Filed 2/28/22 In re K.M. CA2/8

NOT TO BE PUBL I SHED 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K

. M

. , a Person Coming Under the Juvenile Court Law. B 3 12481

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

P laintiff and Respondent,

v.

KIMBERLY M

. ,
Defendant and Appellant. (Los Angeles County Super. Ct. No. 18CCJP05627B )

APPEAL from findings and order s of the Superior Court of Los Angeles County. Mary E. Kelly

, Judge

. Affirmed

. Niti Gupta for Defendant and Appellant. Rodrigo A. Castro

- Silva , County Counsel, Kim Nemoy

, Assistant County Counsel, and Kimberly Roura , Deputy County Counsel, for P laintiff and Responden t.

________

____ _______________2 INTRODUCTION
K imberly M

. (Mother) appeals from the juvenile court’s jurisdictional findings and dispositional orders made on March 8, March 12, April 9, April 26, and April 27, 2021.
Mother’s sole argument on app eal is that reversal is
warranted because the juvenile court failed to satisfy the initial inquiry requirements under the Indian Child Welfare Act of 1978 (ICWA) ( 25 U.S.C. § 1901 et seq. ) and related California law (Welf. & Inst. Code, § 224 et seq.) 1 bec ause it and the Los Angeles County Department of Children and Family Services (DCFS) never questioned minor K.M.’s maternal grandmother (Grandmother) as to her Indian ancestry

. We find that the juvenile court erred in determining that
ICWA d id not apply without DCFS questioning Grandmother,
but that the error was harmless because Grandmother denied Indian ancestry in a previous dependency proceeding involving
K

. M. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND 2
Because the alleged failure to comply with the inquiry requirements of ICWA and related California law is the sole basis for Mother’s appeal , we recite only those facts pertinent to this
claim. We first review DCFS’s unopposed request for judicial
notice to determine which facts we ma y consider.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 We state the facts in the manner most favorable to the juvenile court’s order. ( In re D.S. (2020) 46 Cal.App.5th 1041, 1046 ( D.S .) .)3

I. Request for Judicial Notice DCFS requests that we take judicial notice of a document titled “Jurisdiction/Disposition Report

, ” which was filed with the juvenile court in November 2018 in the first dependency proceeding involving K

. M . Moth er filed a letter brief stating that
she does not oppose this request. We find judicial notice proper. The report is part of a state court record. (Evid. Code

, § 452, subd. (d).) Moreover, the juvenile court in this case took judicial notice of K

. M.’ s prior dependency case. ( Evid. Code

, § 459, subd. (a).) Accordingly,

we take notice of t he Jurisdiction/Disposition Report filed i n November 2018 for the evidence it contains that DCFS asked Grandmother whether she had any Indian ancestry and she

answer ed in the negative.
II. Prior Dependency Proceedings In 2018, a juvenile court held K

. M. a dependent due to general neglect by both parents

. In 2019, the court granted joint legal custody to both of K

. M.’s parents, but gave sole physical custody to K

. M .’s father. During those proceedings , a DCF S social worker asked Grandmother whether she had any Indian ancestry, and she said
that she did not

. I I I. Active Dependency Proceedings In December 2020, DCFS filed an original petition under section 300, su bdivision (b)(1). DC FS placed K

. M. under
Grandmother’s care.
In October and November 2020, in interviews with DCFS,
K

. M.’s parents denied Indian ancestry.4 On December 16, 2020

, the juvenile court held a detention hearing. At that hearing, the juve nile court found that ICWA did

not apply to K

. M

. The juvenile court then ordered K

. M. detained from both parents. In February 2021, K

. M.’s parents again denied any Indian ancestry when interviewed by DCFS

. The juvenile court held a jurisdiction hearin g on March 8, 2021, and held K

. M. a dependent under section 300, subdivision (b)(1). On March 12, April 9, and April 26, the court continued the disposition hearing to subsequent dates

. On April 2 7, 2021, the court held a contested disposition hearing and removed K

. M. from his parents’ custody under section 361, subdivision (c)(1). In making this determination , the juvenile court explicitly took judicial notice of the 2018 dependency proceeding involving K

. M.
On April 27, 2021

, Mother timely appea led the juvenile
court’s jurisdictional and dispositional orders and its findings made on March 8, March 12, April 9, April 26

, and April 2 7 , 2021. DISCUSSION Mother’s sole contention on appeal is that the juvenile court failed to properly comply with its d uty of inquiry under ICWA
and related California law because neither the court nor DC FS inquir e d of Grandmother as to whether K

. M. is an Indian child

. Mother argues that there is no indication that the juvenile court relied upon its previous finding regar ding Grandmother in the first dependency case. She further asserts that when the social worker interviewed Grandmother in this matter, she n ever asked
whether K

. M. is an Indian child. Finally, she argues that because the juvenile court knew K

. M. was in G randmother’s care5

and Grandmother appeared at the jurisdictional hearing, the
court had a duty to inquir e of her as to K

. M.’s Indian status. Mother asks that we affirm the judgment

, but reverse the juvenile court’s finding that K

. M. is not an Indian child and remand for compliance with the court’s initial duty of inquiry.
DCFS counters that the juvenile court’s orders should be affirmed because Grandmother denied Indian ancestry previously and the parents both denied Indian ancestry in this matter

. DCF S also points out that the juvenile court explicitly took judicial notice of the 2018 dependency proceedings , where Grandmother was interviewed and denied Indian heritage

. We agree that DCFS was required to inquire of Grandmother and did not, but find th is error harmless because Grandmother denied Indian heritage in the previous dependency

case and there is no reason to believe that her answer would have changed since 2018.
I. Standard of Review
In cases where “ ‘ the facts are undisputed, we independe ntly determine whether ICWA ’ s requirements have been satisfied.’ ” ( In re D

. F. (2020) 55 Cal.App.5th 558, 565, quoting D.S.

, supra, 46 Cal.App.5th at p. 1051. ) In addition,

“ ‘ “ [W]e review the juvenile court ’ s ICWA findings under the
substantial evidenc e 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 J osiah T. (2021) 71 Cal.App.5th 388, 401

, quoting In re D

. F.

, supra , 55 Cal.App. 5th at pp. 565,
5 69.)6

II. Applicable Law

“ ICWA reflects a congressional determination to protect
American Indian children and to promote the stability and security of Indian tribes and families. ” ( In re J osiah T.

, supra , 71 Cal.App.5th at p. 401

. ) In ICWA, Congress established procedural rules applicable in dependency cases to ensure that if
an Indian child is invo lved, they are properly identified. ( Ibid. ; 25 C.F.R § 23.107(a).)
Federal regulations implementing ICWA provide that “[s]tate courts must ask each participant in an emergency or voluntary or involuntary child

- custody proceeding whether the participant kn ows or has reason to know that the child is an
Indian child [] ” and that “[s]tate courts must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” (25 C.F.R § 23.107(a ).) Federal law thus places a duty on state courts to inquire of “participants” and “parties” to a case whether they
know or ha ve reason to know the child is an Indian child. ( Ibid. ) Under state law, the juvenile court and DCFS both additionally ha ve a “ ‘ continuing duty to inquire ’ ” whether the child is an Indian child. ( In re D. F.

, supra , 55 Cal.App. 5th at

p. 566, citing § 224.2, subd. (a) .) This duty has three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provi de formal ICWA notice. ( Ibid .) Only the initial failure of DCFS and the juvenile court to inquire of Grandmother is at
issue here.

“ S tate law lays out the requirements for initial inquiry .” ( In re J osiah T.

, supra , 71 Cal.App.5th at p. 402 .) This inq uiry requires DC FS to inquire of “the child, parents, legal guardian, Indian custodian, extended family members, others who have an7

interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b) .) In addition, “[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to
know that the child is an Indian child

. ” ( Id. , subd. (c) .)
I II

. The Juvenile Court Failed to Ensure T hat the Department Complied W ith ICWA and Related California Law, B ut the Error W as Harmless
While “ [t]here is no federal duty to inquire of extend ed family members,” ( In re A.C. (2021) 65 Cal.App.5th 1060, 1069 )

, 3
DCFS had a state law duty to inquire into Grandmother ’s Indian heritage because she is an extended family member

. (§ 224.2, subd. (b) .) DCF S failed to do so. DCFS does not contest that it failed to question Grandmother; it merely asserts that it did so in the previous dependency proceeding

. The juvenile court also
failed to ensure that DCFS made th is required inquir y . ( See
In re Y.W. (2021) 70 Cal.App.5th 542, 555 .) Regardless, these errors relating to the initial inquiry into
Grandmother ’s Indian heritage were harmless, so remand is not
warranted. Error under state law may be deemed harmless
where , had the required steps been taken, the child would not
have been found to be an Indian child. “Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been

3 We acknowledge that there is a duty extending to grandparents when a court knows or has reason to know a child is an Indian child in giving notice to relatives . (See 25 C.F.R. § 23.111.)8

found to be an Indian child.” ( In re D.N. (2013) 218 Cal.App.4th 1246, 1251, citing In re E.W. (2009) 170 Cal.App.4th 396, 402 ( E.W. ) and In re S.B . (2005) 130 Cal.App.4th 1148, 1162 ( S.B .) .) Grandmother denied Indian ancestry when interviewed during
the 2018 dependency proceeding. The initial inquiry e rror as to Grandmother was therefore harmless becaus e there is no reason
to believe that she would give a different response in this proceeding.
Because Grandmother denied Indian ancestry, r emand is
not warranted. R emand “ would be an empty formality” and
contrary to “ considerations of judicial economy

. . . and the
child [’ s] need for stability .” ( E.W.

, supra , 170 Cal.App.4th at

pp. 401

– 402 ; see also In re A.B . (2008) 164 Cal.App.4th 832 , 843 ( A.B. ) [taking judicial notice of evidence that parents denied Indian heritage in judicial proceedings in another state court
, thus holding the inquiry error harmless and noting that remand would serve “no purpose other than delay ”]

. )
Mother ’s reliance upon In re Benjamin M . (2021) 70 Cal.App.5th 735 (

Benjamin M .) in urging us to remand is

un persuasive

. In Benjamin M. , one parent was not available to report or deny Indian heritage and the agency never inquired of any of the missing parent’s available relatives. ( I d. at pp. 744

– 745.) Here, both parents were available and repeatedly denied Indian heritage, and DCFS d id inquire of Grandmother

, albeit in judicial proceedings in another court

. (See A.B.

, supra , 164 Cal.App.4th at p. 842 .) Remand to interview Grandmother to ask the same question she already answered would serve no purpose.
Mother also argues that the court had its own duty to question Grandmother as to her Indian heritage. She fails to properly support this argument with legal authority, thus fails to9

support her claim of reversible error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608

– 609 [burden i s on appellant to demonstrate trial court error] ; Hernandez v. First Student, Inc

. (2019) 37 Cal.App.5th 270, 276

– 277 [appellant must cite legal support for claim of error] .) First, Mother claims that the juvenile court was required to question Grandmother under state law providing that at “ the first appearance in court of each party, the court shall ask each participant present ” about the child’s Indian status. ( § 224.2

, subd. (c).) She does not cite any case law in direct support of this claim, and appl icable statutory law does not define “participant.” (See § 224.1.) R egardless, we need not reach this question because we conclude that any inquiry error under state law was
harmless. Second, Mother claims the juvenile court violated federal
law by not questioning Grandmother as a “participant” when she appeared at the jurisdictional hearing

. ( 25 C.F.R § 23.107(a) .) Again, she does not cite any case law to support this contention. The case she relies upon, In re Breanna S . (2017) 8 Cal.App.5th 636, 65 3, disapproved of by In re Caden C. (2021) 11 Cal.5th 614,
637 fns. 6

- 7, address es federal tribal notice requirements, not the initial inquiry requirements. The applicable federal statute also does not define “participant.” ( See 25 C.F.R § 23 .) Regardle ss, we need not reach this question because even where ICWA itself has not been followed, ICWA error is harmless where, as here, the outcome would be the same even if followed. (See, e.g., S.B.

, supra , 130 Cal.App.4th at p. 1162 [“ An ICWA notice violation may be held harmless when

. . . even if notice had been given, the
child would not have been found to be an Indian child ”].)10 In sum

, there is substantial evidence supporting the juvenile court’s conclusion that ICWA does not apply because both parents and Grandmother have denied Indian heritage , and Mother does not assert on appeal that any other relative should have been questioned

. DISPOSITION The juvenile courts findings and orders are affirmed.

HARUTUNIAN, J. *

We concur:

GRIMES, Actin g P. J.

WILEY, J.

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.