Filed 12/8/22 In re D.D. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

In re D.D. et al., Persons Coming 

Under the Juvenile Court Law.

 B319941

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. appeals the juvenile court’s order terminating 

his parental rights 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 

Angeles 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 been 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, the juvenile court ordered the boys removed 

under Welfare and Institutions Code section 300, subdivisions (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 that 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 planning 
3

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, B309852) [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, the 

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 pursuant 

to this admonishment. 

Over the course of the proceedings, the Department also 

had contact with many of the boys’ extended family members. It 

had contact 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 it 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 family 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.)

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

with the first. This 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 voluntary 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 is 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.)
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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

Josiah 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 must 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 failed in its initial inquiry obligation imposed by 

California law to ask “extended family members” whether the 

boys are, or may be, Indian children. (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 section 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 Darian R.

(2022) 75 Cal.App.5th 502, 509 [finding error where evidence 
7

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.)

Courts 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.) 

The Fourth Appellate District in Benjamin M., supra,

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

court must reverse where the record demonstrates that the

agency has not only 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 approach, 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 ancestry 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 there [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 members 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 father 
9

was raised for several 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 children. 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 13th dissent on this 

issue.

WILEY, J.