Filed 6/14/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re DEZI C. et al., Persons

Coming Under the Juvenile 

Court Law.

 B317935

 (Los Angeles County Super. 

 Ct. No. 19CCJP08030)

 

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

ANGELICA A.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Robin R. Kesler, Judge Pro Tempore. Affirmed.
2

Karen J. Dodd, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant County Counsel, and Stephen Watson, Deputy County 

Counsel, for Plaintiff and Respondent. 

* * * * * *

This juvenile dependency case presents what is 

unfortunately becoming a common scenario. Both parents of the 

two children at issue in this case repeatedly denied having any 

American Indian heritage. While the case was ongoing, the social 

services agency spoke with several of the parents’ relatives 

(including the parents’ parents, their siblings and the father’s 

cousin), but never asked those relatives whether the children had 

any American Indian heritage. Nearly 30 months into the 

proceedings and on appeal from the termination of her parental 

rights, Angelica A. (mother) is for the first time objecting that the 

agency did not discharge its statutory duty to “inquire” of 

“extended family members” whether her children might be 

“Indian child[ren]” within the meaning of our state’s broader 

version of the federal Indian Child Welfare Act (ICWA) (25 U.S.C. 

§ 1900 et seq.) (Welf. & Inst. Code, § 224.2, subd. (b)), and is 

seeking a remand for the agency to conduct a more fulsome 

inquiry on this topic.1 There is no dispute that the agency did not 

properly discharge its statutory duty, and that there is therefore 

“ICWA error.”

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
3

The question before us now is whether this error was 

harmless and, more to the point, how harmlessness is to be 

assessed where an agency has failed to conduct the statutorily 

required initial inquiry into a dependent child’s American Indian 

heritage. So far, the courts have developed three different 

rules—at various points along a continuum—for assessing 

harmlessness. In our view, the proper rule lies at a different 

point on that continuum. We accordingly offer up a fourth rule: 

An 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. For these purposes, 

the “record” means not only the record of proceedings before the 

juvenile court but also any further proffer the appealing parent 

makes on appeal.

Because the record in this case contains the parents’ 

repeated denials of American Indian heritage, because the 

parents were raised by their biological relatives, and because 

there is nothing else in the record to suggest any reason to 

believe that the parents’ knowledge of their heritage is incorrect 

or that the children at issue might have American Indian 

heritage, we conclude that the agency’s error in this case was 

harmless and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Mother and Luis C. (father) have two children—Dezi C. 

(born May 2016) and Joshua C. (born April 2018).

On November 6, 2019, mother and father got into a verbal 

fight. After father threatened to kill mother, mother struck 
4

father with a broomstick while father was holding then-toddler 

Joshua in his arms. This was not the first such incident between 

the parents.

Both mother and father also have longstanding issues with 

substance abuse. Mother has been using methamphetamine for 

more than seven years; father also uses.

II. Procedural Background

A. Petition, adjudication and termination of 

parental rights

On December 17, 2019, the Los Angeles Department of 

Children and Family Services (the Department) filed a petition 

asking the juvenile court to exert dependency jurisdiction over 

Dezi and Joshua on the basis of (1) mother’s and father’s history 

of domestic violence (rendering jurisdiction appropriate under 

subdivisions (a) and (b)(1) of section 300), and (2) mother’s and 

father’s drug abuse (rendering jurisdiction appropriate under 

subdivision (b)(1) of section 300).2

On February 19, 2020, the juvenile court held a combined 

jurisdictional and dispositional hearing. The court sustained the 

domestic violence and substance abuse allegations under 

subdivision (b)(1), struck the domestic violence allegation under 

subdivision (a), removed the children from the parents’ custody, 

and ordered the Department to provide both parents with family 

reunification services in accordance with a “case plan” developed 

for each parent. 

At a six-month review hearing on August 26, 2020, the 

juvenile court concluded that mother and father were not in 

2 The petition also alleged that father had failed to protect 

the children by allowing mother to remain in the family home, 

but that allegation was dismissed. 
5

compliance with their case plans, terminated reunification 

services, and set the matter for a permanency planning hearing 

under section 366.26. 

On January 18, 2022, the juvenile court held the

permanency planning hearing. After concluding that the 

children were adoptable and likely to be adopted by their 

paternal grandparents, the court terminated mother’s and 

father’s parental rights. 

B. ICWA-related facts

In December 2019, mother and father told a Department 

social worker that they had no American Indian heritage. The 

next day, mother and father filled out ICWA-020 forms, and 

checked the box indicating that they had no American Indian 

heritage “as far as [they knew].” At the hearing on whether to 

initially detain the children, mother and father told the juvenile 

court that they had no American Indian heritage. 

While investigating the allegations in this case, the 

Department’s social workers spoke to father’s parents (the 

paternal grandparents), mother’s parents (the maternal 

grandparents), father’s siblings, mother’s siblings, and one of 

father’s cousins. The social workers did not ask any of these 

individuals whether mother, father, or the children had any

American Indian heritage.

The juvenile court found “[no] reason to know that this is 

an Indian child, as defined under ICWA.”

C. Appeal

Mother filed this timely appeal from the termination of her 

parental rights. 
6

DISCUSSION

Mother argues that the order terminating her parental 

rights must be reversed because the Department failed to comply 

with its duty under ICWA and related California provisions to 

initially inquire of “extended family members” regarding Dezi’s 

and Joshua’s possible American Indian heritage.3 It is 

undisputed that the Department’s initial inquiry was deficient: 

As discussed more fully below, the initial duty of inquiry 

mandated by California’s version of ICWA obligates the 

Department to question “extended family members” about a 

child’s possible American Indian heritage (§ 224.2, subd. (b)); 

here, the Department spoke with several members of mother’s 

and father’s extended families, but did not question them about 

the children’s possible heritage. The question thus becomes: Did

the Department’s defective initial inquiry in this case render 

invalid the juvenile court’s subsequent finding that ICWA does 

not apply (and thus render invalid the court’s concomitant order 

terminating mother’s parental rights)? 

“[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 

ICWA finding. (In re A.M. (2020) 47 Cal.App.5th 303, 314

3 We reject the Department’s argument that we lack 

appellate jurisdiction to entertain mother’s challenge to the 

juvenile court’s ICWA finding. Appeals are taken from orders (or 

judgments), not from factual findings relating to issues 

necessarily bound up in those orders (or judgments). Thus, 

mother’s appeal from the order terminating her parental rights 

necessarily encompasses the ICWA findings bound up in that 

order. Mother’s failure to mention ICWA in her notice of appeal 

is accordingly irrelevant. 
7

(A.M.).) Where, as here, there is no doubt that the Department's 

inquiry was erroneous, our examination as to whether 

substantial evidence supports the juvenile court’s ICWA finding 

ends up turning on whether that error by the Department was 

harmless—in other words, we must assess whether it is 

reasonably probable that the juvenile court would have made the 

same ICWA finding had the inquiry been done properly. (People 

v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) If so, the error is 

harmless and we should affirm; otherwise, we must send it back 

for the Department to conduct a more fulsome inquiry.

I. The Three Current Rules

At this point in time, the California courts have staked out 

three different rules for assessing whether a defective initial 

inquiry is harmless. These rules exist along a “continuum.” (In 

re A.C. (2022) 75 Cal.App.5th 1009, 1011 (A.C. 2022).) The rule 

at one end of this continuum is one that mandates reversal: If 

the Department’s initial inquiry is deficient, that defect 

necessarily infects the juvenile court’s ICWA finding and reversal 

is automatic and required (the “automatic reversal rule”). (In re 

J.C. (2022) 77 Cal.App.5th 70, 80-82 (J.C.); In re Antonio R.

(2022) 76 Cal.App.5th 421, 432-437 (Antonio R.); In re A.R. (2022) 

77 Cal.App.5th 197, 205 (A.R.); In re H.V. (2022) 75 Cal.App.5th 

433, 438; In re Y.W. (2021) 70 Cal.App.5th 542, 556; accord, In re 

N.G. (2018) 27 Cal.App.5th 474, 484-485 (N.G.); In re K.R. (2018) 

20 Cal.App.5th 701, 708-709.) Under this test, reversal is 

required no matter how “slim” the odds are that further inquiry 

on remand might lead to a different ICWA finding by the juvenile 

court. (Antonio R., at p. 435.) The rule at the other end of the 

continuum is one that presumptively favors affirmance: If the 

Department’s initial inquiry is deficient, that defect will be 
8

treated as harmless unless the parent comes forward with a 

proffer on appeal as to why further inquiry would lead to a 

different ICWA finding (the “presumptive affirmance rule”). (In 

re A.C. (2021) 65 Cal.App.5th 1060, 1065, 1071 (A.C. 2021); 

accord, In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431

(Rebecca R.).) The third rule lies in between: If the Department’s 

initial inquiry is deficient, that defect is harmless unless “the 

record indicates that there was 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” (“the readily obtainable information 

rule”). (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744

(Benjamin M.); In re Darian R. (2022) 75 Cal.App.5th 502, 509-

510 (Darian R.); In re S.S. (2022) 75 Cal.App.5th 575, 581-583

(S.S.); A.C. 2022, at p. 1015.)

This diversity of rules is understandable. That is because 

courts are grappling with how to assess how the absence of 

information (that is, answers to the questions about American 

Indian heritage that the agency never asked) might affect the 

juvenile court’s ICWA finding. (E.g., Benjamin M., supra, 70 

Cal.App.5th at pp. 742-743 [“we cannot know what information 

an initial inquiry, properly conducted, might reveal”]; N.G., 

supra, 27 Cal.App.5th at p. 485 [“we simply cannot know whether 

[the agency] would have discovered information” bearing on 

American Indian heritage].) Where there is an absence of 

information or proof, courts typically look to burdens of proof as 

the “tie-breaker”: When the party assigned the burden of proof 

does not produce sufficient information, that party loses. 

(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 821; Sargent 

Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1666-
9

1667; Evid. Code, § 115.) Not surprisingly, the current 

disagreement over which rule to apply largely reduces down to a 

disagreement over where to assign the burden of proof. Courts 

adhering to the automatic reversal rule put the burden of proof 

on the agency to show that its failure to ask questions would be 

harmless, a burden the agency will never be able to carry 

because, by definition, it is impossible to know the answers to 

unasked questions. (N.G., at pp. 484-485.) Courts adhering to 

the presumptive affirmance rule put the burden of proof on the 

objecting parent to show—through a proffer—that there is some 

information out there that, if obtained through inquiry, might 

alter the juvenile court’s ICWA finding. (A.C. 2021, supra, 65 

Cal.App.5th at p. 1070.) The third rule largely avoids the issue

by focusing mostly on what is already in the record, thereby 

reducing the importance of who bears the burden of proof.

Despite this diversity of rules—and, indeed, perhaps

because we have had the benefit of considering these rules—we 

propose a fourth rule for assessing harmlessness, explain why we 

believe this fourth rule is preferable, and explain why we 

respectfully decline to adopt any of the three previously 

formulated rules.

II. A Fourth Rule: The “Reason To Believe” Rule and Its 

Rationale

In our view, an agency’s failure to conduct a proper initial 

inquiry into a dependent child’s American Indian heritage is 

harmless unless the record contains information suggesting a 

reason to believe that the child may be an “Indian child” within 

the meaning of ICWA, such that the absence of further inquiry 

was prejudicial to the juvenile court’s ICWA finding. For this 

purpose, the “record” includes both the record of proceedings in 
10

the juvenile court and any proffer the appealing parent makes on 

appeal.4 To illustrate, a reviewing court would have “reason to 

believe” further inquiry might lead to a different result if the 

record indicates that someone reported possible American Indian 

heritage and the agency never followed up on that information; if 

the record indicates that the agency never inquired into one of 

the two parents’ heritage at all (e.g., Benjamin M., supra, 70 

Cal.App.5th at p. 740); or if the record indicates that one or both 

of the parents is adopted and hence their self-reporting of “no 

heritage” may not be fully informed (e.g., A.C. 2022, supra, 75 

Cal.App.5th at pp. 1015-1016). 

We adopt this “reason to believe” rule for three reasons.

First, the “reason to believe” rule weaves together the test 

for harmless error compelled by our State’s Constitution5 with 

the cascading duties of inquiry imposed upon agencies by our 

State’s ICWA statutes. 

Our Constitution specifies that a judgment may not be “set 

aside” unless it “has resulted in a miscarriage of justice” (Cal. 

Const., art. VI, § 13), and our Supreme Court has defined a 

4 Considering such proffers in this context is appropriate 

under Code of Civil Procedure section 909. (In re Allison B. (May 

27, 2022, B315698) [2022 Cal.App.Lexis 465, *6-9] [so holding].)

5 We look to the California standard for harmlessness 

because the initial duty of inquiry at issue in this case—that is, 

the Department’s obligation to ask the child’s “extended family” 

under section 224.2, subdivision (b)—is purely a creature of 

California law, as it goes beyond the federal duty to inquire of 

“participants” in the juvenile court proceeding (25 C.F.R., § 

23.107(a) (2022)). (Accord, A.C. 2021, supra, 65 Cal.App.5th at 

pp. 1069-1070; Benjamin M., supra, 70 Cal.App.5th at pp. 741-

742.)
11

“miscarriage of justice” as existing only when “it is reasonably 

probable that a result more favorable to the appealing party 

would have been reached in the absence of error” (Watson, supra, 

46 Cal.2d at p. 836, italics added). Thus, our State’s test for 

harmlessness is an outcome-focused test. 

ICWA was enacted to curtail “the separation of large 

numbers of Indian children from their families and tribes 

through adoption or foster care placement” (Miss. Band of 

Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32), and “to 

promote the stability and security of Indian tribes and families by 

establishing . . . standards that a state court . . . must follow 

before removing an Indian child from his or her family” (In re 

Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.); In re Isaiah 

W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.)). Under the ICWA and 

California statutes our Legislature enacted to implement it (§§ 

224-224.6), as recently amended, a juvenile court—and, as its 

delegate, the Department—have duties all aimed at assessing 

whether a child in a pending dependency case is an “Indian child” 

entitled to the special protections of ICWA. (§§ 224.2, 224.3, 

added by Stats. 2018, ch. 833, §§ 5, 6; A.M., supra, 47 Cal.App.5th 

at pp. 320-321 [applying ICWA law in effect at time of order 

appealed from].)6 Under ICWA as amended, the Department and 

6 For these purposes, an “‘Indian child’” is a child who (1) is 

“a member of an Indian tribe,” or (2) “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); § 224.1, subd. (a) [adopting 

federal law definition].) By its terms, this definition turns “‘on 

the child's political affiliation with a federally recognized Indian 

Tribe,’” not “necessarily” “the child's race, ancestry, or ‘blood 
12

juvenile court have “three distinct duties.” (In re D.S. (2020) 46 

Cal.App.5th 1041, 1052 (D.S.) [noting amendment's creation of 

three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884 

[same].) The first duty is the initial “duty” of the Department 

and the juvenile court “to inquire whether [a] child is an Indian 

child.” (§ 224.2, subds. (a) & (b).) The Department discharges 

this duty chiefly by “asking” family members “whether the child 

is, or may be, an Indian child.” (Id., subd. (b).) This includes 

inquiring of not only the child’s parents, but also others, 

including but not limited to, “extended family members.” (Ibid.) 

For its part, the juvenile court is required, “[a]t the first 

appearance” in a dependency case, to “ask each participant” 

“present” “whether the participant knows or has reason to know 

that the child is an Indian child.” (Id., subd. (c).) The second 

duty is the duty of the Department or the juvenile court to “make 

further inquiry regarding the possible Indian status of the child.” 

(Id., subd. (e).) This duty of further inquiry is triggered if the 

Department or court “has reason to believe that an Indian child is 

involved” because the record contains “information . . . suggesting 

the child is Indian” (ibid.; D.S., at p. 1049; In re Levi U. (2000) 78 

Cal.App.4th 191, 198, superseded by statute on another ground

as stated in In re B.E. (2020) 46 Cal.App.5th 932, 940), and, once 

triggered, obligates the Department to conduct further interviews 

to gather information, to contact the Bureau of Indian Affairs and 

state department of social services for assistance, and/or to 

contact the relevant Indian tribe(s). (§ 224.2, subd. (e)(2).) The 

third duty is the duty to notify the relevant Indian tribe(s). (§ 

quantum.’” (Austin J., supra, 47 Cal.App.5th at p. 882, quoting 

81 Fed.Reg. 38801-38802 (June 14, 2016).)
13

224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is triggered if the 

Department or the court “knows or has reason to know . . . that 

an Indian child is involved.” (§ 224.3, subd. (a).)

Because the governing test for harmlessness is outcome 

focused, adapting that test to the situation in this case means 

courts should focus on whether it is reasonably probable that an 

agency’s error in not conducting a proper initial inquiry affected 

the correctness (that is, the outcome) of the juvenile court’s ICWA 

finding. As noted above, ICWA already provides a standard for 

assessing whether further inquiry is necessary after an initial 

inquiry—namely, if the initial inquiry provides a reason to 

believe that the child is an Indian child because the record 

contains “information . . . suggesting the child is Indian.” This 

standard reserves further inquiry for those cases in which such 

inquiry may affect the juvenile court’s ultimate ICWA 

determination. Because the question before us in assessing 

harmlessness is also whether further inquiry would affect the 

juvenile court’s ICWA finding, the “reason to believe” standard is 

the logical standard to apply.

Second, the “reason to believe” rule also best reconciles the 

competing policies at issue when an ICWA objection is asserted 

in later at the final phases of the dependency proceedings. As 

noted above, ICWA’s inquiry and notice requirements “are, at 

their heart, . . . about effectuating the rights of Indian tribes” by 

ensuring that the juvenile court determines whether a child may 

be an actual or potential member of an Indian tribe and by 

thereafter giving the pertinent tribe(s) the opportunity to make 

the final determination of tribal status. (Benjamin M., supra, 70 

Cal.App.5th at pp. 740-742; Isaiah W., supra, 1 Cal.5th at p. 12; 

In re Hunter W. (2011) 200 Cal.App.4th 1454, 1468.) Competing 
14

against that policy is the dependent child’s interest in avoiding 

delay and the instability that comes from having the final 

determination of his or her permanent placement remain “up in 

the air.” (A.R., supra, 77 Cal.App.5th at p. 207 [“prompt 

resolution of [dependency] cases based on the children’s need for 

permanency remains a significant consideration in . . . juvenile 

dependency cases”].) Also in the mix is the judicial branch’s 

interest in ensuring that the agency “gets the message” that it is 

critical to conduct a proper initial inquiry (ibid.), as well as the 

branch’s interest in discouraging game playing by parents who 

hold back any objection to the adequacy of the agency’s inquiry 

until an appeal of the termination of their parental rights in the 

hopes of delaying the finality of that termination (ibid.; Rebecca 

R., supra, 143 Cal.App.4th at p. 1431). In our view, none of these 

policies trumps all the others; instead, they must all be honored. 

By limiting a remand for further inquiry to those cases in which 

the record gives the reviewing court a reason to believe that the 

remand may undermine the juvenile court’s ICWA finding, the 

“reason to believe” rule effectuates the rights of the tribes in 

those instances in which those rights are most likely at risk, 

which are precisely the cases in which the tribe’s potential rights

do justify placing the children in a further period of limbo. The 

“reason to believe” rule also removes the incentive to use ICWA 

as a thirteenth-hour delay tactic and, by allowing parents to cite 

their proffers on appeal as well as the juvenile court record, still

sends a “message” to agencies that ICWA’s mandates are not to 

be ignored because remand will be ordered in any case where 

there is reason to believe the failure to inquire mattered.

Third and lastly, the “reason to believe” rule, by focusing on 

what is in the record rather than what is not in the record, 
15

largely sidesteps the “how can we know what we don’t know” and 

burden of proof conundrums that animate the automatic reversal 

and presumptive affirmance rules. 

III. Rejecting the Other Rules

We decline to adopt the other three rules currently in use 

by the appellate courts for the reasons set forth below.

A. The automatic reversal rule

We decline to adopt the automatic reversal rule because we 

disagree with its rationale and because it inevitably leads to what 

we believe are undesirable consequences.

The cases adopting the automatic reversal rule appear to 

rest on two alternative rationales—namely, that (1) it is critical 

that the juvenile court be certain whether a dependent child may 

be an Indian child, and this need for certainty requires that an

agency never be excused from conducting the full inquiry 

mandated by our State’s ICWA statutes, and (2) even if 

something less than certainty is required, remand for a full 

inquiry mandated by the ICWA statutes is required because 

whatever the child’s parents say about their American Indian 

heritage is inherently suspect (J.C., supra, 77 Cal.App.5th at p. 

81 [“it is not uncommon for parents to mistakenly disclaim (or 

claim) Indian ancestry”]; Antonio R., supra, 76 Cal.App.5th at p. 

432 [parents may lie because they are ‘“fearful to self-identify”’]), 

and because it is impossible to know what information the 

extended family might have unless those family members are 

asked. 

The rationale that ICWA demands certainty appears to rest 

on three interlocking premises: (1) our Supreme Court held in 

Isaiah W. that the interest of the tribes in the proper 

determination of a dependent child’s status as an Indian child is 
16

paramount and trumps all other competing policy considerations 

(see Isaiah W., supra, 1 Cal.5th at p. 12 [“the federal and state 

[ICWA] statutes were clearly written to protect the integrity and 

stability of Indian tribes despite the potential for delay in placing 

the child,” italics added]; see A.C. 2022, supra, 75 Cal.App.5th at 

pp. 1016, 1019); (2) a tribe always has the right to collaterally 

attack a final judgment terminating parental rights, and the only 

way to stave off such collateral attacks is to remand to conduct a 

proper inquiry prior to the entry of judgment (Antonio R., supra, 

76 Cal.App.5th at pp. 436-437; A.R., supra, 77 Cal.App.5th at pp. 

202, 207-208); and (3) the only way to get agencies to take 

seriously their statutory ICWA duties is to reverse in every case 

when they shirk them because, otherwise, their inaction is 

rewarded given that the less information an agency learns, the 

more likely its defective analysis will be found to be harmless 

(J.C., supra, 77 Cal.App.5th at p. 80). 

We reject each of these premises. Although Isaiah W.

states that ICWA values the “integrity and stability of Indian 

tribes” despite possible delay in permanency, the question 

presented in that case was whether a parent’s failure to appeal a 

juvenile court’s ICWA finding in a prior appeal precluded the 

parent from appealing that finding after the final judgment 

terminating parental rights. (Isaiah W., supra, 1 Cal.5th at pp. 

7-10.) Thus, the issue in Isaiah W. was whether an appellate 

court could examine the ICWA issue at all; Isaiah W. had no 

occasion to hold—and did not purport to hold—that ICWA errors, 

once examined, could never be harmless. To be sure, a tribe 

maintains a right to collaterally attack a final judgment. But 

that right is akin to a criminal defendant’s right to collaterally 

attack his final judgment of conviction, and courts have never 
17

viewed the possibility of such collateral attacks as warranting a 

rule of automatic reversal for all errors raised during the direct 

appeal of a criminal conviction. There is similarly no justification

for one here. And our Supreme Court has rejected the notion 

that reversal is necessary to incentivize agencies to do a better 

job: “[T]he price that would be paid for” the “added incentive” of 

“treating [an] error as . . . structural” (and hence automatically 

reversible), “in the form of needless reversals of dependency 

judgments, is unacceptably high in light of the strong public 

interest in prompt resolution of these cases so that the children 

may receive loving and secure home environments as soon as 

reasonably possible.” (In re James F. (2008) 42 Cal.4th 901, 918.) 

Further, the notion that inaction will be rewarded ignores that 

inaction affecting the soundness of the juvenile court’s ICWA 

finding will be prejudicial: If an agency fails entirely to ask the 

parents about their possible American Indian heritage, as noted 

above, there is “reason to believe” the parents may have such 

heritage and the agency’s inaction will demand remand.

We are also unpersuaded by the alternate rationale that 

failing to remand for further inquiry yields too great a probability 

that a dependent child may be an Indian child because parents’ 

reports of their American Indian heritage cannot be trusted and 

because it is not known what information other relatives might 

have provided. We decline to adopt a rule that obligates us to 

view with a jaundiced eye whatever parents report about their 

heritage, at least in the usual case where the parents were not 

adopted and thus can be presumed to be knowledgeable. (Accord, 

Rebecca R., supra, 143 Cal.App.4th at p. 1431 [“The knowledge of 

any Indian connection is a matter wholly within the appealing 

parent’s knowledge . . . .”].) Further, and as noted above, we 
18

prefer the traditional approach to evaluating harmlessness, 

which looks to what is in the record (or proffered by the parent on 

appeal) rather than speculating about what might have been 

placed in the record.

In addition, the automatic reversal rule leads to what we 

view as three undesirable consequences. 

First, it encourages parents to “game the system.” The 

usual rule of procedure is that an error is forfeited if it is not 

raised, which creates an incentive to object as early as possible 

and thus helps ensure that errors can be fixed before the 

litigation is completed in the trial court. (E.g., People v. Nieves

(2021) 11 Cal.5th 404, 451.) The automatic reversal rule perverts 

that incentive: If parents know that they are guaranteed an 

automatic remand based on an agency’s failure to engage in a full 

inquiry as required by ICWA, they have every incentive not to 

object when they observe deficiencies in the agency’s inquiry. By 

remaining silent, they “keep[] an extra ace up their sleeves” that 

will, at a minimum, guarantee a remand that forestalls the 

finality of the final judgment in the dependency case and, indeed, 

may even derail arranged adoption of the dependent children if 

the prospective adoptive parents cannot abide that additional 

delay. (In re H.B. (2008) 161 Cal.App.4th 115, 122; Rebecca R., 

supra, 143 Cal.App.4th at p. 1431.) In this respect, the automatic 

reversal rule gives rise to the “very evil the Legislature intended 

to correct”—namely, “lengthy and unnecessary delay in providing 

permanency for children.” (In re Marilyn H. (1993) 5 Cal.4th 295, 

310.) 

Second, the rule—in conjunction with the breadth of the 

duty of initial inquiry under section 224.2—may yield a 

seemingly endless feedback loop of remand, appeal, and remand. 
19

Section 224.2 does not limit the duty of initial inquiry to 

“extended family members.” Instead, an agency’s duty “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.” (§ 224.2, subd. (b), italics added.) Because the 

automatic reversal rule mandates remand if any stone is left 

unturned, and because section 224.2 creates an open-ended 

universe of stones, the rule ostensibly empowers the party to 

obtain a remand to question extended family members, then a 

second remand to question the family babysitter, and then a third 

remand to question long-time neighbors, and so on and so on. 

Lastly, the automatic reversal rule seemingly elevates 

ICWA above the constitutional mandate that reversal is only 

required when there would be a miscarriage of justice. But it is 

well settled that constitutional provisions trump statutory law, 

not the other way around. (E.g., County of Los Angeles v. 

Commission on State Mandates (2007) 150 Cal.App.4th 898, 904.)

B. The presumptive affirmance rule

We decline to adopt the presumptive affirmance rule 

because, by focusing on what a parent proffers on appeal, it 

ignores that the juvenile court record may provide a reason to 

believe that the juvenile court’s ICWA finding is incorrect and 

that further inquiry is warranted. Where, for instance, a parent 

is never asked about his or her American Indian heritage or the 

parent’s answer is of less value because the parent is adopted, the 

presumptive affirmance rule would mandate affirmance in the 

absence of proffer, even though, in our view, there is on those 

facts reason to believe the child may be an Indian child. By 

placing the onus solely on the parent to come forward with a 
20

proffer of information likely to be obtained on remand, the 

presumptive affirmance rule not only embraces finality at the 

expense of the tribe’s interest in ascertaining accurate 

determinations of the Indian status of dependent children, but 

does too little to incentivize agencies to conduct proper inquiries 

because prejudicially deficient inquires will go uncorrected if the 

parent is unwilling or unable to make a meaningful proffer on 

appeal.

C. The readily obtainable information rule

Although this third rule is the closest in approach to the 

reason to believe rule we adopt, we nevertheless reject it for two 

reasons.

First, this rule focuses on whether “there was readily 

obtainable information . . . likely to bear meaningfully upon 

whether the child is an Indian child” and the “probability of 

obtaining meaningful information.” (Benjamin M., supra, 70 

Cal.App.5th at p. 744.) Because this rule focuses on the ease of 

obtaining information that bears on the question of a child’s 

Indian status rather than whether that information is likely to 

affect the juvenile court’s ICWA finding, this rule lacks the 

outcome-focus that is the hallmark of usual harmlessness review.

Second, this rule appears to be so flexible and malleable 

that some courts—and, indeed, mother in this case—have argued 

that it functions as a type of automatic reversal rule. 

Specifically, mother argues here that the Department had 

“readily obtainable information . . . likely to bear meaningfully 

upon whether [Dezi and Joshua]” were Indian children because 

the Department could have easily interviewed mother’s and 

father’s relatives about the children’s Indian heritage when they 

questioned them on other topics. The Department’s failure to do 
21

so, mother concludes, is grounds for automatic reversal. The 

same analysis has been hinted at in J.C., supra, 77 Cal.App.5th 

at page 82, and Antonio R., supra, 76 Cal.App.5th at pages 426, 

436-437. The uncertainty of the meaning and breadth of this rule 

has led at least one judge to comment that the rule “merely 

shifts” “the battleground” to the appellate courts, where there 

will be skirmishes over whether information was readily 

obtainable. (A.C. 2022, supra, 75 Cal.App.5th, at p. 1020, fn. 4 

(dis. opn. of Crandall, J.).)

IV. Application

The record in this case does not provide a “reason to 

believe” that Dezi and Joshua are Indian children. Both mother 

and father attested—to the Department, on an official form, and 

to the juvenile court during their initial appearances—that they 

had no Indian heritage. Mother and father grew up with their 

biological family members. Mother points to nothing else in the 

juvenile court’s record indicating that she or father has any 

American Indian heritage. And mother makes no proffer on 

appeal that either parent has any such heritage. In these 

regards, the facts of this case are nearly identical to those of

Darian R., supra, 75 Cal.App.5th 502, and S.S., supra, 75 

Cal.App.5th 575. Although these other cases applied the readily 

obtainable information test, they came to the same conclusion as 

we do under the reason to believe test we adopt today: No 

remand is warranted.
22

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ