Filed 10/28/22 In re L.L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re L.L., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

M.L.,

Defendant and Appellant.

D080525

(Super. Ct. No. EJ4595)

APPEAL from an order of the Superior Court of San Diego County, 

Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.

Liana Serobian, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Claudia Silva, County Counsel, Caitlin E. Rae, Chief Deputy County 

Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and 

Respondent. 
2

M.L. (Mother) appeals a juvenile court’s order terminating Mother’s 

parental rights to her infant daughter, L.L., under Welfare and Institutions 

Code1 section 366.26. The sole issue on appeal is whether the San Diego 

County Health and Human Services Agency (Agency) and the juvenile court 

failed to conduct an adequate initial inquiry into L.L.’s possible Native 

American ancestry, as required by the Indian Child Welfare Act (ICWA; 25 

U.S.C. § 1901 et seq.). The Agency concedes error but argues that the error is 

harmless. We accept the concession but disagree that the error is harmless. 

Rather, applying the prejudicial error approach adopted in In re Benjamin M.

(2021) 70 Cal.App.5th 735 (Benjamin M.), we conclude that the error is 

prejudicial. We therefore conditionally reverse the juvenile court’s section 

366.26 order and remand for the limited purpose of ICWA compliance. 

FACTUAL AND PROCEDURAL BACKGROUND2

In January 2021, the Agency petitioned the juvenile court under section 

300, subdivision (b)(1) on behalf of L.L., alleging that L.L. had suffered and 

was at substantial risk of suffering serious physical harm due to Mother’s 

ongoing substance abuse. The Agency attached to its petition an ICWA010(A) form stating that the Agency had conducted an ICWA inquiry with 

Mother and that Mother had given no reason to believe that L.L. was or 

might be an Indian child. 

The Agency’s detention report stated that Mother denied having any 

Native American ancestry during a January 7, 2020 interview. The 

detention report also reflected that the Agency spoke with maternal 

1 Undesignated statutory references are to the Welfare and Institutions 

Code. 

2 Because Mother’s only contention on appeal concerns the alleged ICWA

violation, we limit our factual background accordingly. 
3

grandmother, maternal aunt, and maternal uncle, all of whom expressed 

interest in placement of L.L. There is no indication in the record on appeal 

that the Agency ever asked any of these relatives about L.L.’s possible Native 

American ancestry. 

At the detention hearing, Mother’s counsel informed the court that 

Mother had no known Native American ancestry. The juvenile court deferred 

ruling on ICWA in order to provide the Agency time to search for L.L.’s 

alleged father, A.C.3 

The Agency’s jurisdiction/disposition report indicated that, a few weeks 

after the detention hearing, Mother denied that she or anyone in her family 

had Native American ancestry. The report also outlined the Agency’s efforts 

to reach both the presumed mother and A.C. In addition, the Agency mailed

relative identification letters to 17 individuals whom the Agency identified as 

“potential” relatives. The 17 individuals included relatives of both presumed 

mother and A.C, two previously contacted maternal relatives (maternal 

grandmother and maternal uncle), and seven additional relatives who share 

3 During the dependency proceedings, Mother identified a presumed 

mother—who was Mother’s legal wife, but from whom Mother had separated 

prior to her pregnancy with L.L.—and three alleged fathers. On appeal, 

Mother does not claim that the presumed mother or any of the alleged fathers 

qualify as L.L.’s parent or extended family member under ICWA. Moreover, 

as we have previously held, presumed and alleged parents do not have “the 

status of a biological or adoptive parent . . . included in the statutory 

definition of Indian child.” (In re C.A. (2018) 24 Cal.App.5th 511, 520-521; 

see also 25 U.S.C. § 1903(9) [defining “parent” under ICWA as “ ‘any 

biological parent or parents of an Indian child or any Indian person who has 

lawfully adopted an Indian child, including adoptions under tribal law or 

custom. It does not include the unwed father where paternity has not been 

acknowledged or established.’ ”].) We therefore discuss the presumed mother 

and alleged fathers only as needed. 
4

Mother’s last name but whose relationship to L.L. was not specified.4 The

mailed letters are not contained in the record on appeal. There is no

indication, however, that the letters inquired about L.L.’s possible Native 

American ancestry. The Agency located alleged father, A.C., who appeared at 

the February 2021 jurisdiction and disposition hearing. There, the juvenile 

court asked A.C., “Are you indicating that you have any Native American 

heritage?” A.C. responded, “No.” The court noted that Mother had denied 

Native American ancestry and found that ICWA did not apply.5 

At the contested section 366.26 hearing in June 2022, the court 

terminated Mother’s parental rights. Mother appealed from that order, 

challenging only the court’s ICWA finding, made at the time of the 

jurisdiction and disposition hearing.6

4 In her opening brief, Mother appears to suggest that the relatives who 

share her last name are all “maternal relatives.” However, the Agency’s 

report is silent as to their actual relationship to L.L. and Mother. 

5 In its April 2021 addendum report, the Agency reported that A.C.’s 

paternity results indicated that he was not L.L.’s biological father. In 

addition, Mother later identified two other alleged fathers, but the record 

reflects that the Agency was unable to locate either of them despite 

reasonable search efforts. This was not a violation of section 224.2(b). (See, 

e.g., In re Levi U. (2000) 78 Cal.App.4th 191, 199 [ICWA does not require the 

Agency or court to “cast about” for investigative leads].) 

6 Mother did not appeal from the juvenile court’s February 2021 

jurisdictional and dispositional order in which the court expressly found that 

ICWA did not apply. Ordinarily, “California follows a ‘one shot’ rule under 

which, if an order is appealable, appeal must be taken or the right to 

appellate review is forfeited.” (In re Baycol Cases I & II (2011) 51 Cal.4th 

751, 761, fn.8.) However, because the duty of inquiry under ICWA is a 

continuing one, the one-shot rule does not apply here. (See § 224.2, subd. (a); 

In re Isaiah W. (2016) 1 Cal.5th 1, 6 (Isaiah W.) [“Because ICWA imposes on 

the juvenile court a continuing duty to inquire whether the child is an Indian 
5

DISCUSSION

A. ICWA Inquiry Duties, Generally

In dependency proceedings, both the juvenile court and Agency have an 

“affirmative and continuing duty to inquire” whether a child “is or may be an 

Indian child.” (§ 224.2, subd. (a).) “This continuing duty 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 D.F. (2020) 55 Cal.App.5th 558, 

566 (D.F.).) The Agency’s initial inquiry duty, which is at issue in this 

appeal, includes “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 and where the child, the parents, or Indian custodian is 

domiciled.” (§ 224.2, subd. (b).)7 ICWA defines “ ‘extended family member’ ” 

by “the law or custom of the Indian child’s tribe” or, absent such law or 

custom, as “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); § 224.1, subd. (c) [“ ‘extended family member’ . . . defined as 

provided in [§] 1903” of ICWA].) 

child, we hold that the parent may challenge a finding of ICWA’s 

inapplicability in an appeal from the subsequent [termination of parental 

rights] order, even if she did not raise such challenge in an appeal from the 

initial [jurisdictional and dispositional] order.”].) 

7 If the initial inquiry reveals a “reason to believe” that the child is an 

Indian child, then further inquiry into whether there is a “reason to know” 

that the child is an Indian child is required. (In re D.S. (2020) 46 Cal.App.5th 

1041, 1052 (D.S.).) If there is “reason to know” that a child is an Indian child 

(§ 224.2, subd. (d)), then formal notice must be sent to the interested tribe(s) 

(§ 224.3). (D.S., supra, at p. 1052.)
6

A juvenile court finding that ICWA is inapplicable generally implies 

that the Agency and court have fulfilled their duty to inquire. (See In re 

Austin J. (2020) 47 Cal.App.5th 870, 885 (Austin J.) [a finding that “ICWA 

does not apply” implies social workers and court “did not know or have a 

reason to know the children were Indian children and that social workers had 

fulfilled their duty of inquiry”].) (Id. at p. 885.) We review ICWA findings for 

substantial evidence, but “where the facts are undisputed, we independently 

determine whether ICWA’s requirements have been satisfied.” (D.S., supra, 

46 Cal.App.5th at p. 1051.) 

B. Initial Inquiry 

Mother asserts, and the Agency concedes, that there is not substantial 

evidence to support the juvenile court’s finding that the Agency complied 

with its initial inquiry obligations under ICWA. She first complains that the 

Agency failed to interview maternal grandmother, maternal uncle, and 

maternal aunt regarding L.L.’s possible Indian heritage. We agree. Because 

grandmothers, uncles, and aunts qualify as “extended family members” 

under ICWA, the Agency should have conducted ICWA inquiries of them. 

(See 25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).) 

Mother next complains that the Agency failed to conduct ICWA 

inquiries via letter with “at least nine maternal relatives” to whom the 

Agency sent relative notification letters. As the Agency alleges, however,

Mother has not identified these purported relatives by name nor has she 

explained how they are related to L.L. Aside from maternal uncle and 

maternal grandmother—who are denoted in the report as “maternal uncle” 

and “grandmother”—we are unable to determine on this record which of the

17 individuals to whom the Agency mailed letters are maternal relatives or 

whether any of these individuals qualify as “extended family members” under 
7

ICWA. As discussed ante, the Agency should have conducted ICWA inquiries 

with maternal grandmother, maternal uncle, and maternal aunt. On this 

record, however, we cannot say that the Agency was statutorily required to 

conduct such inquiries by letter with the other “potential relatives” identified 

in the Agency’s report.8 

Finally, Mother complains that the juvenile court made its ICWA 

finding without ordering Mother to complete a Parental Notification of Indian 

Status form ICWA-020, as required by California Rules of Court, rule 

5.481(a)(2)(C). The Agency appears to concede, and we agree, that this is 

error. (Cal. Rules of Court, rule 5.481(a)(2)(C).) 

Because the Agency and court’s initial ICWA inquiry was deficient, we 

conclude that substantial evidence does not support the juvenile court’s 

finding that ICWA did not apply. 

C. Prejudicial Error

The parties dispute whether the error is harmless. The Courts of 

Appeal have applied varying analytical frameworks to evaluate whether 

errors in the ICWA initial inquiry are prejudicial. We need not address these 

various approaches because this division has adopted the approach 

articulated in Benjamin M., supra, 70 Cal.App.5th 735. (In re Y.M. (2022) 82

Cal.App.5th 901, 916.) 

Under this approach, “a court must reverse where the record 

demonstrates that the agency has not only failed in its duty of initial inquiry, 

8 The Agency’s duty to inquire about L.L.’s possible Native American 

ancestry is an affirmative and continuing one. (See § 224.2, subd. (a).) Thus, 

if any of these individuals’ responses to the Agency’s letters indicate that they 

are, in fact, “extended family members” under ICWA or that they otherwise 

have an interest in L.L., the Agency must conduct ICWA inquiries 

accordingly. (See 25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c); 

Welf. & Inst. Code, § 224.2, subd. (b).) 
8

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.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) This “standard does 

not require ‘proof of an actual outcome (that the parent may actually have 

Indian heritage).’ [Citation.] The missing information need only be relevant 

to the ICWA inquiry, ‘whatever the outcome will be.’ ” (In re Ricky R. (2022) 

82 Cal.App.5th 671, 679; id. at p. 680 [applying Benjamin M. standard and 

finding reversible error in the initial inquiry where Agency “asked the 

parents about Indian ancestry” but “failed to ask extended family members 

about it”].) 

On this record, we cannot say that the Agency and court’s failure to 

comply with their initial inquiry obligations was harmless. Extended family 

members were readily available and their responses would likely have borne 

meaningfully with respect to whether L.L. is an Indian child, regardless of 

the outcome of the inquiry. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) 

Moreover, the fact that Mother denied any Native American ancestry does 

not relieve the Agency of its duty to conduct ICWA inquiries with all readily 

ascertainable extended family members or the court of its duty to ensure that

proper inquiry is made. (In re Y.W. (2021) 70 Cal.App.5th 542, 554.) A 

contrary rule would “ignore[ ] the reality that parents may not know their 

possible relationship with or connection to an Indian tribe.” (Ibid.; In re S.R.

(2021) 64 Cal.App.5th 303, 314 [“the children’s parents apparently had no 

idea of their family’s connection to the . . . tribe . . . , even though the 

children’s great-grandmother was a member”]; see also In re T.G. (2020) 58 

Cal.App.5th 275, 295 [noting that ICWA’s “expansive” duty of inquiry “is 

premised on the commonsense understanding that, over time, Indian 

families, particularly those living in major urban centers . . . , may well have 
9

lost the ability to convey accurate information regarding their tribal status”];

In re Rylei S. (2022) 81 Cal.App.5th 309, 321–322 [same].) Thus, we 

conditionally reverse the order terminating Mother’s parental rights with a 

limited remand for the Agency and juvenile court to comply with ICWA and 

section 224.2. 

Given the importance of expediency and the need for finality, we 

encourage the parties to stipulate to immediate issuance of the remittitur in 

this case. (Cal. Rules of Court, rule 8.272(c)(1).) 
10

DISPOSITION

The juvenile court’s order terminating parental rights is conditionally 

reversed. The matter is remanded to the juvenile court with directions to 

comply with the inquiry provisions of ICWA and section 224.2 (and, if 

applicable, the notice provisions under section 224.3). If, after completing its 

inquiry, neither the Agency nor the juvenile court has reason to believe or 

reason to know that L.L. is an Indian child, the order terminating parental 

rights shall be reinstated. If the Agency or the juvenile court has reason to 

believe or reason to know that L.L. is an Indian child, the juvenile court shall 

proceed accordingly. 

AARON, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.