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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 Person Coming Under the 

Juvenile Court Law.

 B329602

 (Los Angeles County

 Super. Ct. No. 21CCJP02807)

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 affirmed 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 parental 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 adequately

inquire 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 terminating 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 appropriate 

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, fn. 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 Mother 

and Father and placed her with maternal aunt Hannah A. The 

following day, DCFS filed a section 300 petition, which alleged 

Mother’s history of substance abuse and Father’s failure to 

protect C.S. endangered the child’s safety. The petition included 

an ICWA attachment stating Mother and Father were asked in 

May 2021 about potential 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 for the parents to appear.

On June 22, 2021, Father and Mother were separately 

interviewed by telephone. 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 last minute information (LMI) filed in connection with a 

June 28, 2021 hearing noted Father had a prior child services 

case in Riverside County. In that prior case, the court 

terminated Father’s parental rights to a different child in 2012 

and that child was subsequently adopted. Neither the LMI nor 
4

any other document in the record references 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 section 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 parental notification of Indian 

status 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 aware 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.

On October 12, 2021, the juvenile court held a jurisdiction 

hearing. Father was not present. Father’s attorney requested a 

continuance as counsel did not know where his client was. The 

court denied the request and asserted jurisdiction over C.S.

On December 6, 2021, the juvenile court held a contested 

disposition hearing; neither Mother nor Father appeared. A LMI

filed before the hearing informed the court that regular visitation 

was not taking place due to Mother and Father not calling or 

confirming they would attend. The parents’ cell phone numbers 

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. to 
5

the home of maternal cousin Jessica T. The child was placed 

thereafter with Jessica T.

A status review report filed May 12, 2022, indicated that 

the social worker routinely lost contact with Mother and Father,

who regularly changed their phone numbers and did not appear 

for visitation. 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 messages.

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

hearing.

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 Mother and 

Father; they did not visit C.S., and their phone numbers kept 

changing and were usually “out of service.” The report stated 

DCFS was unable to serve Mother and Father with notice of the 

section 366.26 hearing, and requested the court make a due 

diligence finding regarding DCFS’s attempts to notice the 

parents. The due diligence declaration indicated numerous

attempts to locate Mother and Father, and stated their 

whereabouts remained unknown.

A status review report filed on December 19, 2022, stated 

that Mother and Father had not had any contact with DCFS 
6

during the period of supervision, and that neither parent had 

visited C.S.

A LMI filed January 31, 2023, stated that Mother and 

Father’s whereabouts remained unknown. At a hearing on 

February 14, 2023, the juvenile court was informed Father was in 

custody. Counsel for DCFS requested a continuance of the 

section 366.26 hearing for Father to be transported to the 

hearing, for Father to sign his ICWA-020 form, and for Father to 

provide names of his relatives for ICWA inquiry. The court 

continued the hearing and 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, Father 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, 2023, maternal grandmother and maternal 

aunt Theresa H. both denied any Indian heritage in the family. 

Maternal grandmother stated she did not know Mother’s 

whereabouts but provided a cell phone number at which the 

social worker was able to speak to Mother, who again denied any 

Indian heritage.

A LMI filed on April 25, 2023, stated that Mother and 

Father continued to report no Indian ancestry.

On May 25, 2023, the juvenile court held a permanency 

planning hearing pursuant to section 366.26. No further ICWA 

findings were made at this hearing. Father was present in 

custody. The court found that C.S. was adoptable and that no 
7

exceptions applied, and terminated the parental rights of Mother 

and Father. C.S. remained placed with the prospective adoptive 

parent, 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, section 224.2, 

subdivision (b) states, in part, that “[i]nquiry includes, but is not 

limited to, asking . . . extended family members [and] others 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 recognized 

tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting

federal definitions], 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 additional 

sister (Hannah A., with whom C.S. was initially placed) who was 

not the subject of ICWA inquiry; none of Father’s relatives were 

contacted. However, as 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 reasonable 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 whether 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 particular 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 is 
9

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 

cousin. 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 ICWA 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 inquired 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 DCFS 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 family 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 absence 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 ICWArelated law].)
10

(In re D.S. (2020) 46 Cal.App.5th 1041, 1053), DCFS argues it did 

not err in failing to inquire beyond Father. For his part, Father 

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

information when Father was available.

DCFS cites opinions from other divisions of this court 

holding ICWA inquiry error harmless in the absence of some 

indication in the record that 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.5th 769, 

779, review granted Sept. 21, 2022, S275578.) As noted above, 

this division applies a different analysis of harmless error. Our 

approach assumes Father’s representation that he lacks 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. 509), 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 information 

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 for the three plus months from February 14, 2023, until the 

May 25, 2023 section 366.26 hearing when he was in custody. 
11

But during those times, nothing in the record indicates DCFS 

ever asked Father for contact information for any of his extended 

family members, much less attempted to contact them. Nor did 

the court make any order to provide contact information that 

Father defied. Despite a DCFS request, the court did not order 

Father to provide his relatives’ contact information to DCFS for 

ICWA inquiry.

The record here does not contain other information that 

would dispel concerns 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 was close enough to his extended family

that his knowledge of his ancestry, as declared in his ICWA-020 

form, is reliable.

Father asks us to reverse the termination of his parental 

rights in light 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.

apart 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 their contact information 

is reasonably available. As noted above, no further inquiry is 

necessary of maternal extended family members. The 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 notice 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 parental rights will remain in effect.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J. CHANEY, J.