Filed 8/2/22 In re Daniel C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re DANIEL C., a Person Coming 

Under the Juvenile Court Law.

_____________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

MARIA V. et al.,

Defendants and Appellants.

B315644

(Los Angeles County

Super. Ct. No. 18CCJP00018A)

APPEAL from orders of the Superior Court of Los Angeles 

County, Steff Padilla, Commissioner. Affirmed.

Gina Zaragoza, under appointment by the Court of Appeal, 

for Defendant and Appellant Maria V.

Megan Turkat Schirn, under appointment by the Court of 

Appeal, for Defendant and Appellant Daniel C.
2

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

Assistant County Counsel, Veronica Randazzo, Deputy County 

Counsel for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

Maria V. (mother) and Daniel C., Sr. (father) appeal from 

the juvenile court’s order terminating parental rights to their son, 

Daniel C., and mother appeals from an order denying her 

modification petition under Welfare and Institutions Code1

section 388. Both parents contend the orders terminating 

parental rights should be reversed because the Los Angeles 

County Department of Children and Family Services (DCFS) 

failed to comply with its duty of inquiry under state laws 

implementing the Indian Child Welfare Act of 1978 (ICWA) 

(25 U.S.C. § 1901 et seq.) because it did not ask certain extended 

family members if Daniel had Indian ancestry. Mother 

additionally asserts that the juvenile court abused its discretion 

by denying her request for increased visitation. We conclude the 

juvenile court did not abuse its discretion by finding that DCFS 

conducted an adequate ICWA investigation or by denying 

mother’s petition to change court order. We therefore will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Father’s prior dependency history.

Father has three older children with a former wife: Kaia, 

Aiden, and Jude. In 2000, the juvenile court sustained a 

dependency petition alleging that Kaia was discovered at the age 

1 All subsequent undesignated statutory references are to 

the Welfare and Institutions Code.
3

of three months to have suffered subdural hematomas with 

chronic bleeding from the brain, fractured ribs, and retinal 

hemorrhaging. Kaia was removed from her parents’ care and 

placed in a long-term guardianship.

In 2010, an allegation was substantiated that father had 

sexually abused Aiden. In 2011, a civil protective order was 

entered protecting Aiden and Jude from father for five years.

In 2016, the juvenile court sustained allegations that Aiden 

and Jude were the victims of physical abuse by father and 

domestic violence between father and their mother. 

Reunification services for father were terminated in October 

2017, and the children were placed with their mother. 

II. Present petition.

Mother and father brought three-month-old Daniel to the 

hospital in December 2017 because he had a swollen left leg. 

Doctors determined that Daniel had sustained multiple fractures, 

including to his ribs, clavicle, pelvis, and tibia, which were at 

different stages of healing. The injuries appeared to be nonaccidental and the parents were not able to explain them.

In January 2018, DCFS filed a juvenile dependency 

petition alleging that Daniel was at substantial risk of serious 

physical harm because he had suffered multiple unexplained 

fractures and his paternal half-sibling had suffered similar 

injuries at the same age (counts a-1, b-2, e-1, j-1).

2 A first 

amended petition filed in February 2018 added an additional 

allegation that Daniel had been diagnosed as failing to thrive.

2 The petition also alleged that the parents failed to obtain 

timely medical care for Daniel’s injuries. The court dismissed 

this count.
4

On January 3, 2018, the juvenile court ordered Daniel 

detained from both parents, and in late January 2018, Daniel 

was placed with his godmother, Vanessa L., who is the 

prospective adoptive parent. In May 2018, the court sustained 

counts a-1, b-1, and e-1 of the petition, and dismissed count j-1.

III. Disposition.

Mother reported that she had been raised by her mother 

and father and was an only child. Her father had died about 

15 years earlier. She has three adult children: Maria, Armando, 

and Antonio. Mother expressed surprise that Daniel’s injuries 

were being compared to Kaia’s, for which she denied father was 

responsible. Mother did not suspect that father had caused 

Daniel’s injuries.

Father said he had been removed from his parents as a 

child due to severe physical child abuse, and he had been raised, 

along with his six siblings, by his maternal uncle and aunt. His 

mother suffered from bipolar disorder and schizophrenia, and his 

parents spent time in prison for child abuse. Father believed his 

mother lived in Arizona and his father lived in Huntington Park, 

but he was not in contact with them. The uncle who raised him 

had died in 2015, and father was not in contact with his uncle’s 

wife. He was close with his brother Michael, with whom he had 

been raised. 

Father has a lengthy criminal history, including convictions 

for spousal abuse, grand theft, and burglary. He denied causing 

Daniel’s injuries but could not explain how they had happened. 

He also denied injuring Kaia, saying she had not been under his 

care when she was injured.

In April 2018, four months after Daniel was placed in foster 

care, mother and father married.
5

At the September 6, 2018 disposition hearing, the juvenile 

court denied father reunification services, concluding that he had 

injured three children and had no insight into child protection. 

Over DCFS’s objection, the court granted mother reunification 

services, telling mother: “[Y]ou have a choice today: Your baby 

or your husband. I’m sorry. That is the reality.” Mother

responded: “My baby, obviously.” The court therefore granted

mother monitored visits and ordered her to participate in

domestic violence counseling, a domestic violence support group 

for victims, and individual counseling to address case issues, 

telling mother she had “a lot of work to do to show me [you’re] not 

going to that let that man, that father, into this child’s life until 

he does a whole lot of work.” Father was also granted monitored 

visits, but mother and father were not to visit together.

IV. Subsequent events; termination of parental rights.

Following the September 2018 disposition hearing, Vanessa 

told a children’s social worker (CSW) that mother had said she 

had no intention of ending her relationship with father and 

intended to resume seeing him after the case was over.

In early January 2019, mother claimed father had moved 

out of her home and was living with his brother Michael. The 

following month, however, the CSW observed father’s truck 

parked in front of mother’s house and saw father leave mother’s 

home in the early morning. The same month, the CSW noted 

that mother’s Facebook profile included a picture of father, and 

mother had recently posted a picture of the family together on 

New Year’s Day.

In November 2019, mother reported that she was no longer 

seeing father and they were divorced. However, photographs and 
6

text messages between mother and father indicated they were 

still romantically involved.

In December 2019, DCFS reported that mother had 

completed her court-ordered services and was voluntarily 

participating in individual therapy, but she had not been 

forthcoming about her continued relationship with father. DCFS

therefore recommended that mother’s reunification services be 

terminated.

In January 2020, the CSW was told that mother and father 

recently had been seen together at a community event. The CSW 

spoke with a waitress at the restaurant where the event was 

held, who confirmed mother and father had been there together 

and had spent an hour kissing “like . . . teenagers.” Father 

confirmed he had been at the restaurant on that date, but he 

denied mother was with him. The waitress subsequently 

reported that she had received a phone call from someone who 

claimed to be representing the C. family and threatened she 

would be harmed if she appeared at a hearing.

In May 2020, police were called to mother’s residence

because of an altercation between father and mother’s adult son, 

Antonio. Antonio said father had yelled profanities at his sister, 

Maria, after she inadvertently opened a DCFS report that 

described why Daniel had been removed from the parents. When 

Antonio told father not to speak to his sister that way, father 

grabbed Antonio around the neck, injuring him, and mother 

kicked Antonio and Maria out of the house. Both Antonio and 

Maria told DCFS that father had never moved out of mother’s 

house and had rented a room elsewhere only to deceive the court. 

Both siblings separately told DCFS they supported Daniel 
7

remaining with his caregiver because they did not believe mother 

would protect Daniel from father.

On September 22, 2020, the trial court terminated mother’s 

reunification services, finding that mother was not in compliance 

with the case plan due to her continued contact with father. The 

court found that mother had consistently chosen father over 

Daniel and would continue to do so in the future.

V. Denial of mother’s section 388 petition; termination 

of parental rights.

Mother filed a request to change court order pursuant to 

section 388 in March 2021. Mother asked that her reunification 

services be reinstated and Daniel be returned to her care or, in 

the alternative, that her visitation be increased. Mother asserted 

that circumstances had changed because she had completed her 

case plan and “made significant personal changes and 

improvements” which would allow her to properly parent and 

protect her child. She further asserted that the proposed change 

would be in Daniel’s best interests because he was deeply bonded 

to mother and wanted to return to her care. 

DCFS reported that mother had consistently participated 

in virtual visits with Daniel, but he acted out during visits by 

walking away from the phone or covering his face. Once, he 

threw the caregiver’s phone on the floor and broke it. During a

virtual visit observed by the CSW, Daniel said hello to mother 

and then ran away. When the caregiver tried to redirect him 

back to the phone, he screamed, threw himself on the floor and 

kicked, said, “No, no, no,” and again ran away from the phone.

DCFS further reported that although mother had filed for 

divorce from father in August 2019, the matter was taken off 
8

calendar when mother did not appear. Notices sent to mother in 

June and December 2020 said the divorce was incomplete.

At a September 21, 2021, hearing, the court found that 

mother had not demonstrated a substantial change of 

circumstances or that the relief she requested was in Daniel’s 

best interests. It therefore denied mother’s section 388 petition.

On October 5, 2021, the court terminated mother’s and 

father’s parental rights to Daniel. Both parents timely appealed.

VI. ICWA inquiry.

On December 17, 2017, the CSW signed under penalty of 

perjury an Indian Child Inquiry Attachment (ICWA-010) stating 

that an Indian child inquiry had been made and Daniel “has no 

known Indian ancestry.”

On January 3, 2018, both parents signed ICWA-020 forms 

denying Indian ancestry. The forms stated: “To the parent, 

Indian custodian, or guardian of the above-named child: You 

must provide all the requested information about the child’s 

Indian status by completing this form. If you get new 

information that would change your answers, you must let your 

attorney, all the attorneys on the case, and the social worker or 

probation officer, or the court investigator know immediately and 

an updated form must be filed with the court.”

The same day, the court noted on the record, in the 

presence of several members of the extended family, that it had

received parents’ ICWA-020 forms indicating no Indian ancestry.

3 

3 It is not entirely clear from the record which members of 

the extended family were present in the courtroom. Minor’s 

counsel stated that there were “quite a bit of relatives” in the 

courtroom, including the paternal aunt, paternal cousin, adult 
9

It therefore found “no reason to know or believe that the child is 

an Indian child as that term is defined by the Indian Child 

Welfare Act.” The January 3, 2018 minute order states: “The 

Court does not have a reason to know that this is an Indian 

Child, as defined under ICWA, and does not order notice to any 

tribe or the BIA. Parents are to keep the Department, their 

Attorney and the Court aware of any new information relating to 

possible ICWA status. JV-020, the Parental Notification of 

Indian Status, is signed and filed.”

At the disposition hearing, and again at the termination 

hearing, the court found that Daniel was not an Indian child and 

ICWA did not apply.4

sibling, paternal grandmother, and godmother. Mother’s counsel 

then made a “correction,” stating that the people present were 

the maternal grandmother, maternal aunt, maternal half-sibling, 

and godmother. The same day, relative caretaker information 

sheets were filled out by the maternal grandmother, maternal 

half-sister Maria, paternal uncle Michael, godmother Vanessa, 

and neighbor Anita D.

4 The jurisdiction/disposition report says that the parents 

denied Indian ancestry on “1/16/17.” Since the case was not 

opened until December 2017, the date is clearly in error. It is 

likely the inquiry was made sometime between December 27, 

2017, when the referral was received, and December 29, 2017, 

when the CSW represented in the ICWA-010 form that an Indian 

child inquiry had been made and Daniel had no known Indian 

ancestry.
10

At various times during the proceedings, DCFS spoke to 

the maternal grandmother, maternal half-sister Maria, paternal 

uncle Michael, and a paternal aunt, Diane.5

DISCUSSION

Mother contends the juvenile court abused its discretion by 

denying her section 388 petition, and both parents contend that 

the court failed to ensure that DCFS made an adequate ICWA 

inquiry. We disagree.

I. The juvenile court did not abuse its discretion by 

denying mother’s section 388 petition.

Section 388 permits parents to petition the juvenile court 

for modification of any order based upon changed circumstances. 

(§ 388; In re Marilyn H. (1993) 5 Cal.4th 295, 308–309.) To be 

entitled to modification, the parent must demonstrate both 

changed circumstances and that the proposed change is in the

child’s best interests. (In re Alayah J. (2017) 9 Cal.App.5th 469; 

Cal. Rules of Court, rule 5.570(a), (e).) We review the denial of a 

section 388 petition for an abuse of discretion. (In re Mia M. 

(2022) 75 Cal.App.5th 792, 806; In re D.P. (2022) 76 Cal.App.5th 

153, 163.)

Mother’s section 388 petition requested that her 

reunification services be reinstated and Daniel be returned to her 

care or, in the alternative, that mother be permitted increased 

5 Paternal aunt Diane C. contacted DCFS in early 2020 to 

get information about the proceedings and to request that Daniel 

be placed with her. She said she had learned about the juvenile 

court proceedings through a sibling, but would not provide the 

sibling’s name. 
11

visitation. On appeal, mother does not contend the court should 

have restored her reunification services, returned Daniel to her 

care, or increased her visitation, but instead urges the trial court 

abused its discretion by failing to ensure that mother received inperson, rather than virtual, visitation.

Below, mother had in-person visits from the case’s 

inception until the beginning of the Covid-19 pandemic, at which 

time she began visiting virtually through FaceTime. Mother 

reportedly was comfortable with virtual visits and did not ask 

that in-person visits be resumed. Further, mother’s counsel did 

not suggest, at either the September 20, 2020 hearing at which 

mother’s reunification services were terminated, or at the 

September 2021 hearing on mother’s section 388 petition, that 

services had been inadequate because mother had not been 

permitted in-person visits. Manifestly, the juvenile court did not 

abuse its discretion by rejecting an argument mother did not 

make. (See, e.g., In re Marriage of Falcone & Fyke (2008) 

164 Cal.App.4th 814, 826 [appellate courts “ ‘are loath to reverse 

a judgment on grounds that the opposing party did not have an 

opportunity to argue and the trial court did not have an 

opportunity to consider’ ”].) 

Nor did the juvenile court abuse its discretion by 

concluding that mother had not demonstrated changed 

circumstances or that the proposed changes were in Daniel’s best 

interests. Mother asserted in her petition that circumstances had 

changed because she had completed her case plan and regularly 

visited with Daniel, and that the proposed change was in his best 

interests because he was deeply bonded to her. In fact, mother’s 

completion of court-ordered services was not a change of 

circumstance: DCFS reported in December 2019––nearly nine 
12

months before the juvenile court terminated mother’s 

reunification services––that mother had completed her courtordered services. DCFS nonetheless recommended that mother’s 

reunification services be terminated because mother had 

demonstrated a lack of protective capacity by continuing to be in 

a relationship with father. The court agreed, noting when it 

terminated mother’s services that “[m]other will always choose 

the father over the baby.” Mother did not contend in her section 

388 petition that she had ended her relationship with father, and 

thus she failed to make a prima facie case of changed 

circumstances.

There was, moreover, substantial evidence before the court 

that Daniel was not bonded to mother. DCFS reported that 

Daniel consistently acted out during virtual visits with mother, 

running away from the phone, covering his face, and throwing 

the caregiver’s phone on the floor. There is no evidence that 

Daniel asked for mother between visits or said that he missed 

her. On this record, therefore, the juvenile court did not abuse its 

discretion by denying mother’s section 388 petition.

II. Substantial evidence supported the juvenile court’s 

finding that ICWA did not apply.

A. ICWA.

ICWA was enacted “ ‘to protect the best interests of Indian 

children and to promote the stability and security of Indian tribes 

and families by the establishment of minimum Federal standards 

for the removal of Indian children from their families and the 

placement of such children in foster or adoptive homes which will 

reflect the unique values of Indian culture . . . .’ [Citation.]” 
13

(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. 

§ 1902.) 

“[T]he burden of coming forward with information to 

determine whether an Indian child may be involved . . . in a 

dependency proceeding does not rest entirely—or even 

primarily—on the child and his or her family.” (In re Michael V.

(2016) 3 Cal.App.5th 225, 233.) Rather, “[j]uvenile courts and 

child protective agencies have ‘an affirmative and continuing 

duty to inquire’ whether a dependent child is or may be an Indian 

child.” (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11; 

§ 224.2, subd. (a).) An “Indian child” is “any unmarried person 

who is under age eighteen and is either (a) a member of an 

Indian tribe or (b) 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); see also § 224.1, subd. (a) [adopting federal 

definition of “Indian child”].) 

This affirmative duty to inquire has several elements. If a 

child is removed from his or her parents and placed in the 

custody of a county welfare department, the department has a 

duty to inquire whether a child is an Indian child. Such inquiry 

“includes, but is not limited to, 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

. . . .” (§ 224.2, subd. (b).) The court also must make an ICWA 

inquiry when the parents first appear in court: 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” (§ 224.2, subd. (c)), and must require each party to 

complete California Judicial Council Form ICWA-020, Parental 
14

Notification of Indian Status (Cal. Rules of Court, rule 

5.481(a)(2)(C)).

If the court or social worker has “reason to believe that an 

Indian child is involved in a proceeding,” the court or social 

worker must “make further inquiry regarding the possible Indian 

status of the child” by, among other things, interviewing the 

parents and extended family members, and contacting any tribe 

that may reasonably be expected to have information about the 

child’s membership, citizenship status, or eligibility. (§ 224.2, 

subd. (e)(2).) There is “reason to believe” a child involved in a 

proceeding is an Indian child whenever the court or social worker 

“has information suggesting that either the parent of the child or 

the child is a member or may be eligible for membership in an 

Indian tribe.” (§ 224.2, subd. (e)(1).)

If the agency’s inquiry creates a “reason to know” that an 

Indian child is involved, notice of the proceedings must be

provided to the parent, legal guardian, or Indian custodian and 

the child’s tribe. (§ 224.2, subd. (f).) There is “reason to know” a 

child is an Indian child if any one of six statutory criteria is 

met—e.g., if the court is advised that the child “is an Indian 

child,” the child’s or parent’s residence is on a reservation, the 

child is or has been a ward of a tribal court, or either parent or 

the child possess an identification card indicating membership or 

citizenship in an Indian tribe. (§ 224.2, subd. (d).) Thereafter, 

the court shall confirm that the agency used due diligence to 

identify and work with all of the tribes of which there is reason to 

know the child may be a member, or eligible for membership, to 

verify whether the child is in fact a member or whether a 

biological parent is a member and the child is eligible for 

membership. (§ 224.2, subd. (g).) A determination by an Indian 
15

tribe that a child is or is not a member of, or eligible for 

membership in, that tribe “shall be conclusive.” (§ 224.2, 

subd. (h).)

If the juvenile court finds that “proper and adequate 

further inquiry and due diligence as required in this section have 

been conducted and there is no reason to know whether the child 

is an Indian child,” the court may make a finding that ICWA does 

not apply to the proceedings, “subject to reversal based on 

sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)

B. Standard of review.

As noted above, section 224.2, subdivision (i)(2) sets out two 

statutory predicates to a juvenile court’s finding that ICWA does 

not apply. First, the court must determine whether there is 

“reason to know” whether the child is an Indian child. Second, 

the court must decide whether a “proper and adequate further 

inquiry and due diligence as required in this section have been 

conducted.” If the court finds an adequate inquiry has been 

conducted and there is no reason to know a child is an Indian 

child, “the court may make a finding that the federal Indian 

Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) does not 

apply to the proceedings.” (§ 224.2, subd. (i)(2).)

The first element––whether there is reason to know 

whether the child is an Indian child––requires the juvenile court 

to determine, based on the evidence before it, whether any one of 

six statutory criteria is met—e.g., (1) the court has been advised 

that the child “is an Indian child,” (2) the child’s or parent’s 

residence is on a reservation, (3) any participant in the 

proceeding informs the court that it has discovered information 

indicating the child is an Indian child, (4) the child gives the 

court reason to know that he or she is an Indian child, (5) the 
16

child is or has been a ward of a tribal court, or (6) either parent or 

the child possess an identification card indicating membership or 

citizenship in an Indian tribe. (§ 224.2, subd. (d).) If none of 

these six factors is met, the court must make a finding that there 

is no reason to know the child is an Indian child. Because this 

determination is fundamentally factual, we review it for 

substantial evidence. (In re Ezequiel G. (2022) __ Cal.App.5th __, 

2022 WL 3009914, *7 (Ezequiel G.); In re Josiah T. (2021) 

71 Cal.App.5th 388, 401; In re D.F. (2020) 55 Cal.App.5th 558, 

565.) In other words, we “should ‘not reweigh the evidence, 

evaluate the credibility of witnesses, or resolve evidentiary 

conflicts,’ ” but should uphold the lower court’s determinations 

“ ‘if . . . supported by substantial evidence, even though 

substantial evidence to the contrary also exists and the trial court 

might have reached a different result had it believed other 

evidence.’ ” (In re Caden C. (2021) 11 Cal.5th 614, 640; In re J.N. 

(2021) 62 Cal.App.5th 767, 774; In re Noe F. (2013) 

213 Cal.App.4th 358, 366.)

The second element––whether a “proper and adequate 

further inquiry and due diligence as required in this section have 

been conducted”––is somewhat different. Deciding whether an 

inquiry was “adequate” and an agency acted with appropriate 

diligence requires more of a court than simply applying a 

statutory checklist to undisputed facts. Instead, it requires the 

court to “engage in a delicate balancing” (see In re Caden C., 

supra, at p. 640) to assess whether an ICWA inquiry was 

appropriate and sufficient in light of the facts of a particular case. 

In short, the statute directs the juvenile court to perform a 

quintessentially discretionary function, and thus we review it for 
17

abuse of discretion. (In re Ezequiel G., supra, 2022 WL 3009914, 

at *7.) 

If we conclude that the trial court erred in finding that an 

adequate ICWA inquiry was conducted, we will return the case to 

the juvenile court only if the error was prejudicial––that is, if 

“the record contains information suggesting a reason to believe 

that the child may be an ‘Indian child’ within the meaning of 

ICWA, such that the absence of further inquiry was prejudicial to 

the juvenile court’s ICWA finding.” (In re Dezi C. (2022) 

79 Cal.App.5th 769, 779.) As our colleagues in Division Two have 

recently explained, this test is “outcome focused,” asking whether 

“it is reasonably probable that an agency’s error in not conducting 

a proper initial inquiry affected the correctness (that is, the 

outcome) of the juvenile court’s ICWA finding,” and remanding 

only in those cases “in which the record gives the reviewing court 

a reason to believe that the remand may undermine the juvenile 

court’s ICWA finding.” (Id. at pp. 781–782, italics added.) 

C. The juvenile court did not prejudicially err in 

finding that ICWA did not apply.

Although both parents denied Indian ancestry below, they 

contend on appeal DCFS’s failure to make an ICWA inquiry of

the children’s extended family members was reversible error. We 

disagree. 

First, substantial evidence unquestionably supported the 

juvenile court’s finding that there is no reason to know that 

Daniel is an Indian child. DCFS made an initial ICWA inquiry 

before filing the petition and attached to the petition an ICWA010 form attesting that an Indian child inquiry had been made 

and Daniel had no known Indian ancestry. Subsequently, both 

parents signed ICWA-020 forms in which they stated, under 
18

penalty of perjury, that they did not have Indian ancestry. At no 

point––including now, on appeal––has either parent suggested 

these responses were inaccurate, and no member of Daniel’s 

extended family has ever told DCFS that Daniel has Indian 

ancestry. Accordingly, all the evidence before the juvenile court 

required the conclusion that there was no reason to know Daniel 

is an Indian child.

Second, the juvenile court did not abuse its discretion in 

concluding that DCFS conducted an adequate inquiry. In 

reviewing a juvenile court’s ICWA findings for abuse of 

discretion, the key question for a reviewing court is whether the 

ICWA investigation has reliably answered the question at the 

heart of the ICWA inquiry: Whether a child involved in a 

proceeding “is or may be an Indian child” (§ 224.2, subd. (a))––

that is, whether he or she either (a) “is a member of an Indian 

tribe” or (b) “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, subd. (4); see also § 224.1, subds. (a) & (b).) In other 

words, the focus of the court’s analysis is not on the number of 

individuals interviewed, but on whether the agency’s ICWA 

inquiry has yielded reliable information about a child’s possible 

tribal affiliation. (In re Ezequiel G., supra, 2022 WL 3009914, at 

*9.) 

As we recently have explained, “ICWA does not apply 

simply based on a child or parent’s Indian ancestry.” (In re 

Ezequiel G., supra, 2022 WL 3009914, at *9, citing U.S. Dept. of 

Interior, Bureau of Indian Affairs, Guidelines for Implementing 

the Indian Child Welfare Act (Dec. 2016) (BIA Guidelines), p. 10

<https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2

-056831.pdf> [as of July 29, 2022], archived at 
19

<https://perma.cc/SH5E-HQBN>.) Instead, the definition of 

“Indian child” is “based on the child’s political ties to a federally 

recognized Indian Tribe, either by virtue of the child’s own 

citizenship in the Tribe, or through a biological parent’s 

citizenship and the child’s eligibility for citizenship.” (Indian 

Child Welfare Act Proceedings, 81 Fed.Reg. 38795 (June 14, 

2016) (BIA ICWA Proceedings), italics added.) In other words, an

Indian child is one with a tribal affiliation, not merely Indian 

ancestry.

“Tribal citizenship (aka Tribal membership) is voluntary 

and typically requires an affirmative act by the enrollee or her 

parent.” (BIA ICWA Proceedings, supra, 81 Fed.Reg. 38783, 

italics added.) Specifically, “Tribal laws generally include 

provisions requiring the parent or legal guardian of a minor to 

apply for Tribal citizenship on behalf of the child. [Citation.] 

Tribes also often require an affirmative act by the individual 

seeking to become a Tribal citizen, such as the filing of an 

application. [Citation.] As ICWA is limited to children who are 

either enrolled in a Tribe or are eligible for enrollment and have 

a parent who is an enrolled member, that status inherently 

demonstrates an ongoing Tribal affiliation.” (Ibid., italics added; 

see also BIA Guidelines, supra, at p. 10 [“Most Tribes require 

that individuals apply for citizenship and demonstrate how they 

meet that Tribe’s membership criteria.”].) Because membership 

in an Indian tribe therefore requires that an individual or his or 

her parent apply for tribal membership, a child’s parents will, in 

most cases, be a reliable source of information for determining 

whether a child is an Indian child. 

In the present case, nothing in the record gives us reason to 

doubt the accuracy of mother’s denial of a tribal affiliation. 
20

Mother had been raised by her parents and continued to live with 

her mother (the maternal grandmother) at the time of the 

detention hearing. Thus, the possibility that mother might 

unknowingly be a member of a tribe appears trivially small. 

Additionally, mother’s mother (the maternal grandmother) and 

mother’s grown daughter were present at the courtroom when the 

juvenile court stated that both parents had denied having any 

Indian heritage, and neither contradicted mother’s report or 

offered different information. Accordingly, the juvenile court did 

not abuse its discretion by concluding that DCFS conducted an 

adequate ICWA inquiry as to mother.

Father presents a closer question: He had been removed 

from the custody of his parents when he was a child and, at the 

time of these proceedings, he was not in touch with his own 

mother or father. We therefore cannot be as certain as we are in 

mother’s case that father was fully knowledgeable about his own 

ancestry. We nonetheless conclude that the juvenile court did not 

abuse its discretion by finding that DCFS conducted an adequate 

ICWA inquiry as to father. First, although father was removed 

from his parents as a child, he, along with his six brothers and 

sisters, were raised by his uncle, not in foster care. Because 

father therefore remained connected to his extended family into 

adulthood, we believe it highly unlikely that father might 

unknowingly be a tribal member. Moreover, even were we to 

conclude that further inquiry into father’s ancestry was 

warranted, the juvenile court record does not suggest there were 

any members of father’s extended family who were both 

reasonably available to DCFS and likely to have had relevant 

information about the family’s ancestry. Father was not in 

contact with his parents, was not certain where they lived, and 
21

did not provide DCFS with their names or contact information. 

Father’s uncle, who had raised him, had died, and father did not 

identify any of his parents’ siblings (if they had any) who were 

still living. Father also did not identify any living grandparents. 

The only member of father’s family for whom he had contact 

information, his brother Mark, had been raised by the same uncle 

who raised father, and thus he was unlikely to have any different 

information about the family’s ancestry than father did. 

For all of these reasons, we see no reasonable avenue by 

which DCFS could have obtained any additional information 

about father’s theoretical tribal membership. We note, moreover, 

that neither father nor mother challenged DCFS’s ICWA inquiry 

or the juvenile court’s ICWA findings below, when they could 

have been readily corrected. We therefore conclude that the 

juvenile court did not abuse its discretion by finding that DCFS 

had conducted an adequate ICWA inquiry as to father. (See, e.g., 

In re A.M. (2020) 47 Cal.App.5th 303, 323 [agency’s failure to 

interview maternal relatives was reasonable where mother could 

not provide information about maternal relatives and no 

maternal relative appeared at any hearing or participated in the 

matter]; In re K.M. (2009) 172 Cal.App.4th 115, 119 [where child 

protective agency “attempted on several occasions to elicit further 

information from the child’s family, but was unsuccessful due to 

the family’s hostility” toward the agency, the agency “did all that 

can or should be reasonably expected of it to meet its obligation to 

the child, to the family, to the tribes and to the court.”].) 

For all the same reasons, even if the juvenile court erred by 

finding DCFS’s inquiry adequate, that error was not prejudicial

because it is not “reasonably probable that an agency’s error in 

not conducting a proper initial inquiry affected the correctness 
22

(that is, the outcome) of the juvenile court’s ICWA finding.” (In re 

Dezi C., supra, 79 Cal.App.5th at p.781, italics added.) As we 

have said, nothing in the juvenile court record gives us a reason 

to doubt the accuracy of the parents’ denial that they or their 

children were members of or eligible for membership in an Indian 

tribe, and neither parent has made a proffer on appeal that he or 

she has Indian heritage. Further, even were we to send the 

matter back, there appear to be no persons reasonably available 

to DCFS who are likely to provide relevant information. No 

remand therefore is warranted.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

I concur:

EGERTON, J.
1

LAVIN, J., Concurring and Dissenting: 

I agree that the juvenile court did not abuse its discretion

by denying mother’s petition under Welfare and Institutions

Code section 388. In my view, however, the juvenile court erred

by finding that the Department of Children and Family Services’

inquiry under the Indian Child Welfare Act (ICWA) (25 U.S.C. 

§ 1901 et seq.) and related state laws implementing ICWA (Welf. 

& Inst. Code, § 224 et seq.) was adequate, and that error was 

prejudicial. (See, e.g., In re Antonio R. (2022) 76 Cal.App.5th 421,

431 [“By requiring the Department to inquire of a child’s 

extended family members as to the child’s possible Indian 

ancestry, the Legislature determined that inquiry of the parents 

alone is not sufficient.”]; In re A.R. (2022) 77 Cal.App.5th 197,

207 [a rule requiring reversal in all cases where ICWA 

requirements have been ignored is consistent with the 

recognition that parents are effectively acting as surrogates for 

the interests of Native American tribes].)

LAVIN, J.