Filed 8/19/22 Michelle A. v. Superior Court CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MICHELLE A.,

 Petitioner,

 v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

 Respondent;

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Real Party in Interest.

 B313452

 (Los Angeles County Super. 

 Ct. No. 19CCJP08094A-B)

 
2

ORIGINAL PROCEEDINGS in mandate. Daniel Zeke 

Zeidler, Judge. Petition denied.

Megan Turkat Schirn, under appointment by the Court of 

Appeal, for Petitioner. 

No appearance for Respondent.

Dawyn R. Harrison, Acting County Counsel, and Kim 

Nemoy, Assistant County Counsel, for Real Party in Interest.

* * * * * *

Michelle A. (mother) petitions for extraordinary relief 

pursuant to California Rules of Court, rule 8.452. She seeks 

review of the juvenile court’s order terminating her reunification

services at the 18-month review hearing. She argues that the 

order is defective because the juvenile court did not comply with 

the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1900 et seq.) 

(Welf. & Inst. Code, § 224.2, subd. (b)). Although the juvenile

court and Department may have committed error under ICWA, 

their noncompliance was harmless because there is no “reason to 

believe” that the further inquiry mother identifies would lead to a 

different result. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 779

(Dezi C.).) We deny the petition.

FACTS AND PROCEDURAL BACKGROUND

I. The Family

Mother has two children with her estranged husband 

Henry A. (father)—Travis A. (born August 2007), and Ethan A. 

(born April 2010). 
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II. The Dependency Proceedings, Generally

In November 2019, mother had allowed the maternal 

grandparents to have custody of Travis and Ethan. Father was 

living separately in Nevada. When mother came to visit the kids, 

she left methamphetamine and a “meth pipe” at their house and 

within their reach. By that time, mother and father had been 

using methamphetamine for more than 20 years. 

On December 19, 2019, the Los Angeles Department of 

Children and Family Services (the Department) filed a petition 

requesting the juvenile court exert dependency jurisdiction over 

Travis and Ethan based on the detrimental home environment

and mother’s substance abuse. 

At the jurisdictional hearing in February 2020, the juvenile 

court sustained all of the allegations pursuant to Welfare and 

Institutions Code, section 300, subdivision (b)(1),1 removed the

children from mother as well as nonoffending father, and ordered 

the Department to provide both parents with reunification 

services. 

After receiving reunification services, the juvenile court at 

the 18-month review hearing in June 2021 found that mother’s 

progress with her case plan was not “substantial” and terminated 

her reunification services. The court continued father’s 

reunification services and set the matter for a section 366.25 

review hearing on November 30, 2021. On our own motion (Evid. 

Code, §§ 452, subd. (d), 459, subd. (a)), we take judicial notice of 

the juvenile court’s November 30, 2021, and July 12, 2022 minute 

orders, terminating reunification services for father, and ordering 

a permanency planning hearing (§ 366.26) on October 13, 2022.

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated. 
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III. ICWA-related facts

At the outset of the proceedings in juvenile court, mother 

and father could not be located, and maternal grandmother and 

her husband—with whom the children were living at the time—

told the Department that the children had no known Indian 

ancestry in their families. After mother and father were 

subsequently located, both they each filled out written ICWA-020 

forms attesting that each had “no Indian ancestry as far as [they

knew].” At the detention hearing, the juvenile court asked the 

maternal grandmother if she had Indian heritage; she reported 

she had none.2

Based on this inquiry, the juvenile court expressly found 

that it had no reason to believe that the children were “Indian 

children.” 

IV. Appeal

Mother filed an appeal from the order terminating her 

reunification services in June 2021. This was premature because 

the juvenile court had yet to set a permanency planning hearing.

The juvenile court has since scheduled such a hearing, which 

triggered mother’s entitlement to petition for extraordinary relief. 

We construe mother’s appeal as a petition for extraordinary relief 

pursuant to California Rules of Court, rule 8.452 and consider its

merits.

V. Postfiling events

While this proceeding has been pending, the juvenile court

ordered the Department to conduct further inquiries into the 

Indian heritage of Travis and Ethan, and on the basis of those 

2 Although the maternal stepgrandfather reported some 

Indian heritage, he is not biologically related to the children at 

issue in this case.
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inquiries turning up no further information, made express 

findings that there was no reason to believe that either child was 

an “Indian child.” The Department asks us to take judicial notice 

of these proceedings in deciding the pending matter. We decline 

to do so (and concomitantly deny the Department’s motion to 

dismiss) because we can resolve this matter without resort to this 

additional information; we therefore have no occasion to take a 

position on the propriety of doing so. 

DISCUSSION

Mother argues that the order terminating her reunification 

services must be reversed because the Department failed to 

discharge their initial inquiry duties under ICWA and related 

California law to ask “extended family members” and “others who 

have an interest in the [children]” whether the children may be 

Indian children and thus entitled to the special protections 

afforded by ICWA. (§ 224.2, subds. (b) & (c).) The Department 

does not dispute that there were extended family members and 

nonrelatives involved in the children’s lives that it failed to 

question. Because there is no question that the Department 

erred in conducting its initial inquiry, our role in determining

whether substantial evidence supports the juvenile court's ICWA 

findings turn on whether those errors are harmless. (In re 

Benjamin M. (2021) 70 Cal.App.5th 735, 740, 742 (Benjamin M.),

citing Cal. Const., art VI, § 13.)

I. Governing Law

ICWA was enacted to curtail “the separation of large 

numbers of Indian children from their families and tribes 

through adoption or foster care placement.” (Mississippi Band of 

Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) To that 

end, under the ICWA and the corresponding statutes the 
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California legislature enacted to implement it (§§ 224 -224.6), the

juvenile court and the Department have duties aimed at 

assessing whether a child in a dependency action is an “Indian 

child.” (§§ 224.2, 224.3, added by Stats. 2018, ch. 833, §§ 5, 7.) 

An “Indian child” is a child who (1) is “a member of an Indian 

tribe,” or (2) “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, subd. (a) [adopting federal 

law definition].) By its terms, this definition turns “‘on the child's 

political affiliation with a federally recognized Indian Tribe,’” not 

“necessarily” “the child's race, ancestry, or ‘blood quantum.’” (In 

re Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.), quoting 

81 Fed.Reg. 38801-38802 (June 14, 2016).)

Under ICWA as amended, the Department and juvenile 

court have “three distinct duties.” (In re D.S. (2020) 46 

Cal.App.5th 1041, 1052 (D.S.) [noting amendment's creation of 

three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884 

[same].) Only the first duty is at issue here: The initial “duty” of 

the Department and the juvenile court is “to inquire whether [a] 

child is an Indian child.” (§ 224.2, subds. (a) & (b).) The 

Department discharges this duty by “asking” family members 

“whether the child is, or may be, an Indian child.” (Id., subd. (b).) 

This includes inquiring of not only the child's parents, but also 

others, including but not limited to, “extended family members.” 

(Ibid.) For its part, the juvenile court is required, “[a]t the first 

appearance” in a dependency case, to “ask each participant” 

“present” “whether the participant knows or has reason to know 

that the child is an Indian child.” (Id., subd. (c).)

Should an appellate court conclude that the juvenile court did 

not comply with its duty of initial inquiry under ICWA, the 
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court's next task is to evaluate whether its noncompliance was 

prejudicial. (Benjamin M., supra, 70 Cal.App.5th at pp. 740, 

742.) In Dezi C., we recently held that a deficiency in the 

discharge of ICWA’s initial duty of inquiry is prejudicial only if 

the juvenile court record or evidence proffered by the appealing 

party on appeal indicates “a reason to believe” that the child may 

be an Indian child. (Dezi C., supra, 79 Cal.App.5th at p. 779.) 

For example, a reviewing court would have “reason to believe” 

the Department’s error was prejudicial if the record indicates 

that someone reported possible American Indian heritage and the 

Department never followed up on that information; if the record 

indicates that the Department never inquired into one of the 

biological parents’ heritage at all (e.g., Benjamin M., at p. 740); or 

if the record indicates that one or both of the parents is adopted 

and hence their self-reporting of “no heritage” may not be fully 

informed (e.g., In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016

(A.C. 2022)). 

II. Analysis

The record in this case does not provide a “reason to 

believe” that Travis and Ethan are Indian children. Mother,

father, and the maternal grandmother each unequivocally denied

that they had any Indian heritage. These denials came from the 

people most likely to know the ancestry of the children—namely, 

their biological parents and their caregiver. Mother points to 

nothing else in the juvenile court’s record indicating that there is 

any reason to believe that she, father, or either child themselves

had any Indian heritage. And mother makes no proffer of 

additional evidence that would point to a reason to believe that

either child has any such heritage. As such, substantial evidence 
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supports the juvenile court’s ruling terminating mother’s 

parental rights.

Resisting this conclusion, mother argues that the 

Department’s failure to ask the paternal grandfather about his 

heritage and to ask the maternal grandmother about the heritage 

of her former husband amounts to reversible error. We reject this

argument because mother offers no explanation as to how either 

of the two individuals mother identifies for the first time on 

appeal had any information as to the children’s ancestry that 

would contradict or supplement the information provided by 

mother, father, and the maternal grandmother. Nor does the 

record reveal any reason to believe that those individuals would 

have such information. Mother implies that the information that 

these individuals would relay in interviews was “readily 

available,” and hence constitutes prejudice under the test 

articulated in Benjamin M. (Benjamin M., supra, 70 Cal.App.5th 

at p. 744; In re Darian R. (2022) 75 Cal.App.5th 502, 509-510), 

but we have rejected Benjamin’s approach in Dezi C. (Dezi C.,

supra, 79 Cal.App.5th at pp. 785-786.)

Because neither the record nor any evidence proffered by 

mother creates a reason to believe the children may be Indian 

children, mother has not carried her burden. 
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DISPOSITION

The petition for extraordinary relief is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ