Filed 9/22/21 In re Zachary G. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re ZACHARY G., a Person 

Coming Under the Juvenile 

Court Law.

 B309975

 (Los Angeles County

Super. Ct. No 19CCJP04813A)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

JERRY L.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of

Los Angeles County, Sabina A. Helton, Judge. Conditionally 

affirmed and remanded with directions.

Elizabeth Klippi, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

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

Assistant County Counsel, and Jessica S. Mitchell, Deputy 

County Counsel, for Plaintiff and Respondent.

__________________

Jerry L., the biological father of five-year-old Zachary G., 

appeals the juvenile court’s disposition order removing Zachary 

from the custody of his mother, Shaina G., and placing him in 

foster care under the supervision of the Los Angeles County 

Department of Children and Family Services (Department). 

Jerry, a nonoffending biological (but not presumed) father, 

contends the court abused its discretion when it denied his 

request for family reunification services. He also contends the 

juvenile court and the Department failed to comply with their 

duties of inquiry and notice under the Indian Child Welfare Act 

of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California 

law. We agree the Department failed to adequately investigate 

Jerry’s claim of Indian ancestry and the court failed to ensure the 

Department complied with its duty of inquiry. Accordingly, we 

remand the matter to allow the Department and the juvenile 

court to remedy these ICWA errors and otherwise conditionally 

affirm the disposition order. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Initial and First Amended Nondetain Dependency 

Petitions, Jurisdiction Findings and Disposition Order 

On July 30, 2019 the Department filed a nondetain petition 

pursuant to Welfare and Institutions Code section 3001on behalf 

of then-three-year-old Zachary and his younger siblings, one1

Statutory references are to this code unless otherwise 

stated.
3

year-old R.D. and three-month-old C.D., alleging Shaina had 

mental and emotional problems and failed to take her prescribed 

psychotropic medication or obtain recommended mental health 

treatment; Raymond D., Shaina’s boyfriend and the father of R.D. 

and C.D., had a history of substance abuse and was a current 

abuser of marijuana; and in June 2019 Shaina had engaged in a 

violent altercation with R.D. and C.D.’s paternal grandmother in 

the presence of all three children, resulting in an injury to C.D. 

At the July 31, 2019 hearing on the nondetain petition 

regarding Zachary, Shaina identified Jerry as Zachary’s 

biological father. She stated she did not know Jerry’s 

whereabouts, explaining Jerry had left her when she told him she 

was pregnant with Zachary, had never paid child support or 

helped Zachary financially, and had seen Zachary only twice in 

his life. Shaina filled out Judicial Council form ICWA-020 and 

denied Indian ancestry. 

The court found the Department had made a prima facie 

case Zachary was a person described by section 300 and released 

him to Shaina under the temporary supervision of the 

Department with a variety of support services. Finding Jerry an 

alleged father, the court declared it had no reason to know at that 

time that Zachary was an Indian child but deferred the ICWA 

determination until Jerry’s appearance in the case. The court set 

a jurisdiction hearing for September 26, 2019, which it later 

continued to November 4, 2019. 

After an October 2019 argument between Raymond and 

Shaina that escalated into a violent incident between Raymond 

and another man with the children present, the Department filed 

a first amended petition on November 25, 2019 adding 

allegations pursuant to section 300, subdivisions (a), and (b), that 
4

Shaina and Raymond had a history of domestic violence, 

including the October 2019 incident and an August 2019 incident 

in which Shaina pushed Raymond while he was holding R.D., 

that put Zachary (and his siblings) at substantial risk of serious 

physical harm. The first amended petition also added an 

allegation of alcohol abuse involving Raymond. 

The court held a jurisdiction hearing on November 26, 

2019. Shaina pleaded no contest to the new allegations under 

section 300, subdivision (b)(1). The court struck all remaining 

allegations involving Shaina and found Zachary a person 

described by section 300, subdivision (b)(1). Proceeding directly 

to disposition the court declared Zachary a dependent child of the 

juvenile court and ordered him released to Shaina’s custody 

under the supervision of the Department with family 

maintenance services.2 The court set a review hearing for 

May 26, 2020. 

2. The Department’s Section 387 Petition Seeking Removal 

of Zachary; Jerry’s First Appearance in the Case 

On July 22, 2020, after having obtained an emergency 

removal order for the children, the Department filed a 

section 387 petition seeking a more restrictive placement for 

Zachary (and his siblings). The supplemental petition alleged 

Shaina had failed to comply with “[j]uvenile [c]ourt ordered 

2 By this time Shaina had secured residence for herself and 

her children at a domestic violence women’s shelter and obtained 

an order of protection against Raymond. Shaina’s other children 

were also declared dependents of the court, removed from 

Raymond and released to Shaina under the supervision of the 

Department.
5

services of . . . parenting [classes], individual therapy, undergoing 

[a] psychological assessment and psychiatric evaluation,” placing 

Zachary (and his siblings) at substantial risk of serious physical 

harm. The Department also alleged Shaina continued to have 

contact with Raymond despite the active restraining order she 

had obtained against him. 

At the July 27, 2020 detention hearing on the section 387 

petition, Jerry, represented by counsel, appeared for the first 

time and submitted to the jurisdiction of the court. On his 

ICWA-020 form Jerry declared he had Indian ancestry through 

Zachary’s paternal great-grandmother. He did not identify a 

specific tribe. Jerry resided in Northern California, 

acknowledged he had not seen Zachary for some time and 

doubted Zachary was his child. He requested DNA paternity 

testing. 

The court ordered paternity testing and again found Jerry 

was an alleged, not a presumed, father. Based on the 

representations in Jerry’s ICWA-020 form concerning possible 

Indian ancestry, the court ordered the Department “to 

investigate said claim and make appropriate ICWA notices.” The 

court detained Zachary from Shaina’s custody and set the 

jurisdiction hearing on the Department’s section 387 petition for 

August 28, 2020. 

In its August 12, 2020 report for the August 28, 2020 

jurisdiction hearing, the Department erroneously asserted, as it 

had in every report it filed in these proceedings since the initial 

detention hearing, that the court had made a finding on July 31, 

2019 that ICWA did not apply. The report did not mention the 

court’s July 27, 2020 order directing the Department to 
6

investigate Jerry’s declaration of Indian ancestry as stated in his 

ICWA-020 form. 

In a last minute information filed August 26, 2020, the 

Department reported it had spoken to Jerry in a telephone 

interview on August 20, 2020 and Jerry “stated he is not a 

registered tribe member nor does he have any American Indian 

ancestry.” Jerry also stated he did not want to visit with Zachary 

“too often,” as he was “waiting [to take] the DNA test.” “I’ve 

always had my doubts,” Jerry stated, about whether Zachary was 

his biological son. He said he had seen Zachary five or six times 

since he was born. 

At the August 28, 2020 jurisdiction hearing, Shaina 

pleaded no contest to an amended supplemental allegation in the 

section 387 petition.3 The court sustained the amended petition;

found Zachary a person described by section 300, 

subdivision (b)(1); dismissed the section 300, subdivision (a),

allegations; and continued the contested disposition hearing to 

October 21, 2020. Meanwhile, Jerry advised the court he was 

still waiting to be contacted about taking the DNA paternity test. 

After twice continuing the disposition hearing at Jerry’s 

request to allow him to obtain the results of his paternity test, 

the court held the disposition hearing on December 3, 2020. At 

that time the court declared Zachary a dependent child of the 

court and removed him from Shaina’s custody. The court ordered 

monitored visitation for Shaina and various family reunification 

services. 

3

The petition was amended by interlineation to strike the 

allegation that Shaina had failed to abide by the restraining 

order and contacted Raymond. 
7

Jerry, whose paternity was established by a DNA test in 

November 2020, requested the court exercise its discretion to 

award him family reunification services as a biological father. 

Shaina, the Department and Zachary’s counsel opposed that 

request; and the court denied it, stating, “I will find him to be the 

biological father, but I don’t see him as participatory in this fouryear-old child’s life such that it would warrant family 

reunification services for him.” The court ordered monitored 

visitation for Jerry with discretion to the Department to 

liberalize visitation. 

The Department did not address ICWA at the jurisdiction 

or disposition hearings, and the court never inquired whether the 

Department had conducted the ICWA inquiry it had ordered. 

Jerry filed a timely notice of appeal from the disposition 

order.

DISCUSSION

1. The Court Did Not Err in Denying Jerry Family 

Reunification Services

a. Governing law and standard of review

As a biological father, and not a presumed father, Jerry is 

not statutorily entitled to family reunification services. (See 

Welf. & Inst. Code, § 361.5, subd. (a) [absent certain conditions, 

when child is removed from parental custody, court “shall” order 

family reunification services for statutorily presumed father]; 

In re Zacharia D. (1993) 6 Cal.4th 435, 448-449, 451 [a presumed 

father—one who satisfies the criteria of Family Code 

section 7611—is entitled to reunification services; biological 

fathers who do not satisfy the requirements to be a presumed 
8

father, in contrast, are not entitled to family reunification 

services]; In re E.T. (2013) 217 Cal.App.4th 426, 436-437.)4 

The court has discretion to order family reunification 

services for a biological father, but only upon a finding such 

services would be in the child’s best interests. (§ 361.5, subd. (a) 

[“[u]pon a finding and declaration of paternity by the juvenile 

court . . . , the juvenile court may order services for the child and 

the biological father, if the court determines that the services will 

benefit the child”].) “‘“The concept of a child’s best interests ‘is an 

elusive guideline that belies rigid definition. Its purpose is to 

maximize a child’s opportunity to develop into a stable, welladjusted adult.’”’” (Jennifer S. v. Superior Court (2017) 

15 Cal.App.5th 1113, 1124.) Relevant considerations include the 

parent’s fitness and history, the strength of the parent-child 

bond, and the child’s need for stability and continuity. (Ibid.; 

In re William B. (2008) 163 Cal.App.4th 1220, 1228.) It is the 

parent’s burden to demonstrate the child would benefit from the 

provision of court-ordered services. (Jennifer S., at p. 1124.) 

We review the juvenile court’s decision to deny family 

reunification services to a biological father for abuse of discretion. 

(In re Elija V. (2005) 127 Cal.App.4th 576, 588.) We may reverse 

the court’s decision only when it is arbitrary or irrational. (In re 

Caden C. (2021) 11 Cal.5th 614, 641 [court abuses its discretion 

when its determination is arbitrary, capricious or patently 

absurd]; In re Stephanie M. (1994) 7 Cal.4th 295, 318 [same].) 

4

Jerry does not contend the court erred in finding he was not 

a presumed father. 
9

b. The court did not abuse its discretion in finding 

family reunification services for Jerry were not in 

Zachary’s best interests

Emphasizing (1) Zachary’s reunification with Shaina 

remained uncertain, (2) there was no finding Raymond (or 

anyone else) was Zachary’s presumed father (cf. In re J.H. (2011) 

198 Cal.App.4th 635, 649 [“[u]sually, it is not in the child’s best 

interests for a biological father to receive reunification services 

when another man has been deemed the child’s presumed 

father”]; In re Elija V., supra, 127 Cal.App.4th at p. 588 [same]),5

and (3) there was no evidence Jerry was unstable or presented 

any risk to Zachary, Jerry argues it was necessarily in Zachary’s 

best interests for Jerry to receive family reunification services 

and to begin to build a relationship with Zachary that could 

result in his assuming custody of Zachary should Shaina be 

unsuccessful in reunifying with him. 

Jerry’s argument is certainly not unreasonable, but our 

task is simply to determine whether the juvenile court abused its 

discretion in denying him family reunification services. Citing 

Jerry’s indifference to Zachary throughout Zachary’s life—Jerry 

long questioned his paternity and made no meaningful effort to 

see Zachary, support him or be involved in any aspect of his life 

until receiving the results of the DNA paternity test—the court 

agreed with Zachary’s counsel and the Department that an order 

of family reunification services was not in Zachary’s best 

interests. However, recognizing Zachary may benefit from 

knowing Jerry, the court ordered monitored visitation for Jerry 

5 Although Raymond told the social worker that he treated 

Zachary as his own son, he did not seek presumed father status. 
10

with discretion to the Department to liberalize. That carefully 

considered ruling, far from being arbitrary or irrational, was well 

within the court’s broad discretion.6 

2. The Court and the Department Committed ICWA Error 

a. ICWA and the duties of inquiry and notice

“ICWA reflects a congressional determination to protect 

Indian children and to promote the stability and security of 

Indian tribes and families by establishing minimum federal 

standards a state court must follow before removing an Indian 

child from his or her family.”7(In re T.G. (2020) 58 Cal.App.5th 

275, 287; see 25 U.S.C. § 1902; In re Isaiah W. (2016) 1 Cal.5th 7-

8.) ICWA and its controlling federal regulations (25 C.F.R. § 23 

(2020)) set minimal procedural protections for state courts to 

follow before removing Indian children and placing them in foster 

care or adoptive homes; the statute authorizes states to provide 

“‘a higher standard of protection’” to Indian children, their 

families and their tribes than the rights provided under ICWA. 

(In re T.G., at pp. 287-288; see 25 U.S.C. § 1921.) In addition to 

6

Jerry does not identify what other court-ordered services he 

seeks. To the extent Jerry believes he would benefit from a 

parenting class, for example, nothing prevents him from asking 

the Department for recommendations and enrolling in one.

7

For purposes of ICWA, an “Indian child” is an unmarried 

individual under age 18 who is either a member of a federally 

recognized Indian tribe or is eligible for membership in a 

federally recognized tribe and is the biological child of a member

of a federally recognized tribe. (See 25 U.S.C. § 1903(4) 

[definition of “‘Indian child’”] & (8) [definition of “‘Indian tribe’”]; 

see also Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal 

definitions].) 
11

significantly limiting state court actions concerning out-of-family 

placements for Indian children (see In re T.G., at pp. 287-288), 

ICWA permits an Indian child’s tribe to intervene in or, where 

appropriate, exercise jurisdiction over a child custody proceeding 

(see 25 U.S.C. § 1911(c); In re Isaiah W., at p. 8.) 

To ensure Indian tribes have the opportunity to intervene 

in, or exercise jurisdiction over, a dependency proceeding, 

investigation of a family member’s belief a child may have Indian 

ancestry must be undertaken and notice provided to the 

appropriate tribes. (§ 224.2, subd. (a) [imposing on the court and 

child protective services agencies “an affirmative and continuing 

duty to inquire whether a child . . . is or may be an Indian child”]; 

see In re Charles W. (2021) 66 Cal.App.5th 483, 489.) 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.” (In re T.G., supra, 58 Cal.App.5th at p. 290; see 

§ 224.2, subds. (a)-(c).) In addition, section 224.2, subdivision (e), 

imposes a further duty of inquiry regarding the possible Indian 

status of the child if the court, social worker, or probation officer 

has reason to believe that an Indian child is involved in a 

proceeding.”8 (See also Cal. Rules of Court, rule 5.481(a)(4) [as 

8 Effective September 18, 2020, after the August 2020 

jurisdiction hearing but prior to the December 2020 disposition 

hearing in the case at bar, section 224.2, subdivision (e), was 

amended to add a definition of the phrase “reason to believe”: 

“There is reason to believe a child involved in a proceeding is an 

Indian child 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.” (§ 224.2, subd. (e).)
12

amended January 1, 2020, imposing duty of further inquiry if 

social worker “knows or has reason to know or believe that an 

Indian child is or may be involved”].) That further inquiry 

requires interviewing, “as soon as practicable,” extended family 

members, contacting the Bureau of Indian Affairs and contacting 

“the tribe or tribes and any other person that may reasonably be 

expected to have information regarding the child’s membership, 

citizenship status, or eligibility.” (§ 224.2, subd. (e) & (e)(2).) If 

these inquiries result in reason to know the child is an Indian 

child, notice to the relevant tribes is required. (§ 224.3; 25 U.S.C.

§ 1912(a); In re J.S. (2021) 62 Cal.App.5th 678, 686; In re T.G., at 

p. 290.)

b. The Department did not adequately investigate Jerry’s 

claim of Indian ancestry

After the court’s July 27, 2020 order directing the 

Department to speak to Jerry based on his responses in his 

ICWA-020 form, the social worker asked Jerry whether he was 

an enrolled member of an Indian tribe or had any Indian 

ancestry. Jerry responded no to both questions. Citing these 

two ICWA-related questions and Jerry’s “no” responses, the 

Department contends it complied with the court’s order and no 

further inquiry was required. Had the Department asked Jerry 

about his ICWA-020 form, clarified any discrepancy between his 

response on that form and in his subsequent interview with the 

social worker and confirmed his more recent statement was 

accurate, we would likely agree it complied with the court’s order 

and no further inquiry duty was triggered. (See In re D.S. (2020) 

46 Cal.App.5th 1041, 1053 [Department did not violate duty of 

inquiry by failing to interview great-grandmother; “[a]lthough 

D.S.’s great-grandmother may fall within th[e] category” of people 
13

reasonably expected to have information about the child’s Indian 

ancestry, the child protective agency could reasonably conclude, 

based on its detailed communications with the aunt denying 

Indian ancestry, that no further inquiry was needed because 

there was no further information of value to obtain from greatgrandmother]; see generally In re J.S., supra, 62 Cal.App.5th at 

p. 690 [duty of further inquiry does not require Department to 

“cast about” for further information or pursue unproductive 

leads]; In re D.F. (2020) 55 Cal.App.5th 558, 570 [same].) 

However, the Department provided no evidence the social 

worker even asked Jerry about the statements in his ICWA-020 

form, let alone obtained any evidence clarifying the discrepancy. 

This was error. (See In re Gabriel G. (2012) 206 Cal.App.4th 

1160, 1167 [where a discrepancy existed between a father’s 

ICWA-020 form declaring Indian ancestry and his subsequent 

oral statement to social worker denying Indian ancestry, the 

Department was obligated to at least clarify the discrepancy 

before concluding no further investigation was required]; see also 

In re L.S. (2014) 230 Cal.App.4th 1183, 1197-1198 [where the 

mother made inconsistent statements about which tribe she 

belonged to and whether, in fact, she had any Indian ancestry at 

all, the Department and court had duty to investigate and/or 

clarify the inconsistencies and provide evidence to the court about 

the extent of those inquiries before the court could properly 

determine ICWA did not apply].) 

The court compounded the Department’s error when it 

failed to ensure the Department complied with the July 2020 

order directing it to investigate Zachary’s possible Indian 

ancestry based on Jerry’s responses in his ICWA-020 form. (See 

In re T.G., supra, 58 Cal.App.5th at p. 293 [“[t]he court here 
14

fulfilled its initial obligation to ask about Tamara’s possible 

Indian ancestry; it failed, however, to ensure the Department 

complied with its duty of further inquiry based on the responses 

the court had received from Tamara and Loretta S.”]; In re L.S., 

supra, 230 Cal.App.4th at p. 1198 [“[T]he juvenile court also 

failed in its duty. Given the conflicting and inadequate 

information on mother’s claim of Indian [ancestry], the court had 

a duty either to require the Agency to provide a report with 

complete and accurate information regarding the results of its 

inquiry and notice or to have the individual responsible for notice 

to testify in court regarding the inquiry made”].)9 

In an alternate attempt to justify its failure to investigate, 

the Department points out great-grandparents are not included 

in the definition of “extended family members” in ICWA or 

California law. (See 25 U.S.C. § 1903(2) [“‘extended family 

member’ shall be as defined by the law or custom of the Indian 

child’s tribe or, in the absence of such law or custom, shall be a 

person who had reached the age of eighteen and who is the 

Indian child’s grandparent, aunt or uncle, brother or sister, 

brother-in-law or sister-in-law, niece or nephew, first or second 

cousin or stepparent”]; § 224.1, subd. (c) [extended family 

member “shall be defined as provided in Section 1903 of” ICWA].) 

9

It appears the Department may have prompted the court’s 

error by consistently reporting, incorrectly, that the court had 

determined in July 2019 that ICWA did not apply and by 

omitting any reference to the court’s July 2020 ICWA order in its 

jurisdiction/disposition report and last minute information filing 

or at the December 2020 disposition hearing. Nonetheless, the 

court has its own continuing and affirmative duty to inquire 

whether the child is or may be an Indian child. (§ 224.2, 

subd. (a).) 
15

Accordingly, the Department argues, Jerry’s ICWA-020 form did 

not provide it with information that would have triggered any 

further duty of inquiry and it was not obligated to interview the 

paternal great-grandmother. (See § 224.2, subd. (e)(2)(A) 

[“[w]hen there is reason to believe the child is an Indian child,” 

further inquiry includes “[i]nterviewing the parents, Indian 

custodian and extended family members”].) 

At the threshold, the Department’s argument ignores the 

court’s July 27, 2020 order finding Jerry’s ICWA-020 form gave 

rise to a duty to conduct further inquiry and directing it to 

conduct the necessary investigation. It is not the Department’s 

role to unilaterally decide an existing court order no longer needs 

to be obeyed.

In addition, the Department’s cramped interpretation of 

the applicable statutes reflects a fundamental misapprehension 

of the scope of the duty of further inquiry when, as here, a parent 

provides the Department with information the child is or may be 

an Indian child.10 That duty includes not only the obligation to 

interview extended family members, as defined, but also to 

contact the tribe and “any other person that may reasonably be 

expected to have information regarding the child’s membership, 

citizenship status, or eligibility.” (§224.2, subd. (e)(2)(C); Cal. 

Rules of Court, rule 5.481(a)(4)(A); see In re T.G., supra, 

58 Cal.App.5th at p. 290; cf. In re D.S., supra, 46 Cal.App.5th at 

p. 1053 [recognizing child’s great-grandmother “may fall within 

this category”].) That would include, in this instance, the 

10 “ICWA defines a ‘“parent”’ to include ‘any biological parent,’

while excluding ‘the unwed father where paternity has not been

acknowledged or established.’” (25 U.S.C. § 1903(9); see In re 

T.G., supra, 58 Cal.App.5th at pp. 291-292.)
16

paternal great-grandmother and any other person Jerry may 

have identified during a proper interview. 

The Department’s reliance on In re Austin J. (2020) 

47 Cal.App.5th 870 to argue Jerry’s declaration of Indian 

ancestry on his ICWA-020 form was insufficient to trigger the 

duty of further inquiry is misplaced. The Austin J. court held 

that the mother’s statements to a social worker that she “may 

have” Indian ancestry because the maternal grandmother had 

told her she had Cherokee ancestry were insufficient to trigger a 

duty of inquiry. The court held statements of Indian ancestry 

alone, without further indication the child was an “Indian child” 

within the meaning of the specific ICWA definition of that term, 

were insufficient to trigger the duty of inquiry. (Id. at p. 889.) 

Here, unlike the mother in Austin J., Jerry checked the box on 

his ICWA-020 form indicating “one or more of my parents, 

grandparents or other lineal ancestors is or was a member of a 

federally recognized tribe.” (See ibid. [“[m]other conspicuously 

did not check the boxes on her parental notification of Indian 

status forms that would have indicated she or any of the children 

is or may be a member of, or eligible for membership in, an 

Indian tribe”].) Moreover, to the extent the Department relies on 

the Austin J. court’s holding that statements of Indian ancestry 

are too uncertain to provide a reason to believe the child was or 

may be an Indian child (see id., at p. 884 [mother’s statements, at 

most, created a possibility of Indian ancestry; “Indian ancestry, 

without more, does not provide a reason to believe that a child is 

a member of a tribe or is the biological child of a member”]), we 

have previously rejected that interpretation of the duty of inquiry 

as inconsistent with both the letter and spirit of ICWA and 

related California law: “We do not agree with Austin J.’s narrow 
17

reading of the nature and quality of information sufficient to 

trigger the duty of further inquiry. [Fn. omitted.] In particular, 

that court’s insistence a parent’s express statement of Indian 

ancestry does not constitute a reason to believe an Indian child 

may be involved is fundamentally at odds with well-established 

ICWA law.” (In re T.G., supra, 58 Cal.App.5th at p. 295; accord, 

In re S.R. (2021) 64 Cal.App.5th 303, 317 [In re Austin J.’s 

narrow interpretation of the duty of inquiry as requiring the level 

of knowledge required to provide ICWA notice conflicts with 

broader duty of further inquiry required under section 224.2, 

subdivision (e)].)11 

The Department’s assertion the omission of the name of a 

particular tribe on Jerry’s ICWA-020 form negated any duty of 

11 As we explained in In re T.G., supra, 58 Cal.App.5th at 

page 295, the Legislature’s creation of a duty to inquire that is 

significantly more expansive than the duty to provide ICWA 

notice is premised “on the commonsense understanding that, over 

time, Indian families, particularly those living in major urban 

centers like Los Angeles, may well have lost the ability to convey 

accurate information regarding their tribal status. [Fn. omitted.] 

As a result, the information available at the outset of dependency 

proceedings will often be inadequate to ensure the necessary 

protection of the rights and cultural heritage of Indian children, 

Indian families and Indian tribes. [Citation.] General 

information from the family about its ancestry frequently 

provides the only available basis to believe an Indian child may 

be involved. [Citation.] Additional investigation may not develop 

further information establishing the need for ICWA notice, but it 

is essential to the enforcement of the court’s and child protective 

agency’s ‘affirmative and continuing duty to inquire’ to construe 

broadly the duty to make further inquiry.” (Accord, In re S.R., 

supra, 64 Cal.App.5th at p. 317.) 
18

further inquiry is also without merit. (See In re Elizabeth M. 

(2018) 19 Cal.App.5th 768, 786 [failure to provide any tribal 

name at all “does not, without more, relieve the child protective 

agency of its affirmative obligation to interview family members 

and others who could be expected to have relevant information 

concerning the child’s status or the court of its duty to ensure an 

appropriate inquiry has been conducted before concluding ICWA 

does not apply to the case”]; In re Michael V. (2016) 3 Cal.App.5th 

225, 235-236 [statement by children’s mother that she had been 

told maternal grandmother was “full-blooded Indian” with no 

reference to a specific tribe obligated Department to contact other 

relatives to inquire if they might have information regarding 

children’s possible Indian ancestry]; see also In re T.G., supra, 

58 Cal.App.5th at p. 295 [explaining duty of further inquiry].) 

3. The ICWA Error Was Not Harmless; Remand Is 

Required for the Department and the Court To Correct 

the Error

Due to the Department’s failure in the case at bar to 

conduct the appropriate inquiry and the court’s failure to ensure 

compliance with its order, we are left with Jerry’s ICWA-020 

form declaring Indian ancestry, Jerry’s subsequent statement 

denying Indian ancestry, and no explanation for his conflicting 

responses. On this essentially silent record, we cannot know 

within any degree of reasonable probability whether, had the 

Department made the requisite effort to clarify the discrepancy 

between Jerry’s two responses, it would have discovered 

information necessitating further interviews and notice to one or 

more Indian tribes. Although it is typically the appellant’s 

burden to demonstrate prejudice (In re E.H. (2018) 

26 Cal.App.5th 1058, 1072 [reviewing court evaluates violation of 

a state law ICWA standard under the state law standard for 
19

harmless error, that is, whether the appellant can show it is 

reasonably probable he or she would have enjoyed a more 

favorable result absent the error]; In re G.C. (2013) 

216 Cal.App.4th 1391, 1400 [same]), when the silent record is 

caused by the Department’s and the court’s failure to make the 

appropriate inquiries, we simply cannot find the error harmless. 

(See In re Gabriel G., supra, 206 Cal.App.4th at p. 1168 

[conditionally reversing order terminating parental rights due to 

Department’s and court’s failure to address father’s conflicting 

responses about his Indian ancestry]; 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 N.G. may have maternal Indian ancestry, ICWA error 

was necessarily prejudicial]; cf. In re K.R. (2018) 20 Cal.App.5th 

701, 708 [although it is generally the appellant’s burden to 

demonstrate prejudice, in an ICWA matter on appeal, the parent 

is in effect “acting as a surrogate for the tribe in raising 

compliance issues on appeal”; “[a]ppellate review of procedures 

and rulings that are preserved for review irrespective of any 

action or inaction on the part of the parent 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.)

12

 Accordingly, remand is required for the Department and 

the court to address these ICWA errors. 

12 In In re A.C., supra, 65 Cal.App.5th 1060, the court of 

appeal held the Department erred in failing to inquire whether 

the father had Indian ancestry; but, because the father did not 

claim on appeal to actually have Indian ancestry, the majority 

found the error was harmless. (Id. at p. 1073, citing In re 

Rebecca R. (2006) 143 Cal.App.4th 1425, 1430-1431.) As in In re 
20

DISPOSITION

The disposition order granting Jerry monitored visitation 

and otherwise denying him family reunification services is 

conditionally affirmed. The matter is remanded to the juvenile 

court for compliance with the duty of inquiry and, if applicable, 

notice provisions under ICWA and related California law and for 

further proceedings not inconsistent with this opinion.

PERLUSS, P. J.

We concur:

SEGAL, J. 

FEUER, J.

A.C., Jerry’s appeal is silent as to whether he actually has any 

Indian ancestry, let alone whether Zachary is an Indian child. 

Nevertheless, unlike the majority in In re A.C., we do not believe 

that assertion is essential to finding the Department’s failure to 

make the appropriate ICWA inquiry was prejudicial (see In re 

A.C., at p. 1073 [explaining that, had father simply claimed 

Indian ancestry, court would have found error prejudicial and 

reversed]), particularly when, as we have discussed, a parent 

may lack access to specific information without the Department’s 

investigatory assistance. (See fn. 11, above.)