Filed 12/8/22 In re D.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

In re D.D

. et al. , Person s Coming

Under the Juv enile Court Law. B 319941

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.D

. ,

Defendant and Appellant. Los Angeles County

Super. Ct. No. 18CCJP02204A

- B

APPEAL from an order of the Superior Court of

Los Angeles County. Debra R. Archuleta

, Judge

. Affirmed

.

John L. Dodd , under appointment by the Court of Appeal,

for Defendant and Appellant

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

Assistant County Counsel, and Peter Ferrera

, Principal Deputy

County Counsel, for Plaintiff and Respondent.

* * * * * * * * * *2 Father M.D

. appeal s the juvenile court’s order terminating

his parental ri ghts to his sons D.D. and L.D

. Their mother, J.D.,

is not a party to this appeal. Father’s sole contention on appeal is

that the trial court erred in finding the Indian Child Welfare Act

(ICWA; 25 U.S.C. § 1901 et seq.) did not apply because the Los

Ange les County Department of Children and Family Services

(Department) made an inadequate initial inquiry concerning the

boys’ relevant ancestry by failing to inquire with extended family

members with whom the Department had contact

. We affirm

.

BACKGROUND

1. Overview of Proceedings

This dependency proceeding began in 2018, nearly

five years ago , when the boys were aged seven and four

. At the

time of the petition, the boys lived in and out of motels with

father and his girlfriend. Father had bee n caring for the boys for

nearly two years after a 2016 referral to the Department based

on mother’s neglect was resolved by father taking the children

from mother’s home and agreeing to pursue custody in family

court.

In July 2018, t he juvenile court ordered the boys removed

under Welfare and Institutions Code section 300, subdivision s (a)

and (b)(1)

. The court also ordered reunification services.

Removal was based on allegations that father was failing to

provide for the boys’ basic needs; that father and the girlfriend

were using drugs while caring for the boys; and tha t father and

the girlfriend had engaged in domestic violence in the boys’

presence. Father appealed this order and we affirmed. ( In re

L.D . (Apr. 30, 2019, B291401) [nonpub. opn.]. )

In September 2019, the juvenile court terminated

reunification services and scheduled a permanency planning3

hearing. Shortly thereafter, the boys were placed with their

maternal grandparents in Washington state

.

The maternal grandparents were approved for adoption in

2020

. At a hearing in January 2021, the court terminated

parental rights and ordered adoption by the grandparents as the

boys’ permanent plan

. The court had authorized father to testify

at the hearing in support of his claimed parental bond exception

but father’s testimony was inaudible due to a poor phone

connection. Father appealed this order and we reversed . ( In re

L.D . ( July 7, 2021, B 3098 52 ) [nonpub. opn.]. ) The juvenile court

reinstated parents’ parental rights in September 2021.

The juvenile court again ordered adoption by maternal

grandparents as the boys ’ permanent plan in January 2022. At a

hearing in February 2022, with mother’s consent but over

father’s objection, it again ordered parental rights terminated

. It

is from this order that father now appeals.

2. Facts Relevant to ICWA Inquiry

The Department attached ICWA

- 010 (A) forms to the

petition indicating it had made Indian child inquiries and that

the boys had no known Indian ancestry. The forms did not

identify the person or persons with whom the Department had

inquired.

In May 2018 , mother appeared in the juvenile court and

filed an ICWA

- 020 form indicating that she had no Indian

ancestry as far as she knew. The court asked mother if she had

any reason to believe father had Indian ancestry and she

responded

, “ No

. ” On this basis, the court found the ICWA

inapplicable but admonished parents to keep counsel, t he

Department, and the court apprised of any new information

relating to Indian ancestry.4 At a hearing later the same month , father appeared and

filed an ICWA

- 020 form indicating that he had no Indian

ancestry as far as he knew. The juvenile court noted father’s

denial of Indian ancestry and continued to find the ICWA

inapplicable

. It also reiterated its admonishment to disclose any

new information relating to Indian ancestry

. We are directed to

no evidence that further information was ever provided pursua nt

to this admonishment.

Over the course of the proceedings, the Department also

had contac t with many of the boys’ extended family members

. It

had contac t with the maternal grandparents, with whom the

children were ultimately placed. It interviewed maternal

great

- aunt. It interviewed father’s cousin on his father’s side

. It

met with paternal grandmother. It met with paternal aunt

(father’s maternal half sister). And i t evaluated paternal

relatives in Arizona for potential placement and had contact

information for other paternal relatives in Arizona

. We are

directed to no evidence in the record that the Department ever

asked any extended fa mily members about the boys’ possible

Indian heritage.

DISCUSSION

Congress enacted ICWA “ ‘to protect the best interests of

Indian children and to promote the stability and security of

Indian tribes and families.’ ” ( In re Isaiah W. (2016) 1 Cal.5th 1,

8. ) It is incumbent upon a state court administering a proceeding

where child custody is at issue to inquire whether the subject

child is an Indian child. The scope of the duty on the court, as

well as certain participants in the proceeding, is defined by

federal regulations and related state law. (See, e.g., 25 C

. F

. R

.5

§ 23.107 (2022) ; Welf. & Inst. Code, § 224.2; Cal. Rules of Court,

rule 5.481.)

T he duty of inquiry has three “phases.” Father claims error

with the first. Th is phase

— the “initial inquiry”

— applies in every

case. The initial inquiry requires the court and the Department

to ask certain persons related to the proceedings about the child’s

possible Indian ancestry. ( See Welf. & Inst. Code, § 224.2,

subds. (a), (b), (c); In re S.S. (2022) 75 Cal.App.5th 575, 581 ; In re

D.F. (2020) 55 Cal.App.5th 558, 566.) The state law initial

inquiry requirements exceed those imposed by federal law, which

merely require the court to “ask each participant in an emergency

or volunta ry or involuntary child

- custody proceeding whether the

participant knows or has reason to know that the child is an

Indian child” and instruct the parties to inform the court if they

subsequently receive information that provides reason to know

the child i s an Indian child. (25 C

. F

. R

. § 23.107 (a) (2022).)

Where the “initial inquiry” gives “reason to believe” the

child is an Indian child, but there is insufficient information to

make a definitive determination, the second phase

— “further

inquiry”

— comes into play. ( Welf. & Inst. Code, § 224.2,

subd. (e)(2).) Further inquiry requires more robust investigation

into possible Indian ancestry. ( See ibid .; In re D.F.

, supra

,

55 Cal.App.5th at p. 566.)

If further inquiry gives the court a “reason to know” a child

is an Indian child, the third phase is triggered. This phase

requires that notice pursuant to ICWA be sent to the tribes to

facilitate their participation in the proceedings. ( Welf. & Inst.

Code, § 224.3, subd. (a)(1); In re D.F

. , supra

, 55 Cal.App.5th at

p. 568.)6 A juvenile court’s finding that ICWA does not apply in a

proceeding implies that (a) neither the Department nor the court

had a reason to know or believe the subject child is an Indian

child; and (b) the Department fulfilled its duty of inquiry. ( In re

Jo siah T. (2021) 71 Cal.App.5th 388, 401.)

“ ‘ “ [W]e review the juvenile court’s ICWA findings under

the substantial evidence test, which requires us to determine if

reasonable, credible evidence of solid value supports the court’s

order. [Citations.] We m ust uphold the court’s orders and

findings if any substantial evidence, contradicted or

uncontradicted, supports them, and we resolve all conflicts in

favor of affirmance.” ’ ” ( In re Josiah T.

, supra

, 71 Cal.App.5th at

p. 401 .)

Father’s claim of error is that the juvenile court found the

ICWA inapplicable even though the Department had contact with

extended family members from both sides of the boys’ family yet

failed to ask them about Indian ancestry. We agree that the

Department faile d in its initial inquiry obligation imposed by

California law to ask “extended family members” whether the

boys are , or may be, Indian child ren . ( Welf. & Inst. Code, § 224.2,

subd. (b) .) The Department apparently only asked parents about

Indian heritage . The court also asked parents about Indian

heritage and admonished them to keep counsel, the court, and

the Department updated with any relevant new information.

While these steps satisfied the lower federal initial inquiry

requirements, in the absence of any evidence the Department

complied with its s ection 224.2, subdivision (b) duty to inquire of

extended family members with whom it had contact, the court’s

finding that ICWA does not apply is error

. (See In re Daria n R.

(2022) 75 Cal.App.5th 502, 509 [finding error where evidence7

showed Department had contact with maternal aunt and

maternal grandfather but failed to inquire of them regarding

Indian ancestry].)

However, because the court’s error is one of state law, we

can reverse only if the error was prejudicial. ( In re Benjamin

M. (2021) 70 Cal.App.5th 735, 742 ( Benjamin M. ) , citing

Cal. Const., art. VI, § 13 .)

C ourts are divided on what showing of prejudice warrants

reversal for initial inquiry errors

. “ Some courts have addressed

this problem by requiring an appellant who asserts a breach of

the duty of inquiry to, at a minimum, make an offer of proof or

other affirmative assertion of Indian heritage on appeal. ” ( In re

S.S.

, supra, 75 Cal.App.5th at pp. 581

– 582 , citing cases .) Others

have excused such a showing, effectively treating failure to

inquire as error per se. (See, e.g., In re Y.W. (2021)

70 Cal.App.5th 542, 556; In re J.C. (2022) 77 Cal.App.5th 70, 80. )

T he Fourth Appellate District in Benjamin M

., supra

,

70 Cal.App.5th 735, took a third approach, conclud ing that “a

court must reverse where the record demonstrates that the

agency has not onl y failed in its duty of initial inquiry, but where

the record indicates that there was readily obtainable

information that was likely to bear meaningfully upon whether

the child is an Indian child.” ( Id

. at p. 744.) Our court recently

took a fourth appro ach, concluding initial inquiry errors require

reversal only when the record of proceedings in the court or a

proffer of evidence made on appeal suggests a reason to believe

that the child may be an Indian child. ( In re Dezi C. (2022)

79 Cal.App.5th 769, 779

, review granted Sept. 21, 2022,

S275578 .)8 We have previously rejected the error per se line of cases.

( In re M.M

. (2022) 81 Cal.App.5th 61

, 71

, review granted Oct. 12,

2022, S276099 .) Under any of the other three lines of cases, the

court’s error here was harmless.

On the record before us, there is no reason to believe there

is readily available information that is likely to bear

meaningfully on whether the boys have Indian ancestry. Mother

and father both denied knowledge of any Indian ance stry in

signed, written submissions to the juvenile court

. They both

reiterated their lack of knowledge of Indian ancestry in person on

the record and neither provided additional information to the

court about Indian ancestry in the more than four years since

being admonished to do so. As such, this case is unlike

Benjamin M. There, the father was entirely absent from the

proceedings and no person from the father’s side of the family

had been asked about Indian ancestry. With information about

ancestry on the father’s side completely “missing,” inquiry with a

person sharing the father’s ancestry “ would likely have shed

meaningful light on whether t here [wa] s reason to believe

Benjamin [wa] s an Indian child. ” ( Benjamin M

. , supra

,

70 Cal.App.5th at p. 744.) No such facts are present here.

Further

, we are offered no reason in the record to believe

that the other extended family member s with whom the

Department communicated would have better information about

parents’ ancestry than parents did. Mother had robust recent

contact with her parents, including a period in which maternal

grandparents lived with both parents and the boys. Father also

has a history of close contact with his family members that the

Department encountered. Paternal grandmother and paternal

aunt attended some of father’s visits with the boys and father9

was raised for sev eral years by his cousin and cousin’s mother

(paternal grandfather’s sister)

. Finally, no one has suggested any reason to believe the

boys might have Indian ancestry. Certainly, father has made no

offer of proof that they are Indian child ren

. Instead, both parents

represented under penalty of perjury that they have no

information that the boys may have Indian heritage.

Additionally

, maternal grandparents were born and raised in the

Philippines, further diminishing the likelihood that there is any

Indian heritage to be discovered.

Given the absence of any evidence or claim that the boys

might have Indian ancestry, father’s “ unvarnished contention

that additional interviews of [relatives] would have meaningfully

elucidated [ the boys ’] Indian ancestry ” does not support a finding

of prejudice. ( In re Darian R.

, supra, 75 Cal.App.5th at p. 510.)

DISPOSITION

The juvenile court’s order terminating parental rights is

affirmed.

GRIMES, J.

I CONCUR:

STRATTON, P. J.1

WILEY, J., Dissenting.

With wonder and dismay, I file my 13 th dissent on this

issue.

WILEY, J.