Filed 7/19/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re J.W., a Person Coming 

Under the Juvenile Court Law.

_______________________________

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES, 

Plaintiff and Respondent,

v.

JESSICA W., 

Defendant and Appellant.

B313447

Los Angeles County Super.

Ct. No. 17CCJP02230A

APPEAL from an order of the Superior Court of Los 

Angeles County, Craig S. Barnes, Judge. Affirmed.

Linda J. Vogel, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Veronica Randazzo, Deputy 

County Counsel, for Plaintiff and Respondent.

_______________________
2

Mother Jessica W. appeals the juvenile court’s order 

terminating her parental rights to daughter J.W (born 2008). 

She does not challenge the basis of the termination of her rights. 

Her sole contention is that the Los Angeles Department of 

Children and Family Services (DCFS) did not comply with its 

initial duty of inquiry under Welfare and Institutions Code 

section 224.2, subdivision (b).1 Specifically, Mother acknowledges 

she denied Indian heritage, but she contends DCFS failed to ask 

maternal extended family members whether J.W. is an “Indian 

child” within the meaning of Section 1903 of the federal Indian 

Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.)

We find the juvenile court erred in determining that ICWA 

did not apply without evidence that DCFS questioned extended 

family members despite having contact with those same family 

members. However, we conclude the error was harmless because 

J.W. was placed for adoption with her maternal grandmother. As 

a second ground, we find no prejudice because there was nothing 

in the record to suggest that J.W. had Indian heritage or that 

mother’s denial of Indian heritage was uninformed or incorrect.

BACKGROUND

In December 2017, DCFS filed a section 300 petition 

alleging nine-year-old J.W. was placed at substantial risk of 

serious harm when Mother allowed a registered sex offender to 

live in the family home with unlimited access to J.W. J.W.’s halfbrother is a former dependent of the court, having been adopted 

by maternal grandmother in 2009.

1 Undesignated statutory references are to the Welfare and 

Institutions Code.
3

When the petition was filed on December 4, 2017, the

whereabouts of Mother and J.W. were unknown. On December 5, 

the juvenile court ordered J.W. detained and issued a protective 

custody order for her and an arrest warrant for Mother. The 

Detention Report includes a cursory statement, “The Indian 

Child Welfare Act does not apply.” Six months later, on June 1, 

2018, Mother contacted DCFS. On June 6, 2018, J.W. was 

present in court, detained, and placed with her maternal uncle 

and aunt.

On August 13, 2018, Mother and the alleged father were 

present in court (father is not a party to this appeal). Each filed 

Parental Notification of Indian Status forms stating no known 

Indian ancestry. The juvenile court found no reason to know 

J.W. was an Indian child and advised those present to keep it

apprised of any new information relating to possible ICWA 

status. The court found father to be an “alleged” father only and 

set visitation for Mother only. It continued the adjudication 

hearing to August 24, 2018. On August 24, the juvenile court 

sustained the petition as interlineated and dismissed father from 

the proceedings based on his “alleged” father status.

At the dispositional hearing on September 28, 2018, DCFS 

recommended no reunification services because Mother had failed 

to reunify with J.W.’s half-brother. The court found J.W. to be a 

dependent of the court, extended her placement with maternal 

aunt and uncle, and granted Mother reunification services, 

finding reunification was in J.W.’s best interests because J.W. 

was “close to her mother, and . . . she very much wants to 

reunify.” The court noted that at the jurisdictional hearing, the 

minor “presented as very sad that she was being removed from 
4

her mother, and . . . it did appear to me that she is very close to 

and attached to her mother.”

At the six-month and 12-month reviews, the juvenile court 

found Mother’s progress with her case plan “appropriate” and “in 

partial compliance.” On January 24, 2020, Mother asked for an 

extension of services because Mother was homeless. Counsel for 

J.W. joined in the request because J.W. was bonded closely with 

Mother. DCFS continued to recommend termination of 

reunification services for Mother. Expressing concern about how 

disappointed J.W. would be if Mother failed to reunify, the court 

found Mother’s progress not substantial. Nevertheless it 

extended reunification services and granted Mother’s request for 

a visitation schedule as she was driving to and from Arizona 

where she had relocated.

In March 2020, J.W. was placed with her maternal 

grandmother. In November 2020, J.W. said she wanted to stay 

with her grandmother and did not want her mother in her life 

any longer. When J.W. told Mother this during a telephone call, 

Mother told her, “don’t ever call me again.” J.W. told her social 

worker that she had given “up on mother trying” and wanted to 

be adopted. She said “maybe later” she would be open to a 

relationship with her mother.

At the November 17, 2020 disposition hearing, DCFS 

recommended that reunification services be terminated because 

Mother had received more than 18 months of services and her 

housing instability was a barrier to reunification. Mother asked 

the court to release J.W. to her and permit J.W. to live 

temporarily with maternal grandmother until Mother got settled 

in California. Mother had secured a job and completed her case 

plan. Mother made a personal statement to the court. She said 
5

J.W. was living with her half-brother and maternal grandmother 

and living with family members “feels like home to her.” The 

juvenile court found Mother had “substantially complied” with 

her case plan, but found she had made insufficient progress. The 

court terminated reunification services.

At the permanency planning hearing on May 18, 2021, 

Mother failed to appear. The court found J.W. adoptable, 

terminated Mother’s parental rights, and designated maternal 

grandmother as J.W.’s prospective adoptive parent.

This appeal followed.

DISCUSSION

In enacting ICWA, Congress found “that an alarmingly 

high percentage of Indian families are broken up by the removal, 

often unwarranted, of their children from them by nontribal 

public and private agencies and that an alarmingly high 

percentage of such children are placed in non-Indian foster and 

adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA 

reflects the intent of Congress “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 for the removal of Indian children from their 

families and the placement of such children in foster or adoptive 

homes which will reflect the unique values of Indian culture, and 

by providing for assistance to Indian tribes in the operation of 

child and family service programs.” (25 U.S.C. § 1902.) The 

court is obligated to ask each “participant” in the proceedings 

whether they have reason to believe the child is an Indian child 

and to instruct the parties to inform the court if they 

subsequently receive information that provides a reason to know 
6

the child is an Indian child. (In re Austin J. (2020) 

47 Cal.App.5th 870, 882–883.)

ICWA authorizes states to provide even more protection 

than the federal statute provides. In 2006, the California 

legislature enacted parallel statutes to affirm ICWA’s purposes 

and mandate compliance with ICWA in all Indian child custody 

proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.) 

In California, the child protection agency is obligated to ask “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.” (§ 224.2, subd. (b).) The child protection 

agency, in this case DCFS, must complete the Indian Child 

Inquiry Attachment form ICWA-010(a) and attach it to the 

petition. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a)(1).

Here, DCFS did not ask Mother’s extended family members 

about their Indian ancestry, despite having contact with 

maternal grandmother, uncle, and aunt. This was a violation of 

California law. But the next question is whether the error was 

prejudicial. A prerequisite to reversal of a trial court’s decision in 

California is showing a miscarriage of justice. (Cal. Const., art. 

VI, § 13.) To answer that question, we delve further into the 

concerns prompting the enactment of ICWA.

“Congress enacted ICWA in 1978 in response to ‘rising 

concern in the mid-1970’s over the consequences to Indian 

children, Indian families, and Indian tribes of abusive child 

welfare practices that resulted in the separation of large numbers 

of Indian children from their families and tribes through 

adoption or foster care placement, usually in non-Indian homes.’ ” 

(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) In enacting these 
7

provisions, “ ‘Congress was concerned not solely about the 

interests of Indian children and families, but also about the 

impact on the tribes themselves of the large numbers of Indian 

children adopted by non-Indians.’ ” (Id. at p. 9.)

The concern about separating Indian children from their 

Indian families, heritage and culture was the topic of extensive 

Congressional hearings when ICWA was enacted. As one 

commentator wrote, the “ ‘wholesale separation of Indian 

children from their families is perhaps the most tragic and 

destructive aspect of American Indian life today.’ ” (Atwood, 

Flashpoints Under the Indian Child Welfare Act: Toward a New 

Understanding of State Court Resistance (2002) 51 Emory L.J. 

587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.) 

“ICWA reflects a congressional determination to protect Indian 

children and to promote the stability and security of Indian tribes 

and families by establishing minimum federal standards that a 

state court, except in emergencies, must follow before removing 

an Indian child from his or her family.” (In re Austin J., supra,

47 Cal.App.5th at p. 881.)

Here DCFS did not fulfill its duties under section 224.2. 

But we are hard pressed to find prejudice, that is, a miscarriage 

of justice under article VI, section 13 of the California 

Constitution. Assuming for the sake of argument that an inquiry 

would have discovered that J.W.’s maternal family held Indian 

roots, the purpose of ICWA—to prevent the removal of Indian 

children from their Indian families—is not implicated by the 

juvenile court’s final disposition. When J.W. was found 

adoptable, her prospective adoptive parent was her maternal 

grandmother, who had already adopted J.W.’s half-brother. J.W. 

was not facing alienation or separation from any assumed Indian 
8

ancestry. Indeed, the juvenile court’s disposition placed her back 

within the assumed Indian family tree with a grandmother who 

was one generation closer to the family’s assumed Indian 

heritage than any of J.W.’s other relatives.

Consideration of ICWA’s placement preferences further 

bolsters our finding of no prejudice. Section 1915 of title 25 of the 

United States Code provides that in any adoptive placement of an 

Indian child under state law, “a preference shall be given, in the 

absence of good cause to the contrary, to a placement with [¶]

(1) a member of the child’s extended family; [¶] (2) other members 

of the Indian child’s tribe; or [¶] (3) other Indian families.” 

(25 U.S.C. § 1915 (a).)

Here the juvenile court implemented the first preference by 

finding J.W. adoptable by her maternal grandmother, a finding 

that comported with J.W.’s own request to be adopted by her 

grandmother. J.W.’s request came years after waiting for her 

mother’s life to turn around. She asked the court for stability

and the juvenile court’s disposition ensured that she finally 

received it from and among family members (her maternal 

grandmother and her older half-brother) whom she knew and 

trusted. (In re Arturo A. (1992) 8 Cal.App.4th 229, 241, fn. 6 [“we 

adopt the proposition that a child has a constitutional right to a 

reasonably directed early life, unmarred by unnecessary and 

excessive shifts in custody.”].)

Thus we have assessed no prejudice because the trial court 

arrived at a disposition that approved adoption by the minor’s 

maternal grandmother, which would have been the first 

placement preference had J.W. been found to have Indian 

ancestry under ICWA.
9

A second way to assess prejudice has been set forth in In re 

Dezi C. (2022) 79 Cal.App.5th 769. There, our colleagues in 

Division 2 held that where the parents were raised by their own 

biological relatives and where the record suggests no reason to 

believe that the parents’ knowledge of their own heritage is 

incorrect or that the children may have Indian heritage, no 

prejudice arises from DCFS’s failure to conduct a complete 

inquiry. Here, Mother was raised by her biological family with 

whom she had remained in contact, and the record does not 

otherwise suggest that Mother’s denial of Indian heritage is ill 

informed, unfounded, or incorrect.

These proceedings started when J.W. was nine years old. 

By the time Mother’s parental rights were terminated four years 

later, J.W. was entering her teenage years and she was, by her 

own words, tired of waiting. She lost an innocent part of her 

childhood because of this case; she should not be obliged to put 

her teenage years on hold as well where this proposed adoption 

does not perpetuate the abuses ICWA was enacted to prevent.2

2 A tribe might argue that it was prejudiced because the lack 

of inquiry (and notice, if a reason to believe J.W. was an Indian 

child was discovered) prevented it from requesting a tribal 

customary adoption which is implemented through sections 

366.24 and 366.26. However, section 366.26, subdivision (h)(1) 

provides that “[at] all proceedings under this section, the court 

shall consider the wishes of the child and shall act in the best 

interests of the child.” Here, the trial court did consider the 

wishes of J.W. who wanted to be adopted by her grandmother. 

And it made a finding that returning J.W. to the custody of her 

mother was detrimental to her physical and emotional well-being. 

The findings and disposition approving adoption by maternal 

grandmother did not prejudice any possible tribal intervention. 

If, for some reason, the proposed adoption by maternal 
10

DISPOSITION

The trial court’s order is affirmed.

CERTIFIED FOR PUBLICATION

STRATTON, P. J.

I concur:

HARUTUNIAN, J.*

grandmother does not go forward and adoption by a non-family 

member is contemplated, then the trial court is directed to ensure 

that DCFS finishes a complete inquiry into the maternal side of 

the J.W.’s family.

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
1

WILEY, J., Dissenting.

It would have been overwhelmingly simple for the 

Department to ask the maternal relatives about Indian ancestry. 

The Department knew where these relatives were. It was 

communicating with them already. It had only to ask one simple 

question. The Department did not ask, and it does not explain 

why. The burden on the Department would have been slight, 

while the benefit to a tribe would have been substantial if new 

information developed a valuable lead. Tribal interests here are 

strong, and are supported by a long and sorry history.

The Department says any error was harmless because the 

mother denied Indian ancestry. The Department’s premise must 

be that we generally can count on a parent like the mother to 

know her own Indian ancestry. That is, the claim must be people 

usually know if they have American Indian ancestry. 

The Department’s factual premise is incorrect. The state 

statute tells us so. The statutory amendment shows the 

Legislature learned from experience that people like the mother 

sometimes do not know they have Indian ancestry, so asking 

extended family members is important. The Legislature also 

learned parents or Indian custodians may be afraid to identify 

Indian ancestry or wish to evade tribal jurisdiction. (Cal. ICWA 

Compliance Task Force, Rep. to Cal. Atty. Gen.’s Bur. of 

Children’s Justice (2017) p. 28, available at 

<https://theacademy.sdsu.edu/wp-content/uploads/2015/06/icwacompliance-task-force-final-report-2017.pdf> [as of July 6, 2022], 

archived at <https://perma.cc/TEA9-R9V3>.)

Tribes are the victims here. Tribal involvement is 

enshrined in law. Tribes have a right to intervene where there is 

an Indian child. (25 U.S.C. § 1911(c).) Absent good cause to the 
2

contrary, a state court must transfer proceedings to a tribal 

jurisdiction. (25 U.S.C. § 1911(b); see California Courts, Tribal 

Justice Systems <https://www.courts.ca.gov/3064.htm> [as of 

July 13, 2022], archived at <https://perma.cc/47X8-DGEJ> [39 

California tribes have access to a tribal court].) 

When the Department does not inquire as the law requires, 

tribes lose chances to discover children who could help preserve 

tribal heritage and culture. 

Placing the child with the maternal grandmother without 

alerting tribes does not help tribes, which are the real parties in 

interest. If the maternal grandmother has information about 

Indian ancestry, the tribal interest cannot turn on whether this 

grandmother has an active interest in making tribal contact. To 

forecast the grandmother’s attitude about a tribal heritage would 

be speculation.

This is my fifth dissent on this issue, and I incorporate my

earlier views. (See In re M.M. (July 12, 2022, B315997) 

__ Cal.App.5th __ [2022 WL 2679301].) This problem looks 

persistent. I would not affirm.

WILEY, J.