Filed 3/14/23 In re L.L. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

In re L.L., et al., Persons 

Coming Under the Juvenile 

Court Law.

2d Juv. No. B322402

(Super. Ct. Nos. 20JV00283, 

20JV00284)

(Santa Barbara County)

SANTA BARBARA COUNTY 

DEPARTMENT OF SOCIAL

SERVICES,

 Plaintiff and Respondent,

v.

L.P.,

 Defendant and Appellant.

L.P. (mother) appeals the juvenile court’s orders

terminating her parental rights to her minor children, L.L., and 

J.L., and selecting adoption as the permanent plan. (Welf. & 
2

Inst. Code, § 366.26.)1 Mother’s sole contention on appeal is that 

the Santa Barbara County Child Welfare Services (CWS) and the 

juvenile court failed to comply with their duty of initial inquiry 

pursuant to the Indian Child Welfare Act of 1978 (ICWA) (25 

U.S.C., § 1901 et seq.) and related California law because

extended family members were not asked about possible Indian 

ancestry.

2 We conclude the error was harmless in view of the 

recent augmentation of the appellate record, which reflects CWS 

has complied with its duty of initial inquiry and no known Indian 

ancestry has been revealed. We affirm.

Facts and Procedural History

In July 2020, CWS petitioned the juvenile court to detain

20-month-old L.L. and 9-month-old J.L. from mother and Frank 

L. (father) due to ongoing domestic violence, substance abuse,

both parents’ criminal histories, and mother’s untreated mental 

health issues.

3 The petition included an “Indian Child Inquiry 

Attachment” that indicated neither parent gave any reason to 

believe the children are or may be Indian children. 

At the detention hearing, father denied any Indian 

ancestry when asked by the juvenile court. Mother was not 

present for the hearing. The juvenile court found there was no 

1 All further undesignated statutory references are to the 

Welfare and Institutions Code.

2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same 

for consistency, even though we recognize that other terms, such 

as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In 

re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)

3 We granted mother’s request for judicial notice of the 

related appellate case number B311378.
3

reason to believe or reason to know the children are Indian 

children and found ICWA did not apply. 

Thereafter, the juvenile court held a hearing to appoint 

counsel for mother. At that hearing, mother denied any Indian 

ancestry when asked by the juvenile court. Mother also 

completed an ICWA-020 form, “Parental Notification of Indian 

Status,” and declared, under penalty of perjury, that none of the 

criteria indicating Indian ancestry applied to her or her children. 

In August 2020, the juvenile court held the disposition 

hearing and found there was no reason to know the children were 

Indian children and found ICWA did not apply. It sustained the 

amended petition and ordered family reunification services for 

both parents. 

During CWS’s investigation and consideration of relative 

placements, CWS contacted paternal great grandparents, with 

whom L.L. and J.L. were subsequently placed. It also contacted 

maternal grandmother. The record does not indicate that CWS 

asked any of these extended family members about L.L.’s and 

J.L.’s possible Indian ancestry. The record similarly does not 

indicate that the juvenile court inquired of any extended family 

member about the minor children’s possible Indian ancestry 

during court proceedings, even though various relatives appeared 

at the proceedings, including paternal great grandparents, 

paternal aunt, maternal grandmother, and maternal aunt. 

In March 2021, the juvenile court held a contested sixmonth review hearing. Following the hearing, the juvenile court 

terminated both parents’ reunification services and set the 

matter for a permanency planning hearing pursuant to section 

366.26. 
4

In October 2021, the juvenile court held a combined 

hearing to consider mother’s section 388 petition and conduct the 

contested section 366.26 hearing. At the request of county 

counsel, the juvenile court once again found there was no reason 

to believe that ICWA would apply. Paternal great grandmother 

and maternal grandmother were present in the courtroom and 

made no objection. The juvenile court granted mother’s section 

388 petition and ordered additional reunification services for her.

In January 2022, at the eighteen-month review hearing, 

the juvenile court terminated mother’s reunification services and 

set the matter for a permanency planning hearing pursuant to 

section 366.26. 

In July 2022, two years after L.L. and J.L. were detained 

from mother and father, the juvenile court terminated parental 

rights following a contested section 366.26 hearing, found the 

children’s placement with paternal great grandparents was 

appropriate, and found by clear and convincing evidence the 

children are likely to be adopted. 

Motion to Augment

On November 14, 2022, prior to filing its respondent’s brief, 

CWS filed a motion to augment the record on appeal to include 

evidence of an updated “ICWA MATRIX” for L.L. and J.L. that

CWS filed in the juvenile court on October 28, 2022. The 

document reveals that between September 2022 and October 

2022, CWS contacted paternal great grandmother, paternal great 

grandfather, paternal aunt, and maternal grandmother, all of 

whom indicated there was no known Indian ancestry in their 

family. The document also reveals that on October 13, 2022, two 

months after mother filed this appeal, she contacted CWS and

informed them that maternal aunt, whom CWS had attempted to 
5

contact, was a minor. Mother reiterated that there was no Indian 

ancestry in her family “as they are all from Mexico.”

After CWS moved to augment the record with the updated 

ICWA matrix, mother filed an opposition. She contends this 

court should reject the motion “because it is an attempt to 

circumvent the requirements of Code of Civil procedure 909; 

because it would place this court in a fact-finding position; and 

because it does not resolve the issue on appeal.” We deferred 

resolution of CWS’s motion to augment pending completion of 

briefing. 

We determine that the application of Code of Civil 

procedure 909 is appropriate in this case, as we shall explain

below, and grant CWS’s motion to augment the record. 

Discussion

Mother contends the judgment terminating her parental 

rights should be conditionally affirmed and the matter remanded 

to the juvenile court due to the failure of CWS and the juvenile 

court to comply with their duty of initial inquiry whether L.L.

and J.L. are or may be Indian children. 

We review claims of inadequate inquiry into a child’s 

Indian ancestry for substantial evidence. (In re Rebecca R. (2006) 

143 Cal.App.4th 1426, 1430; § 224.2, subd. (i)(2).)

ICWA defines an “Indian child” as “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) & (8); § 224.1, subd. (a).) The juvenile court and 

the county child welfare department have an affirmative and 

continuing duty to inquire whether a child subject to dependency 

proceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal. 
6

Rules of Court, rules 5.481(a) & 5.668(c).) The duty to inquire

begins with the initial contact and obligates the juvenile court 

and the child services agency to ask the child, parents, extended 

family members, and others who have an interest in the child, 

whether the child is, or may be, an Indian child. (§ 224.2, subds. 

(a)-(c); In re E.L. (2022) 82 Cal.App.5th 597, 607.) 

Here, both mother and father repeatedly denied having any 

Indian ancestry when asked by CWS and by the juvenile court. 

Mother also completed the ICWA-020 form and checked the box 

indicating she had no Indian ancestry. There was no objection 

when the juvenile court found that ICWA did not apply. 

However, the record does not reflect that CWS or the juvenile 

court made the required inquiries of extended family members. 

CWS admits that it contacted extended family members during 

the course of this case, prior to appeal, and “failed to include any 

ICWA inquiry in the record.” 

The question becomes whether the error is harmless. 

(People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, § 

13.)

Currently, there is a split of authority as to whether an 

appellate court should consider additional evidence outside the 

lower court record concerning a child services agency’s 

investigatory efforts pursuant to ICWA. We conclude that 

additional evidence may be considered in certain circumstances, 

where as here, the evidence resolves appellant’s ICWA claim of 

error on appeal. 

Code of Civil Procedure section 909 permits appellate 

courts to make independent factual findings and take additional 

evidence on appeal. Our Supreme Court cautions that this 

authority should be exercised sparingly. (In re Zeth S. (2003) 31 
7

Cal.4th 396, 405.) But Code of Civil Procedure section 909 “also 

mandates it shall be liberally construed where a cause may be 

disposed of in a single appeal.” (In re E.L., supra, 82 Cal.App.5th

at p. 600.) “When, however, postjudgment evidence is offered to 

an appellate court in support of a motion to dismiss a juvenile 

dependency appeal, it is ‘routinely conder[ed]’ because, if the 

motion is granted, it will have ‘the beneficial consequence’ of 

‘“expedit[ing] the proceedings and promot[ing] the finality of the 

juvenile court’s orders and judgment.”’” (In re Allison B. (2022) 

79 Cal.App.5th 214, 219; In re Dezi C. (2022) 79 Cal.App.5th 769, 

779, fn. 4, review granted Sept. 21, 2022, S275578.)

Here, the ICWA matrix offered by CWS reflects that after 

mother filed her appeal, CWS interviewed all extended family 

members with whom it made contact, and each denied Indian 

ancestry. Accordingly, the deficiency in CWS’s duty of initial 

inquiry has subsequently been cured. Augmentation of the 

record in this case, permits us to “achieve now what the trial 

court would do on remand – find that ICWA does not apply.” (In 

re E.L., supra, 82 Cal.App.5th at p. 608.) Therefore, remand of 

the matter would be redundant and would unnecessarily delay 

the likelihood of adoption of L.L. and J.L.

Mother resists this conclusion and contends augmentation 

of the record does not resolve the error because CWS could have 

inquired of additional extended family members, including 

paternal grandmother whose contact information was listed in a 

police report filed with the court, and maternal grandfather who 

was referenced in the disposition report. 

But the augmented record reflects that CWS has complied 

with its initial duty to inquire of those extended family members

with whom it had contact. (See In re J.C. (2022) 77 Cal.App.5th
8

70, 78-79.) We recognize that any investigation can always be 

more robust. However, we will not “set aside” the juvenile court’s 

judgment unless it “has resulted in a miscarriage of justice.” 

(Cal. Const., art. VI, § 13.) Here, it has not. There is no 

information to suggest that L.L. and J.L. might be Indian 

children or that inquiry of additional extended family members 

would reveal some evidence of Indian ancestry. 

We conclude the failure of CWS and the juvenile court to 

comply with their duty of initial inquiry has subsequently been 

cured as evidenced by the augmented record on appeal, and 

therefore the error is harmless.

Disposition

The judgment (orders terminating parental rights and

selecting adoption as the permanent plan) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Gustavo Lavayen, Judge

Superior Court County of Santa Barbara

______________________________

Carol A. Koenig, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rachel Van Mullem, County Counsel, Lisa A. Rothstein, 

Senior Deputy County Counsel, for Plaintiff and Respondent.