Filed 7/20/22 In re Desmond L. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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

In re DESMOND L., Jr., a 

Person Coming Under the 

Juvenile Court Law.

 B313494

 (Los Angeles County Super. 

 Ct. No. 19CCJP04616)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DESMOND L., Sr., et al.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Robin Kesler, Juvenile Referee. Conditionally 

affirmed and remanded with directions.

Megan Turkat Schirn, under appointment by the Court of 

Appeal, for Defendant and Appellant Desmond L., Sr.
2

Lori Siegel, under appointment by the Court of Appeal, for 

Defendant and Appellant Chevette P.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and David Michael Miller, Deputy 

County Counsel, for Plaintiff and Respondent.

__________________________

Chevette P. (Mother) and Desmond L., Sr., (Father) appeal 

from the juvenile court’s order terminating their parental rights 

over two-year-old Desmond L., Jr., (Desmond) under Welfare and 

Institutions Code section 366.26.1 They contend the juvenile 

court erred in finding the beneficial parental relationship 

exception to termination of parental rights did not apply. The 

parents also argue the Los Angeles County Department of 

Children and Family Services (the Department) and the juvenile 

court failed to comply with the inquiry and notice provisions of 

the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; 

ICWA) and related California law.

The juvenile court did not abuse its discretion in finding 

the beneficial parental relationship exception did not apply. 

However, we agree the Department and the juvenile court erred 

in failing to comply with the inquiry and notice provisions, and 

the error was prejudicial. We conditionally affirm and remand 

for the juvenile court and the Department to comply with the 

inquiry and notice provisions of ICWA and California law.

1 Further undesignated statutory references are to the 

Welfare and Institutions Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Referral, Dependency Petition, and Detention

On July 4, 2019 the Department received a referral after

Mother locked herself and one-month-old Desmond in the 

bedroom. Father called law enforcement “‘to get her (Mother) to 

the mental hospital.’” Father denied Mother had threatened to 

kill herself or the baby; however, he reported Mother had 

previously made this threat.

2 Mother was involuntarily 

hospitalized because she was “‘agitated’” and experiencing

“‘active psychosis’” and “‘delusional paranoid thoughts.’” The 

paternal grandmother (Priscila L.) expressed concern about 

Mother’s failure to take her medication. The paternal 

grandmother reported she had urged Father to file for custody of 

Desmond and to move back to Virginia where she and the 

paternal aunts could help care for the baby.

After the incident, Desmond remained in Father’s care. 

The social worker observed Father was well bonded with 

Desmond and attentive to the baby’s needs. But Desmond 

appeared “‘very tense’”—he “would cry in a high[-]pitched tone 

with an arched back and ‘squirm’ hysterically while being held” 

by Father or the social worker. According to the social worker, 

“Father was very patient and never appeared angered or 

frustrated” by Desmond’s behavior. However, on July 17, 2019

2 From September 21, 2017 to July 4, 2019 law enforcement 

came to the home 11 times in response to calls reporting that 

Mother had threatened to harm herself or others; on some of the 

occasions Mother had a weapon. 
4

the Department obtained a removal order after learning Father 

had been diagnosed with schizoaffective disorder and had other 

mental health issues; he was not consistently taking his 

psychotropic medication; and he intended to continue residing in 

the home with Mother after her release from the hospital.

On July 22, 2019 the Department filed a dependency 

petition on behalf of then-two-month-old Desmond. The petition 

alleged Mother has “bipolar disorder, schizophrenia, severe 

depression, suicidal and homicidal ideations, paranoid thoughts 

and audio and visual hallucinations which renders [her]

incapable of providing the child with regular care and 

supervision.” Mother failed to take her psychotropic medication 

on a regular basis, and she was hospitalized on July 12, 2018 and 

July 4, 2019 for mental health treatment. Mother’s older child 

C.P. was a prior dependent of the court and received permanent 

placement services due to Mother’s mental health problems. 

Father failed to protect Desmond because he knew of Mother’s 

mental health problems and allowed her to reside in the home 

with unlimited access to Desmond.

The petition also alleged Father was diagnosed with

schizoaffective disorder, moderate post-traumatic-stress disorder, 

a slight developmental delay, and “psychoactiv[ity].”

3 Father 

failed to take psychotropic medication as prescribed. Father’s

mental and emotional problems rendered him incapable of 

3 Father’s therapist explained Father’s psychoactive 

diagnosis related to Father’s alcohol use. According to the 

therapist, Father was in “‘full remission’” because he did not 

currently use alcohol.
5

providing Desmond with regular care and supervision, 

endangered the child’s physical health and safety, and placed 

Desmond at risk of serious physical harm. 

At the July 23, 2019 detention hearing, the juvenile court

detained Desmond from Mother and Father.

4 The court granted 

Mother monitored visits two times a week for one to two hours 

per visit. The court granted Father monitored visits three times 

a week for two hours each visit.

B. The First Amended Petition

On August 14, 2019 Mother and Father arrived three and a 

half hours early for their visit with Desmond. Mother had a 

“‘blank stare’” and signed in multiple times on different 

clipboards. The visitation monitor reported Mother “appeared 

very mad, flustered and frustrated.” Mother flung a diaper bag 

across the room while trying to remove the pacifier attached to

the bag. Mother later fed Desmond only half a bottle of formula

even though it appeared he was still hungry and was crying for 

more. While Father was in the bathroom, Mother buckled

Desmond in the car seat, placed the diaper bag on her shoulder

and walked quickly towards the door with him. When the 

monitor asked Mother where she was going, Mother responded, 

“‘Me and my baby are going home.’” The monitor called security, 

who came to assess the situation. The monitor reported that 

when Father walked back he was informed of what had 

4 The juvenile court made an initial ICWA inquiry at the 

detention hearing. We discuss below the inquiry by the 

Department and the court.
6

transpired and became visibly upset, asking Mother “why would 

you do something so stupid?”

On September 6, 2019 the Department filed a first 

amended petition. Amended counts b-1 and j-1 alleged that on 

August 14 Mother “failed to take her psychotropic medication, 

[and] displayed aggressive and erratic behaviors. Consequently, 

the child’s mother attempted to take the child during the 

monitored visit.”

C. The Jurisdiction and Disposition Hearing

At the September 25, 2019 jurisdiction and disposition 

hearing, the juvenile court sustained the first amended petition

under section 300, subdivisions (b)(1) and (j), declared Desmond a 

dependent of the court, and removed him from Mother’s and 

Father’s custody. The court ordered Mother and Father to

participate in parenting classes for infants, a psychiatric 

evaluation (and a psychological assessment for Mother), mental 

health counseling, and weekly individual counseling with a 

licensed therapist. In addition, the court ordered the parents to 

take all prescribed psychotropic medications. The court also 

ordered Father to submit to alcohol testing. The court ordered 

the Department to provide family reunification services to 

Mother and Father.

The court denied visitation for Mother until she provided 

proof of enrollment in mental health services. The court reduced 

Father’s visitation to weekly one-hour visits out of a concern for

Desmond’s emotional well-being in light of his crying 

uncontrollably whenever Father picked him up. However, the 

court indicated it would address the duration and frequency of 

the visits in the future.
7

D. Visitation During the Family Reunification Period 

During September 2019 Father had four monitored visits 

with Desmond. While Desmond was “calm and alert before the 

visits,” he immediately cried when Father “pick[ed] him up from 

his car seat.” Desmond would continue “crying for 45 minutes to 

up to an hour and 20 minutes straight until he [fell] asleep in 

[Father’s] arms.” Father tried “to calm Desmond by rocking him 

in his arms, walking around the room, giving him a bottle, 

changing his diaper, [and] burping him.” Desmond only stopped 

crying when he drank formula, but once he finished the bottle, he 

would start crying again. After the visits, Desmond would 

become “calm and quiet again.”

Mother was hospitalized in late August and September to 

treat her mental health, and as a result she did not visit 

Desmond. Mother was again hospitalized in October 2019 

following a “horrific” multiple vehicle accident in which she broke 

her pelvic bone. Mother’s and Father’s visits were postponed 

while Mother was in the hospital. In November 2019 Mother and 

Father resumed monitored visits with Desmond. The visitation 

monitor reported the November 12 “visit went surprisingly well.” 

Mother held Desmond for a few minutes then handed him back to 

Father. Mother and Father “were fully engaged with” Desmond, 

and the child “responded well to [M]other and [F]ather.”

On December 6, 2019 the juvenile court granted Mother 

monitored one-hour weekly visits and Father monitored two-hour

twice weekly visits. The social worker urged Father to visit 

Desmond twice a week, but Father continued to have a single

one-hour visits with Mother present.
8

In March 2020 the Department reported Mother often held 

Desmond “for less than 5 minutes throughout the duration of the 

visit.” During most visits, Desmond would cry “profusely while in 

[F]ather’s care.” Father “attempt[ed] to soothe [Desmond] by 

holding him, rocking him, and speaking gently.” More recently,

Father had been able to calm down Desmond.

During the COVID-19 pandemic, Mother and Father had 

video chats with Desmond in lieu of in-person visits. When inperson visits resumed in July 2020, Desmond “would cry for long 

periods of time” until he gradually adjusted to the visits. When 

Father visited Desmond without Mother, the two would play at 

the park. Father was “very cautious and patient” with Desmond

and was “careful around anything that could be dangerous” for 

Desmond. Desmond “appear[ed] to be well bonded” with Mother 

and Father during visits. On September 23, 2020 the juvenile 

court found Mother and Father had made substantial progress in 

their case plans and ordered continued family reunification 

services.

Starting on November 13, 2020 Father began having a 

second one-hour visit with Desmond without Mother. Mother 

and Father arrived on time for their visits and were attentive 

toward Desmond. The monitor reported the visits were “going 

well” and Desmond was no longer crying around Father like he 

did during earlier visits. The following month the Department 

extended Mother’s visits to two hours.

E. The 18-month Review Hearing

At the March 9, 2021 18-month review hearing (§ 366.22), 

the juvenile court found Mother’s progress had “been 

unsatisfactory towards alleviating or mitigating the causes 
9

necessitating placement.” Father had been visiting Desmond 

during the prior year and was “engaged in his case plan services, 

but he ha[d] not completed his case plan services that were 

ordered a year and a half ago.” The court terminated Mother’s 

and Father’s family reunification services, explaining Desmond 

was only two months old when he was detained and the parents 

had been given 18 months of family reunifications services.

F. The Section 366.26 Report

The June 15, 2021 section 366.26 report for the selection 

and implementation hearing stated two-year-old Desmond had 

been placed with his caregivers since he was two months old. 

The caregivers loved Desmond, treated him as their son, and 

wanted to adopt him. They were “able and willing to meet all of 

Desmond’s needs,” including regional center services and 

treatment of his Kawasaki’s disease.

5 Desmond was “thriving” in 

their home. The caregivers were “the only family that Desmond 

has known,” and he appeared “to very comfortable and attached 

to his caregivers.”

Mother and Father continued to have weekly monitored 

visits with Desmond for two hours each visit. Mother and Father

were “consistent with their visits and there [were] no reported 

concerns.” The social worker observed during an April 2021 visit 

that the parents brought snacks and toys to the visit, and they 

5 “Kawasaki disease” is “an acute inflammatory illness 

involving blood vessels throughout the body that is of unknown 

cause and chiefly affects infants and children.” (See MerriamWebster’s Online Dict. (2022) <https://www.merriamwebster.com/dictionary/Kawasaki disease> [as of July 20, 2022],

archived at https://perma.cc/H83X-RXJG.)
10

were attentive to Desmond. Desmond was happy to see Mother 

and Father.

G. The Selection and Implementation Hearing 

At the June 30, 2021 selection and implementation hearing

(§ 366.26), Father testified he and Mother had in-person visits

every Thursday with Desmond. Father brought clothes, shoes, 

toys, and food to the visits for Desmond. Father changed 

Desmond’s diaper, played with him, and made sure Desmond was 

safe and did not run from the visit site into traffic. Father taught 

Desmond “his colors, and his shapes, and how to count.” Mother 

was in a wheelchair, but she was able to interact with Desmond 

during the visits. Mother and Father also had virtual visits by 

video for five to 20 minutes every day. Desmond called Father 

“Da-Da” and referred to Mother as his mother. Father objected to 

the adoption and asked the court “to give [him] a chance to be a 

good father.”

Father’s counsel requested the court find the beneficial 

parental relationship exception applied. She admitted Father 

only had monitored visits but noted Father had visited 

consistently, brought food, clothes, and toys to the visits, and 

played with Desmond. Further, Father “does act as a parent 

during these visits. . . . [Father] changes his diaper, and he 

teaches Desmond how to count, what his colors are, and what his 

shapes are. Additionally, Desmond . . . still does call [Father] dada. . . . [Father] asserts he’s occupied a parental role in 

Desmond[’s] life.” Mother’s counsel argued the parents had 

“consistently visited” and “these visits are positive and the child 

does recognize his parents as his parents.”
11

The Department’s counsel acknowledged the parents had 

“consistent visitation” with Desmond, but she argued the 

beneficial parental relationship exception did not apply because 

“this visitation doesn’t rise to the level of acting in a parental 

role, or creating a relationship that it would be detrimental to 

this child to sever this relationship.” Minor’s counsel joined with 

the Department to request the court terminate parental rights, 

arguing no exceptions applied.

The juvenile court found by clear and convincing evidence 

Desmond was adoptable and no exception to termination of 

parental rights applied. The court explained, “While the parents 

have maintained consistent visitation with the child, it has 

. . . not risen above the monitored status to even unmonitored. 

The parents have not occupied a parental role with the child. 

While the child may call and recognize the parents as the 

parents, I cannot find it would be a detriment to sever the 

relationship between the parents and the child.” The court

terminated parental rights and designated the caregivers as the 

prospective adoptive parents.

Mother and Father timely appealed.

DISCUSSION

A. The Beneficial Parental Relationship Exception

“At the section 366.26 hearing, the focus shifts away from 

family reunification and toward the selection and implementation 

of a permanent plan for the child.” (In re S.B. (2009) 46 Cal.4th

529, 532; accord, In re Caden C. (2021) 11 Cal.5th 614, 630

(Caden C.).) “‘Once the court determines the child is likely to be 

adopted, the burden shifts to the parent to show that termination 
12

of parental rights would be detrimental to the child under one of 

the exceptions listed in section 366.26, subdivision (c)(1).’” (In re 

B.D. (2021) 66 Cal.App.5th 1218, 1224-1225; accord, In re Celine 

R. (2003) 31 Cal.4th 45, 53 [“the court must order adoption and 

its necessary consequence, termination of parental rights, unless 

one of the specified circumstances provides a compelling reason 

for finding that termination of parental rights would be 

detrimental to the child”].)

Under section 366.26, subdivision (c)(1)(B)(i), “the parent 

may avoid termination of parental rights” if the parent 

establishes by a preponderance of the evidence “that the parent 

has regularly visited with the child, that the child would benefit 

from continuing the relationship, and that terminating the 

relationship would be detrimental to the child. [Citations.] The 

language of this exception, along with its history and place in the 

larger dependency scheme, show that the exception applies in 

situations where a child cannot be in a parent’s custody but 

where severing the child’s relationship with the parent, even 

when balanced against the benefits of a new adoptive home,

would be harmful for the child.” (Caden C., supra, 11 Cal.5th at 

pp. 629-630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)

A parent has regular visitation and contact when the 

parent “‘visit[s] consistently,’ taking into account ‘the extent 

permitted by court orders.’” (Caden C., supra, 11 Cal.5th at 

p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.) 

Whether “‘the child would benefit from continuing the 

relationship’” with his or her parent is shaped by factors “such as 

‘[t]he age of the child, the portion of the child’s life spent in the 

parent’s custody, the “positive” or “negative” effect of interaction 

between parent and child, and the child’s particular needs.’”
13

(Caden C., at p. 632; accord, In re Katherine J. (2022) 

75 Cal.App.5th 303, 317 (Katherine J.).) “‘If severing the natural 

parent/child relationship would deprive the child of a 

substantial, positive emotional attachment such that,’ even 

considering the benefits of a new adoptive home, termination 

would ‘harm[]’ the child, the court should not terminate parental 

rights.” (Caden C., at p. 633; Katherine J., at p. 317.) “While 

application of the beneficial parental relationship exception rests 

on a variety of factual determinations properly reviewed for 

substantial evidence, the ultimate decision that termination 

would be harmful is subject to review for abuse of discretion.” 

(Caden C., at p. 630; accord, In re B.D., supra, 66 Cal.App.5th at 

p. 1225.)

B. The Juvenile Court Did Not Abuse Its Discretion in Finding 

the Beneficial Parental Relationship Exception Did Not 

Apply

Mother and Father contend the juvenile court abused its 

discretion in finding the beneficial parental relationship 

exception did not apply because the court only considered 

whether the parents occupied a parental role, which is improper 

under Caden C.

6 The Supreme Court in Caden C. did not bar 

juvenile courts from considering whether a parent occupies a 

“parental role” in deciding whether the beneficial parental 

relationship exception applies; instead, the court explained that

even where a parent continues to struggle with the problems that 

led to the dependency proceedings, the juvenile court’s inquiry as 

6 It is undisputed the parents had regular visits with 

Desmond.
14

to whether the beneficial parental relationship exception applies 

should focus on whether those challenges interfere with the 

parent’s relationship with the child, whether the child has a 

substantial, positive emotional attachment to the parent, and 

whether loss of the relationship would be detrimental to the 

child. (Caden C., supra, 11 Cal.5th at p. 642; see In re D.M. 

(2021) 71 Cal.App.5th 261, 271-272 [reversing order terminating 

parental rights following Caden C. where juvenile court

improperly found father did not occupy parental role solely 

because he failed to attend his children’s dental and medical 

appointments and to understand their medical needs]; In re J.D. 

(2020) 70 Cal.App.5th 833, 863-865, 870 [juvenile court 

improperly held beneficial parental relationship exception did not 

apply because mother’s positive relationship with child “did not 

‘amount to a parental bond’” in light of mother’s failure to meet 

child’s daily needs]; In re B.D., supra, 66 Cal.App.5th at pp. 1229-

1230 [reversing juvenile court’s order terminating parental 

rights, and ordering new hearing in light of Caden C. to 

determine whether juvenile court’s finding that parent did not 

serve in “parental role” was improperly based on parents’ ability 

to provide for the children’s daily needs and parents’ sobriety].)

As the Court of Appeal recently explained in Katherine J., 

supra, 75 Cal.App.5th at page 309, “Caden C. prohibits juvenile 

courts from finding against a beneficial relationship solely 

because a parent has failed to surmount the issues that initially 

brought the child into dependency care—a standard that few 

parents facing termination of parental rights could hope to meet.” 

(Accord, In re L.A.-O. (2021) 73 Cal.App.5th 197, 211-212 

[reversing order terminating parental rights, and remanding for 

new section 366.26 hearing because “trial court’s terse ruling”
15

that “the parents ‘ha[d] not acted in a parental role in a long

time’” could erroneously mean the parents “were not capable of 

taking custody, or had not been good parents, or had not been 

providing necessary parental care”].) However, a finding the 

parent does not serve in a “‘parental role’” in the child’s life does 

not necessarily mean the juvenile court failed to consider the

child’s substantial, positive emotional attachment to the parent

as required by Caden C., supra, 11 Cal.5th at page 636 and 

section 366.26, subdivision (c)(1)(B)(1). (Katherine J., at pp. 309, 

321-322 [affirming order terminating parental rights despite 

juvenile court’s finding father had not served in parental role in 

child’s life where father’s unresolved issues prevented him from 

maintaining strong, positive attachment with child, thereby 

diminishing benefits to child from relationship].)

Although the juvenile court found Mother and Father had 

not “occupied a parental role” with Desmond, the court was 

responding to an argument by Father’s counsel that Father “does 

act as a parent during these visits.” It is troubling that the 

juvenile court did not explain what it meant by the parents 

occupying a “parental role,” but any error in not clarifying its 

findings was harmless because Mother and Father failed to meet 

their burden to show Desmond developed a substantial, positive 

emotional attachment with them during the limited monitored 

visits each week, as a result of which Desmond would benefit 

from continuing the relationship. (Caden C., supra, 11 Cal.5th at 

p. 636; see In re Jesusa V. (2004) 32 Cal.4th 588, 624 [harmless 

error standard applies in dependency cases]; In re Malick T.

(2022) 73 Cal.App.5th 1109, 1128 [same].)

Desmond was only two months old when he was detained 

from Mother and Father and placed with his caregivers. During 
16

the first year of visitation, Mother held Desmond for only a few 

minutes before handing him back to Father. And Desmond cried 

uncontrollably when Father held him, except when Desmond 

drank formula from his bottle or fell asleep in Father’s arms. It 

was not until September 2020 that Father started having a 

second visit each week with Desmond, during which Father had

more positive interactions with Desmond in the park (but without 

Mother). The social worker observed that at the weekly visits in 

2020 Desmond “appear[ed] to be well bonded” with Mother and 

Father during the visits, but the record does not reflect any 

indicia of a bond other than that the parents were attentive to 

Desmond and brought snacks and toys to the visits.

In June 2021 the Department reported Mother and Father 

were “consistent with their visits and there were no reported 

concerns.” Further, the social worker observed Desmond was 

happy to see Mother and Father. However, Father’s testimony at 

the selection and implementation hearing did not address the 

emotional attachment Desmond had with the parents, instead 

focusing on the fact Father played with Desmond and taught him 

about colors, shapes, and how to count. The only other evidence

of a relationship was that Desmond called Father “Da-Da” and 

referred to Mother as his mother. Thus, at most the evidence 

shows that by 2021 Mother and Father developed a bond with 

Desmond through their weekly monitored visits, but the parents 

failed to prove Desmond had “a substantial, positive, emotional 

attachment” with them. (Caden C., supra, 11 Cal.5th at p. 636; 

see Katherine J., supra, 75 Cal.App.5th at p. 317.)

Moreover, Mother and Father did not meet their burden to 

show it would be detrimental to Desmond to sever his 

relationship with the parents. Desmond’s caregivers were “the 
17

only family that Desmond has known,” and they treated 

Desmond as their son. The caregivers were the prospective 

adoptive parents, and they were “able and willing to meet all of 

Desmond’s needs” including regional center services and 

treatment of his Kawasaki’s disease; and Desmond thrived in 

their care. The court did not abuse its discretion in impliedly 

finding the benefit and security provided by Desmond’s continued 

placement with his prospective adoptive parents outweighed any

harm that would be caused by the loss of his relationship with 

Mother and Father. (Caden C., supra, 11 Cal.5th at p. 634;

Katherine J., supra, 75 Cal.App.5th at p. 317.)

C. The Juvenile Court and the Department Failed To Comply 

with ICWA and Related California Law 

1. ICWA inquiry, notice, and findings

At the detention hearing on July 23, 2019 Father filed a 

parental notification of Indian status form (ICWA-020), on which 

he checked the box stating, “I have no Indian ancestry as far as I 

know.” Mother also filed a parental notification of Indian status 

form, on which she checked the box stating, “I may have Indian 

ancestry.” Mother wrote her “[m]aternal side of family” might 

have “Blackfoot” ancestry, and she listed the names of maternal 

grandfather James P. and maternal cousin Ida A.

 At the hearing, the juvenile court questioned Mother and 

maternal grandmother Yvette T. about the family’s Indian 

ancestry. The court asked Yvette, “Can you tell me if you have 

any American Indian ancestry on your side of the family?” Yvette 

answered, “No.” The court then asked, “So, if you daughter 

claimed on her ICWA-20 form, which is a form regarding 

parental notification of Indian status that she may have Indian 
18

ancestry on the maternal side of the family and she claims, 

Blackfoot, would that be true?” Yvette responded, “I guess, 

yeah.” The court responded, “Well, you just said ‘no.’” Yvette 

replied, “I don’t know if my family history, but her father[’s] 

history—.” The court interrupted, “I’m talking about your 

history, maternal side of the family.” Yvette answered, “No.” 

Yvette stated James was still alive but she did not have his 

phone number. Minor’s counsel reported Yvette had provided 

him with the maternal uncle’s phone number, explaining “we 

think he has a way to get ahold of the maternal grandfather.” 

Yvette also told minor’s counsel “she may have [James’s] address 

at home.”

The juvenile court asked Mother, “[D]o you have any 

information that on your father’s side of the family there is any 

Blackfoot heritage?” Mother answered, “No.” Mother stated she 

was told as a child by her maternal cousin (Ida) that “we have 

Blackfoot Indian ancestry.” Yvette responded she did not “have 

any knowledge of it.” Yvette informed the court she had a phone 

number for Ida, and she would try to obtain the most recent one.

The court ordered the Department to investigate Mother’s 

claim of Blackfoot ancestry by contacting Ida and James, and “if 

they confirm Blackfoot heritage,” to provide ICWA notice to the 

tribe.7 The court did not inquire about the paternal family’s 

7 “[T]here is frequently confusion between the Blackfeet 

tribe, which is federally recognized, and the related Blackfoot 

tribe, which is found in Canada and thus not entitled to notice of 

dependency proceedings. When Blackfoot heritage is claimed, 

part of the Agency’s duty of inquiry is to clarify whether the 

parent is actually claiming Blackfoot or Blackfeet heritage so 
19

possible Indian ancestry. The July 23, 2019 minute order stated, 

“The Court does not have a reason to know that ICWA applies to 

Father.”

The court did not make any findings as to ICWA at the 

jurisdiction and disposition hearing. At the continued 18-month 

review hearing held on March 9, 2021 the Department submitted 

the IWCA notices (ICWA-030) the Department had previously 

sent to the Blackfeet Tribe of Montana, the Bureau of Indian 

Affairs, and the Secretary of the Interior on November 14, 2019. 

The notices stated Mother’s, Father’s, and maternal grandmother 

Yvette’s birth date and birth place were “unknown.” Further, the 

ICWA notices listed the paternal grandmother Priscila’s current 

and former address and her birth date and place as “unknown.” 

The ICWA notice did not provide any information about the 

maternal and paternal grandfathers, the maternal and paternal 

great-grandparents, or any other relatives.

On January 21, 2020 Mary R. Cooper, the ICWA Tech for 

the Blackfeet Tribe, sent a letter in response to the ICWA notice. 

Cooper wrote she was unable to find Desmond listed on the tribal 

rolls and he was not eligible for enrollment because “our blood 

quantum requirement for enrollment is 1/4 Blackfeet blood.” 

Cooper added, “If you are able to gather more information on the 

ancestry of the parents, please contact me again and I will review 

the tribal rolls.”

On February 4, 2021 a social worker emailed Cooper to 

inquire about James and Ida, and whether Desmond was an 

Indian child. Cooper responded that if neither Mother nor Father 

that it can discharge its additional duty to notice the relevant 

tribes.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
20

was registered as a Blackfeet tribe member, then Desmond was 

not a member of the tribe. At the March 9, 2021 18-month review 

hearing, the juvenile court found it did not have reason to know 

Desmond was an Indian child, and ICWA did not apply.

2. ICWA inquiry and notice requirements

ICWA provides as to dependency proceedings, “[W]here the 

court knows or has reason to know that an Indian child is 

involved, the party seeking . . . termination of parental rights 

to . . . an Indian child shall notify the parent or Indian custodian 

and the Indian child’s tribe, by registered mail with return 

receipt requested, of the pending proceedings and of their right of

intervention.” (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 

1 Cal.5th 1, 5; In re Antonio R. (2022) 76 Cal.App.5th 421, 428

(Antonio R.); In re T.G. (2020) 58 Cal.App.5th 275, 288.) 

California law also requires notice to the Indian tribe and the 

parent, legal guardian, or Indian custodian if the court or the 

Department “knows or has reason to know” the proceeding 

concerns an Indian child. (§ 224.3, subd. (a); see Antonio R., at 

p. 429; In re T.G., at p. 288; Cal. Rules of Court, rule 5.481(c)(1) 

[notice is required “[i]f it is known or there is reason to know an 

Indian child is involved in a proceeding listed in rule 5.480,” 

which includes dependency cases filed under section 300].) The 

notice requirement is at the heart of ICWA because it “enables a 

tribe to determine whether the child is an Indian child and, if so, 

whether to intervene in or exercise jurisdiction over the 

proceeding.” (In re Isaiah W., at p. 5; accord, Antonio R., at 

p. 428; In re T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst. 

Code, § 224.3, subd. (d).)
21

The juvenile court and the Department “have an 

affirmative and continuing duty to inquire whether a child for 

whom a petition under Section 300 . . . may be or has been filed, 

is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah 

W., supra, 1 Cal.5th at p. 9; In re H.V. (2022) Cal.App.5th 433, 

437 [“The trial court and [Department] have an affirmative and 

continuing duty in every dependency proceeding to determine 

whether ICWA applies.”].) “The continuing duty to inquire 

whether a child is or may be an Indian child ‘can be divided into 

three phases: the initial duty to inquire, the duty of further 

inquiry, and the duty to provide formal ICWA notice.’” (In re 

Y.W. (2021) 70 Cal.App.5th 542, 552; accord, In re H.V., at p. 437; 

In re Josiah T. (2021) 71 Cal.App.5th 388, 402.)

“The duty to inquire begins with initial contact (§ 224.2, 

subd. (a)) and obligates the juvenile court and child protective 

agencies to ask all relevant involved individuals whether the 

child may be an Indian child. (§ 224.2, subds. (a)-(c)).” (In re 

T.G., supra, 58 Cal.App.5th at p. 290; accord, In re J.C. (2022) 

77 Cal.App.5th 70, 77; In re H.V., supra, 75 Cal.App.5th at p. 437

[“[F]rom the [Department]’s initial contact with a minor and his 

family, [section 224.2] imposes a duty of inquiry to ask all 

involved persons whether the child may be an Indian child.”].)

Section 224.2, subdivision (b), effective January 1, 2019, 

imposes on the Department a duty to inquire whether a child in 

the Department’s temporary custody is an Indian child, which 

“[i]nquiry includes, but is not limited to, asking 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 . . . .” (Id.; see Cal. Rules of Court, 
22

rule 5.481(a)(1) [the Department “must ask . . . extended family 

members . . . whether the child is or may be an Indian child”]; In 

re D.F. (2020) 55 Cal.App.5th 558, 566; In re Y.W., supra, 

70 Cal.App.5th at pp. 551-552.) Under ICWA, the term 

“extended family member” is “defined by the law or custom of the 

Indian child’s tribe or, in the absence of such law or custom, shall 

be a person who has reached the age of eighteen and who is the 

Indian child’s grandparent, aunt or uncle, brother or sister, 

brother-in-law or sister-in-law, niece or nephew, first or second 

cousin or stepparent.” (25 U.S.C. § 1903(2); see Welf. & Inst. 

Code, § 224.1, subd. (c) [“As used in connection with an Indian 

child custody proceeding, the terms ‘extended family member’ 

and ‘parent’ shall be defined as provided in Section 1903 of the 

federal Indian Child Welfare Act.”].)

“State law also expressly requires the juvenile court to ask 

participants who appear before the court about the child’s 

potential Indian status. (§ 224.2, subd. (c).)” (In re Benjamin M.

(2021) 70 Cal.App.5th 735, 742; accord, In re Josiah T., supra,

71 Cal.App.5th at p. 402.) Similarly, under federal regulations, 

“[s]tate courts must ask each participant in an . . . involuntary 

child-custody proceeding whether the participant knows or has 

reason to know that the child is an Indian child.” (25 C.F.R. 

§ 23.107(a) (2022).) “The duty to develop information concerning 

whether a child is an Indian child rests with the court and the 

Department, not the parents or members of the parents’ 

families.” (Antonio R., supra, 76 Cal.App.5th at p. 430; see In re 

K.R. (2018) 20 Cal.App.5th 701, 706 [“The court and the agency 

must act upon information received from any source, not just the 

parent [citations], and the parent’s failure to object in the 

juvenile court to deficiencies in the investigation or noticing does 
23

not preclude the parent from raising the issue for the first time 

on appeal . . . .”].)

“[I]f the court or child protective agency ‘has reason to 

believe that an Indian child is involved in a proceeding, but does 

not have sufficient information to determine that there is reason 

to know that the child is an Indian child,’ the court and the 

Department ‘shall make further inquiry regarding the possible 

Indian status of the child, and shall make that inquiry as soon as 

practicable.’” (In re J.C., supra, 77 Cal.App.5th at p. 78, quoting 

§ 224.2, subd. (e); see In re H.V., supra, 75 Cal.App.5th at p. 437; 

In re T.G., supra, 58 Cal.App.5th at p. 290; Cal. Rules of Court, 

rule 5.481(a)(4).)

3. The juvenile court failed to ensure the Department 

satisfied its duty of inquiry 

Mother and Father contend the Department should have 

inquired of the paternal extended family members under 

section 224.2, subdivision (b), including the paternal

grandmother, regarding Desmond’s possible Indian ancestry.

The parents also argue the Department failed to make a 

sufficient further inquiry of the maternal relatives under section 

224.2, subdivision (e), based on Mother’s statement that she 

might have “Blackfoot ancestry” on the maternal side of the 

family. The Department does not argue it complied with ICWA, 

instead stating it “submits on the ICWA issue.” We agree with 

Mother and Father that the Department and the juvenile court 

failed to comply with their inquiry and notice obligations under 

ICWA and California law.

Notwithstanding Father’s denial of Indian ancestry, 

section 224.2, subdivision (b), obligates the Department to 
24

inquire of Desmond’s extended family members as to the child’s 

possible ancestry. (Antonio R., supra, 76 Cal.App.5th at p. 431 

[“By requiring the Department to inquire of a child’s extended 

family members as to the child’s possible Indian ancestry, the 

Legislature determined that inquiry of the parents alone is not 

sufficient.”]; see In re Y.W., supra, 70 Cal.App.5th at p. 556 [“the 

point of the statutory requirement that the social worker ask all 

relevant individuals whether a child is or may be an Indian child” 

is “to obtain information the parent may not have”].) Information 

relevant to Desmond’s possible Indian ancestry was readily 

obtainable from paternal grandmother, who was interviewed by a 

social worker at the outset of the case on July 8, 2019, and again 

on November 17, 2020 as a possible relative placement. 

Moreover, the social worker never contacted the paternal aunts 

in Virginia to inquire about Desmond’s possible Indian ancestry.

The Department also failed to conduct a further inquiry 

into Desmond’s possible Blackfeet Indian ancestry on the 

maternal side of the family. Although Mother identified James 

and Ida as sources of information, the Department made no effort 

to contact them. At the detention hearing, Yvette stated she had 

a phone number for Ida and may have James’s address at home. 

Yvette also provided minor’s counsel with the maternal uncle’s 

phone number and indicated the uncle had James’s contact 

information. The juvenile court ordered the Department to 

investigate Mother’s claim of Blackfeet ancestry by contacting 

James and Ida, but the Department never contacted either one or 

requested contact information from Yvette or the maternal uncle. 

Thus, although the court and the Department had “reason to 

believe the child is an Indian child,” the Department failed to 
25

make further inquiry as required under section 224.2, subdivision 

(e).

The juvenile court erred in finding IWCA did not apply 

because the Department failed to satisfy its duty of inquiry under 

section 224.2, subdivisions (b) and (e), and the court failed to 

ensure the Department complied with the inquiry obligations. 

(In re J.C., supra, 77 Cal.App.5th at p. 74 [“the court’s finding 

ICWA did not apply” was not supported by substantial evidence 

where the court “failed to ensure the Department fulfilled its 

duty of inquiry under section 224.2, subdivision (b)”]; Antonio R., 

supra, 76 Cal.App.5th at p. 432 [court’s finding ICWA did not 

apply was erroneous where Department failed to inquire of 

child’s extended family members about possible Indian ancestry, 

and court failed to ensure Department satisfied its duty of initial 

inquiry].)8

 

4. The Department did not give proper notice to the 

Blackfeet Tribe

The Department also failed to send a complete ICWA notice 

to the Blackfeet Tribe. The ICWA notice omitted Mother’s, 

Father’s, and Yvette’s date and place of birth, and the paternal 

grandmother’s current and former addresses and date and place

of birth. Moreover, the notice did not provide any information 

8 The Department does not argue the error was harmless, 

noting only that some Courts of Appeal have deemed similar 

ICWA inquiry errors to be harmless, but this court has held 

otherwise. The error here in not inquiring of any paternal 

relatives and failing to inquire of any maternal relatives beyond 

the maternal grandmother was not harmless.
26

about the maternal and paternal grandfathers, the maternal and 

paternal great-grandparents, or any other relatives.

This essential background information was required by the 

federal regulation and related California law. “Federal 

regulations implementing ICWA provide that the notice must 

include, in addition to information about the child and the child’s 

parents, “‘[i]f known, the names, birthdates, birthplaces, and 

Tribal enrollment information of other direct lineal ancestors of 

the child, such as grandparents.’” (In re Y.W., supra, 

70 Cal.App.5th at pp. 556-557; accord, In re E.H. (2018) 

26 Cal.App.5th 1058, 1069; see 25 C.F.R. §§ 23.11(a) &

23.111(d)(1)-(3) (2022).) Further, “[s]ection 224.3, 

subdivision (a)(5)(C), requires ICWA notices to include ‘[a]ll 

names known of the Indian child’s biological parents, 

grandparents, and great-grandparents, or Indian custodians, 

including maiden, married, and former names or aliases, as well 

as their current and former addresses, birth dates, places of birth 

and death, tribal enrollment information of other direct lineal 

ancestors of the child, and any other identifying information, if 

known.’” (In re Y.W., at p. 557; see In re T.G., supra, 

58 Cal.App.5th at p. 294, fn. 18.)

“‘ICWA notice requirements are strictly construed’

[citation] and ‘“must include enough information for the tribe to 

‘conduct a meaningful review of its records to determine the 

child’s eligibility for membership.’”’” (In re Y.W., supra, 

70 Cal.App.5th at pp. 556-557; accord, In re J.S. (2021)

62 Cal.App.5th 678, 688.) “‘‘‘[O]rdinarily failure in the juvenile 

court to secure compliance with [ICWA’s] notice provisions is 

prejudicial error.” [Citations.] Any failure to comply with a 

higher state standard, however, “must be held harmless unless 
27

the appellant can show a reasonable probability that he or she 

would have enjoyed a more favorable result in the absence of the 

error.’’’” (In re Y.W., at p. 558; accord, In re E.H., supra, 

26 Cal.App.5th at p. 1072.)

Here, the incomplete ICWA notice fails to comply with 

federal regulations and state law. (See In re Y.W., supra, 

70 Cal.App.5th at pp. 558 [notices to tribes, which omitted 

paternal great-grandmother’s place of birth, and date and place 

of death, violated both federal regulations and state law]; In re 

Breanna S. (2017) 8 Cal.App.5th 636, 654 [“the Department 

violated the requirements of both federal and state law regarding 

the content of an ICWA notice” by omitting information 

pertaining to maternal great-grandmother, her husband, and 

daughter], disapproved on other grounds in Caden C., supra, 

11 Cal.5th at pp. 637, fn. 6 & 638, fn. 7.)

Although Cooper concluded Desmond was neither listed on 

the tribal rolls nor eligible for enrollment, her determination was

based on incomplete information in the ICWA notice. Cooper 

informed the Department that she would “review the tribal rolls” 

again if the Department was “able to gather more information on 

the ancestry of the parents.” There is no evidence the 

Department provided any additional information even though the 

social workers were in contact with Mother, Father, and both 

grandmothers. Moreover, Cooper’s statement that either Mother 

or Father had to be a registered tribe member for Desmond to be

a member does not mean the errors in the ICWA notice were

harmless. Any search by Cooper for Mother’s and Father’s names 

in the Blackfeet tribal rolls was necessarily limited because the 

ICWA notice failed to include Mother’s and Father’s date and 

place of birth. The ICWA notice’s omission of essential 
28

background information pertaining to Desmond’s maternal and 

paternal relatives was therefore prejudicial error. (In re Y.W., 

supra, 70 Cal.App.5th at p. 558 [“We cannot say the Cherokee 

tribes would have made the same determination [the children]

were not Indian children had the Department fulfilled its 

obligations under ICWA and related California law and mailed 

notices with more complete information.”]; In re E.H., supra, 

26 Cal.App.5th at p. 1074 [social service agency’s failure to 

comply with ICWA and related California law was prejudicial 

error because “the Agency’s failure to include accurate 

information about [maternal grandmother’s] father in its ICWA 

Notice may have altered the tribe’s determination as to whether 

E.H. was an Indian child.”]; In re Breanna S., supra,

8 Cal.App.5th at p. 655 [“[O]nce ICWA notice is required, . . . we 

would be extremely reluctant under most circumstances to 

foreclose the tribe’s prerogative to evaluate a child’s membership 

rights without it first being provided all available information 

mandated by ICWA.”)

DISPOSITION

The order terminating Mother’s and Father’s parental 

rights is conditionally affirmed. We remand to the juvenile court 

for the Department and the court to comply with the inquiry and 

notice provisions of ICWA and related California law, including

inquiry of the maternal grandparents, the maternal uncle, 

maternal cousin Ida, the paternal grandmother, the paternal 

aunts, and any other reasonably available extended family 

members; to follow up on any information the Department may 

obtain about Desmond’s possible Indian ancestry; and to send a 
29

new ICWA notice to the Blackfeet Tribe that includes complete 

biographical information for Mother, Father, the maternal and 

paternal grandparents, maternal and paternal greatgrandparents, and maternal cousin Ida. If the court finds

Desmond is an Indian child, it shall conduct a new section 366.26 

hearing, as well as all further proceedings, in compliance with 

ICWA and related California law. If not, the court’s original 

section 366.26 orders will remain in effect.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.