Filed 2/21/23 In re J.B. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re J.B

. , a Person Coming

Under the Juvenile Court Law. B 320089

LOS ANGELES COUNTY

DEPARTMENT OF

CHILDREN AND FAMILY

SERVICES,

Plaintiff and Respondent,

v.

N

. I.

,

Defendant and Appellant. Los Angeles County

Super. Ct. No. CK 64456C

APPEAL from an order of the Superior Court of

Los Angeles County. Donald A. Buddle

, Judge

. Affirmed

. Megan Turkat Schirn , under appointment by the Court of

Appeal, for Defendant and Appellant

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

Assistant County Counsel, and Jessica S. Mitchell

, Senior Deputy

County Counsel, for Plaintiff and Respondent.

* * * * * * * * * *2 Mother N.I

. appeal s the juvenile court’s order terminating

her parental rights to her son J.B

. J.B.’s father

, R.B.

, is not a

party to this appeal. Mother’s sole contention on appeal is that

the trial court erred in finding the Indian Child Welfare Act

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

Angeles County Department of Children and Family Services

(Department) made an inadequate initial inquiry concerning

J.B.’s relevant ancestry by failing to contact and interview

mother’s extended family members

. We affirm

.

BACKGROUND

1. Overview of Proceedings

This dependency proceeding began in August 2017

, more

than five years ago , when J.B. w as four years old

. At the time of

the petition, J.B. ’s father had legal and physical custody of him

pursuant to a 2016 f

amily law order

. Mother’s contact with J.B.

and his father was restricted by a restraining order stemming

from a domestic violence incident in which she was the aggressor

.

In violation of that order , mother resided with father and J.B.

This living arran gement resulted in another violent

altercation between the parents. J.B. was present. Mother called

police after father assaulted her and a referral was made to the

Department. J.B. was placed with his paternal grandfather and

paternal stepgrandmother pursuant to a safety plan pending

investigation

. Shortly thereafter

, th e Department filed a detention

petition and J.B. was ordered detained

. He remained with his

paternal grandfather and paternal stepgrandmother pursuant to

this order. The petition was sustained without contest under

Welfare and Institutions Code section 300, subdivision ( b ) (1) and

(b)(2)

, and J.B. was ordered removed from the parents

. J.B.3

remained in the home of his paternal grandfather and paternal

stepgrandmother pu rsuant to this order. T he court ordered

services for both parents

. The parents failed to reunify with J.B. (mother had two

separate periods of incarceration during the reunification period )

and the court terminated reunification services in August 2019.

Paternal grandfather and paternal stepgrandmother expressed

willingness to adopt J.B

. The juvenile court ordered such

adoption as his permanent plan in December 2021 over mother’s

objection. In April 2022, the court ordered the parental rights of

mother and father terminated and directed the Department to

implement J.B.’s adoption.

Mother timely appealed termination of her parental rights.

2. Facts Relevant to ICWA Inquiry

As th is appeal rests entirely on the Department’s failure to

“ contact and interview mother’s extended family members about

ICWA

, ” we recite in detail the facts relevant to the Department’s

ICWA inquiry.

The Department attached an ICWA

- 010 (A) form to the

petition indicating it had made Indian child inquiries with J.B.’s

father and J.B. had no known Indian ancestry.

Mother and father each filed a signed ICWA

- 020 form in

connection with their initial appearances in August 2017

. Each

indicated “no Indian ancestry as far as [they] kn ow.” Based on

these forms

, the court found no reason to believe J.B. had Indian

ancestry on either side of his family

. The court further

admonished the parents “to keep the Department, their

Attorney[s] and the Court aware of any new information relating

to possible ICWA status.”4 T he Department spoke with “P aternal G randmother ” in

November 2019 and she stated father had no Indi an heritage.

We understand this as a reference to paternal step grandmother

because paternal grandmother died sometime before 2017. The

Department reported paternal stepgrandmother’s statement to

the juvenile court. In December 2020, t he Department spoke

with “Ms. B”

— a name the Department ha s use d to identify

paternal stepgrand mother

— who stated “the family does not have

any Native America n Heritage.” The Department reported this

to the court as well.

At a hearing in December 2020, the juvenile court inquired

again with father about Indian heritage. Father equivocated,

explaini ng, “ I really don’t know. My family doesn’t tell me about

everything.” But, based on what he did know and had “tried to

figure out [him]self,” he confirmed he did not believe he had any

Indian ancestry. Based on this and the signed ICWA

- 20 forms

, the juvenile court found “ no reason to know that [J.B.] is an

Indian child.”

Aside from paternal stepgrandmother (who mother also

refers to as paternal grandmother), m other does not identify

direct contact between the Department and any other of J.B.’s

extended family members. Mother notes father was raised by

paternal great

- grandmothe r, paternal grandfather , and now

deceased paternal grandmother

. The reports refer to contact

with paternal great

- grandmother, who was identified as a

visitation monitor, and with paternal grandfather, with whom

J.B. was placed . We are directed to no thing in the record

indicating the Department inquired with these paternal family

members about Indian ancestry

, but mother claims no error in

this regard.5 As to her own extended family members, mother notes the

absence of any record that the Department contacted or

attempted to contact them. Mother told the D epartment she was

raised by maternal grandmother until she was 17, excepting a

one

- year stint in foster care when she was 12. When mother was

17, mater nal grandmother murdered mother’s five

- year

- old

brother and remains incarcerated for his killing. At age 18

,

mother developed a relationship with maternal grandfather for

the first time. She has two older brother s and an older sister

.

Mother has a relat ionship with maternal aunt and one of the

m aternal uncles

. There is no indication in the record the

Department requested or received contact information for

mother’s extended family members.

Finally, both parties note mother was involved in prior

dependency proceedings involving two older children by another

father. Mother observes these prior proceedings took place before

the current law expanding the duty of initial inquiry to include

reference to extended family members.

DISCUSSION

Congress enacted ICWA “ ‘to protect the best interests of

Indian children and to promote the stability and security of

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

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

w here child custody is at issue to inquire whether the subject

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

well as certain participants in the proceeding, is defined by

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

. F

. R

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

rule 5.481.)6 T he duty of inquiry has three “phases.” Mother claims

error with the first. Th is phase

— the “initial inquiry”

— applies in

every case. The initial inquiry requires the court and the

Department to ask certain persons related to the proceedings

about the child’s possible Indian ancestry. ( See Welf. & Inst.

Code, § 224.2, subds. (a), (b), (c); In re S.S. (2022) 75 Cal.App.5th

575, 581 ; In re D.F. (2020) 55 Cal.App.5th 558, 566.) The state

law initial inquiry requirements exceed those imposed by federal

law, which merely require the court to “ask each participant in an

emergency or voluntary or involuntary child

- custody proceeding

whether the participant knows or has reason to kno w that the

child is an Indian child” and instruct the parties to inform the

court if they subsequently receive information that provides

reason to know the child is an Indian child. (25 C

. F

. R

. § 23.107 (a) (2022).)

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

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

make a definitive determination, the second phase

— “further

inquiry”

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

subd. (e)(2).) Further inquiry requires more robust inv estigation

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

, supra

,

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

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

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

requires notice pursuant to I CWA be sent to the tribes to

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

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

, supra

, 55 Cal.App.5th at

p. 568.)

A juvenile court’s finding that ICWA does not apply in a

proceeding implies (a) neither the Department nor the court had7

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

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

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

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

the substantial evidence test, which requires us to determine if

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

order. [Citations.] We must u phold the court’s orders and

findings if any substantial evidence, contradicted or

uncontradicted, supports them, and we resolve all conflicts in

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

, supra

, 71 Cal.App.5th at

p. 401 .)

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

ICWA inapplicable without evidence the Department contacted,

or attempted to contact, mother’s extended family members to

inquire about Indian ancestry. The Department concedes it

failed in its initial i nquiry obligation imposed by California law to

ask “extended family members” whether J.B. is, or may be, an

Indian child , rendering the trial court’s finding erroneous . ( Welf.

& Inst. Code, § 224.2, subd. (b) .)

Although Welfare and Institutions Code section 224. 2,

subdivision (b), require s the Department to inquire with

extended family members about Indian heritage as part of its

initial inquiry , no court has read it as requiring inquiry with all

extended family members , no matter ho w challenging it may be

to reach them

. (Cf. In re Q.M . (2022) 79 Cal.App.5th 1068, 1082

[ “ requiring DCFS to run down unpromising leads comes at a

significant cost in terms of protecting the welfare of dependent

children ”].)

Mother’s opening brief cites a number of cases in support of

her contention that “the duty of initial inquiry was not completed8

absent contact, or documented attempts to contact mother’s

extended family members

. ” B ut her leading cases on the topic

address the point in the context of further inquiry. (See In re

D.S. (2020) 46 Cal.App.5th 1041, 1053

– 1054 [ “ As part of its duty

to inquire about a child ’ s Indian ancestry pursuant to

section 224.2, subdivision (e)(1) [i.e., the duty of furt her inquiry]

, the Agency must interview extended family members ” ; duty

satisfied by speaking to single aunt ]; In re D

. F

. , supra,

55 Cal.App.5th at p

. 569 [ addressing only adequacy of further

inquiry ] ; In re T.G. (2020) 58 Cal.App.5th 275, 290 [discussing

obligation to interview extended family members only in context

of further inquiry]

. ) Indeed, mother’s authorities could be read as

limiting the extended family member initial inquiry duty to

inquiring only with those actually involved in the proceedings.

(See In re D. F. , at p. 568 [initial inquiry duty is “ to ask all

relevant involved persons whether the child may be an Indian

child ” (italics added) ] ; In re T.G. , at p. 290 [initial inquiry duty is

“to ask all relevant involved individuals whether the child may be

an Indian child ” (italics added)] .) As far as we can glean from the

record, i n the five years they were pending, n one of the persons

mother claims the Department should have contacted had any

involvement in the proceedings below. Maternal grandmother

was incarcerated and there is no indication mother’s siblings or

maternal grandfather were readily accessible to the Department

(access that may have been further complicated by mother’s

multiple stints in state custody during the case).

Under the circumstances, however, we need not resolve

whether error occurred . The only claimed error is one of state

law and therefore reversible only if shown to be prejudicial. ( In

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

,9

citing Cal. Const., art. VI, § 13 .) We are satisfied any error that

occurred here was not.

C ourts are divided on what showing of prejudice warrants

reversal for initial inquiry errors

. “ Some courts have addressed

this problem by requiring an appellant who asserts a breach of

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

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

S.S.

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

– 582 , citing cases .) Others

have excused such a showing, effectively treating failure to

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

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

T he Fourth Appellate District in Benjamin M

., supra

,

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

must reverse where the record demonstrates that the agency has

not only failed in its duty of initial inquiry, but where the record

indicates that there was readily obtainable information that was

likely to bear meaningfully upon whether the chil d is an Indian

child.” ( Id

. at p. 744.) Our court took a fourth approach,

concluding initial inquiry errors require reversal only when the

record of proceedings in the court or a proffer of evidence made on

appeal suggests a reason to believe the child m ay be an Indian

child. ( In re Dezi C. (2022) 79 Cal.App.5th 769, 779

, review

granted Sept. 21, 2022, S275578 .)

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

( In re M.M

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

, 71

, review granted Oct. 12,

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

court’s error here was harmless.

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

is readily obtainable information likely to bear meaningfully on

whether J.B. has Indian ancestry. Mother and father both10

denied knowledge of any Indian ancestry in signed, written

submissions to the juvenile court

. Father reiterated his lack of

knowledge of Indian ancestry i n person on the record

. A nd

neither parent provided additional information to the court about

Indian ancestry in the five years since being admonished to do so.

As such, this case is unlike Benjamin M. There, the father was

entirely absent from the proceedings and no person from the

father’s side of the family had been asked about Indian ancestry.

With information about ancestry on the father’s side completely

“missing,” inquiry with a person sharing the father’s ancestry

“ would likely have shed mea ningful light on whether there [wa] s

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

. ,

supra

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

Moreover, the record does not reflect the information

mother claims the Department should have sought was “ readily

obtainable.” Mother contends the Department should have

contacted each living person mother mentioned in relaying her

family history to the Department

— her three older siblings,

maternal grandfather

, and maternal grandmother

. Maternal

grandmother is incarcerated. Mother is not in contact with an

older brother

. While she is in contact with maternal grandfather

and her other two older siblings, there is no indication those

individuals w ere willing to talk to the Department at all. Despite

the ir relation to J.B., none appeared or was volunteered by

mother as a potential participant in the proceedings.

Further

, we are offered no reason in the record to believe

mo the r’s extended family member s would have better

information about her ancestry than she did. Citing to In re

Y.W.

, supra

, 70 Cal.App.5th 542, m other argues her knowledge of

her own ancestry “may not be reliable as she was raised in foster11

care and estranged from her parents.” This overstates the degree

of detachment from her family. Mother was in foster care for one

year in her early teens. Otherwise, until she was 17, she was

raised by ma ternal grandmother

. After that, when she was 18,

she developed a relationship with maternal grandfather

. Accordingly, this case is nothing like In re Y.W

. , in which the

mother was adopted and did not have information about her

biological relatives at all

, much less any contact with them

. ( Id.

at p. 548.)

Mother’s contact with maternal grandfather and two older

siblings is significant in the abstract to show a likelihood of

shared knowledge of ancestry. (See, e.g., In re Ezequiel G. (2022)

81 Cal.App.5th 984, 1015 [“ All of the parents appear to have been

in contact with their extended families, and thus the possibility

that they might unknowingly be members of a tribe appears

trivially small

. ”].) But i t takes on heightened significa n ce in the

context of a repeat participant in dependency proceedings.

Although we agree with mother that dependency proceedings

occurring prior to the relevant amendments to Welfare and

Institutions Code section 224.2 are not direct evidence of what a

family member might have said about Indian ancestry

, such

ancestry was still at issue in mother’s prior proceedings with the

Department

. G iven the repeated significance of the i ssue to her

parental rights, we expect she would have asked her relatives

with whom she had contact about Indian heritage. But after two

Department cases, mother still “ha[s] no Indian ancestry as far as

[she] know [ s ] .”

Finally

, no one has suggested any reason to believe J.B.

might have Indian ancestry. Certainly, mother has made no offer

of proof that h e is an Indian child.12 Given the absence of any evidence or claim J.B. might have

Indian ancestry, mother ’s “ unvarnished contention that

additional interviews of [ her relatives] would have meaningfully

elucidated [ his ] Indian ancestry ” does not support a finding of

prejudice. (

In re Darian R. (2022) 75 Cal.App.5th 502, 510 .)

DISPOSITION

The juvenile court’s order terminating mother’s parental

rights is affirmed.

GRIMES, Acting P. J.

I CONCUR:

HARUTUNIAN, J

. 

 Judge of the San Diego Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.1

WILEY, J., D issenting.

It would not have been hard for the Department to try to

contact the maternal grandfather. The Department was in

regular contact with J.B.’s mother and knew she had phoned that

grandfather recently. The Department just never made the

effort.

The Department should have made the effort. Whe n it

would be so easy to comply with the statute, it is more than an

affront to tribes for whom the Legislature amended the statute in

2018. For tribes, it is a miscarriage of justice. The Department’s

disinterest in their fate shuts them out of a proces s that could

allow them to learn of children to carry tribal culture into the

future.

This is my 18th dissent on this issue. I remain hopeful the

Department one day will conclude a wise course would be to

comply with the law.

WILEY, J.