Filed 12/12/22 In re A.H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re A.H. et al., Persons Coming 

Under the Juvenile Court Law. B316137

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ALEXIS S. et al.,

Defendants and Appellants.

Los Angeles County

Super. Ct. Nos. 18CCJP02887A–B

APPEAL from orders of the Superior Court of Los Angeles 

County, Lisa A. Brackelmanns, Juvenile Court Referee. 

Affirmed.

Carolyn S. Hurley, under appointment by the Court of 

Appeal, for Defendant and Appellant Antonio H.

Maureen L. Keaney, under appointment by the Court of 

Appeal, for Defendant and Appellant Alexis S.
2

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, Kimberly Roura, Deputy County 

Counsel, for Plaintiff and Respondent.

INTRODUCTION

Alexis S. (Mother) and Antonio H. (Father) appeal from the 

juvenile court’s orders terminating their parental rights over 

their two daughters. They do not argue the orders were wrong, 

however. Instead, they argue that the Los Angeles Department 

of Children and Family Services (Department) conducted an 

inadequate initial inquiry under the Indian Child Welfare Act 

(ICWA) (25 U.S.C. § 1901 et seq.). The Department concedes the 

error but argues it was harmless. We agree with the Department 

and affirm. 

BACKGROUND1

On May 7, 2018, the Department filed a dependency 

petition alleging jurisdiction over Au. R. (age 13 months) and Ay. 

R. (age 2 months), under Welfare and Institutions Code 

section 300, subdivisions (a) and (b)(1).2 The petition alleged that 

the parents engaged in domestic violence that placed the children 

at risk for serious physical harm (Count a-1), that the parents 

failed to protect the children from the violence (Count b-1), and 

that both parents abused marijuana (Counts b-2 & b-3).

At the detention hearing the following day, the court found 

Father to be the presumed father, held that the Department had 

made a prima facie showing that the children were people 

1 Due to the limited nature of this appeal, we recite only the 

facts and procedural background relevant to the ICWA inquiry.

2 All undesignated statutory references are to the Welfare 

and Institutions Code.
3

described by section 300, and ordered the children detained from 

both parents. Mother filed an ICWA-020 form indicating she had 

no known Indian ancestry.3 Upon reviewing the form and asking 

Mother whether Father had any Indian ancestry, the court found 

that ICWA did not apply. Although the maternal grandmother 

was in the courtroom, the court did not ask her whether she had 

reason to know that the children were Indian children. The 

maternal great-grandmother’s name and phone number were 

listed in the detention report.

At the June 15, 2018 restraining order hearing, Father 

filed an ICWA-020 form indicating he had no known Indian 

ancestry.4 The court asked Father’s attorney for confirmation 

that Father had indicated “no ICWA.” Based on counsel’s 

representation, the court stated it “will continue to find no reason 

to know this case is governed by the Indian Child Welfare Act.” 

Although the paternal grandmother was in the courtroom, the 

court did not ask her whether she had reason to know that the 

children were Indian children. 

At the September 13, 2018 jurisdiction and disposition 

hearing, the court sustained Counts b-1 and b-2 and dismissed 

Count a-1. The court declared the children to be dependents of 

the court, removed them from both parents, and granted 

reunification services. 

In addition to the maternal grandmother, maternal greatgrandmother, and paternal grandmother, the Department also 

3 Mother had also denied having any Indian ancestry when 

the social worker inquired during the Department’s investigation.

4 Father had also denied having any Indian ancestry when 

the social worker inquired during the Department’s investigation.
4

had contact with a maternal grandfather, a maternal aunt, a 

paternal uncle, and a maternal cousin. The Department did not 

ask any of these people whether the children were, or might be, 

Indian children.

Reunification efforts failed, and on October 19, 2021, the 

court terminated parental rights over both children. Mother and 

Father filed timely notices of appeal. 

DISCUSSION

Mother and Father each contend the Department violated 

ICWA’s initial inquiry requirements by failing to question their

extended family members about whether the children had Indian 

ancestry. The Department concedes the error but argues the 

failure to inquire was harmless. We agree with the Department.

1. ICWA 

ICWA was enacted “ ‘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 . . . . [Citation.]” 

(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. 

§ 1902.) Under ICWA, an “ ‘Indian child’ ” is “any unmarried 

person who is under age eighteen and is either (a) a member of 

an Indian tribe or (b) is eligible for membership in an Indian 

tribe and is the biological child of a member of an Indian tribe.” 

(25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal 

definition of “Indian child”].) It is up to the tribe to decide 

whether a child is an Indian child under ICWA. (Isaiah W., at 

p. 15.) 
5

“[T]he burden of coming forward with information to 

determine whether an Indian child may be involved . . . in a 

dependency proceeding does not rest entirely—or even 

primarily—on the child and his or her family.” (In re Michael V.

(2016) 3 Cal.App.5th 225, 233.) Rather, “[j]uvenile courts and 

child protective agencies have ‘an affirmative and continuing 

duty to inquire’ whether a dependent child is or may be an Indian 

child.” (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11; 

§ 224.2, subd. (a).)

This affirmative duty to inquire comprises a two-step 

process. First, if a child is removed from his or her parents and 

placed in the custody of a county welfare department, the 

department has a 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), italics added.) The court must 

make a similar inquiry when the parents first appear in court: 

“[T]he court shall ask each participant present in the hearing 

whether the participant knows or has reason to know that the 

child is an Indian child.” (§ 224.2, subd. (c), italics added.) 

The court’s duty of initial inquiry includes requiring each party to 

complete California Judicial Council Form ICWA-020, Parental 

Notification of Indian Status. (Cal. Rules of Court, 

rule 5.481(a)(2)(C).)

Second, if the court or social worker has “reason to believe

that an Indian child is involved in a proceeding,” the court or 

social worker must “make further inquiry regarding the possible 

Indian status of the child,” by, among other things, interviewing 

the parents and extended family members, and contacting any 
6

tribe that may reasonably be expected to have information about 

the child’s membership, citizenship status, or eligibility. (§ 224.2, 

subd. (e), italics added; see § 224.3, subd. (a)(5)(C).)

If, after the initial and further inquiries, there is reason to 

know that an Indian child is involved, notice must be provided to 

the parent, legal guardian, or Indian custodian and the child’s 

tribe. (§ 224.2, subd. (f).) There is reason to know a child is an 

Indian child if any one of the six statutory criteria is met. 

(Id., subd. (d).)

We review ICWA-related matters for substantial evidence. 

(In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) But, “where the 

facts are undisputed, we independently determine whether 

ICWA’s requirements have been satisfied. [Citation.]” (In re D.S.

(2020) 46 Cal.App.5th 1041, 1051, fn. omitted.)

2. The ICWA error was harmless.

As discussed, in this case the Department did not ask the 

parents’ extended family members about their Indian ancestry 

despite having contact with a maternal grandmother, maternal 

grandfather, paternal grandmother, maternal greatgrandmother, maternal aunt, paternal uncle, and maternal 

cousin. The Department concedes, and we agree, that this was 

error. (See In re Darien R. (2022) 75 Cal.App.5th 502, 509 

[finding error where evidence showed Department had contact 

with maternal aunt and maternal grandfather but failed to 

inquire of them regarding Indian ancestry].) 

Because the error is one of state law, we typically reverse 

only if the error was prejudicial under People v. Watson (1956) 

46 Cal.2d 818, 836. (In re J.W. (2022) 81 Cal.App.5th 384, 389–

390 (J.W.); see In re S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.) 

[requirement imposed by state law, not federal law].) Under 
7

Watson, the appellant must show prejudice by establishing that 

“it is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the 

error.” (Watson, at p. 836.) 

Yet “[a]lthough an appellant ordinary has the burden of 

establishing prejudice [citation], a parent’s ability to make this 

showing based upon the record in failure-to-inquire cases can be 

problematic” because it is the Department’s responsibility—not 

the parents’—to make inquiries and document its efforts. 

(S.S., supra, 75 Cal.App.5th at p. 581.) Recognizing this problem, 

the appellate courts have disagreed about the extent to which 

prejudice must be shown to justify reversal when the Department

fails to comply fully with its initial duty of inquiry under 

California’s revised ICWA statutes. (See In re Dezi C. (2022) 

79 Cal.App.5th 769, 777–779, review granted Sept. 21, 2022, 

S275578 (Dezi C.) [discussing three competing approaches and 

adopting a fourth].) Specifically, courts disagree on whether a 

failure to inquire of extended family members necessitates a 

remand when the parents deny Indian heritage and there is no 

other information in the record indicating additional inquiry will 

prove fruitful. (Ibid.)5 

One line of cases holds that any error in the initial inquiry

must result in reversal because the duty to inquire is mandatory

and unconditional. (See, e.g., In re J.C. (2022) 77 Cal.App.5th 70,

80–82; In re A.R. (2022) 77 Cal.App.5th 197, 206–207; In re Y.W.

(2021) 70 Cal.App.5th 542, 556.) A second set of cases holds that

5 The Supreme Court granted review in Dezi C., supra, 

79 Cal.App.5th 769 to resolve this issue. The court also denied

the appellant’s request to depublish the opinion.
8

failing to inquire is presumptively harmless unless a showing is

made by the parent on appeal (such as by an offer of proof) why

further inquiry would lead to a different ICWA finding. (See In

re A.C. (2021) 65 Cal.App.5th 1060, 1070; accord, In re Rebecca R.

(2006) 143 Cal.App.4th 1426, 1430–1431.) A third group charts a 

middle course, holding that if the initial inquiry is deficient, the

error is harmless unless, upon an examination of the record, it

appears that inquiry would yield “readily obtainable information

that was likely to bear meaningfully upon whether the child is an

Indian child” and that “the probability of obtaining meaningful

information is reasonable.” (See In re Benjamin M. (2021) 70

Cal.App.5th 735, 744; S.S., supra, 75 Cal.App.5th at pp. 582–

583.)

This court has adopted a fourth approach taken by our

colleagues in Division 2 in Dezi C. (J.W., supra, 81 Cal.App.5th 

at p 391.) There, the court held that “[a]n agency’s failure to

discharge its statutory duty of initial inquiry is harmless unless

the record contains information suggesting a reason to believe

that the children at issue may be ‘Indian child[ren],’ in which

case further inquiry may lead to a different ICWA finding by the

juvenile court.” (Dezi C., supra, 79 Cal.App.5th at p. 774.) 

The court in Dezi C. calls this the “reason to believe” rule because 

it holds the agency’s failure to properly inquire into a child’s 

Indian heritage harmless unless there the record reveals “reason 

to believe” that the absence of “further inquiry was prejudicial to 

the juvenile court’s ICWA finding.” (Id. at p. 779.) The record is 

defined as the record from the court below and evidence proffered 

by a parent on appeal. (Ibid.)
9

Based on the record before us, we conclude that additional 

inquiry would be a mere formality.6 In Dezi C., “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 [the Department’s] failure to conduct a

complete inquiry.” (J.W., supra, 81 Cal.App.5th at p. 391.) 

Similarly, in this case, both parents were raised by, and 

were in touch with, a plethora of their extended biological 

relatives. When asked—more than once—neither parent 

expressed any doubt or hesitation as to whether they possessed 

Indian heritage. No representation has been made to this court 

that any extended family member has ever made a statement 

even hinting at Indian heritage. There is no reason to believe the 

parents misunderstood their familial roots. Accordingly, we 

conclude the Department’s failure to conduct an adequate initial 

inquiry was harmless.

6 The Department’s request for judicial notice, filed July 13, 

2022, is denied because the documents at issue were not before 

the trial court and are unnecessary to the resolution of this 

appeal.
10

DISPOSITION

The orders are affirmed. 

HARUTUNIAN, J.*

I concur:

STRATTON, P. J.

* 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.

This is my 14th dissent on this issue. In this case the 

Department easily could have posed the key question of ancestry 

to 

1. the maternal great-grandmother, 

2. the maternal grandfather, 

3. the paternal grandmother, 

4. the maternal aunt, 

5. the paternal uncle, 

6. and the maternal cousin. 

The Department does not say why it so persistently violates 

the law when compliance would involve nearly no effort—just a 

minute or two of time to obey a clear statutory directive. The 

Department simply argues its conduct is harmless.

Tribes are the victims here. Do they think these errors are 

harmless? We do not know because no one has given them notice 

and an opportunity to be heard. I perceive harm.

WILEY, J.