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., Person s Coming Under the Juvenile Court Law.

_________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES

, Plaintiff and Respondent,

v.

E.S.

, Defendant and Appellant

. B3 1 4043

(Los Angeles County Super. Ct. No. 19 CCJP0 7836 )

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 ) appeal s from the juvenile court’s order terminating her parental right s under Welfare and Institutions
Cod e 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 dut ies 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

.

FACT UAL AND PROCEDURAL SUMMARY 2 Shortly before midnight on December 3, 2019, a police
officer observed M other pushing a stroller with her four

- month

- old daughter, S.S.

, inside

. It w as 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 M other 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, M other told a social worker that S.S.’s
father was Manuel R

. , who ha s custody of three other children the

two had toge ther

. The social worker asked M other if there were
other relatives who could be contacted and assessed as a relative caregiver, and M other answered , “[N] o. ” Mother also “ denied
Native American a ncestry 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 fathe r 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 soci al 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 vis i tation 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

. O n December 16, 2019 , a social worker spoke with Mother by telephone

. The social worker as ked 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 jurisdictio n/ disposition report filed on January 9, 2020, DCFS reported that Mother ’s whereabouts were unknown and she
had not made hers elf available for an interview. A search for S.S.’s
father was “ unsuccessful .” The report further note d Mother ’s denial4

of Native American ancestry and state d that the ICWA “does not apply.” On January 9, 2020, Mother was present in court for the
firs t and only time in this case

. She filed a parent al 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 c hild, as defined under ICWA, and d o es not order notice to any tribe of the [Bureau of Indian Affairs]

. Parents are to keep [D CFS] , their a ttorney and the c ourt aware of any

new information relating to possible ICWA status. ICWA

- 020,
the p arental n otification of I ndian s tatus [form,] is signed and filed.
The c ourt 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 proceeding s

. 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 abuse r o f illegal substances, which renders her incapable of providing regular care for S.S. During the combined jurisdiction and disposition hearing

on January 30, 2020 , t he court found the amended petition’s allegation s true
, declared S.S. a dependent of the co urt , and
removed her from Mother ’s custody

. S.S. continued to be placed
with her foster parent.5 In April 20 20, S.S.’s maternal grandmother contacted
DCFS to ask about visits with her

. She also stated that she was
interest ed 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 di d not respond to this request. At
th e conclusion of th at 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, t he maternal grandmother told a social worker that Mother had been living with
her before S.S.’s birth and thereafter until a fe w 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 c hild and

“ recommended that the c ourt 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
M other ’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 pare ntal 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

re porting 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 comm encement 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 m ust also “instruct the parties7 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 a n 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 supe rior court, the record on appeal must include a record of these oral proceedings in the form o f ” a reporter’s transcript, an agreed statement, or a settled statement ] ; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [ “ i t 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 h ad 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. (20 21) 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 d uty 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 prob lem by requiring an appellant who assert s 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. 10 69; 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 child9

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
indicate s 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 identifie s 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 Be n jamin 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 gra ndmother be considered for placement. Under ICWA, when an Indian child is the subject of
foster care or adoptive placement proceeding s, “ 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 res pect 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 who m 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 impl ies
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 affirm ed

. CERTIFIED FOR PUBLICATION

.

R OTHSCHILD, P. J. We concur:

CHANEY, J.

BENDIX, J.