Filed 8/11/22 In re M.P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re M.P., a Person Coming 

Under the Juvenile Court Law.

 B316646

 (Los Angeles County Super. 

 Ct. No. 19CCJP03981A)

 

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

MANUEL P. II,

Defendant and Appellant.
2

APPEAL from the orders of the Superior Court of Los 

Angeles County, Philip L. Soto, Judge. Conditionally affirmed

with directions.

Elizabeth Klippi, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Stephen Watson, Deputy County 

Counsel, for Plaintiff and Respondent. 

* * * * * *

Manuel P. (father) appeals the juvenile court’s orders

terminating parental rights over his three-year-old son. He 

argues that the orders are defective because the juvenile court 

did not comply with the Indian Child Welfare Act (ICWA) (25 

U.S.C. § 1900 et seq.) (Welf. & Inst. Code, § 224.2, subd. (b)). The 

Los Angeles Department of Children and Family Services (the 

Department) committed error under ICWA, and its 

noncompliance was not harmless because there is “reason to 

believe” that at least one aspect of the further inquiry father

identifies would lead to a different result. (See In re Dezi C.

(2022) 79 Cal.App.5th 769, 774 (Dezi C.).) 

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Father and Irene P. (mother) met in August 2016 and got 

married in July 2017. They used methamphetamine together 

regularly; as mother once put it, we “met high and got married 

high.” 
3

M.P. was born in May 2019. At the time of M.P.’s birth, 

both mother and M.P. tested positive for amphetamines and 

methamphetamines. 

II. Procedural Background

In June 2019, the Department filed a petition asking the 

juvenile court to exert dependency jurisdiction over M.P. (1) 

because M.P. tested positive for drugs at the time of his birth, 

and because of (2) mother’s history of drug abuse, including 

during her pregnancy with M.P. and (3) father’s history of drug 

abuse. Further alleging that the parents’ conduct placed M.P. at 

“substantial risk” of “serious physical harm,” the Department 

asserted that jurisdiction was appropriate under Welfare and 

Institutions Code section 300, subdivision (b).

1

In August 2019, the court sustained the allegations in the 

petition and exerted dependency jurisdiction over M.P. The court 

left M.P. in both parents’ custody, and ordered family 

maintenance services—namely, it ordered the parents to 

complete substance abuse programs, and to participate in 

substance abuse testing, parenting classes, and individual 

counseling. 

Following father’s arrest for striking mother while she was 

holding M.P. in her arms, the Department in September 2019

filed a supplemental petition (under section 342) asking the 

juvenile court to exert dependency jurisdiction over M.P. based on 

an additional ground—namely, domestic violence between 

mother and father. At the October 2019 hearing on the 

supplemental petition, father pled no contest to the new 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
4

allegation. The court sustained the supplemental petition, 

removed M.P. from father and placed him with mother, ordered 

the parents to engage in domestic violence counseling in addition 

to their prior obligations, and issued a protective order in favor of 

mother. 

Following mother testing positive for methamphetamines 

in October and December 2019 and violating the restraining 

order by allowing father to live in the family home, the 

Department in December 2019 filed a supplemental petition 

(under section 387) asking the juvenile court to alter the 

disposition order by removing M.P. from mother’s custody in light 

of mother’s recent conduct. At the February 2020 hearing on the 

supplemental petition, the court sustained the new allegation, 

removed M.P. from mother, and ordered family reunification 

services for both parents. 

At the 12-month status review hearing (which was held in 

April 2021 rather than February 2021 because of COVID-related 

delays), the juvenile court found that the parents were only in 

partial compliance with their case plans, terminated further 

reunification services, and set the matter for a permanency 

planning hearing. 

The court held the permanency planning hearing for M.P. 

in October 2021. At that hearing, mother waived her appearance 

and made it known that she supported adoption as the preferred 

permanent plan. Father argued for the application of the 

beneficial-relationship exception to termination of parental 

rights. (§ 366.26, subd. (c)(1)(B)(i).) After entertaining further 

argument from counsel, the juvenile court found M.P. to be 

adoptable, found no exception to adoption applied, and 

terminated both parents’ parental rights. 
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III. ICWA-related facts

Father and mother both repeatedly told the Department 

that they had no known Indian ancestry in their respective 

families. Both father and mother also filled out the written 

ICWA-020 form attesting that they had “no Indian ancestry as 

far as [they knew].” 

Mother’s mother (the maternal grandmother) died when 

mother was 3 months old, and mother was thereafter raised by 

other members of the maternal grandmother’s family. Mother 

did not know her father, but mother has four older siblings—one 

of whom is 17 years older than her. 

Based on this inquiry, the juvenile court expressly found 

that this was “not an ICWA case” and it had no reason to believe 

that M.P. was an “Indian child.” 

IV. Appeal

Father filed this timely appeal from the termination of his

parental rights. 

DISCUSSION

Father argues that the orders terminating his parental 

rights must be reversed because the Department failed to 

discharge its initial inquiry duties under ICWA and related 

California law to ask “numerous extended paternal and maternal 

family members known to the Department” whether M.P. may be 

an Indian child and thus entitled to the special protections 

afforded by ICWA. (§ 224.2, subds. (b) & (c).) 

I. Governing Law

A. The initial duty to inquire

ICWA was enacted to curtail “the separation of large 

numbers of Indian children from their families and tribes 

through adoption or foster care placement.” (Mississippi Band of 
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Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) To that 

end, under the ICWA and the corresponding statutes the 

California legislature enacted to implement it (§§ 224 -224.6), a 

juvenile court and the Department have duties aimed at 

assessing whether a child in a dependency action is an “Indian 

child.” (§§ 224.2, 224.3, added by Stats. 2018, ch. 833, §§ 5, 7.) 

An “Indian child” is a child who (1) is “a member of an Indian 

tribe,” or (2) “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); Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal 

law definition].) By its terms, this definition turns “‘on the child’s 

political affiliation with a federally recognized Indian Tribe,’” not 

“necessarily” “the child’s race, ancestry, or ‘blood quantum.’” (In 

re Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.), quoting 

81 Fed.Reg. 38801-38802 (June 14, 2016).)

Under ICWA as amended, the Department and juvenile 

court have “three distinct duties.” (In re D.S. (2020) 46 

Cal.App.5th 1041, 1052 (D.S.) [noting amendment’s creation of 

three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884 

[same].) Only the first duty is at issue here: The initial “duty” of 

the Department and the juvenile court is “to inquire whether [a] 

child is an Indian child.” (§ 224.2, subds. (a) & (b).) The 

Department discharges this duty by “asking” family members 

“whether the child is, or may be, an Indian child.” (Id., subd. (b).) 

This includes inquiring of not only the child’s parents, but also 

others, including but not limited to, “extended family members.” 

(Ibid.) For its part, the juvenile court is required, “[a]t the first 

appearance” in a dependency case, to “ask each participant” 

“present” “whether the participant knows or has reason to know 

that the child is an Indian child.” (Id., subd. (c).)
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B. The prejudice requirement

Should an appellate court conclude that the juvenile court 

did not comply with its duty of initial inquiry under ICWA, the 

court’s next task is to evaluate whether its noncompliance was 

prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 740

(Benjamin M).) In Dezi C., we recently held that deficiencies in 

the discharge of ICWA’s initial duty of inquiry is prejudicial only 

if the juvenile court record or evidence proffered by the appealing 

party on appeal indicates “a reason to believe” that the child may 

be an Indian child. (Dezi C., supra, 79 Cal.App.5th at p. 774.) 

For example, a reviewing court would have “reason to believe” 

the Department’s error was prejudicial if the record indicates 

that someone reported possible American Indian heritage and the 

Department never followed up on that information; if the record 

indicates that the Department never inquired into one of the 

biological parents’ heritage at all (e.g., Benjamin M., at p. 744); or 

if the record indicates that one or both of the parents is adopted 

and hence their self-reporting of “no heritage” may not be fully 

informed (e.g., In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016

(A.C. 2022)). 

II. Analysis

The Department does not dispute that there were extended 

family members involved in M.P.’s life that the Department 

failed to question. Because there is no question that the

Department erred in conducting their initial inquiry, our role in 

determining whether substantial evidence supports the juvenile 

court’s ICWA findings turns on whether those errors are 

harmless. (Benjamin M., supra, 70 Cal.App.5th at pp. 740, 742, 

citing Cal. Const., art VI, § 13.)
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Turning to the prejudice inquiry, father proffers three 

reasons why there is “reason to believe” that a more fulsome 

inquiry by the Department might lead to a different outcome. 

First, father generally asserts that the Department 

interviewed several relatives—a paternal grandmother, a 

paternal cousin, and maternal aunt—but did not ask them about 

M.P.’s possible Indian heritage. This assertion does not establish 

the requisite prejudice because there is nothing in the record to 

indicate that any of the three individuals father lists had any 

information which would create a “reason to believe” M.P. had 

Indian ancestry. Instead, father’s sole observation is that “it does 

not appear” the Department asked those individuals about 

Indian ancestry. In essence, father is asking us to apply the 

“automatic reversal rule” for determining harmlessness which we 

previously rejected. (Dezi C., supra, 79 Cal.App.5th at pp. 782-

785.) We decline to revisit that ruling here.

Second, and along the same lines, father argues that the 

information that these individuals might have relayed if asked 

about M.P.’s Indian heritage was “readily obtainable” to the 

Department, and hence constitutes prejudice under the test 

articulated in Benjamin M. (See Benjamin M., supra, 70 

Cal.App.5th at p. 744; In re Darian R. (2022) 75 Cal.App.5th 502, 

509-510.) To the extent Benjamin M. is read to find prejudice 

upon a mere failure to question an available person, we rejected

that reading of Benjamin M. in Dezi C. (Dezi C., supra, 79 

Cal.App.5th at pp. 785-786.)

Third, father argues that that prejudice can be shown 

under Dezi C. itself. Specifically, father points to Dezi C.’s

observation that “a reviewing court would have ‘reason to believe’ 

further inquiry might lead to a different result . . . if the record 
9

indicates that one or both of the parents is adopted and hence 

their self-reporting of ‘no heritage’ may not be fully informed.” 

(Dezi C., supra, 79 Cal.App.5th at p. 779.) Because mother’s 

mother died when mother was an infant and because mother’s 

father was never present in her life, father urges that mother’s 

self-reported disclaimer of Indian heritage is not “fully informed.” 

Father has a point. Although mother is not “adopted” and 

although mother’s upbringing by her maternal relatives renders

her opinion about her heritage on that side of the family “fully 

informed,” the record indicates that mother did not know her 

father and that her knowledge of her heritage on her father’s side 

of the family is consequently not fully informed. (Accord, In re 

Y.W. (2021) 70 Cal.App.5th 542 [mother was adopted, and did not 

know her biological family members]; A.C. 2022, supra, 75 

Cal.App.5th 1009 [same].) What is more, there are ostensible

avenues of investigation that were never explored—namely, the 

Department was aware that mother has four older siblings, who 

may have known the identity and heritage of mother’s father and 

may be able to provide some insight as to whether mother (and 

hence, M.P.) has Indian heritage. Because these somewhat 

unusual facts establish that mother’s denial of Indian heritage is 

not fully informed, there is reason to believe that further inquiry 

of the siblings and other maternal relatives who may have known 

mother’s father would lead to a different outcome.

Because the record creates a reason to believe M.P. may be 

an Indian child, father has established prejudice.

DISPOSITION

The juvenile court orders terminating parental rights are

conditionally affirmed. The matter is remanded with directions 

to the juvenile court to order the Department to comply 
10

with ICWA by making diligent efforts to interview mother’s four 

older siblings and other extended family members who may have 

information about mother’s father, and to follow up on any leads 

from those interviews. 

Based on those efforts, if no further inquiry is required, the 

court’s original order shall be reinstated. If further inquiry is 

required, the court shall ensure that the Department complies 

with all applicable ICWA statutes and regulations, as well as 

related state statutes and rules. After ICWA compliance, unless 

a tribe indicates that M.P. is an Indian child, the court shall 

reinstate the order terminating father's parental rights. If M.P. 

is an Indian child, the court shall proceed in accord with all 

applicable ICWA statutes and regulations, as well as related 

state statutes and rules.

In all other respects, the orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ