Filed 1/30/24 In re B.M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re B.M. et al., Persons

Coming Under the Juvenile 

Court Law.

 B328114

(Los Angeles County

Super. Ct. Nos. 

18CCJP03690,

18CCJP03690E-H

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

W.V.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Pete R. Navarro, Judge Pro Tempore. 

Affirmed.
2

Cristina Gabrielidis, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, Brian Mahler, Deputy County 

Counsel, for Plaintiff and Respondent.

INTRODUCTION

This is one of the increasingly common juvenile dependency 

cases that follows a certain fact pattern. The Los Angeles County 

Department of Children and Family Services (DCFS) failed to 

comply with its inquiry requirements under the Indian Child 

Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related 

state laws (Welf. & Inst. Code, § 224 et seq.1). The parents of the 

child affirmatively represented to DCFS and the juvenile court 

that they do not have Native American ancestry. Following 

termination of parental rights under section 366.26, however, a 

parent appealed on the grounds that ICWA inquiries were not 

made of certain members of the child’s extended family. (See, 

e.g., In re Ezequiel G. (2022) 81 Cal.App.5th 984, 995.) We agree 

with our colleagues in Division Three of this district that these 

cases “unquestionably delay permanency for some of the most 

vulnerable children in our juvenile court system,” and are 

“ineffective in protecting the interests of the Indian communities 

and families for whose benefit ICWA was enacted.” (Ibid.) In 

this case, we are tasked with determining whether DCFS’s 

inquiry failures require the matter to be remanded. Under the 

circumstances here, we find the error harmless and therefore 

affirm.

1 All further undesignated statutory references are to the 

Welfare and Institutions Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

Because this appeal involves a challenge under ICWA, we

include only the facts relevant to that issue. Appellant W.V. 

(father) is the father of child, A., born in December 2013. Father, 

A.’s mother (mother), and four children (A. and her three older

half-siblings2) lived in an RV that was infested with cockroaches 

and lacked running water; the children were dirty, had not been 

receiving medical care, and were not enrolled in school. DCFS 

detained the children on June 30, 2020, following a referral 

stating that the children were living in filthy conditions and were 

exposed to physical and emotional abuse. 

After the children were detained, assessments revealed 

that A. had speech delays, developmental delays, and abscesses 

in her teeth; she also needed glasses. The children’s caregiver 

noted that the children did not understand basic hygiene 

concepts such as how to shower or brush their teeth. 

DCFS filed a petition under section 300, subdivision (b), 

which the court later sustained. The court ordered the children 

returned to mother and father’s care with DCFS supervision and 

family maintenance services. However, following a violent 

domestic dispute in the presence of the children in October 2020, 

as well as allegations that parents continued to medically neglect 

the children and maintain an unsanitary home, the court again 

ordered the children removed from parents. DCFS filed a 

supplemental petition under section 387, which the court later 

sustained. The children were not returned to parents’ care. 

Throughout the case, mother and father affirmatively 

represented that they had no Native American heritage. DCFS 

2 The half-siblings are mother’s children with different 

fathers, and are not at issue in this appeal. 
4

noted that in a previous dependency case in 2018, the court found 

ICWA did not apply. Both father and mother reported to DCFS 

that they were born in Honduras. Both parents filed parental 

notification of Indian status forms with the juvenile court on July 

7, 2020 denying Native American ancestry. Father filed another 

such form on December 3, 2020. At the detention hearing on July 

7, 2020, the court noted the parents’ denials, and found that 

ICWA did not apply with respect to A. At the adjudication 

hearing on August 27, 2020, the juvenile court again found that 

ICWA did not apply with respect to either parent. 

DCFS made no further ICWA inquiries relevant to A., and 

the court made no further ICWA findings relevant to A. A CSW 

spoke with mother’s adult daughter, Ana, who lived in New York 

and had never met the younger children. Ana said mother left 

her and her siblings in Honduras when Ana was a child. A CSW 

also spoke with a woman named Vanessa who identified herself 

as mother’s sister. However, Ana, mother, and a reporting party 

said Vanessa was an unrelated acquaintance.

3 The record does 

not indicate that DCFS made any ICWA inquiries of Ana or 

Vanessa. 

A CSW met with father’s adult daughter J. on November 

20, 2020 to discuss placing the children with her. J. was born in 

Honduras; father was not involved in her life. She immigrated to 

the United States at the age of 23. J. had three children of her 

own: two adults and one teenager. DCFS placed A. and her 

3 The unidentified male reporter stated that Vanessa was 

using the children’s social security numbers to fraudulently 

receive their financial benefits. Mother also told her daughter 

Ana that Vanessa had committed identity theft by taking the 

children’s birth certificates and social security cards. 
5

minor half-siblings with J. in August 2021. J. was willing to 

adopt all four children even though the three older children were 

not biologically related to her. After being placed with J., the 

children thrived in her care and said they wanted to stay with 

her. At various times throughout the case, CSWs discussed the 

children with J. and visited them at J.’s home, but the record 

does not note any related ICWA inquiries. 

Mother failed to comply with the case plan, and father only 

partially complied. On December 13, 2021, the juvenile court 

terminated reunification services for both parents. On March 15, 

2023, the court terminated mother’s and father’s parental rights 

pursuant to section 366.26. The court found a permanent plan of 

adoption with J. to be appropriate. Father timely appealed. 

DISCUSSION

Father argues that the section 366.26 ruling terminating 

his parental rights must be reversed and the matter remanded 

because DCFS spoke with J., Ana, and Vanessa (whom father 

refers to as a “maternal aunt”) over the course of the case, but 

failed to make any ICWA-related inquiries of them. We disagree 

that remand is warranted.

DCFS has an ongoing duty 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).) A juvenile court may determine that 

ICWA does not apply only after “proper and adequate” inquiry 

and “due diligence as required in this section.” (§ 224.2. subd. 

(i)(2).) DCFS did not meet its burden of initial inquiry here. The 

only ICWA information in this case came from mother’s and 

father’s own representations. DCFS noted that the juvenile court
6

previously found that ICWA was not applicable, but nothing in 

the record indicates what inquiries were made during those 

proceedings. Moreover, DCFS spoke with extended family 

members over the course of this case, including J. as she 

prepared to adopt the children, and the record reflects no ICWAbased inquiries of these family members. Thus, the court’s ICWA 

findings, based on mother’s and father’s representations and 

nothing more, failed to meet the requirements of section 224.2, 

and constitutes error.4

As in all appeals, however, the appellant must demonstrate 

not only error, but prejudice—a miscarriage of justice under 

article VI, section 13 of the California Constitution. (See, e.g., In 

re J.W. (2022) 81 Cal.App.5th 384, 390; In re D.B. (2022) 87 

Cal.App.5th 239, 245; In re K.H. (2022) 84 Cal.App.5th 566, 589 

[“reviewing courts generally agree that reversal is dependent on 

showing prejudice, or a miscarriage of justice”].) Thus, “[w]here, 

as here, there is no doubt that the Department’s inquiry was 

erroneous, our examination as to whether substantial evidence 

supports the juvenile court’s ICWA finding ends up turning on 

whether that error by the Department was harmless—in other 

words, we must assess whether it is reasonably probable that the 

juvenile court would have made the same ICWA finding had the 

4 DCFS acknowledges that under section 224.2 it had a duty 

to make ICWA inquiries to extended family members and others. 

Without conceding error or contending that any such error was 

harmless, however, DCFS asserts that it does not matter that it 

failed to inquire of extended family members under ICWA, 

because both mother and father reported that they were born in 

Honduras. DCFS cites no authority, and we are aware of none, 

exempting the department from meeting ICWA requirements 

when the child’s parents are born outside the United States.
7

inquiry been done properly. [Citation.] If so, the error is 

harmless and we should affirm; otherwise, we must send it back 

for the Department to conduct a more comprehensive inquiry.” 

(In re Dezi C. (2022) 79 Cal.App.5th 769, 777, review granted, 

Sept. 21, 2022, No. S275578 (Dezi C.).)

California appellate courts have crafted several different 

tests for deciding whether a defective initial ICWA inquiry is 

harmless. Until our Supreme Court provides guidance on the 

matter, this division follows the reasoning of Dezi C., in which 

Division Two of this district held, “[A]n agency’s failure to 

conduct a proper initial inquiry into a dependent child’s 

American Indian heritage is harmless unless the record contains 

information suggesting a reason to believe that the child may be 

an ‘Indian child’ within the meaning of ICWA, such that the 

absence of further inquiry was prejudicial to the juvenile court’s 

ICWA finding.” (Dezi C., supra, 79 Cal.App.5th at p. 779.)

Here, father’s appellate briefing makes no effort to show 

that DCFS’s failure to inquire was prejudicial. He cites three 

cases5 for the proposition that insufficient ICWA inquiry can be

prejudicial. However, his prejudice argument regarding this case 

consists of a single, conclusory sentence asserting that “the 

failure to inquire of the children’s relatives regarding any Indian 

ancestry was prejudicial.” DCFS’s respondent’s brief responds 

nearly in kind, failing to mention the issue of prejudice 

altogether. 

We find that father has not met his burden to show 

prejudice or that reversal is warranted. Both parents denied 

5 Father cites In re Benjamin M. (2021) 70 Cal.App.5th 735, 

In re A.C. (2022) 75 Cal.App.5th 1009, and In re H.V. (2022) 75 

Cal.App.5th 433.
8

Native American ancestry, and DCFS represented that the 

juvenile court previously found ICWA inapplicable. Both parents 

stated that they were born in Honduras, Ana and J. were born in 

Honduras, and there is no suggestion in the record that either 

parent had any connection to a “tribe, band, nation, or other 

organized group or community of Indians recognized as eligible 

for the services provided to Indians by the Secretary [of the 

Interior] because of their status as Indians.” (25 U.S.C.

§ 1903(8); see also § 224.1, subd. (a) [adopting federal 

definitions].)

Moreover, nothing in the record suggests any reason to 

believe either parent’s knowledge of their heritage was incorrect, 

or that any other source would have more accurate information. 

Neither father nor DCFS has proffered any additional evidence.6

(See Dezi C., supra, 79 Cal.App.5th at p. 774 [for purposes of 

evaluating whether defective initial inquiry is harmless, “the 

‘record’ means not only the record of proceedings before the 

juvenile court but also any further proffer the appealing parent 

makes on appeal”].)

In addition, the harms ICWA was intended to address are 

not at issue in this case. “ICWA was enacted to curtail ‘the 

separation of large numbers of Indian children from their 

families and tribes through adoption or foster care placement’” 

and “‘to promote the stability and security of Indian tribes and 

families.’” (Dezi C., supra, 79 Cal.App.5th at p. 780.) Here, 

however, A. is placed with her half-sister, J., who is now the 

6 DCFS presumably could have remedied its statutory failure 

by inquiring of Ana and J., thus potentially mooting father’s 

appeal and/or obviating any need for remand. DCFS did not do 

so.
9

prospective adoptive parent. Thus, “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.” (In re J.W. (2022) 81 Cal.App.5th 384, 390.) Such 

circumstances also support a finding of harmless error. (Id. at 

pp. 390-391.)

DISPOSITION

The juvenile court’s order under section 366.26 is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, ACTING P. J.

We concur:

MORI, J. 

ZUKIN, J.