Filed 12/13/23 In re C.S . 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 C.S

. ,

a Perso n Coming Under the Juvenile Court Law. B32 9602

(Los Angeles County Super. Ct. No. 21 CCJP0 2807)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

BRENDAN S

. ,
Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong , Judge Pro Tempore

. Conditionally a ffirmed and remanded with directions

.2 Jack A. Love , under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew , Deputy County Counsel, for Plaintiff and Respondent

.

_____________________ Appellant Brendan S

. ( Father ) challenges the juvenile

court ’s order terminating his par ental rights to his daughter C.S.
pursuant to Welfare and Institutions Code section 366.26

. 1 The child’s mother B.I. ( Mother )

, who also had her parental rights
terminated

, is not a party to this appeal. Father argues we should reverse because the juvenile court failed to adequate ly inquir e whether C.S. was an Indian child as defined by the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) 2 before terminatin g his parental rights. Although we find
no reversible error with the ICWA inquiry of Mother’s extended family members, there was no attempt to inquire of any paternal extended family members. We therefore conditionally affirm the termination of parental rights, and remand for appropria te efforts to make ICWA inquiry of extended paternal family
members.

1 Further unspecified statutory references are to the Welfare and Institutions Code.

2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” ( In re Benjamin M

. (2021) 70 Cal.App.5th 735, 739, f n. 1.)3 FACTUAL AND PROCEDURAL BACKGROUND
As this appeal involves only ICWA

- related issues, we limit our factual and procedural summary accordingly. On June 15, 2021, pursuant to a court

- issued removal order and protective custody warrant

, the Los Angeles County Department of Children and Family Services (DCFS) removed C .S. from M other
and F ather and placed her with maternal aunt Hannah A

. The following day, DCFS filed a section 300 petition, which alleged
M other’s history of substance abuse and F ather’s failure to protect C .S. endangered the child’s safety. The petition included
an ICWA attachment stating M other and F ather were asked in May 2021 about potent ial Indian ancestry and neither parent gave the social worker any reason to believe C .S. was an Indian
Child. On June 21, 2021, the juvenile court held an initial hearing

, at which neither parent was present. The court deferred any ICWA

- related findings f or the parents to appear. On June 22, 2021, Father and Mother were separately
interviewed by telephon e

. During her interview, Mother indicated she has three siblings. During his interview, Father
mentioned that he was raised by his mother in Southern
California and has two sisters and two brothers. There is no
indication either parent was re

- asked about Indian heritage during these June 22, 2021 interviews , or that DCFS requested contact information for any of the parents’ family members

. A l ast m inute i nformation (LMI) filed in connection with a June 28, 2021 hearing noted Father ha d a prior child services case in Riverside County. In that prior case, the court terminated Father’s parental rights to a different ch ild in 2012 and that child was subsequently adopted. Neither the LMI nor4

any other document in the record reference s any ICWA findings from that prior matter. On June 28, 2021, the juvenile court found that ICWA did not apply. On July 28, 2021, the secti on 300 petition was amended to include an allegation about Father having a prior dependency case due to neglect

, and Mother and Father made their first court

appearances. Both parents filed a p arental n otification of I ndian

s tatus form (ICWA

- 020) stating they had no Indian ancestry.
Father did not sign his form. The juvenile court noted its receipt
of the ICWA

- 020 forms on the record, found that ICWA did not apply, and advised the parents to keep their attorneys, DCFS,
and the court aw are of any new information relating to possible
ICWA status. At no point in any later proceedings did Father, Mother, or their counsel make DCFS or the court aware of any

new ICWA

- related information.
O n October 12, 2021 , t he juvenile court held a jurisdiction hearing . F ather was not present. Father’s attorney requested a
continuance as counsel did not know where his client was . T he court denied the request and asserted jurisdiction over C.S

. On December 6, 2021, the juvenile court held a contest ed disposition hearing ; neither Mother nor F ather appear ed

. A LMI
filed before the hearing informed the court that regular visitation was not taking place due to M other and F ather not calling or confirming they would attend

. The parents’ cell phone numbe rs constantly changed, and DCFS was unaware where Mother and
Father were residing. At a court hearing on January 31, 2022, at which Father was not present, Father’s counsel indicated he had no direction from Father regarding a DCFS recommendation to move C.S. to5

the home of maternal cousin Jessica T. The child was placed
thereafter with Jessica T.
A s tatus r eview r eport filed May 12, 2022 , indicated that the social worker routinely lost contact with M other and F ather, who regularly changed their phone numbers and did not appear
for visit ation

. The parents provided the social worker with over

14 contact numbers during the review period. The social worker
further noted the numbers provided often did not accept text or
voicemail messa ges. On July 14, 2022, the juvenile court held a contested review hearing at which neither Mother nor Father appeared

. Father’s
counsel indicated he did not know where Father was

. The court
terminated reunification services and set a section 366.26
heari ng. A section 366.26 report filed on October 12, 2022

, indicated
that maternal cousin and caregiver Jessica T. (who said she was in frequent contact with extended maternal family members )
denied Mother’s family had any Indian ancestry and said C .S.
was not an Indian child. The report also noted the social worker
continued to struggle to maintain contact with M other and
F ather ; they did not visit C.S.

, and their phone numbers kept chang ing and were usually “out of service. ” The report stated
DCFS wa s unable to serve M other and F ather with notice of the
section 366.26 hearin g, and requested the court make a due diligence finding regarding DCFS’s attempts to notice the parents. The due diligence de claration indicated num erous attempts to locate M other and F ather

, and stated the ir

w hereabouts remained unknown.
A s tatus r eview r eport filed on December 19, 2022
, stated
that M other and F ather had not had any contact with DCFS6

during the period of supervision, and th at neither pare nt had
visited C .S.
A LMI filed January 31 , 2023
, stated that M other and
F ather ’s whereabouts remained unknown. At a hearing on February 14, 2023

, the juvenile court was informed F ather was in custody. Counsel for DCFS requested a continuance of the section 366.26 hearing for F ather to be transported to the hearing, for F ather to sign his ICWA

- 020 form , and for F ather to provide names o f his relatives for ICWA inquiry. The court continued the hearing an d ordered the “ parents’ counsel to make
best efforts to ensure their clients sign an ICWA

- 020 form.” The

court was silent with regard to DCFS’s request that the court
order Father to provide contact information for his relatives for
ICWA inquiry , and entered no such order

. At the continued hearing on February 22, 2023, F ather was present in custody. The court again continued the matter and ordered DCFS to prepare an updated report on its ICWA inquiries. On April 13, 202 3, maternal grandmother and maternal

aunt Th eresa H. both denied any Indian heritage in the family.
M aternal grandmother stated she did not know M other’s whereabouts but provided a cell phone number at which the social worker was able to speak to M other, who again denied any Indian heritage.
A LMI filed o n April 25 , 2023
, stated that M other and
F ather continued to report no Indian ancestry. On May 2 5 , 2023, the juvenile court held a permanency planning hearing pursuant to section 366.26

. No further ICWA findings were made at this hearing

. F ather was present in custody. The court found that C .S. was adoptable and that no7

exceptions applied

, and terminate d the parental rights of Mother
and Father

. C.S. remained placed with the prospective adoptive

p arent, maternal cousin Jessica T

. Father timely appealed.

DISCUSSION
The juvenile court and DCFS “have an affirmative and continuing duty to inquire whether a child for whom a [section 300] petition .

. . has been filed, is or may be an Indian child.” 3 (§ 224.2, subd. (a).) This “duty to inquire begins with the initial

contact ” by DCFS. ( Ibid .) Additionally, s ection 224.2, subdivision (b) states, in part, that “[i]nquiry includes, but is not limited to, asking

. . . extended family members [and] oth ers who
have an interest in the child

. . . whether the child is, or may be,
an Indian child

. . . .” 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 [18] and who is the Indian child’s grandparent, aunt or uncle, brother 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 record here indicates that both Mother and Father have extended family members who were not contacted by DCFS

3 An “Indian child” is an unmarried person under 18 years of age who is (1) a member of a federally recognized Indian tribe or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally reco gnized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [ adopting federal definition s ] , subd. (b) [ expanding the age range stated in the federal definition to include persons over 18, but under 21, years of age] .)8

about Indian heritage

. Mother at a minimum had an addition al
sister (Hannah A., with whom C.S. was initially placed) who was not the subject of ICWA inqu i ry; none of Father’s relatives were
contacted. However, a s prior decisions make clear, in the view of
our division

, DCFS’s failure to inquire of extended family
members does not result in automatic reversal. (See In re Adrian
L . (2022) 86 Cal.App.5th 342 ; In re A.C. (2022) 75 Cal.App.5th
1009 ; In re S.S. (2022) 75 Cal.App.5th 575; In re Darian R. (2022)
75 Cal.App.5th 502.) Rather, we have generally evaluated the
record to determine whether “ ‘the probability of obtaining meaningful information is reason able in the context of ICWA.’ ” ( In re Darian R

., supra , at p. 509, quoting In re Benjamin M.

, supra , 70 Cal.App.5th at p. 744.) Information available from extended family members must be both “readily obtainable,” and “likely to bear meaningfully upon w hether the child is an Indian child.” ( In re Benjamin M.

, supra , at p. 744.) In making this determination, we have rejected “a wooden approach to prejudice” ( In re A.C.

, supra , at p. 1017) and refused to require further inquiry when, based upon the parti cular circumstances presented by the record, it is apparent “that additional information would not have been meaningful to the inquiry” ( In re Benjamin M.

, supra , at p. 743; see, e.g., In re S.S.

, supra , at p. 582). 4

4 Because federal law does not impose a duty on social workers to inquire of extended family members about tribal affiliation, any error would be under state law

. ( In re Benjamin M.

, supra , 70 Cal.App.5th at p. 742 ; In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The usual test for prejudicial state law error is whether, “ ‘after an examination of the entire cause, including the evidence

, ’ ” we are “of the ‘opinion’ that it is9 Nothing in the record suggests that further inquiry of maternal extended family members would have produced additional information that would bear meaningfully on whether
C.S. was an Indian child. DCFS obtained information from Mother, maternal grandmother, a maternal aunt, and a maternal

c ousin. All uniformly indicated Mother’s family had no Indian ancestry. Further, maternal cousin indicated that maternal family members remained in contact with one another, such there is no reason to expect that extended family members not asked about IC WA would have new or different information about Native American ancestry. While Father faults these inquiries for being “made at the end of the case” instead of earlier, they were indisputably made before the court terminated Father’s parental rights and nothing suggests the answers would
have differed if DCFS had inquire d earlier in the case. Thus, any alleged inadequacy in the ICWA inquiry of maternal extended family members was harmless

. Turning to paternal extended family members, the record
shows DC FS made no inquiry of C.S.’s paternal relatives beyond
Father. Both sides blame the other for this failure. DCFS faults
Father’s unavailability during most of the dependency proceedings and his failure to volunteer contact information for

any extended fa mily members for any inadequacy in its inquiry. Noting ICWA does not require it “to ‘cast about’ for information”

reasonably probable that a result more favorable to the appealing party would have been reached in the absen ce of the error.” ( People v. Watson (1956) 46 Cal.2d 818, 836; see In re Benjamin M.

, supra , at p. 742 [ Watson standard applies to agency’s failure to comply with initial duty of inquiry under California’s ICWA

related law].)10

( In re D

. S. ( 2020) 46 Cal.App.5 th 1041, 1053), DCFS argues it did not err in failing to inquir e beyond Father. For his part, F ather asserts he was available at the beginning of the proceedings and again after he was in custody

. He further notes the record does
not indicate that DCFS ever asked for his relatives’ contact
informatio n when Father was available

. DC FS cites opinions from other divisions of this court holding ICWA inquiry error harmless in the absence of some
indication in the record th at Father’s disclaiming of Indian ancestry was unreliable. (See, e.g., In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1015 ; In re Dezi C . (2022) 79 Cal.App. 5 th 769, 779, review granted Sept. 21, 2022, S2 75578 .) As noted above, this division applies a different analysis of harmless error. Our approach assumes Father’s representation that he lack s Indian ancestry is not sufficiently reliable to support a finding of harmless error unless something else in the record corroborates
it , such as findings in an earlier proceeding ( In re Darian R.

, supra , 75 Cal.App.5th at p. 5 09), or circumstances suggesting an extended family member would have come forward with information about Indian ancestry had they any ( In re S.S.

, supra , 75 Cal.App.5th at p. 582).
Such evidence is absent here. Father’s unavailability during most of the proceedings undoubtedly made things more
difficult for DCFS

. But we cannot go so far as to say i nformation from extended family members was not “readily obtainable” ( In re Benjamin M.

, supra , 70 Cal.App.5th at p. 744) , because Father indisputably was available during the June 22, 2021 interview
when he mentioned several extended family members to DCFS

, and f or the three plus months f rom February 14, 2023

, until the May 2 5 , 2023 section 366.26 hearing when he was in custody

.11

But during those times , nothing in the record indicate s DCFS
ever ask ed Father for contact information for any of his extended family members , much less attempt ed to contact them

. Nor did
the court make an y order to provide contact information that
Father defied . D espite a DCFS request, the court did not order Father to provide his relatives’ contact information to DCFS for ICWA inquiry

. T he record here does not contain other information that would dispel concer ns about ICWA’s application. It is not the case that some but not all of Father’s extended family members were contacted; none were

. No paternal family member was requesting custody , and thus incentivized to declare any Indian ancestry. The record does not contain any ICWA findings from the earlier dependency case involving Father. Father was raised by his mother, but there is little information regarding Father’s relationship with his mother, siblings, or others who might know of their heritage. Thus, there is insufficient information to
reassure us that Father w as close enough to his extended famil y that his knowledge of his ancestry, as declared in hi s ICWA

- 020 form, is reliable.
F ather ask s us to reverse the termination of hi s parental rights in li ght of the ICWA inquiry error. The better course, in our view, is to conditionally affirm the order terminating parental rights. ( In re Antonio R. (2022) 76 Cal.App.5th 421, 436; In re
Y.W. (2021) 70 Cal.App.5th 542, 559.) A conditional affirmance of the termination order limits the juvenile court’s authority to modify that order (see § 366.26, subd. (i)(1)), which reduces the chance of further delays in establishing permanency for C.S.

apa rt from the remaining required ICWA inquiry.12 We do not intend for DCFS to turn over every possible stone to investigate C.S .’s heritage, merely that DCFS make
reasonable efforts to interview Father’s extended family members, as defined by ICWA, provided t heir contact information
is reasonably available

. As noted above, no further inquiry is necessary of maternal extended family members. T he record

, however, does not allow us to conclude further inquiry of paternal extended family members is not possible or would not disclose
useful information regarding C.S .’s heritage on Father’s side of the family

. DISPOSITION
The order terminating parental rights is conditionally
affirmed. We remand for DCFS and the juvenile court to comply with the inquiry and notic e provisions of ICWA and California law consistent with this opinion. If the court finds C.S. is an Indian child, it shall conduct further proceedings in compliance
with ICWA and related California law. If not, the court’s original order terminating pare ntal rights will remain in effect.

NOT TO BE PUBLISHED

WEINGART , J.

We concur:

ROTHSCHILD, P. J. CHANEY, J.