Filed 4/25/22 In re T.R. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re T.R. et al., Persons 

Coming Under the Juvenile 

Court Law.

 B314665

 (Los Angeles County

 Super. Ct. No. 

19CCJP03106A-C)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

CASEY T. et al.,

Defendants and 

Appellants.

APPEALS from an order of the Superior Court of 

Los Angeles County, Robin R. Kesler, Juvenile Court Referee. 

Conditionally affirmed, remanded with directions.
2

Elizabeth C. Alexander, under appointment by the Court of 

Appeal, for Defendant and Appellant Casey T.

Emery El Habiby, under appointment by the Court of 

Appeal, for Defendant and Appellant John R.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and William D. Thetford, Principal 

Deputy County Counsel, for Plaintiff and Respondent. 

_______________________

Casey T. and John R., parents of seven-year-old T.R., fiveyear-old L.R. and two-year-old John R. III, appeal the juvenile 

court’s order terminating their parental rights under Welfare and 

Institutions Code section 366.26.1 The sole issue on appeal is 

whether the juvenile court and the Los Angeles County 

Department of Children and Family Services (Department) 

complied with their duties of inquiry and notice under the Indian 

Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and 

related California law. We agree with Casey and John that the 

Department failed to comply with its affirmative and continuing 

duty to inquire whether the children were Indian children and 

the juvenile court erred by failing to ensure an appropriate 

inquiry had been conducted. We further conclude the error was 

prejudicial. We conditionally affirm the court’s order terminating 

Casey’s and John’s parental rights and remand the matter to 

allow the Department and the juvenile court to comply with the 

inquiry and notice provisions of ICWA and California law.

1 Statutory references are to this code unless otherwise 

stated.
3

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Proceedings

On May 16, 2019 the Department filed a petition pursuant 

to Welfare and Institutions Code section 300, subdivisions (a) 

and (b), on behalf of T.R. and L.R. The petition alleged Casey, 

who was pregnant at the time, and John had a history of 

engaging in domestic violence in the children’s presence, Casey 

had a history of “erratic and bizarre” behaviors and John had 

criminal convictions, all of which placed the children at 

substantial risk of serious physical harm. At the detention 

hearing on May 17, 2019 the court found a prima facie case for 

detaining T.R. and L.R. Paternal grandmother, Olga L., was 

present at the hearing, and the court ordered the Department to 

assess her as a potential monitor for the parents’ visits. At the 

request of T.R and L.R.’s counsel the court also ordered the 

Department to assess the paternal aunt for visitation.

At the July 25, 2019 jurisdiction/disposition hearing the 

juvenile court amended by interlineation the allegation regarding 

Casey’s behavior to remove reference to “erratic and bizarre” 

behavior, instead replacing it with an allegation of behavior 

“consistent with mental and emotional instability.” The court 

dismissed the allegation concerning John’s criminal convictions

and sustained the remaining allegations as amended. T.R. and 

L.R. were declared dependent children of the juvenile court and 

suitably placed under the supervision of the Department. Casey 

and John were provided family reunification services.

On October 17, 2019, shortly after John III was born, the 

Department filed a petition on his behalf pursuant to section 300, 

subdivisions (a), (b) and (j). The allegations were identical to 

those that had been sustained in the petition regarding the older 
4

children and also included two allegations pursuant to 

subdivision (j) that the substantial risk of serious harm to the 

older siblings endangered the baby’s safety as well. John III was 

detained from his parents on October 18, 2019.

The jurisdiction/disposition hearing regarding John III was 

held on January 6, 2020. The juvenile court dismissed the 

allegations brought under section 300, subdivisions (a) and (b),

and sustained the allegations brought under subdivision (j), as 

amended by interlineation to exclude certain details. John III 

was declared a dependent child of the court and placed in the 

same foster home as T.R. and L.R. Casey was provided family 

reunification services. No services were ordered for John, who 

had failed to appear at the hearing and could not be located by 

the Department.2 

At the September 18, 2020 12-month review hearing 

(§ 366.21, subd. (f)) for T.R. and L.R. and six-month review 

hearing (§ 366.21, subd. (e)) for John III, the juvenile court found 

Casey’s and John’s compliance with their case plans had not been 

substantial. The court terminated reunification services for both 

parents and set the case for a selection and implementation 

hearing under section 366.26. The Department was instructed to 

assess the children’s maternal aunt, Margaret S., for placement.

The permanency planning hearing pursuant to 

section 366.26 was held on August 27, 2021. The juvenile court 

found returning the children to Casey and John would be 

detrimental and the children were adoptable. The court 

terminated Casey’s and John’s parental rights and identified 

2 Olga had attended a prior hearing in December 2019, 

during which she told the juvenile court she had no contact 

information for John.
5

Margaret and her husband, with whom the children had been 

living since October 2020, as the prospective adoptive parents.

2. The ICWA Issues 

At the time it filed the petition on behalf of T.R. and L.R. 

the Department also filed the required Indian Child Inquiry 

Attachment (form ICWA-010(A)), on which the Department 

checked the box acknowledging no inquiry had been made into 

whether the children were Indian children. The May 16, 2019 

detention report indicated John and Casey stated they had no 

Indian ancestry. Based on that information, the report 

concluded, “The Indian Child Welfare Act (ICWA) does not 

apply.” Olga was also interviewed in advance of the detention 

hearing, but there is no indication in the report she was asked 

about Indian ancestry.

On the day of the detention hearing Casey and John each 

filed a Judicial Council form ICWA-020 on which they both

checked the box for the option, “I have no Indian ancestry as far 

as I know.” During the detention hearing the trial court asked 

Casey whether John, who was not in the courtroom at the time, 

had any Indian ancestry. Casey replied John had none that she 

was aware of. The court did not ask Casey about her own 

possible Indian ancestry, nor did it ask John or the paternal 

grandmother, who was in attendance, about Indian ancestry. 

The court found it had no reason to know ICWA applied but 

would revisit the finding if new information were brought 

forward. 

The jurisdiction/disposition report for the older children 

stated the court had found no reason to know ICWA applied and 

had not ordered ICWA notices be sent. Casey, John and Olga 
6

were interviewed for the report but were not asked about possible 

Indian ancestry.

The October 17, 2019 detention report filed in advance of 

the detention hearing for John III stated, “on 10/9/2019, mother 

denied the family having any known Indian Ancestry; therefore, 

the Indian Child Welfare Act does not apply.” The form 

ICWA-010(A) filed with the petition regarding John III stated an 

inquiry had been made into whether John III was an Indian child 

and he had no known Indian ancestry. The form did not list the 

names of any individuals who had been questioned. Casey filed a 

second Judicial Council form ICWA-020 on October 18, 2019 

again stating she had no known Indian ancestry. At the 

detention hearing the juvenile court again found there was no 

reason to know ICWA applied.

In a status report filed May 12, 2020 the Department 

notified the juvenile court it had been contacted by Margaret, 

who said she would like to have the children placed with her. 

There is no indication the Department inquired about possible 

Indian ancestry during that conversation or any subsequent 

conversation while assessing Margaret as a prospective adoptive 

parent. 

In September 2020 the Department reported, as part of its 

attempt to locate family members who might be willing to accept 

placement of the children, the Department had located a paternal 

great aunt and paternal great uncle. A Department social worker 

spoke with both of them. The paternal great aunt told the social 

worker she had spoken to eight of her 11 siblings about possible 

placement for the children. There is no indication the 

Department asked the paternal great aunt and paternal great 
7

uncle about possible Indian ancestry or attempted to contact the 

other relatives directly.

John eventually filed a form ICWA-020 in John III’s case in 

July 2021, again stating he was not aware of any Indian 

ancestry.

DISCUSSION

1. ICWA and the Duties of Inquiry and Notice

“ICWA reflects a congressional determination to protect 

Indian children and to promote the stability and security of 

Indian tribes and families by establishing minimum federal 

standards a state court must follow before removing an Indian 

child from his or her family.”3 (In re T.G. (2020) 58 Cal.App.5th 

275, 287; see 25 U.S.C. § 1902.) “ICWA and the controlling 

federal regulations (see 25 C.F.R. § 23 (2020)) simply set a floor 

for minimal procedural protections for Indian children, their 

families and their tribes; the statute authorizes states to provide 

‘a higher standard of protection to the rights of the parent or 

Indian custodian of an Indian child than the rights provided

under’ ICWA.” (In re T.G., at pp. 287-288; see 25 U.S.C. § 1921.) 

In addition to significantly limiting state court actions concerning 

out-of-family placements for Indian children (see In re T.G., at 

pp. 287-288), ICWA permits an Indian child’s tribe to intervene 

3 “For purposes of ICWA, an ‘Indian child’ is an unmarried 

individual under age 18 who is either a member of a federally 

recognized Indian tribe or is eligible for membership in a 

federally recognized tribe and is the biological child of a member 

of a federally recognized tribe.” (In re T.G. (2020) 58 Cal.App.5th 

275, 287, fn. 10; see 25 U.S.C. § 1903(4) [definition of “‘Indian 

child’”] & (8) [definition of “‘Indian tribe’”]; see also Welf. & Inst. 

Code, § 224.1, subd. (a) [adopting federal definitions].)
8

in or, where appropriate, exercise jurisdiction over a child 

custody proceeding (see 25 U.S.C. § 1911(c); In re Isaiah W. 

(2016) 1 Cal.5th 1, 8).

To ensure Indian tribes have the opportunity to intervene 

in or exercise jurisdiction over a dependency proceeding, 

investigation of a family member’s belief a child may have Indian 

ancestry must be undertaken and notice must be provided to the 

appropriate tribes. The investigation requirement is found in 

section 224.2, subdivision (a), which imposes on the court and 

child protective services agencies “an affirmative and continuing 

duty to inquire whether a child . . . is or may be an Indian child.” 

“The continuing duty to inquire whether a child is or may be an 

Indian child ‘can be divided into three phases: the initial duty to 

inquire, the duty of further inquiry, and the duty to provide 

formal ICWA notice.’” (In re Y.W. (2021) 70 Cal.App.5th 542, 552; 

accord, In re Antonio R. 76 Cal.App.5th 421, 429.) 

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

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

agencies to ask all relevant involved individuals whether the 

child may be an Indian child.” (In re T.G., supra, 58 Cal.App.5th 

at p. 290; see § 224.2, subds. (a)-(c).) Specifically, the Department 

has a duty to inquire whether a child in the Department’s 

temporary custody is an Indian child, which “[i]nquiry includes, 

but is not limited to, asking the child, parents, legal guardian, 

Indian custodian, extended family members, others who have an 

interest in the child, and the party reporting child abuse or 

neglect, whether the child is, or may be, an Indian child . . . .”

4 

4 Pursuant to ICWA, “‘extended family member’ shall be as 

defined by the law or custom of the Indian child’s tribe or, in the 

absence of such law or custom, shall be a person who has reached 
9

(§ 224.2, subd. (b); see Cal. Rules of Court, rule 5.481(a)(1) [the 

Department “must ask the child, if the child is old enough, and 

the parents, Indian custodian, or legal guardians, extended 

family members, others who have an interest in the child, and 

where applicable the party reporting child abuse or neglect, 

whether the child is or may be an Indian child”]; In re Y.W., 

supra, 70 Cal.App.5th at pp. 551-552.)

The duty of inquiry also extends to the juvenile court, 

which is required to “ask each participant present in the hearing 

whether the participant knows or has reason to know that the 

child is an Indian child.” (§ 224.2, subd. (c); see also 25 C.F.R. 

§ 23.107(a) [“[s]tate courts must 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”]; In re Benjamin M. (2021) 

70 Cal.App.5th 735, 742.) 

The duty of further inquiry is triggered if the juvenile court 

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

involved in the proceeding, but does not have sufficient 

information to determine that there is reason to know that the 

child is an Indian child . . . .” (§ 224.2, subd. (e); Cal. Rules of 

Court, rule 5.481(a)(4); In re Y.W., supra, 70 Cal.App.5th at 

p. 552.) That further inquiry requires interviewing, “as soon as 

the age of eighteen and who is the Indian child’s grandparent, 

aunt or uncle, brother or sister, brother-in-law or sister-in-law, 

niece or nephew, first or second cousin, or stepparent.” 

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

[“[a]s used in connection with an Indian child custody proceeding, 

the terms ‘extended family member’ and ‘parent’ shall be defined 

as provided in Section 1903 of the federal Indian Child Welfare 

Act”].)
10

practicable,” extended family members, contacting the Bureau of 

Indian Affairs and contacting “the tribe or tribes and any other 

person that may reasonably be expected to have information 

regarding the child’s membership, citizenship status, or 

eligibility.” (§ 224.2, subd. (e) & (e)(2)); see also Cal. Rules of 

Court, rule 5.481(a)(4).)

If the further inquiry “results in a reason to know the child 

is an Indian child, then the formal notice requirements of 

section 224.3 apply.” (In re D.S. (2020) 46 Cal.App.5th 1041,

1052; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, 

subd. (a) [notice under ICWA “shall be provided” if the court, 

social worker, or probation officer “knows or has reason to 

know . . . that an Indian child is involved”].) 

“The duty to develop information concerning whether a 

child is an Indian child rests with the court and the Department, 

not the parents or members of the parents’ families.” (In re 

Antonio R., supra, 76 Cal.App.5th 430; accord, In re Benjamin M., 

supra, 70 Cal.App.5th at p. 743 [“the agency has a duty to gather 

information by conducting an initial inquiry, where the other 

party—here the parent . . . has no similar obligation”]; see also 

In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[t]he court and the 

agency must act upon information received from any source, not 

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

juvenile court to deficiencies in the investigation or noticing does 

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

on appeal”].)

2. The Juvenile Court Failed To Ensure the Department 

Complied with ICWA and Related California Law

As discussed, the Department had a duty pursuant to 

section 224.2, subdivision (b), to ask not only the parents, but 
11

also extended family members whether the children had possible 

Indian ancestry.5 Despite the fact that the Department had 

repeated contact with the paternal grandmother and a maternal 

aunt during the three years this case has been pending, the 

Department failed to ask either of them about Indian ancestry. 

Likewise, the Department did not ask the paternal great aunt or 

paternal great uncle about Indian ancestry, nor did it request 

contact information for the additional paternal extended family 

members with whom those individuals had contact. Failure to 

inquire of these relatives whether the children had Indian 

ancestry was error under the plain language of section 224.2, 

subdivision (b). (See In re J.C. (2022) 77 Cal.App.5th 70, 78

[“[t]he Department did not fulfill its duty to conduct an adequate 

inquiry into whether J.C. may be an Indian child because it did 

not ask any extended family members—some of whom were 

readily available—whether J.C. had any possible Indian 

ancestry”]; In re Antonio R., supra, 76 Cal.App.5th at pp. 430-431

[Department failed to fulfill initial duty of inquiry by failing to 

5 The Department’s duty of inquiry, beginning at initial 

contact, as now defined in section 224.2, subdivision (b), was 

added to the Welfare and Institutions Code by Assembly Bill 

No. 3176 (Stats. 2018, ch. 833, § 5), effective January 1, 2019—

that is, several months before the Department filed the initial 

dependency petition in this case. Assembly Bill 3176 

substantially revised the provisions of California’s ICWA-related 

statutes to conform their language to language in recently 

adopted federal regulations and, recognizing California’s higher 

standard for investigating whether a child may be an Indian 

child, to specify more clearly the steps a social worker, probation 

officer and court are required to take in making an inquiry into a 

child’s possible status as an Indian child. (In re T.G., supra, 

58 Cal.App.5th at p. 296.) 
12

ask family members about Indian ancestry despite multiple 

contacts with relatives]; In re H.V. (2022) 75 Cal.App.5th 433, 

438 [failure to speak to anyone other than mother about possible 

Indian ancestry was error]; In re Y.W., supra, 70 Cal.App.5th at 

p. 553 [Department failed to satisfy duty to inquire by failing to 

contact relatives; “once the social worker learned of a potentially 

viable lead to locate [relatives], she made no effort to pursue it”].) 

In addition, the juvenile court erred in failing to ensure the 

Department satisfied its duty of inquiry and in finding ICWA did 

not apply absent an adequate inquiry. (See In re J.C., at p. 79

[“[t]he juvenile court, too, did not satisfy its duty to ensure the 

Department adequately investigated whether J.C. may be an 

Indian child. There is no indication in the record that, after the 

detention hearing, the juvenile court gave ICWA another thought 

in the almost three years of this dependency case”]; In re 

Antonio R., at p. 431 [“[a]lthough section 224.2, subdivision (b), 

places on the Department the duty to inquire, including of 

extended family members, section 224.2, subdivision (a), makes 

clear that the ‘affirmative and continuing duty to inquire’

whether a child is or may be an Indian child rests with both the 

Department and the court”].)

The Department argues any error in failing to inquire of 

extended family members was harmless here because “both 

parents were available and denied Indian ancestry twice, . . . and 

the parents were in close contact with the reasonably available 

relatives and knowledgeable about their families and cultural 
13

identification.”6 Not only is the assertion the parents were well 

versed in their family history not supported by the record, but 

also the argument “ignores the express obligation that 

section 224.2, subdivision (b), imposes on the Department to 

inquire of a child’s extended family members—regardless of 

whether the parents deny Indian ancestry. By requiring the 

Department to inquire of a child’s extended family members as to 

the child’s possible Indian ancestry, the Legislature determined 

that inquiry of the parents alone is not sufficient.” (In re 

Antonio R., supra, 76 Cal.App.5th at p. 431; accord, In re J.C., 

supra, 77 Cal.App.5th at p. 81 [“the extensive inquiry 

requirements under section 224.2 presume that a parent’s 

declaration on the ICWA-020 form, reliable or not, is not enough 

and that the child protective agency must do more than look at 

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

of the statutory requirement that the social worker ask all 

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

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

6 “Because the Department’s duty to inquire of a child’s 

extended family members is imposed by California law, ‘we may 

not reverse unless we find that the error was prejudicial.’” (In re 

Antonio R., supra, 76 Cal.App.5th at p. 433; accord, In re 

Benjamin M., supra, 70 Cal.App.5th at p. 742 [“[b]ecause the 

failure here concerned the agency’s duty of initial inquiry, only 

state law is involved”]; see Cal. Const., art. VI, § 13 [“[n]o 

judgment shall be set aside . . . unless, after an examination of 

the entire cause, including the evidence, the court shall be of the 

opinion that the error complained of has resulted in a 

miscarriage of justice”].)
14

As we recently explained in In re Antonio R., there are

myriad reasons parents may not be aware of, or may not want to

divulge, their Indian ancestry to the Department, such as fear of 

being identified as Indian, failure to understand the purpose of 

self-identifying in dependency cases or the imprecision of orally 

transmitted family histories. (In re Antonio R., supra, 

76 Cal.App.5th at p. 432.) Accordingly, a parent’s denial of 

Indian ancestry, even where that parent is in contact with his or 

her biological family, does not eliminate the Department’s 

statutory duty to question extended family members regarding 

possible Indian ancestry. Nor can such an error be deemed 

harmless based on the presumption that extended family 

members would not have any additional information. (See id. at 

p. 435 [“[w]here the Department fails to discharge its initial duty 

of inquiry under ICWA and related California law, and the 

juvenile court finds ICWA does not apply notwithstanding the 

lack of an adequate inquiry, the error is in most circumstances, 

as here, prejudicial and reversible. Speculation as to whether 

extended family members might have information likely to bear 

meaningfully on whether the child is an Indian child has no place 

in the analysis of prejudicial error where there is an inadequate 

initial inquiry”]; cf. In re Benjamin M., supra, 70 Cal.App.5th at 

pp. 744, 745 [“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”; “[w]hile 

we cannot know how Father’s brother would answer the inquiry, 

his answer is likely to bear meaningfully on the determination at 

issue about his brother”].)
15

DISPOSITION

The order terminating Casey’s and John’s parental rights is 

conditionally affirmed. On remand the juvenile court must 

promptly direct the Department to make a meaningful and 

thorough inquiry regarding the children’s possible Indian 

ancestry, including interviews with the paternal grandmother, 

maternal aunt, extended family members and any other persons 

who may reasonably be expected to have information regarding 

the children’s possible Indian ancestry.

If the juvenile court determines after a hearing that the 

Department has satisfied its inquiry and notice obligations under 

ICWA and California law and the children are not Indian 

children, then the order terminating parental rights shall remain 

the order of the court. If the court finds that the children are 

Indian children, the court shall vacate the order terminating 

parental rights and conduct further proceedings in compliance 

with ICWA and related California law.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.