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

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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.

 B320089

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

N.I.,

Defendant and Appellant.

 Los Angeles County

 Super. Ct. No. CK64456C

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. appeals 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. was four years old. At the time of 

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

pursuant to a 2016 family 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 arrangement 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, the 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 pursuant to this order. The 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 this 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] know.” 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

The Department spoke with “Paternal Grandmother” in 

November 2019 and she stated father had no Indian heritage. 

We understand this as a reference to paternal stepgrandmother

because paternal grandmother died sometime before 2017. The 

Department reported paternal stepgrandmother’s statement to 

the juvenile court. In December 2020, the Department spoke 

with “Ms. B”—a name the Department has used to identify 

paternal stepgrandmother—who stated “the family does not have 

any Native American 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, 

explaining, “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), mother 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-grandmother, paternal grandfather, and nowdeceased 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 nothing 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 Department 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, maternal 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 brothers and an older sister. 

Mother has a relationship with maternal aunt and one of the 

maternal 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 

where child custody is at issue to inquire whether the subject 

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

well as certain participants in the proceeding, is defined by 

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

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

rule 5.481.)
6

The duty of inquiry has three “phases.” Mother claims 

error with the first. This phase—the “initial inquiry”—applies in 

every case. The initial inquiry requires the court and the 

Department to ask certain persons related to the proceedings

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

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

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

law initial inquiry requirements exceed those imposed by federal 

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

emergency or voluntary or involuntary child-custody proceeding 

whether the participant knows or has reason to know that the 

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

court if they subsequently receive information that provides 

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

§ 23.107(a) (2022).)

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

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

make a definitive determination, the second phase—“further 

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

subd. (e)(2).) Further inquiry requires more robust investigation 

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

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

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

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

requires notice pursuant to ICWA be sent to the tribes to 

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

Code, § 224.3, subd. (a)(1); In re D.F., supra, 55 Cal.App.5th at 

p. 568.)

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

proceeding implies (a) neither the Department nor the court had 
7

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

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

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

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

the substantial evidence test, which requires us to determine if 

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

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

findings if any substantial evidence, contradicted or 

uncontradicted, supports them, and we resolve all conflicts in 

favor of affirmance.” ’ ” (In re Josiah T., supra, 71 Cal.App.5th at 

p. 401.)

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 inquiry 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), requires 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 how 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 completed 
8

absent contact, or documented attempts to contact mother’s 

extended family members.” But 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 further 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, in the five years they were pending, none 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.

Courts are divided on what showing of prejudice warrants 

reversal for initial inquiry errors. “Some courts have addressed

this problem by requiring an appellant who asserts a breach of

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

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

S.S., supra, 75 Cal.App.5th at pp. 581–582, citing cases.) Others 

have excused such a showing, effectively treating failure to

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

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

The Fourth Appellate District in Benjamin M., supra,

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

must reverse where the record demonstrates that the agency has

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

indicates that there was readily obtainable information that was

likely to bear meaningfully upon whether the child is an Indian

child.” (Id. at p. 744.) Our court 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 may 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 both
10

denied knowledge of any Indian ancestry in signed, written

submissions to the juvenile court. Father reiterated his lack of

knowledge of Indian ancestry in person on the record. And

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 meaningful light on whether there [wa]s

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

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

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 were willing to talk to the Department at all. Despite

their 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

mother’s extended family members would have better

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

Y.W., supra, 70 Cal.App.5th 542, mother argues her knowledge of

her own ancestry “may not be reliable as she was raised in foster
11

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 maternal 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 it takes on heightened significance 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. Given the repeated significance of the issue 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 he 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., Dissenting.

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. When 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 process 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.