Filed 7/13/22 In re Nathalie G. CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re NATHALIE G., a Person 

Coming Under the Juvenile 

Court Law.

 B316146

 (Los Angeles County

 Super. Ct. No. 19CCJP07740)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

BRENDA M. et al.,

Defendants and 

Appellants.

APPEAL from orders of the Superior Court of Los Angeles 

County, Stacy Wiese, Judge. Affirmed.

Amy Z. Tobin, under appointment by the Court of Appeal, 

for Defendant and Appellant Brenda M.
2

Karen B. Stalter, under appointment by the Court of 

Appeal, for Defendant and Appellant Edilson Z.

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

Assistant County Counsel, and Raquel Ramirez, Deputy County 

Counsel, for Plaintiff and Respondent.

* * * * * *

Appellants Brenda M. (mother) and Edilson Z. (father) 

appeal from orders terminating parental rights over their 

daughter Nathalie (born 2019) and freeing Nathalie for adoption. 

The sole contention the parents raise in this appeal is that the 

orders must be reversed because a proper inquiry under the 

Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; 

ICWA) was not undertaken.

We affirm the juvenile court’s orders.

BACKGROUND

Detention and Welfare and Institutions Code1 section 300 

petition

On November 26, 2019, the juvenile court issued an order 

authorizing the Los Angeles County Department of Children and 

Family Services (the Department) to remove Nathalie from the 

parents based on allegations of domestic violence and substance 

abuse. The Department could not place Nathalie with the 

maternal grandmother because of the maternal grandmother’s 

admitted criminal history. Father provided no information for 

1 All further statutory references are to the Welfare and 

Institutions Code, unless stated otherwise.
3

possible placement with paternal relatives, and Nathalie was 

placed in the same foster home where she remains today.

The Department filed a section 300 petition on December 3, 

2019, alleging the parents had a history of engaging in violent 

altercations in Nathalie’s presence, and both parents had 

histories of substance abuse and were current users of 

amphetamine, methamphetamine, and marijuana. An Indian 

child inquiry attachment ICWA-010A form that accompanied the 

section 300 petition indicated that ICWA inquiries were made 

and that Nathalie had no known Indian ancestry. The form does 

not specify, however, those with whom the ICWA inquiries were 

made. The Department’s detention report stated that ICWA did 

not apply.

Both parents, the maternal grandmother, and the paternal 

grandfather were present at the December 4, 2019 detention 

hearing at which the juvenile court found father to be Nathalie’s 

presumed father. Both parents submitted a Parental Notification 

of Indian Status form, form ICWA-020, indicating they had no 

Indian ancestry to their knowledge. At the hearing, the juvenile 

court stated, “[B]oth parents indicate they have no Native 

American Heritage as far as they know. On that basis I find 

there is no reason to know the child is an Indian child within the 

meaning of ICWA, and I find that ICWA does not apply.” The 

minute order indicates the parents filed ICWA-020 forms, the 

court found no reason to know Nathalie is an Indian child, and no 

ICWA notices were ordered. The minute order further states the 

“[p]arents are to keep the Department, their Attorney, and the 

Court aware of any new information relating to possible ICWA 

status.”
4

Father’s attorney asked the Department to assess the 

paternal grandfather and paternal great aunt for placement and 

to monitor father’s visits with Nathalie. Mother’s attorney also 

asked that the Department assess any available relatives to 

monitor her visits with Nathalie. The juvenile court ordered 

Nathalie detained from mother and father and accorded both 

parents separate monitored visits. The court ordered the 

Department to assess the paternal grandfather and paternal 

great aunt for placement and visitation monitoring.

Contested adjudication and disposition hearing

The Department reported in February 2020 that mother 

was born and raised by the maternal grandparents in Los 

Angeles, California. Mother was placed in foster care as a child 

because of the maternal grandparents’ alcohol abuse and 

domestic violence.

Father was born and raised by the paternal grandparents 

in Guatemala. He emigrated to the United States when he was 

in the third grade. He met mother in 2017, had Nathalie in 2019, 

and separated from mother in November 2019 but continued to 

live with her.

The Department attempted to place Nathalie in the 

paternal grandfather’s home in May 2020 but could not do so 

because mother and father were residing in the home. The 

Department also contacted the paternal great aunt for 

placement, but the great aunt said she did not have room in her 

one-bedroom apartment for Nathalie.

At the February 3, 2020 combined adjudication and 

disposition hearing, the juvenile court sustained the allegations 

of the section 300 petition. The court granted mother 

reunification services but denied services to father because his 
5

whereabouts were unknown. Mother’s counsel asked that the 

Department assess the paternal grandfather for placement, and 

the juvenile court ordered the Department to assess all 

appropriate relatives for placement.

Review proceedings and termination of reunification 

services

In March 2021, the Department reported that mother was 

not in compliance with her court-ordered programs and continued 

to test positive for methamphetamine. Mother attended three 

visits with Nathalie between September 2020 and March 2021. 

The juvenile court terminated mother’s reunification services on 

March 22, 2021.

Section 366.26 proceedings

In August 2021, the Department reported that mother was 

in an inpatient treatment program and father was incarcerated. 

The maternal grandmother informed the Department that 

mother was pregnant and was scheduled to give birth later that 

month.

The Department further reported that the paternal 

grandfather had been assessed as not suitable for placement 

because of his criminal history and because he shared a residence 

with the parents. The maternal grandparents had also been 

assessed and not approved for placement because of their 

criminal and child welfare histories. At the request of father’s 

attorney, the juvenile court ordered the Department to assess the 

paternal grandmother and to facilitate her visits with Nathalie.

Mother gave birth to a baby boy in August 2021. The 

infant was detained in the same foster home with Nathalie.

In October 2021, the Department reported that it had 

contacted the paternal grandmother, who had been residing in 
6

the United States since June 2021. The paternal grandmother 

said that she did not have appropriate housing to have Nathalie 

placed with her, but she wanted to begin visits with Nathalie.

Mother made a video appearance at the November 1, 2021 

section 366.26 hearing. Father was present in custody. The 

juvenile court denied mother’s section 388 petition for additional 

reunification services. The court then found Nathalie was 

adoptable and that no exception to terminating parental rights 

applied. The court terminated both parents’ parental rights.

This appeal followed.

DISCUSSION

Mother and father both contend the order terminating 

parental rights must be reversed because the Department and 

the juvenile court failed to ask the reporting party, the maternal 

grandparents, and the paternal grandparents whether Nathalie 

is or may be an Indian child under ICWA. The record does not 

show that the Department fulfilled its statutory duty of initial 

inquiry by asking these persons about Nathalie’s possible Indian 

status. The failure to do so was error. We conclude, however, 

that the error was not prejudicial, given the parents’ disclaimer 

of any knowledge of Indian ancestry and the absence of any 

indication in the record that would provide a reason to believe 

that Nathalie is an Indian child. (In re Dezi C. (2022) 79 

Cal.App.5th 769.)

I. Applicable law

ICWA and related California statutes reflect the 

Legislature’s intent “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 
7

for the removal of Indian children from their families.” (25 

U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706, 

fn. 3.) An “Indian child” is defined as any unmarried person 

under the age of 18 who is either a member of an Indian tribe or 

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); Welf. 

& Inst. Code, § 224.1, subds. (a), (b).)

“Because it typically is not self-evident whether a child is 

an Indian child, both federal and state law mandate certain 

inquiries to be made in each case. These requirements are 

sometimes collectively referred to as the duty of initial inquiry.” 

(In re Benjamin M. (2021) 70 Cal.App.5th 735, 741.) “The duty to 

inquire begins with the initial contact, including, but not limited 

to, asking the party reporting child abuse or neglect whether the 

party has any information that the child may be an Indian child.” 

(§ 224.2, subd. (a).) The court and child welfare department 

“have an affirmative and continuing duty” to inquire whether a 

child for whom a petition under section 300 may be or has been 

filed may be an Indian child. (§ 224.2, subd. (a).)

Under California law, the child welfare department’s initial 

duty of 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 and where the child, the parents, or Indian 

custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the 

term “extended family member” is “defined by the law or custom 

of the Indian child’s tribe or, in the absence of such law or 

custom, shall be a person who has reached the age of eighteen 

and who is the Indian child’s grandparent, aunt or uncle, brother 
8

or sister, brother-in-law or sister-in-law, niece or nephew, first or 

second cousin, or stepparent.” (25 U.S.C. § 1903(2).)

The juvenile court must also inquire at each participant’s 

first appearance in court whether the participant knows or has 

reason to know that the child is an Indian child. (§ 224.2, subd. 

(c).) In addition, the juvenile court must instruct the parties to 

inform the court if they subsequently receive information that 

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

If the “initial inquiry creates a ‘reason to believe’ the child 

is an Indian child, then the Agency ‘shall make further inquiry

regarding the possible Indian status of the child, and shall make 

that inquiry as soon as practicable.’ ([§ 224.2], subd. (e), italics 

added.) [I]f that further inquiry results in a reason to know the 

child is an Indian child, then the formal notice requirements of 

section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to 

inquire at the first appearance whether anyone ‘knows or has 

reason to know that the child is an Indian child’]; id., subd. (d) 

[defining circumstances that establish a ‘reason to know’ a child 

is an Indian child]; § 224.3 [ICWA notice is required if there is a 

‘reason to know’ a child is an Indian child as defined under 

§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1052.)

Neither the duty of further inquiry nor the ICWA notice 

provisions are at issue here because no one contends there is 

reason to know Nathalie is an Indian child.

II. No prejudicial error

The parents’ ICWA challenge is based on the Department’s 

failure to ask the reporting party and extended family members 

(the maternal and paternal grandparents) about potential tribal 

membership. The juvenile court’s alleged dereliction of its duty is 
9

the failure to ensure a proper inquiry by the Department. The 

statutory duty to ask extended family members about a child’s 

possible Indian heritage is imposed by California law on child 

welfare agencies only. (§ 224.2, subd. (b).) Federal law imposes 

no such duty. (In re S.S. (2022) 75 Cal.App.5th 575, 581; In re 

A.C. (2021) 65 Cal.App.5th 1060, 1069.) The failure to inquire of 

extended family members accordingly is an error under state law 

only. Under California law, we may not reverse unless we find 

that error was prejudicial. (Cal. Const., art. VI, § 13; In re

Benjamin M., supra, 70 Cal.App.5th at p. 742.)

In determining whether the failure to conduct a proper 

ICWA inquiry was prejudicial, our division recently held that 

reversal is warranted only when the record indicates there was a 

“reason to believe” that the child is an Indian child. (In re 

Dezi C., supra, 79 Cal.App.5th 769.)

While appellate courts have adopted different standards, 

we, for the reasons set forth in In re Dezi C., have adopted the 

reason to believe standard.

The record in this case reveals no reason to believe that the 

child was an Indian child, and neither parent asserts that such 

information exists. Both parents filed ICWA-020 forms stating 

they had no Indian ancestry to their knowledge. Both parents, 

along with the paternal grandfather and maternal grandmother, 

appeared at the detention hearing at which the juvenile court 

found, based on the parents’ representations, that it had no 

reason to know that ICWA applied. At that hearing, the juvenile 

court asked whether any party wished to present additional 

evidence or to be heard as to detention or visitation. Both 

parents were in contact with paternal and maternal extended 

family members. Mother and Nathalie moved in to the maternal 
10

grandmother’s home at the outset of the case. Both parents lived 

in the paternal grandfather’s home at one point during the case. 

Neither parent brought to the Department’s or the juvenile 

court’s attention any additional information relevant to ICWA.

The record also shows that father was born and raised by 

the paternal grandparents in Guatemala and that he emigrated 

to the United States as a young child. The paternal grandmother 

had been in the United States only since June 2021. Given these 

facts, as well as father’s denial of any Indian ancestry, there is no 

indication that there was any reason to believe Nathalie is an 

Indian child.

On the record presented here, we cannot conclude that the 

Department’s failure to ask the maternal and paternal 

grandparents about Nathalie’s Indian ancestry was prejudicial 

error.

DISPOSITION

The orders terminating parental rights and freeing 

Nathalie for adoption are affirmed.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

ASHMANN-GERST, J.