Filed 2/24/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re S.S., et al., Persons Coming 

Under the Juvenile Court Law.

_________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.S.,

Defendant and Appellant.

 B314043

 (Los Angeles County

Super. Ct. No. 19CCJP07836)

APPEAL from an order of the Superior Court of Los Angeles

County, Debra Archuleta, Judge. Affirmed.

Daniel G. Rooney, under appointment by the Court of Appeal,

for Defendant and Appellant.

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

Assistant County Counsel, and Jane Kwon, Deputy County 

Counsel, for Plaintiff and Respondent.

_____________________________
2

E.S. (Mother) appeals from the juvenile court’s order 

terminating her parental rights under Welfare and Institutions 

Code section 366.26.

1 She contends that the Los Angeles County 

Department of Children and Family Services (DCFS) and the court 

failed to comply with their duties of inquiry under section 224.2 and 

related rules of court. We agree with DCFS that any such failure 

was harmless and, on that basis, affirm the court’s order.

FACTUAL AND PROCEDURAL SUMMARY2

Shortly before midnight on December 3, 2019, a police 

officer observed Mother pushing a stroller with her four-month-old 

daughter, S.S., inside. It was raining and the temperature was

below 50 degrees. The officer believed Mother was under the

influence of a stimulant, “most likely methamphetamine.” The 

officer arrested Mother on suspicion of child endangerment and

being under the influence of drugs. S.S. was placed in protective 

custody and taken to a hospital for examination.

On December 4, 2019, Mother told a social worker that S.S.’s 

father was Manuel R., who has custody of three other children the 

two had together. The social worker asked Mother if there were 

other relatives who could be contacted and assessed as a relative 

caregiver, and Mother answered, “[N]o.” Mother also “denied 

Native American ancestry for the family.”

1 Subsequent unspecified statutory references are to the 

Welfare and Institutions Code.

2 Because the sole issue on appeal is whether DCFS has 

complied with its duty of inquiry under ICWA-related California 

law, we focus our summary of facts and procedural history on the 

facts relevant to that issue.
3

Manual R. denied being S.S.’s father and said he ended his 

relationship with Mother more than two years earlier. He said 

that Mother had previously told him that S.S.’s father was in jail 

or prison, but she never told him the father’s name.

On December 6, 2019, DCFS filed a juvenile dependency 

petition under section 300, subdivision (b), alleging that Mother

had been arrested and had no plan for S.S.’s ongoing care and 

supervision. The petition included a statement on Judicial Council 

form ICWA-010 (Jan. 1, 2008) that a social worker had “made” 

an “Indian child inquiry,” and that S.S. “has no known Indian 

ancestry.”

Mother did not appear at a detention hearing held on 

December 9, 2019. The court detained S.S. and placed her in 

DCFS custody. The court ordered monitored visitation for Mother

if she contacted DCFS to request visits. The court deferred the 

“determination of ICWA status . . . for the parents[’] appearance.”

DCFS placed S.S. in foster care with someone who remained 

her caregiver throughout the proceedings and whom the court 

subsequently granted de facto parent status and identified as the 

prospective adoptive parent.

On December 16, 2019, a social worker spoke with Mother 

by telephone. The social worker asked Mother about potential 

relatives who may be considered for placement, and Mother replied 

that “she did not have any relatives to provide at this time” and 

“she does not wish for [S.S.] to be placed with [S.S.’s maternal 

grandmother].” She also “did not wish to provide the child’s father’s 

information.”

In a jurisdiction/disposition report filed on January 9, 2020, 

DCFS reported that Mother’s whereabouts were unknown and she 

had not made herself available for an interview. A search for S.S.’s 

father was “unsuccessful.” The report further noted Mother’s denial 
4

of Native American ancestry and stated that the ICWA “does not 

apply.”

On January 9, 2020, Mother was present in court for the 

first and only time in this case. She filed a parental notification 

of Indian status form (Judicial Council Forms, form ICWA-020) 

stating that she has “no Indian ancestry as far as I know.”

Our record does not include a reporter’s transcript of 

the January 9, 2020 hearing. In a minute order issued after the 

hearing, the court stated that it “does not have a reason to know 

that [S.S.] is an Indian child, as defined under ICWA, and does not 

order notice to any tribe of the [Bureau of Indian Affairs]. Parents 

are to keep [DCFS], their attorney and the court aware of any 

new information relating to possible ICWA status. ICWA-020, 

the parental notification of Indian status [form,] is signed and filed. 

The court does not have a reason to know that ICWA applies as to 

Mother.” (Capitalization omitted.)

The court further found that S.S.’s father is unknown. 

S.S.’s father was never identified to DCFS or the court and his 

whereabouts remained unknown throughout the proceedings. 

DCFS’s efforts to identify and locate him are detailed in a 

declaration of due diligence, which the court found to be complete.

DCFS filed an amended dependency petition on January 22, 

2020, which added an allegation under section 300, subdivision (b)

that Mother is a current and frequent abuser of illegal substances, 

which renders her incapable of providing regular care for S.S.

During the combined jurisdiction and disposition hearing 

on January 30, 2020, the court found the amended petition’s 

allegations true, declared S.S. a dependent of the court, and 

removed her from Mother’s custody. S.S. continued to be placed 

with her foster parent.
5

In April 2020, S.S.’s maternal grandmother contacted 

DCFS to ask about visits with her. She also stated that she was 

interested in adopting S.S. “[V]irtual visits” (due to the COVID-19

pandemic) between maternal grandmother and S.S. were scheduled 

for once per week. Maternal grandmother participated in three 

of the eight visits scheduled in May, June, and July 2020. In a 

report filed in January 2021, a social worker stated that maternal 

grandmother’s visits “remain[ed] inconsistent.”

At a hearing held on January 13, 2021, counsel for Mother 

asked that the court consider possible placement with maternal 

grandmother. The court did not respond to this request. At 

the conclusion of that hearing, the court terminated Mother’s 

reunification services and set the matter for a hearing to be held 

pursuant to section 366.26.

In April 2021, the court granted S.S.’s counsel’s request that 

DCFS assess the maternal grandmother for possible placement

of S.S. with her. In connection with the assessment, the maternal 

grandmother told a social worker that Mother had been living with 

her before S.S.’s birth and thereafter until a few days before DCFS 

took the four-month-old S.S. into protective custody. The maternal 

grandmother said she would like S.S. placed in her home and was 

willing to provide permanency for the child. DCFS recommended 

that S.S. remain in her current placement with a prospective 

adoptive parent. On May 6, 2021, the court denied the maternal 

grandmother’s request for placement.

In a report prepared for the section 366.26 hearing, 

DCFS noted the court’s January 9, 2020 finding that the court 

did not have a reason to know that S.S. is an Indian child and

“recommended that the court find that [ICWA] does not apply as 

to this case.”
6

On July 14, 2021, the court held a hearing pursuant to 

section 366.26. Mother was not present. The court terminated 

Mother’s parental rights to S.S., approved the permanent plan of 

adoption, and designated S.S.’s foster parent as her prospective 

adoptive parent.

Mother filed a timely notice of appeal.

DISCUSSION

Mother contends that DCFS failed to satisfy its duty under 

California law to inquire whether S.S. is or may be an Indian child

within the meaning of ICWA. DCFS argues that Mother has failed 

to demonstrate that any such failure was prejudicial and the court’s 

order terminating parental rights should therefore be affirmed. 

We agree with DCFS.

“Under California law, the court and county child welfare 

department ‘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.’ [Citations.] The child 

welfare department’s initial duty of inquiry includes ‘asking the 

child, parents, legal guardian, Indian custodian, extended family 

members, others who have an 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 re Austin J.

(2020) 47 Cal.App.5th 870, 883 (Austin J.).)3 

3 Federal regulations implementing ICWA require that

state courts, “at the commencement of the proceeding,” “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.” (25 C.F.R.

§ 23.107(a) (2022).) State courts must also “instruct the parties
7

Here, Mother informed a social worker at their first meeting 

that Mother’s family had no “Native American ancestry.” At 

her first court appearance on January 9, 2020, Mother filed an 

ICWA-020 form stating that she has “no Indian ancestry as far as 

[she] know[s].” According to a minute order regarding that hearing, 

the court determined that it “does not have a reason to know

that ICWA applies as to Mother.” Our record does not include 

a reporter’s transcript of the January 9, 2020 hearing and we 

therefore presume that the court received evidence sufficient to 

support that conclusion. (See Cal. Rules of Court, rule 8.120(b) [“[i]f 

an appellant intends to raise any issue that requires consideration 

of the oral proceedings in the superior court, the record on appeal 

must include a record of these oral proceedings in the form of” a 

reporter’s transcript, an agreed statement, or a settled statement]; 

Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“it is presumed that 

the unreported trial testimony would demonstrate the absence of 

error”].)

Mother contends that even if DCFS satisfied its duty 

of inquiry as to herself, social workers failed to also ask S.S.’s 

maternal grandmother—an “extended family member[ ]”—

about Indian ancestry. (§ 224.2, subd. (b); Cal. Rules of Court, 

rule 5.481(a)(1); see 25 U.S.C. § 1903(2) [defining extended family 

member to include grandparents].) The maternal grandmother, 

Mother points out, initiated contact with DCFS in April 2020, 

visited with S.S., and had ongoing contact with social workers, 

and yet there is no record of any ICWA-related inquiry to her.

to inform the court if they subsequently receive information that

provides reason to know the child is an Indian child.” (Ibid.)
8

Even if DCFS failed to fulfill its duty of inquiry with respect 

to the maternal grandmother, Mother has failed to show that the 

failure is prejudicial.

Social workers have no duty under federal law to ask 

extended family members about possible tribal membership. 

(In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, 

is an error of state law. (Ibid.; accord, In re Benjamin M. (2021) 70 

Cal.App.5th 735, 742 (Benjamin M.).) The usual test for prejudicial 

state law error is whether, “ ‘after an examination of the entire 

cause, including the evidence’ ” (People v. Watson (1956) 46 Cal.2d 

818, 836), we are “of the ‘opinion’ that it is reasonably probable 

that a result more favorable to the appealing party would have 

been reached in the absence of the error.” (Ibid.; see Benjamin M., 

supra, 70 Cal.App.5th at p. 742 [Watson standard applies to 

agency’s failure to comply with initial duty of inquiry under 

California’s ICWA-related law].) Although an appellant ordinarily 

has the burden of establishing prejudice (Adams v. MHC Colony 

Park, L.P. (2014) 224 Cal.App.4th 601, 614), a parent’s ability to 

make this showing based upon the record in failure-to-inquire cases 

can be problematic “when the record is inadequate because of the 

social services agency’s failure to document its inquiries.” (A.C., 

supra, 65 Cal.App.5th at p. 1070.) Some courts have addressed 

this problem by requiring an appellant who asserts a breach of the 

duty of inquiry to, at a minimum, make an offer of proof or other 

affirmative assertion of Indian heritage on appeal. (Id. at p. 1069; 

In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388; In re H.B.

(2008) 161 Cal.App.4th 115, 122; In re N.E. (2008) 160 Cal.App.4th 

766, 769; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430−1431; 

but see In re Y.W. (2021) 70 Cal.App.5th 542, 556 [a parent “does 

not need to assert he or she has Indian ancestry to show a child 
9

protective agency’s failure to make an appropriate inquiry under 

ICWA and related law is prejudicial”].) 

In Benjamin M., supra, 70 Cal.App.5th 735, our colleagues 

in the Fourth Appellate District recently rejected such a 

requirement. (Id. at p. 745.) The court considered various means 

of reviewing this issue and concluded “that in ICWA cases, a court 

must reverse where the record demonstrates that the agency has 

not only failed in its duty of initial inquiry, but where the record 

indicates that there was readily obtainable information that was 

likely to bear meaningfully upon whether the child is an Indian 

child.” (Id. at p. 744.) 

Applying Benjamin M.’s test here, we note that the maternal 

grandmother is the only person Mother identifies as a person social

workers should have asked about S.S.’s Indian ancestry.4 We thus 

need only consider whether DCFS’s failure to inquire of maternal 

grandmother was prejudicial under the Benjamin M. standard. 

We conclude that it was not. It is significant for the purposes 

of this analysis that the maternal grandmother expressed her 

desire to adopt S.S. and, with the aid of S.S.’s counsel, maternal 

grandmother sought to have S.S. placed with her. Mother’s counsel 

also requested that maternal grandmother be considered for 

placement. Under ICWA, when an Indian child is the subject of 

foster care or adoptive placement proceedings, “preference shall be 

given, in the absence of good cause to the contrary, to a placement 

with . . . [¶] . . . a member of the Indian child’s extended family.” 

(25 U.S.C. § 1915(a) & (b).) Thus, if S.S. is an Indian child, that 

fact would support the maternal grandmother’s efforts to have 

4 Mother does not contend that DCFS or the court failed to 

satisfy any duty of inquiry with respect to the paternal side of S.S.’s 

family.
10

S.S. placed with her. The maternal grandmother, Mother’s counsel,

and S.S.’s counsel, each of whom requested that the court consider 

placing S.S. with the maternal grandmother, would therefore have 

a strong incentive to bring to the court’s attention any facts that 

suggest that S.S. is an Indian child. Their failure to do so implies 

that the maternal grandmother is unaware of such facts. Requiring 

that social workers now inquire of her as to her knowledge of such 

facts, therefore, is not “likely to bear meaningfully upon whether 

the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th

at p. 744.) The social worker’s failure to make that inquiry is 

therefore harmless. 

DISPOSITION

The orders appealed from are affirmed. 

CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.