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Filed 8/12/21 In re K.M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re K.M. et al., Persons Coming 

Under the Juvenile Court Law.

CONTRA COSTA COUNTY 

CHILDREN AND FAMILY 

SERVICES BUREAU,

Plaintiff and Respondent,

v.

Brittany W.,

Defendant and Appellant.

 A162027

 (Contra Costa County

 Super. Ct. Nos. 

 J1800804/J1800805)

Brittany W. (mother) appeals from a juvenile court order terminating 

parental rights as to her daughter, K.M., at the conclusion of a permanency 

planning hearing (Welf. & Inst. Code § 366.26).

1 She contends the Contra 

Costa County Children and Family Services Bureau (Bureau) and the court

failed to comply with the inquiry requirements of the Indian Child Welfare 

Act of 1978 (25 U.S.C. § 1901 et seq., ICWA).

We affirm.

1 Undesignated statutory references are to the Welfare and Institutions 

Code.
2

BACKGROUND

We recite only those facts necessary to resolve the issue on appeal.

A.

In August 2018, the Bureau filed a section 300 petition alleging mother 

failed to provide “basic necessities” for K.M., then seven years old. The 

petition averred Thomas M. was K.M.’s alleged father. Mother and Thomas 

are not married. The court detained K.M., declared her a dependent, and 

ordered reunification services for mother. Later, the court terminated 

mother’s reunification services. In December 2020, the court held a 

permanency planning hearing and terminated mother’s parental rights.

B.

Mother completed a parental notification of Indian status (ICWA-020 

form) stating “father” had possible “Blackfoot” ancestry through his paternal 

grandmother and great-grandmother. Mother denied Indian ancestry. The 

Bureau mailed an ICWA-020 form to Thomas at his last known address, but 

it was returned as undeliverable. 

At the November 2018 jurisdictional hearing, the court noted mother’s 

ICWA-020 form indicated Indian ancestry “on the paternal side of the family” 

and questioned whether the court could “make an ICWA finding.” Counsel 

for the Bureau responded: “I think what the mother is indicating [is] that 

[Thomas] has Indian heritage but she herself has none.” The court agreed. 

It determined mother was making “assumptions” about Thomas’s Indian 

ancestry and not her own “side of the family,” and noted “there’s no evidence” 

K.M. was an Indian child or that ICWA applied. Then the court asked 

whether anyone disputed that finding. Neither mother nor Thomas M. were 

present at the hearing. But all counsel—including mother’s counsel—

responded, “No.” The court deemed ICWA inapplicable.
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Thomas made his first court appearance in October 2020, shortly before 

the original permanency planning hearing date. The court declared him 

K.M.’s presumed father. Neither the Bureau nor the court directed Thomas 

to complete an ICWA-020 form. The court made no further ICWA findings.

DISCUSSION

The purpose of ICWA is to protect the interests of Indian children and 

promote “the stability and security of Indian tribes by establishing minimum 

standards for, and permitting tribal participation in, dependency actions.” 

(In re E.G. (2009) 170 Cal.App.4th 1530, 1533.) Juvenile courts and social 

services agencies “ ‘ “have an affirmative and continuing duty to inquire 

whether a child,” who is the subject of a juvenile dependency petition, “is or 

may be an Indian child.” ’ ” (In re S.R. (2021) 64 Cal.App.5th 303, 313; 

§ 224.2.) 

The social services agency’s initial duty of inquiry includes asking 

parents, legal guardians, and others “ ‘ “whether the child is, or may be, an 

Indian child. . . .” [Citation.] The juvenile court must ask the participants in 

a dependency proceeding upon each party’s first appearance “whether the 

participant knows or has reason to know that the child is an Indian child” 

[citation], and “[o]rder the parent . . . to complete Parental Notification of 

Indian Status . . . form ICWA-020[.]” ’ ” (In re S.R., supra, 64 Cal.App.5th at

p. 313.)2 “If the court fails to ask a parent about his . . . Indian heritage, a 

limited reversal of an order or judgment and remand for proper inquiry and 

any required notice may be necessary. [Citation.] Reversal is not warranted, 

2 If, after a dependency petition is filed, the court “knows or has reason 

to know . . . that an Indian child is involved,” notice of the proceeding and the 

right to intervene must be sent to the tribe or the Bureau of Indian Affairs if 

the tribal affiliation is unknown. (§ 224.3.) 
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however, when the court’s noncompliance with the inquiry requirement 

constitutes harmless error.” (In re A.B. (2008) 164 Cal.App.4th 832, 839.)

Mother contends the order terminating parental rights must be 

conditionally reversed and the matter remanded for ICWA compliance 

because the Bureau did not ask Thomas about his possible Indian ancestry or 

direct him to complete an ICWA-020 form when he made his first court 

appearance. This claim fails because—as mother recognizes—Thomas is 

K.M.’s presumed father.

The “ ‘ “extent to which a father may participate in dependency 

proceedings and his rights in those proceedings are dependent on his 

paternal status.” ’ ” (In re C.A. (2018) 24 Cal.App.5th 511, 521.) Presumed 

father status “entitles the father to receive reunification services and is based 

on the state’s interest in ‘ “preserving the integrity of the family and 

legitimate concern for the welfare of the child.” ’ [Citation.] This status, 

however, is not equivalent to the status of a biological or adoptive parent.” 

(Ibid.; In re Zacharia D. (1993) 6 Cal.4th 435, 450, fn. 18 [man may achieve 

presumed father status without being a biological father].)

The necessity of a biological connection is evident in the ICWA’s 

definition of “Indian child” and “parent.” As relevant here, ICWA “defines 

‘Indian child’ as ‘any unmarried person who is under age eighteen and is 

either (a) a member of an Indian tribe or (b) is eligible for membership in an 

Indian tribe and is the biological child of a member of an Indian tribe.’ 

[Citation.] The necessity of a biological tie to the tribe is underlined by the 

ICWA definition of a ‘parent’ as ‘any biological parent . . . of an Indian 

child[.]’ ” (In re E.G., supra, 170 Cal.App.4th at p. 1533, italics added.) 
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In this context, a “parent” does “ ‘not include the unwed father where 

paternity has not been acknowledged or established.’ ” (In re C.A., supra, 

24 Cal.App.5th at p. 520; In re Daniel M. (2003) 110 Cal.App.4th 703, 

708–709 [alleged father could not contest termination of parental rights 

based on lack of ICWA notice].)

In a footnote on the last page of her opening brief, mother urges us to 

overlook the absence of an established biological connection between Thomas 

and K.M. because Thomas’s status as a “biological parent was never in 

dispute.” We reject this assertion because it is unsupported by legal analysis 

or a citation to the record. (In re Daniel M., supra, 110 Cal.App.4th at 

p. 708.) Mother presents no evidence that Thomas is the biological father 

of K.M. or that he claimed a biological relationship with her. Thomas told 

the Bureau he was “listed on [K.M.’s] birth certificate” but the record does 

not contain K.M.’s birth certificate, a declaration of paternity filed at the 

time of birth, or a blood test establishing paternity. (Id. at pp. 708–709.) 

Because the issue of biological paternity was not litigated, the juvenile court 

made no finding that Thomas is K.M.’s biological father. We decline to make 

such a finding for the first time on appeal. (See In re Margarita D. (1999) 

72 Cal.App.4th 1288, 1296.)

To be sure, social service agencies and juvenile courts should err on the 

side of “ ‘ “examining thoroughly” ’ ” whether a child is an Indian child. (In re 

Isaiah W. (2016) 1 Cal.5th 1, 15.) We acknowledge the Bureau did not 

complete an ICWA inquiry as to Thomas, and that such an inquiry might 

have produced information regarding his Indian ancestry. But any

information about Thomas’s Indian ancestry is of no consequence in the 

absence of an established biological connection between Thomas and K.M. 

(In re B.R. (2009) 176 Cal.App.4th 773, 785 [“impossible” for child to be 
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Indian child absent adoptive or biological relationship to tribal member]; In 

re C.A., supra, 24 Cal.App.5th at p. 521 [applying ICWA notice requirements 

to presumed father “would result in an improper expansion of the definition 

of an Indian child contained in the statute”].) 

Mother’s opening brief does not argue the failure to conduct an inquiry

into Thomas’s potential Indian ancestry was prejudicial. We can conceive 

of no prejudice where—as here—mother does not assert she has Indian 

ancestry. (See In re A.B., supra, 164 Cal.App.4th at pp. 842–843 [failure 

to discharge duty of inquiry was harmless where mother denied Indian 

heritage].) In the absence of prejudice, a conditional remand for ICWA 

inquiry as to Thomas would further delay permanency and stability for K.M., 

who has been part of the dependency system for three years.3 

“ ‘Parents unable to reunify with their children have already caused the 

children serious harm; the rules do not permit them to cause additional 

unwarranted delay and hardship, without any showing whatsoever that the 

interests protected by the ICWA are implicated in any way.’ ” (In re H.B.

(2008) 161 Cal.App.4th 115, 122 [error in failing to comply with inquiry

requirements was harmless].)

DISPOSITION

The order terminating mother’s parental rights as to K.M. is affirmed.

3 The Bureau now takes the position that the court was obliged to 

ask Thomas about his Indian ancestry, and its failure to do so requires a 

conditional reversal. We decline to accept this concession, especially given 

that it is premised on a mistaken understanding of the law. (See People v. 

Sanders (2012) 55 Cal.4th 731, 740; People v. Alvarado (1982) 133 Cal.App.3d 

1003, 1020–1021; Bradley v. Clark (1901) 133 Cal. 196, 210.)
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_________________________

Rodriguez, J.*

WE CONCUR:

_________________________

Simons, Acting P. J.

_________________________

Needham, J.

A162027

* Judge of the Superior Court of Alameda County, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.