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

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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.

 B312481

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

KIMBERLY M.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. 18CCJP05627B)

APPEAL from findings and orders 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 Plaintiff and Respondent.

___________________________
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INTRODUCTION 

Kimberly 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 appeal 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 because 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 did 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 BACKGROUND2

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 may 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. Mother 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 the Jurisdiction/Disposition Report filed in 

November 2018 for the evidence it contains that DCFS asked 

Grandmother whether she had any Indian ancestry and she 

answered 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 DCFS social worker asked 

Grandmother whether she had any Indian ancestry, and she said 

that she did not. 

III. Active Dependency Proceedings

In December 2020, DCFS filed an original petition under 

section 300, subdivision (b)(1). DCFS 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 juvenile 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 hearing 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 27, 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 appealed the juvenile 

court’s jurisdictional and dispositional orders and its findings 

made on March 8, March 12, April 9, April 26, and April 27, 2021. 

DISCUSSION

Mother’s sole contention on appeal is that the juvenile court 

failed to properly comply with its duty of inquiry under ICWA 

and related California law because neither the court nor DCFS

inquired 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 regarding Grandmother in the 

first dependency case. She further asserts that when the social 

worker interviewed Grandmother in this matter, she never asked 

whether K.M. is an Indian child. Finally, she argues that 

because the juvenile court knew K.M. was in Grandmother’s care 
5

and Grandmother appeared at the jurisdictional hearing, the 

court had a duty to inquire 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. 

DCFS 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 this 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 

independently 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 evidence 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 Josiah T. (2021) 71 Cal.App.5th 

388, 401, quoting In re D.F., supra, 55 Cal.App.5th at pp. 565, 

569.)
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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 Josiah 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 involved, 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 knows 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 have reason to know the child is an Indian child. (Ibid.)

Under state law, the juvenile court and DCFS both 

additionally have 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 provide formal ICWA notice. (Ibid.) Only the initial failure of 

DCFS and the juvenile court to inquire of Grandmother is at 

issue here. 

“State law lays out the requirements for initial inquiry.” 

(In re Josiah T., supra, 71 Cal.App.5th at p. 402.) This inquiry 

requires DCFS to inquire of “the child, parents, legal guardian, 

Indian custodian, extended family members, others who have an 
7

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).) 

III. The Juvenile Court Failed to Ensure That the 

Department Complied With ICWA and Related 

California Law, But the Error Was Harmless 

While “[t]here is no federal duty to inquire of extended 

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).) DCFS 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 this required inquiry. (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.)
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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 error as to 

Grandmother was therefore harmless because there is no reason 

to believe that she would give a different response in this 

proceeding. 

Because Grandmother denied Indian ancestry, remand is 

not warranted. Remand “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 

unpersuasive. 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. (Id. at pp. 744–

745.) Here, both parents were available and repeatedly denied 

Indian heritage, and DCFS did 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 to 
9

support her claim of reversible error. (See Jameson v. Desta

(2018) 5 Cal.5th 594, 608–609 [burden is 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 applicable statutory law does not define “participant.” 

(See § 224.1.) Regardless, 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, 653, disapproved of by In re Caden C. (2021) 11 Cal.5th 614, 

637 fns. 6-7, addresses federal tribal notice requirements, not the 

initial inquiry requirements. The applicable federal statute also 

does not define “participant.” (See 25 C.F.R § 23.) Regardless, 

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”].)
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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, Acting 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.