Filed 5/25/ 22 In re King A. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re KING A

. ,

a P erson Coming Under the Juveni le Court Law. B315030

(Los Angeles County Super. Ct. No. 18LJJP00322 )

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ALEXUS S

. ,
Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County , Susan Ser

, Judge

. Affirmed

. Emery El Habiby , under appointment by the Court of Appeal, for Defendant and Appellant.2 Dawyn R. Harrison

, Acting County Counsel

, Kim Nemoy, Assistant County Counsel, and Stephen Watson , Deputy County Counsel, for Plaintiff and Respondent.

——————————
A lexus S. (Mother) appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions
Code sectio n 366.26. 1 Mother ’ s sole contention on appeal is that
the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its duty under state law implementing the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq .) to inquire of unspecified extended family
members whether her child, King

, may be an Indian child

. (See § 224.2.) We agree with DCFS that any such failure was not prejudicial and, on that basis, affirm the court ’ s order.

BACKGROUND 2

A.A. ( Father) is not a party to this appeal.
DCFS received two referrals in April 2018 relating to K ing

, who was three years old at the time : the first arose out of a n instance of domestic violence involving Mother and her then

boyfriend, and the second referral was made by Father, who alleged that M other used drugs in K ing ’s presence and neglected

1 All subsequent undesignated statutory references are to the Welfare and Institutions Code.

2 Because the sole issue on appeal is compliance with the state statute implementing ICWA, a detailed recitation of the

non

- ICWA related background is not necessary to the resolution of this appeal.3

him

. After M other was arrested for vandalizing maternal grandmother’s home, DCFS sought a removal order. DCFS filed a juvenile dependency petition under
section 300, subdivision (b), alleging that Mother has a history of violent and assaultive behaviors and a history of substance
abuse. In the ICWA

- 010 form dated May 21, 2018, which was appended to the petit ion, the social worker reported that K ing had no known Indian ancestry based on in

- person discussions with Father on May 1, 2018

, and with Mother on May 15, 2018
, in which both parents denied any Indian ancestry. At this point,
Mother was still living wit h maternal grandmother. In a statement of cause in support of K ing ’s removal from Mother, a social worker also reported that Father “denied ICWA by signing
the DCFS 5649.” Father and Mother subsequently filed ICWA

020 forms

, and both stated

, “I have no Indian ancestry as far as I
know.” On May 23, 2018, the juvenile court held the detention hearing. Mother and Father were present. The court noted that both parents had reported no known Indian ancestry and found that ICWA was not implicated in the case. The court found a prima facie case for detaining K ing from Mother and released
him to Father. The court’s minute order informed Mother and Father that they were “to keep the Department, their [a] ttorney and the [c] ourt aware of any new infor mation relating to possible
ICWA status. ” On July 24, 2018, DCFS filed another juvenile dependency petition

, alleg ing domestic violence between Mother and Father
and that Father allowed Mother to have unlimited access to K ing in violation of juvenile court orders. M aternal step

- grandmother4

was identified as a potential caretaker for K ing

, 3 and he was ultimately placed with her. DCFS also filed a detention report on that day which noted : “On 5/23/18

, the [c] ourt stated ‘ the [c] ourt does not have a reason to know that this is an Indian child, as
defined under ICWA. ’ ” A jurisdiction/disposition report filed on September 12
, 2018 contained a similar statement regarding ICWA. The report
also reflected that DCFS had interviewed maternal step

grandmother

, maternal grandfather

, and paternal grandmother. There is no indication in the report that any of these individuals

was asked about the possible Indian ancestry of K ing . The report
also indicates that a social worker was attemp ting to get in contact with a paternal aunt and paternal uncle. In March 2019, K ing was re

- placed from maternal step

grandmother’s home to maternal grandmother’s home. At a hearing on July 17, 2019, the court terminated
reunification services for Mother du e to her nonexistent progress. A last minute information for the court filed on the day of the hearing stated that Mother had resided with maternal grandfather in January 2019. Status and interim reports filed in September 2018, May 2019, July 2019, and D ecember 20 19 all stated that the juvenile court had concluded that ICWA did not apply. However, a detention report filed August 14, 2020 stated that “[ t ] he Indian

3 Because maternal grandfather did not initially pass the criminal clearance, he and maternal step

- grandmother made “a ‘sacrifice’ by living separately” to allow K ing to be placed with maternal step

- grandmother. The maternal grandfather “submitted for the proper clearance” and was ultimately approved as a caregiver.5

Child Welfare Act does or may apply. The maternal grandmother denied knowing if child [K ing ] had Indian ancestry. Parents did
not make themselves available to meet with [the children’s social worker] in person and complete the DCFS form 5649.” 4 This report was filed following allegations of general neglect against maternal grandmother in connection with the death of K ing ’s
infant brother who was also in maternal grandmother’s care. The report identified maternal aunt as a relative to consider for placement. The subsequent stat us report filed on August 19, 2020 once again stated that the court had found that ICWA did not apply in May 2018, as did a jurisdiction/detention report filed September 21, 2020. The jurisdiction/detention report identified several extended family member s as possible placements for
K ing , including maternal aunt

, maternal grandfather

, and maternal step

- grandmother. The report indicates that a social
worker spoke with each of these individuals but does not reflect
that the social worker asked them about th e Indian ancestry of
the child. On September 28, 2020, maternal grandmother filed a form

r equest to c hange c ourt o rder seeking K ing ’s return to her home following his removal. In the portion of the form regarding information about Mother and Father, mater nal grandmother left the line reading “Indian tribe ( if applicable and known )” blank.
At the 18

- month review hearing on October 7, 2020, the juvenile court also terminated Father’s reunification services.

4 This claim is contradicted elsewhere in the record

. For example, as noted above , a social worker had reported that Father “denied ICWA by signing the DCFS 5649.”6

Father testified at this hearing that he was livin g with paternal grandmother.
The “ 366.26 WIC ” report filed January 26, 2021 again stated that “[t]he Indian Child Welfare Act does not apply” and
referenced the juvenile court’s May 2018 order. This report also
indicated that maternal uncle and his girlfriend and maternal grandfather and maternal step

- grandmother had come forward and were being assessed by DCFS as possible placements

. The report does not state that DCFS asked any of these individuals
whether K ing may have Indian ancestry. K ing was ultimately placed with maternal grandfather and maternal step

grand mother on February 25, 2021. A status review report filed March 19, 2021 noted again
that the court had found that there was no reason to know that
K ing was an Indian child and that no noti ce had been given to any tribe. The report also stated that a social worker had attempted to assess other relatives for placement, including a paternal aunt and paternal uncle. The paternal aunt had failed to provide identification when asked in November 2020 and January 2021. In March 2020, paternal uncle had informed a
social worker that “he did not want any part of DCFS” and
refused to meet with a social worker , and he also refused to provide his date of birth or an identification card. The report al so stated that maternal uncle and his girlfriend were still in the process of being assessed. A status report filed May 20, 2021 again stated that the
court had found that there was no reason to know that K ing is an
Indian child. The report noted that K in g had been placed with maternal grandfather and maternal step

- grandmother and appeared to be doing very well in the home. It further stated that7

m aternal grandfather and maternal step

- grandmother had informed DCFS that they were committed to adopting K ing

. DCFS recommended that the juvenile court terminate parental rights to allow for adoption planning. On August 31, 2021, the juvenile court held the permanency planning hearing. Mother was present by phone and
Father did not attend. The cou rt stated that it had “no reason to know that [K ing ] is an Indian child

. ” It further found that adoption was in the best interests of K ing and terminated Mother and Father’s parental rights. Mother timely appealed.

DISCUSSION
Under California law implemen ting ICWA, “the child welfare agency and the juvenile court have a statutory initial duty to inquire into whether a child is, or may be, an Indian
child.” ( In re Darian R. (2022) 75 Cal.App.5th 502, 507, fn. omitted.) This “[i]nquiry 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 chil d, the parents, or
Indian custodian is domiciled.” (§ 224.2, subd. (b), italics added.) DCFS does not dispute that it failed to interview members
of K ing ’s extended family concerning his possible status as an Indian child, other than maternal grandmother. DCFS’s failure to do so was error. Whether we reverse depends up on whether this error was prejudicial. ( In re Benjamin M. (2021) 70 Cal.App.5th 735, 742.) In the cases decided after Benjamin M.

, we have concluded prejudice exists when DCFS fails to conduct an initial inquiry of extended family members if the record8

discloses that there was readily obtainable information that was likely to bear meaningfully upon whether a child is an Indian child. ( In re A.C. (2022) 75 Cal.App.5th 1009, 1017; In re S.S. (2022) 75 Cal.App.5th 575, 582.) As we describe below, there is no prejudice here

. Mother does not identify any specific family member who
should have been asked about K ing ’s Indian status or identify anyone in K ing ’s family f rom wh om further inquiry might have yielded information that was likely to bear meaningfully upon
whether K ing is or may be an Indian child

. We consider whet her DCFS’s failure to inquire was prejudicial with respect to the extended family members
mentioned in the record

. In addition to asking both Mother and Father, who denied having any Indian ancestry, the record show s that DCFS asked maternal grandmother about Indian ancestry

, and she indicated that she was not aware of any. Further , in a form r equest to c hange c ourt o rder filed by maternal grandmother, in which she sought K ing ’s return to her home following his remov al, there was a line stating

, “Indian tribe ( if applicable and known ),” which maternal grandmother left blank.
M aternal grandfather sought clearance to have K ing placed
in his home and is seeking to adopt K ing with maternal step

grandmother. As this court observed in In re S.S.

, supra , 75 Cal.App.5th 575, because preference is given to placing an Indian child with extended family both for fostering and adoption (25 U.S.C. § 1915(a) & (b)), there is a strong incentive to bring to the court’s attention any f acts suggesting that a child is an Indian
child. Nonetheless, the maternal grandfather and maternal step

grandmother did not so do

.9 The record indicates that maternal aunt and maternal
uncle were also considered for placement. However, a s neither maternal grandmother nor maternal grandfather disclosed knowledge of any Indian ancestry, it is speculative to assume
that their children would have information their parents did not. Turning to K ing ’s extended paternal family members

, there
is no indicat ion in the record that DCFS asked any extended paternal relatives about their Indian ancestry

. However, Father affirmatively represented on multiple occasions that he had no Indian ancestry. That paternal grandmother, aunt or uncle would have provided an y different information is again speculative. The record suggests that paternal aunt and uncle may not have been forthcoming with information even if asked

. The social worker spoke with paternal aunt twice and asked her to provide identification so that she could be assessed, which she did not provide. Paternal uncle stated that “he did not want any part of DCFS ” and refused even to provide his date of birth or
identification to a social worker

. Furthermore, both Mother and Father were instructed to provide new information relevant to ICWA to DCFS and the juvenile court. Notwithstanding the advisement, the length of the proceedings, and that at times during the proceedings Mother lived with maternal grandmother and maternal grandfather, respectively, and Father lived with paternal grandmother

, neither Mother nor Father advised the court of any additional information about Indian ancestry.
Mother asserts that In re Y.W. (2021) 70 Cal.App.5th 542 compels reversal here. We disagree. In Y. W. , the mother was adopted at age two
, and DCFS failed to make meaningful efforts
to locate and interview her biological family, even after her10

adoptive mother “ blazed a new trail of ICWA information: She had access to knowledge about [ the mother’s] biolo gical family the Department could have obtained with a phone call or email .” ( Id. at pp. 548, 553

– 555.) Y.W. is similar to In re A.C.

, supra , 75 Cal.App.5th 1009, in which the “ mother was the product of foster care and thus may not have known her cultural heritage ,” but “[t]h e same may not have been true of her biological relatives

. ” ( A.C.

, at pp. 1015

- 1016.) In light of this

, and the fact that one detention report indicated that the child could have Indian ancestry, we held that we could not “c o nclude from this equivocal
record that DCFS ’ s failure to conduct any inquiry as to [the]
mother and father ’ s extended family members was not prejudicial .” ( Id. at p. 1016

. ) Mother does not point to any facts in the record that would
indicate that she or F ather lack a relationship with their biological families or knowledge of their cultural heritage.
Rather , Mother and Father easily “could have asked about potential Indian ancestry” while staying with family. ( In re
Darian R.

, supra , 75 Cal.App.5th at p. 504 [no prejudice arose from failure to ask extended family about Indian ancestry where mother lived with extended family members and both parents eschewed Indian ancestry] .) Although there is a detention report in the record that

states “[ t ] he Indian Child Welfare Act does or may apply,” it explained that the reason for uncertainty was because Mother and Father purportedly “did not make themselves available to
meet with [the children’s social worker ] in person and complete
the DCFS form 5649. ” The record elsewhere contradicts this

statement

. Two years prior to that detention report, DCFS completed an ICWA

- 010 form that reported that the child had no11

known Indian ancestry based on a social worker’s in

- person discussions with Father and Mother ; a social worker reported to
the court that Father “denied ICWA by signing the DCFS 5649”;
and Father and Mother both filed ICWA

- 020 forms stating “I have no Indian ancestry as far as I know.” We therefore find that this statement does not create an “equ ivocal record” as in In re
A.C.

, supra , 75 Cal.App.5th at p age 10 16

. “T he record simply does not support mother ’ s unvarnished
contention that additional interviews .

. . would have meaningfully elucidated ” K ing ’s Indian ancestry. ( In re Darian
R.

, supra , 75 Cal.App.5th at p. 510.) DCFS’s failure to interview
members of K ing ’s extended family was therefore harmless

. DISPOSITION

The order terminating parental rights is affirmed

. NOT TO BE PUBLISHED

MORI

, J

. *

We concur:

ROTHSCHILD , P. J.

BENDIX , J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuan t to article VI, section 6 of the California Constitution.