no reason to know minor was an Indian child. 

At county counsel’s prompting, the court advised mother to 

continue investigating and to provide any additional information 

to the social worker. 

4 All the Department’s subsequent review reports reference 

this finding, stating “On 2/23/17, the Court found that the Indian 

Child Welfare Act does not apply.” 
5

On Friday October 13, 2017, mother and maternal 

grandmother separately informed the social worker that a family 

member had passed away in Missouri, and asked for minor to be 

present at the funeral, which was scheduled to take place that 

weekend. Mother wanted minor to be able to say goodbye to her 

favorite uncle. According to the social worker, there was not 

enough time to arrange minor’s travel, which would need court 

approval. By November 2017, mother had only made very 

limited contact with the social worker, had yet to enroll in 

services, and had not yet arranged to visit minor. 

In a January 2018 six-month review report, the 

Department reported that Melissa (minor’s maternal great aunt 

in St. Louis, Missouri) and her sister wanted to seek joint legal 

guardianship of minor. Minor confirmed that she was speaking 

with Melissa on a weekly basis, and that she had previously lived 

with Melissa. The Department asked the court to start the 

process under the Interstate Compact on Placement of Children 

(ICPC; Fam. Code, § 7900 et seq.) for placing minor with Melissa. 

At the six-month review hearing in February 2018, the court 

ordered an ICPC initiated for the state of Missouri. 

The social worker contacted Melissa in early March 2018 to 

discuss placement, and the 12-month review report advised the 

court of additional requirements for the Missouri ICPC request. 

There is nothing in the 12-month review report indicating that 

anyone from the Department asked Melissa or anyone else about 

mother’s claim of Indian ancestry. In May 2018, the court 

terminated mother’s reunification services. 

In August 2018 the Missouri Department of Social Services 

prepared a relative home assessment, evaluating Melissa and her 

home. The assessment was positive, and included the following 
6

observations: Melissa’s parents (minor’s great grandparents) 

died in 2009 and 2010. Melissa believed she had a good 

relationship with her family members, but would also maintain 

appropriate boundaries to ensure minor’s safety. Melissa was 

“heavily involved in the planning of family reunions and other 

family functions where the child will be around extended family 

members.” The ICPC was approved in August 2018, and the 

Department contactedMelissa to explain the rights and 

responsibilities of adoption. The Department recommended the 

court sign an order for an adoption home study for Melissa. In 

September 2018, the court approved minor’s placement with 

Melissa. 

In February 2019, Melissa informed the social worker that 

maternal grandmother told her that minor’s birth father had 

recently died. The Department confirmed this information 

through other sources. Minor was having regular visits with 

maternal relatives in Missouri, and sporadic monitored phone 

contact with maternal grandmother. Shortly before a March 

2019 review hearing, the Department submitted a report stating 

that a Department social worker remained in regular contact 

with minor and Melissa as a support and advocate. 

The Department’s February 2021 supplemental section 

366.26 report states, “On 2/23/17, the Court found that the Indian 

Child Welfare Act does not apply. . . .” At the section 366.26 

hearing on February 17, 2021, the juvenile court terminated 

mother’s parental rights as to minor; it made no express ICWA 

findings on the record. Mother filed a timely notice of appeal. 
7

DISCUSSION

ICWA requirements and standard of review

“Congress enacted ICWA in 1978 in response to ‘rising 

concern in the mid-1970’s over the consequences to Indian 

children, Indian families, and Indian tribes of abusive child 

welfare practices that resulted in the separation of large numbers 

of Indian children from their families and tribes through 

adoption or foster care placement, usually in non-Indian homes.’ 

[Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) 

“In California, . . . persistent noncompliance with ICWA led the 

Legislature in 2006 to ‘incorporate[ ] ICWA’s requirements into 

California statutory law.’ [Citations.]” (In re Abbigail A. (2016) 1 

Cal.5th 83, 91; see also In re Breanna S. (2017) 8 Cal.App.5th 

636, 650 [California law “incorporates and enhances ICWA’s 

requirements”].) Both ICWA and California law define an 

“Indian child” as a child who is either a member of an Indian 

tribe or 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); § 224.1, subds. (a) & (b); see also In re Elizabeth M.

(2018) 19 Cal.App.5th 768, 783.)

The court and the Department have an affirmative and 

continuing duty under ICWA and related California law to 

inquire whether a child who is the subject of a dependency 

proceeding is or may be an Indian child. (Isaiah W., supra, 1 

Cal.5th at pp. 7–8.) The scope of the duty of inquiry is defined in 

regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et 

seq. (2020)), California statutes, and rules of court. (In re T.G.
8

(2020) 58 Cal.App.5th 275, 290–291 (In re T.G.).) Here, we apply 

the federal and state statutes in effect in February 2021, when 

the section 366.26 hearing took place. (In re A.M. (2020) 47 

Cal.App.5th 303, 321.) 

The Department’s initial duty of inquiry at the beginning of 

a child welfare proceeding includes “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.” (§ 224.2, subd. (b).) The court must inquire at each 

party’s first appearance, whether any participant in the 

proceeding “knows or has reason to know that the child is an 

Indian child.” (§ 224.2, subd. (c).) Part of the initial inquiry 

includes requiring each party to complete the ICWA-020 form. 

(Cal. Rules of Court, rule 5.481(a)(2)(C).)

When there is “reason to believe that an Indian child is 

involved in a proceeding,” further inquiry is required. (§224.2, 

subd. (e); In re T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.) 

Effective September 18, 2020, section 224.2, subdivision (e)(1), 

explains that “reason to believe” exists “whenever the court, 

social worker, or probation officer has information suggesting 

that either the parent of the child or the child is a member or 

may be eligible for membership in an Indian tribe.” Further 

inquiry may include interviewing parents and extended family 

members to obtain information such as the names of the child’s 

“biological parents, grandparents, and great-grandparents, . . . as 

well as their current and former addresses, birth dates, places of 

birth and death, tribal enrollment information of other direct 

lineal ancestors of the child, and any other identifying 

information, if known.” (§ 224.2, subd. (e)(2)(A); 224.3, subd. 
9

(a)(5)(C); Cal. Rules of Court, rule 5.481(a)(4)(A).) The agency 

engaging in further inquiry may also need to contact the Bureau 

of Indian Affairs, the State Department of Social Services, and 

any tribes the child may be affiliated with, and anyone else, that 

might have information regarding the child’s membership or 

eligibility in a tribe. (§ 224.2, subds. (e)(2)(B) & (e)(2)(C); Cal. 

Rules of Court, rule 5.481(a)(4)(B)&(C).) 

If the Department’s further inquiry efforts result in 

information that would give the court or the Department “reason 

to know” that the child is an Indian child under ICWA, then the 

relevant tribes must be given notice of the proceedings. (25 

U.S.C. § 1912, subd. (a); §224.3, subd. (a); §224.2, subd. (d) 

[describing circumstances where there is “reason to know” a child 

is an Indian child].) 

On undisputed facts, we make an independent 

determination about whether ICWA’s requirements have been 

satisfied. (In re D.F. (2020) 55 Cal.App.5th 558, 565 (D.F.).) We 

review the juvenile court’s ICWA findings for substantial 

evidence, and the appellant bears the burden of showing 

insufficient evidence to support the ICWA finding. (Ibid.)

Inquiry duties under ICWA

Mother contends the Departmentfailed to satisfy its duties 

of initial and further inquiry under section 224.2, subdivisions 

(a), (b), and (e), because it did not ask maternal grandmother for 

any contact information for biological maternal grandfather or 

his family members, nor did it ask Melissa, the child’s maternal 

great aunt, about her knowledge of minor’s possible Indian 

ancestry. She argues that absent evidence that the Department 
10

attempted to follow up with maternal grandmother or ask 

Melissa about mother’s claim of Indian ancestry, the court’s 

implied “no ICWA” finding at the section 366.26 hearing on

February 17, 2021 was in error. The Department counters that 

there was substantial evidence to support the court’s 

determination that ICWA was inapplicable, and even if mother’s 

statements warranted additional inquiry, mother has not 

demonstrated prejudicial error. We conclude that the record 

lacks substantial evidence of a meaningful inquiry following 

mother’s clarification about her claim of Indian ancestry, and so 

the court’s later reliance on its implied ICWA finding was in 

error.

1. Initial inquiry

We first address mother’s contention that the juvenile court 

and the Department failed to satisfy ICWA’s “initial inquiry” 

requirement when they failed to ask Melissa if she had any 

information about minor’s possible Indian ancestry. Because 

there is no evidence the Department was in contact with Melissa 

until sometime after the six-month review hearing, mother’s 

initial inquiry argument is not well taken. “[The] duty to inquire 

begins with initial contact (§ 224.2, subd. (a)) and obligates the 

juvenile court and child protective agencies to ask all relevant 

involved individuals whether the child may be an Indian child. 

(§ 224.2, subds. (a)–(c); [Citation.]” (In re T.G., supra, 58 

Cal.App.5th at p. 290.) Here, as substantiated in the detention 

report,there were no individuals available with any knowledge of 

minor’s Indian ancestry. Later, after mother completed and filed 

an ICWA-020 form at the detention hearing, the court questioned 
11

mother about her claim of Indian ancestry and ordered the 

Department conduct further inquiry by contacting maternal 

grandmother, the person identified by mother as having 

additional information. On June 28, 2017, the court again 

ordered the Department to follow up with maternal grandmother, 

which the department did. The juvenile court, therefore, met 

ICWA’s initial inquiry requirements. (In re T.G., supra, 58 

Cal.App.5th at p. 293 [finding the juvenile court “fulfilled its 

initial obligation to ask about” “possible Indian ancestry” when 

mother was asked about her Indian ancestry at the detention 

hearing and filed an ICWA-020 form at that time].)

2. Further inquiry

Mother also contends that under the duty of further 

inquiry, the Department inadequately investigated mother’s 

claim that her Indian ancestry was based on her biological father, 

rather than her adoptive father. Mother argues that the 

Department should have asked maternal grandmother if she had 

contact information for the biological maternal grandfather or 

any of his extended family, and that the Department should have

asked Melissa if she had any information relevant to mother’s 

claim. 

The Department argues that mother’s generalized 

assertion of Indian ancestry without identifying any tribe or 

suggesting tribal membership was insufficient to trigger the duty 

of further inquiry. The Department relies on In re Austin J.

(2020) 47 Cal.App.5th 870 (Austin J.), which held statements of 

Indian ancestry alone, without further indication the child was 

an “Indian child” within the meaning of the specific ICWA 
12

definition of that term, were insufficient to trigger the duty of 

inquiry. (Id. at p. 889.) However, we believe the nature and 

quality of information in this case was sufficient to trigger the

duty of further inquiry. (See, e.g., In re T.G., supra, 58 

Cal.App.5th at pp. 294–295.)

The Department points to the maternal grandmother’s 

denial of any Indian ancestry as substantial evidence that it 

complied with the duty of further inquiry under ICWA. The 

Department argues that mother only identified maternal 

grandmother and great-grandparents as sources of information, 

and since the great grandparents were no longer living and 

maternal grandmother had already denied that maternal 

biological grandfather had any Indian ancestry, the duty of 

further inquiry was satisfied. 

The Department has an obligation under its duty of further 

inquiry to contact “any other person that may reasonably be 

expected to have information regarding the child’s membership 

status or eligibility.” (Welf. & Inst. Code § 224.2, subd. (e)(2)(B);

see In re K.R. (2018) 20 Cal.App.5th 701, 709 [“a social services 

agency has the obligation to make a meaningful effort to locate 

and interview extended family members to obtain whatever 

information they may have as to the child’s possible Indian 

status”].) If we were to only consider the information provided by 

mother at the detention hearing, we might agree with the 

Department that it had satisfied its duty of further inquiry when 

it contacted maternal grandmother, who denied any Indian 

ancestry for herself and for biological maternal grandfather. 

However, mother subsequently clarified that according to her 

grandparents (maternal great-grandparents), biological maternal 

grandfather was a full-blooded Indian, but maternal 
13

grandmother was unwilling to divulge to mother information 

about maternal biological grandfather. The Department 

remained in contact with both maternal grandmother and 

maternal great aunt Melissa well past mother’s clarification, but 

there is no evidence that anyone asked either relative for any 

additional information about biological maternal grandfather. 

This absence of any effort to gather information stands in 

contrast to other cases where reviewing courts found the duty of 

further inquiry satisfied because the record contained evidence of 

a meaningful inquiry into the possibility that a minor was an 

Indian child. (See, e.g., In re D.F., supra, 55 Cal.App.5th at pp.

569–570 [agency’s “repeated efforts to gather information 

concerning maternal ancestry,” including interviewing 

grandparents and other family members, provided substantial 

evidence of further inquiry]; In re D.S. (2020) 46 Cal.App.5th 

1041, 1046–1047, 1052–1054 (In re D.S.) [agency detailed the 

efforts by minor’s aunt (who was also minor’s caregiver) to 

determine whether there was any chance of tribal membership, 

and contacted multiple tribes with no success in determining 

minor’s eligibility for tribal membership].) Acknowledging that 

the Department“is not required to ‘cast about’ for information or 

pursue unproductive investigative leads” (In re D.S., supra, 46 

Cal.App.5th at p. 1053), we still conclude that without any 

evidence that the Department asked maternal grandmother and 

Melissa for any information relevant to mother’s claim that her 

biological father was a full-blooded Indian, the court erred in 

finding ICWA inapplicable. 
14

Prejudicial Error

Although it is typically the appellant’s burden to 

demonstrate prejudice, when the silent record is caused by the 

Department’s and the court’s failure to make the appropriate 

inquiries, we cannot find harmless error. (In re N.G. (2018) 27 

Cal.App.5th 474, 484 [when the record is silent as to whether the 

Department asked the mother or other maternal relatives 

whether minor may have maternal Indian ancestry, ICWA error 

was necessarily prejudicial]; In re K.R., supra, 20 Cal.App.5th at 

p. 708 [appellate review of ICWA compliance “should not be 

derailed simply because the parent is unable to produce an 

adequate record”]; but see In re A.C. (2021) 65 Cal.App.5th 1060, 

1071–1073 [finding ICWA error harmless because father never 

claimed Indian ancestry].) On a record that contains no evidence 

that the Department conducted any additional investigation after 

mother gave additional detail at the August 17, 2017 adjudication 

hearing, we cannot know within any degree of reasonable 

probability whether, had the Department made the requisite 

effort to clarify the discrepancy between mother’s and maternal 

grandmother’s conflicting claims, it would have discovered 

information necessitating further interviews or notice to one or 

more Indian tribes. Accordingly, remand is required for the 

Department and the court to document additional investigative 

efforts.
15

DISPOSITION

The juvenile court’s order terminating parental rights 

under section 366.26 is conditionally affirmed. The case is 

remanded to the juvenile court to order the Department to ask 

maternal grandmother and maternal great aunt Melissa whether 

they have any information relevant to mother’s claim that H.L.’s 

maternal biological grandfather had Indian ancestry and to 

report on the results of the Department’s investigation. Based on 

the information presented, if the juvenile court determines that 

no additional inquiry or notice to tribes is necessary, the 

termination of mother’s parental rights is affirmed. If additional 

inquiry or notice is warranted, the court shall make orders 

consistent with ensuring compliance with ICWA and related 

California law.

MOOR, J.

We concur:

BAKER, Acting P.J.

KIM, J.