In re N.D. CA4/2

Filed 9/1/21 In re N.D. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re N.D. et al., Persons Coming Under
the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E076628

Plaintiff and Respondent, (Super. Ct. Nos. J282061, J282062)

v. OPINION

S.S. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant, S.S.

Christine E. Johnson, under appointment by the Court of Appeal, for Defendant

and Appellant, M.D.

1
 Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Deputy

County Counsel, for Plaintiff and Respondent.

I.

INTRODUCTION

S.S., Mother and M.D. Father (Parents) appeal separately from the juvenile court’s

order terminating their parental rights to their daughter, N.D. (born in 2016), and son,

A.D. (born in 2017). Parents, who join in each others’ arguments, contend the juvenile

court erred in finding the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et

seq.) did not apply.

Mother argues noncompliance with ICWA based on San Bernardino County Child

and Family Services (CFS) (1) failing to perform its duty of further inquiry by not

contacting and interviewing the children’s maternal aunt (Aunt) and godfather
1
(Godfather) regarding the children’s Indian ancestry , (2) failing to obtain any signed

return receipts (“green card receipt”) or letters of non-enrollment from the San Carlos

Apache or Rosebud Sioux tribes, and (3) failing to provide notice of the juvenile

dependency proceedings to Cherokee tribes.

Father contends that CFS failed to perform its duty of further inquiry by not

contacting the children’s maternal great-grandfather (MGGF). Father also argues that

1
Because the relevant federal statutes and regulations use the term “Indian,” we
do the same for consistency, even though we recognize that other terms, such as “Native
American” or “indigenous,” are preferred by many.

2
CFS’s failure to arrange for visitation for him after his release from prison violated his

due process rights.

We reject Mother and Father’s arguments and affirm the order terminating

parental rights.

II.

FACTS AND PROCEDURAL BACKGROUND

On July 21, 2019, Mother’s sister reported to law enforcement that Mother had left

the children with a known drug addict and had not returned after two hours. The

children’s maternal grandmother (MGM) told CFS that Mother frequently left the

children with her while Mother went out and abused drugs. She would be gone for days

with no way of contacting her. The children were about a year behind for immunizations

and Mother had failed to take the children to the doctor for necessary treatment.

CFS met with Mother, the children, and the maternal grandparents (MGPs) to

arrange for services to address the family’s problems. Mother agreed to comply with a

CFS plan providing services and to take the children to their doctor’s appointments, but

failed to do so. On August 8, 2019, Mother was arrested for battery (Pen. Code, § 242)

and vandalism (Pen. Code, § 594, subd. (a)(1)). Two days later, Mother was arrested for

driving or taking a vehicle not her own, without the consent of the owner (Veh. Code, §

10851, subd. (a)). MGM reported that Mother had said that when she was released the

following day, she was going to move with the children to Alabama.

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 On August 12, 2019, the day after Mother’s release, CFS took the children into

protective custody. At the time, Father was incarcerated for vehicular manslaughter with

gross negligence (Pen. Code, § 192, subd. (c)(1)). He was convicted and sentenced to

prison in 2018, and eligible for parole in 2021. The children were placed with MGPs.

CFS filed a juvenile dependency petition on behalf of the children, alleging

Parents failed to protect the children as a result of Mother’s substance abuse and Father’s
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incarceration. (Welf. & Inst., § 300, subds. (b), (g). ) The court ordered the children

detained and placed with MGPs.

In September 2019, CFS reported the children were doing well in MGPs’ home.

MGPs were willing to adopt the children if Mother failed to reunify with them. Mother

reportedly had failed to rehabilitate from her substance abuse problem, which impaired

her ability to care for and supervise the children. At the September jurisdiction hearing,

Parents waived their rights. The court found true the dependency petition allegations and

the children were declared dependents under section 300, subdivisions (b) and (g).

Mother moved to Alabama in September 2019. During the disposition hearing in

October 2019, the court found that the children’s current placement with MGPs was

appropriate and that Father was the presumed father of the children. The court ordered

reunification services for Mother but not Father. In April 2020, CFS reported that

Mother had moved back.

2
Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.

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 In August 2020, CFS reported that the children had heart murmurs. N.D. was

cross-eyed, had a stomach hernia, and suffered from PTSD. A.D. had learning delays

from fetal alcohol syndrome. The children were doing well in MGPs’ care. MGPs were

planning to move with the children to a new home in Texas. At the contested review

hearing in September 2020, the court terminated reunification services for Mother, set a
3
section 366.26 hearing, and ordered CFS authority, upon ICPC approval, for MGPs and

the children to move to Texas.

CFS reported in its section 366.26 hearing report filed on January 8, 2021, that

Father was released from prison on December 6, 2020, and had contacted CFS to arrange

for visitation. CFS told Father visitation was not possible at that time because MGPs and

the children were leaving for Texas the following day for the winter break. CFS further

reported the children had been living with MGPs since August 13, 2019. MGPs were

committed to taking care of the children and wanted to adopt them.

During the section 366.26 hearing on February 24, 2021, Parents objected to

termination of parental rights and requested the court order guardianship. The children

were currently living with MGPs in Texas. The juvenile court found that the children’s

medical conditions did not limit their adoptability. The court denied Parents request for

an order of guardianship and found they had not met their burden of proving a parental

relationship existed or that severing Parents’ relationship with the children would result

3
Interstate Compact on the Placement of Children (ICPC).

5
in great harm to the children. The court further found the children were likely to be

adopted and therefore terminated parental rights.

III.

ICWA PROCEDURAL BACKGROUND

CFS attached to the juvenile dependency petition ICWA form 010, entitled

“Indian Child Inquiry Attachment,” consisting of a declaration by a CFS social worker

stating that CFS questioned MGM as to the children’s Indian ancestry and found the

children may have Indian ancestry. The declaration stated the children are or may be

members of the Apache, Sioux, and Nez Perce tribes.

In August 2019, Mother filed ICWA form 020, entitled, “Parental Notification of

Indian Status.” She stated in the form that she is or may be a member of, or eligible for

membership in the “Cherokee, black foot” tribes.

MGM filled out CFS form 390 A, entitled “RELATIVE: Family Find and ICWA

Inquiry.” She stated in the section entitled “Native American Ancestry Information,” that

she had or may have Indian ancestry in the “Apache, Sioux, Nespierce” tribes. MGM did

not know where the tribes were located. She further stated that she did not know if the

children had other relatives with Indian ancestry.

Maternal grandfather (MGF) also filled out CFS form 390 A, entitled

“RELATIVE: Family Find and ICWA Inquiry.” In the form section entitled “Native

American Ancestry Information,” MGF stated that it was unknown whether he had or

might have Indian ancestry. MGF further stated that the children had other relatives,

6
specifically MGM, who had Indian ancestry. MGF did not know the name of the tribe or

any related information.

At the detention hearing, Mother said she had Indian ancestry in the Cherokee,

“Blackfoot,” Apache, Nez Perce, and “Sioux tribes. The court ordered Father also to fill

out ICWA form 020, and both Parents to fill out CFS form 030 regarding Indian ancestry.

The court asked Mother if Father had any Indian ancestry. She said he did not.

Mother filled out CFS form 030 A, entitled “PARENT: Family Find and ICWA

Inquiry.” Mother did not provide in the form any “contact information of relatives who

know of Native American ancestry information.” However, under the section,

“Additional Family Contact Information,” Mother stated the name and phone numbers of

the children’s Aunt and Godfather. Mother also provided the name of a friend but did not

state her phone number or address. Under the form section, “Native American Ancestry

Information,” Mother stated she has or may have Indian ancestry in the “Black foot”

tribe.

In September 2019, CFS reported that it completed ICWA form 30 by

interviewing Mother and MGM, but was unable to speak to any of the paternal family.

CFS stated it used the “CWS/CMS” database to research Father’s ancestry and sent a

letter in August 2019, to Father requesting Indian ancestry information. CFS also

attempted to contact Father through the litigation coordinator in September 2019, and left

a message that CFS was inquiring regarding Father’s Indian ancestry.

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 In September 2019, Father filled out form CFS 030 A (“PARENT: Family Find

and ICWA Inquiry” form). He stated in the form that it was “Unknown” whether he had

or might have Indian ancestry. Father also filed ICWA form 020 (Parental Notification

of Indian Status), stating the children might be a member of, or eligible for membership

in an Indian tribe, the name of which was “unknown.”

During the September jurisdiction hearing, Father told the court he did not have

any Indian ancestry but Mother and MGPs did. He said he did not know the tribe. The

court continued the disposition hearing to allow CFS to provide ICWA notice.

In October 2019, CFS filed an ICWA declaration of due diligence, stating that

ICWA notice was sent on October 10, 2019, to 26 Indian tribes, which included various

Sioux, Apache, Nez Perce, Cherokee, and Blackfeet tribes. CFS attached to the

declaration certified receipts, return receipts, and letters. The declaration stated the

results of the notices and reported that no confirmation of membership or eligibility had

been received to date. CFS also stated it had sent notice to the Bureau of Indian Affairs

(BIA) and to Parents.

The “Notice of Child Custody Proceeding for Indian Child,” which was provided

to 26 Indian tribes, BIA, and Parents, included required information on Mother, Father,

MGM, MGF (no information available), paternal grandmother (deceased), paternal

grandfather (no current address or information available), and maternal great

grandmothers and grandfathers (all deceased), with the exception of one (MGGF). The

paternal great grandmothers and great grandfathers were unknown.

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 During the continued disposition hearing in October 2019, the court found that the

children might come under the provisions of ICWA. The court also found that CFS had

initiated compliance with ICWA noticing requirements.

In July 2020, CFS reported that it had provided notice as required under ICWA,

and the required 65-day period after noticing the BIA and tribes had passed with no

affirmative response of tribal membership. CFS filed a final ICWA declaration of due

diligence reporting that, with the exception of the Oglala Sioux and the San Carlos

Apache tribes, all of the tribes noticed on October 10, 2019, had returned letters

confirming the children were not enrolled in the tribes or eligible for enrollment. Later,

the Oglala Sioux and the San Carlos Apache tribes also confirmed receipt of service.

On July 2, 2020, the court found that ICWA notice had been conducted as

required, and the required 65-day period of time since noticing the BIA and the tribes had

passed, with no affirmative response of tribal membership received. The court ordered,

without objection, that ICWA did not apply in the case and that no further notice was

required.

On October 28, 2020, CFS filed another ICWA declaration of due diligence,

stating that notice was sent a second time on October 13, 2020, to all of the previously

noticed 26 Indian tribes, the BIA, and Parents. CFS also sent ICWA notices to three

additional tribes. The declaration stated the results of the notices and that no

confirmation of membership or eligibility had been received to date. CFS attached to the

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declaration certified receipts, return receipts, and letters. Father reported in December

2020, that Mother, and not Father, had Indian ancestry.

On January 8, 2021, CFS filed a final ICWA declaration of due diligence, stating

that ICWA notice was sent on October 13, 2020, to 29 Indian tribes, the BIA, and

Parents. The declaration further stated the results of the notices, including that no

confirmation of membership or eligibility had been received to date.

On January 13, 2021, the court found that notice had been provided as required

and the required 65-day period of time since noticing the BIA and the tribes had passed,

with no affirmative response of tribal membership received. The court ordered, without

objection, that ICWA did not apply and that no further notice was required. Thereafter,

on February 24, 2021, the court terminated parental rights.

IV.

ICWA COMPLIANCE

Parents contend CFS and the juvenile court failed to comply with their duty of
4
further inquiry under ICWA. Parents therefore request this court to conditionally

reverse the order terminating parental rights and remand the matter to the juvenile court

for further inquiry compliance.

A. Standard of Review

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Father acknowledges in his appellant’s reply brief (ARB) that he is not arguing
CFS or the court did not fulfill their duty to conduct further inquiry of paternal family
members. Father states in his ARB: “Father does not and has not argued that the duty of
further inquiry due in this case extended to any paternal family members.” Mother also
does not raise such an objection regarding paternal family members.

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 “‘[W]here the facts are undisputed, we independently determine whether ICWA’s

requirements have been satisfied.’ [Citations.] However, ‘we 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 D.F. (2020) 55 Cal.App.5th 558, 565; accord In re A.M. (2020) 47 Cal.App.5th 303,

314.) Parents, as appellants, have the burden to show that the evidence was insufficient

to support the findings and orders. (In re Austin J. (2020) 47 Cal.App.5th 870, 885

(Austin).)

B. Applicable ICWA Law

ICWA protects the interests of Indian children and promotes the stability and

security of Indian tribes and families by establishing minimum federal standards that a

state court, except in emergencies, must follow before removing an Indian child from his

or her family. (25 U.S.C. § 1902; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The Indian

child, the parent, and the Indian child’s tribe have the right to intervene in any

“proceeding for the foster care placement of, or termination of parental rights to, an

Indian child.” (25 U.S.C. § 1911(c).)

For purposes of ICWA, an “Indian child” is an unmarried individual under 18

years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is

eligible for membership in a federally recognized tribe and is the biological child of a

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member of a federally recognized tribe. (25 U.S.C. § 1903(4), (8); see § 224.1, subd. (a)

[adopting federal definitions].)

ICWA provides that, “[i]n any involuntary proceeding in a State court, where the

court knows or has reason to know that an Indian child is involved, the party seeking the

foster care placement of, or termination of parental rights to, an Indian child shall notify

the parent or Indian custodian and the Indian child’s tribe, by registered mail with return

receipt requested, of the pending proceedings and of their right of intervention.” (25

U.S.C. § 1912(a).)

Federal regulation 25 C.F.R. § 23.107(a) imposes a duty to inquire whether a child

is an Indian child. In section 224.2, California has enacted a statute that parallels the

federal regulations. Section 224.2, subdivision (a) provides that the court and child

protective agencies remain under “an affirmative and continuing duty to inquire whether

a child . . . is or may be an Indian child.” That duty to inquire and to make further

inquiries obligates the juvenile court and child protective agencies to ask all relevant

involved individuals whether the child may be an Indian child. (§ 224.2, subds. (a)-(e);

see In re D.F. (2020) 55 Cal.App.5th 558.)

Section 224.2, subdivision (c) provides: “At the first appearance in court of each

party, the court shall ask each participant present in the hearing whether the participant

knows or has reason to know that the child is an Indian child. The court shall instruct the

parties to inform the court if they subsequently receive information that provides reason

to know the child is an Indian child.”

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 Subdivision (d) of section 224.2 lists six circumstances, any one of which

constitutes “reason to know.” The only circumstance that is potentially applicable here is

in subdivision (d)(1): “A person having an interest in the child, including . . . a member

of the child’s extended family informs the court that the child is an Indian child.” (See

also 25 C.F.R. § 23.107(c)(1).)

Subdivision (e) of section 224.2 provides: “If the court, social worker, or

probation officer has reason to believe that an Indian child is involved in a proceeding,

but does not have sufficient information to determine that there is reason to know that the

child is an Indian child, the court, social worker, or probation officer shall make further

inquiry regarding the possible Indian status of the child, and shall make that inquiry as

soon as practicable.”

“There is reason to believe a child involved in a proceeding is an Indian child

whenever the court, social worker, or probation officer has information suggesting that

either the parent of the child or the child is a member or may be eligible for membership

in an Indian tribe. Information suggesting membership or eligibility for membership

includes, but is not limited to, information that indicates, but does not establish, the

existence of one or more of the grounds for reason to know enumerated in paragraphs (1)

to (6), inclusive, of subdivision (d).” (§ 224.2, subd. (e)(1).)

Subdivision (e)(2) of section 224.2 instructs that, “[w]hen there is reason to

believe the child is an Indian child, further inquiry is necessary to help the court, social

worker, or probation officer determine whether there is reason to know a child is an

13
Indian child.” Further inquiry includes, but is not limited to, (1) interviewing the parents

and extended family members; (2) contacting the BIA and State Department of Social

Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that

might have information regarding the child’s membership or eligibility in a tribe. (§

224.2, subd. (e)(2).) If after conducting further inquiry, there is reason to know that the

child is an Indian child, CFS shall provide the requisite ICWA notice to the child’s tribe.

(§§ 224.2, subd. (f); 224.3, subd. (a)(5).)

The purpose of ICWA and California’s parallel statutes is to enable a tribe to

determine whether the child is an Indian child and, if so, whether to intervene in or

exercise jurisdiction over the juvenile dependency proceeding. (In re K.R. (2018) 20

Cal.App.5th 701, 706 (K.R.).) “‘[R]esponsibility for compliance’ with those statutes

‘falls squarely and affirmatively’ on both the social services agency and the court.” (Id.

at p. 709, quoting Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410.) Even

though the parents do not object at any point below to the sufficiency of the inquiry or of

the notice given, the issue is cognizable in this appeal. (K.R., supra, at p. 709.)

C. Duty of Further Inquiry

Parents contend CFS and the court failed to comply with their ICWA duty of

further inquiry by not contacting Aunt, MGGF, or Godfather, even though contact

information was available. CFS contends it was not required to contact them under

ICWA.

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 CFS and the court met their initial duty of inquiry by obtaining Indian ancestry

information from Parents and MGPs. Mother and MGM stated that the children had or

might have Indian ancestry in Sioux, Apache, Nez Perce, Cherokee, or Blackfeet tribes

through MGM. Mother also stated on ICWA form 020 that she is or may be a member

of, or eligible for membership in the Cherokee and “black foot” tribes. The record thus

demonstrates there was “reason to believe” the children were Indian children under

section 224.2, subdivision (e), which gave rise to CFS’s duty to further inquire regarding

the children’s Indian ancestry.

CFS further investigated the children’s possible Indian ancestry by sending notices

to 29 tribes and the BIA. There was no affirmative response of any tribal membership or

eligibility. Therefore the court found that notice had been conducted as required by

ICWA, with no affirmative response as to tribal membership or eligibility, and ICWA did

not apply..

The issue here is whether CFS and the court still had a duty of further inquiry,

which required CFS to contact Aunt, MGGF, and Godfather. Under section 224.2,

subdivision (e)(2), “further inquiry” includes interviewing extended family members.”

(§ 224.2, subd. (e)(2)(A).) CFS “has the obligation to make a meaningful effort to locate

and interview extended family members to obtain whatever information they may have as

to the child’s possible Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.)

“‘“[E]xtended family member[s]”’ includes the child’s ‘grandparent, aunt or

uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second

15
cousin, or stepparent.’ (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).) It

does not include great-grandparents.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053,

italics added.) CFS failed to comply with this obligation by not interviewing Aunt, who

qualified as an “extended family member.” (Ibid.)

MGGF and Godfather do not qualify as an “extended family member.” However,

“further inquiry” under section 224.2, subdivision (e)(2)(C) includes contacting “any

other person that may reasonably be expected to have information regarding the child’s

membership, citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(C).) There is no

evidence in the record that MGGF or Godfather might “reasonably be expected to have

information regarding the child’s membership, citizenship status, or eligibility.”

(§ 224.2, subd. (e)(2)(C).) Neither Parents nor MGPs stated that MGGF or Godfather

knew anything about whether the children had Indian ancestry. Mother only mentioned

Godfather once, solely as an additional family contact. He was not listed as someone

who had Indian ancestry information. It is unclear whether Godfather is a relative of the

children. MGGF was only mentioned in the IWCA notice, in the section listing

biological relatives. His name, address, birth date, and place of birth were provided.

There was “no information available” as to whether he was a member of a tribe. Under

federal and state law, additional information regarding MGGF was required to be

provided only if known. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)

Parents thus have not established that there was a duty of further inquiry as to

MGGF or Godfather, because there was no evidence of any reason for CFS or the court

16
to believe MGGF or Godfather might have any Indian ancestry information, particularly

after CFS noticed 29 tribes and the BIA, with no affirmative response the children or

Parents were members or eligible for membership in any of the Indian tribes. We

therefore conclude the evidence is thus insufficient to show any noncompliance under

section 224.2(e)(2)(C), by CFS not contacting MGGF or Godfather.

Father argues the instant case is similar to In re T.G. (2020) 58 Cal.App.5th 275

(T.G.), in which the court held there was a duty of further inquiry and remanded the case

for further ICWA inquiry. In T.G., the juvenile court ordered the social services agency

to provide ICWA notice to the Cherokee tribe and BIA, and investigate the father’s claim

of possible Indian ancestry. The agency failed to do so. Nevertheless, the juvenile court

granted guardianship and terminated jurisdiction without any order or findings that

ICWA did not apply. The court in T.G. court held the juvenile court and agency failed to

comply with their ICWA duties of further inquiry and notice. (Id. at pp. 280-281.)

In reaching its holding, T.G. rejected the court’s holding in Austin J. that a parent’s

express statement of Indian ancestry is insufficient to constitute a “reason to believe” an

Indian child may be involved, triggering a duty of further inquiry. (T.G., supra, 58

Cal.App.5th at pp. 293-295; Austin J., supra, 47 Cal.App.5th at pp. 888-889.) The Austin

J. court concluded that, “[e]ven if we assume that the possibility of Indian ancestry may

suggest the possibility of Indian tribal membership, that bare suggestion is insufficient by

itself to establish a reason to believe a child is an Indian child.” (Id. at p. 889.) The

Austin J. court reasoned that such a statement is insufficient because it alone does not

17
provide reason to believe the child is a member of a tribe or the biological child of a

member, which is required in order for a child to be an Indian child under ICWA. (Id. at

pp. 888-889.)

The court in T.G. disagreed, holding that a parent’s statement and similar

statements by relatives that the child may have Indian ancestry is sufficient to trigger a

duty of further inquiry. (T.G., supra, 58 Cal.App.5th at pp. 293-295.) The T.G. court

therefore remanded the matter for further inquiry based on responses the court received

from the mother and maternal grandmother that the mother had Cherokee ancestry and

the children also had Indian ancestry through their maternal great grandfather and

maternal grandmother.

Regardless of the conflict between Austin J. and T.G. regarding whether there was

a duty of further inquiry, the instant case is distinguishable from both cases and there is

no dispute that there initially was a duty of further inquiry based on Mother and MGM’s

responses of Indian ancestry. The issue here is whether the court’s and CFS’s further

inquiry was insufficient under ICWA and the State statutes because CFS did not contact

Aunt, MGGF, or Godfather. We conclude substantial evidence supports the juvenile

court’s finding of compliance with the duty of further inquiry.

CFS was required to conduct “a meaningful and thorough inquiry” regarding the

children’s “possible Indian ancestry, including interviews with extended family members

and any other persons who may reasonably be expected to have information regarding the

children’s tribal membership or eligibility for membership and contact with any tribes

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that may have such information.” (T.G., supra, 58 Cal.App.5th at p. 297.) There is

substantial evidence CFS did so, even though CFS did not contact Aunt, MGGF, or

Godfather. CFS and the juvenile court could have reasonably concluded based on

information received from the tribes, BIA, Parents, and MGPs that no further inquiry was

needed because there was no additional information of value to obtain from Aunt,

MGGF, or Godfather. There was no evidence those individuals had or might have any

additional knowledge of the children’s Indian ancestry, particularly when none of the 29

tribes contacted indicated that the children had Indian ancestry.

CFS was not required to “cast about” for information or pursue unproductive

investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) Based on the record,

we conclude there was substantial evidence supporting the court’s conclusion that CFS

complied with its further inquiry obligations. (In re D.S., supra, 46 Cal.App.5th at p.

1053.) When the juvenile court found that there was no longer a duty of further inquiry

and ICWA did not apply, further inquiry, including contacting Aunt, MGGF, and

Godfather, was not required because there was no reason to believe at that point that they

had any additional information or that the children were Indian children.

D. Harmless Error

Even if the juvenile court and CFS erred in not contacting Aunt, MGGF, or

Godfather, any such error was harmless. Father argues that it was “possible” the tribes’

responses to the notices would have been different had CFS and the court conducted a

proper inquiry of Aunt, MGGF, and Godfather. Relying on In re A.C. (2021) 65

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Cal.App.5th 1060 (A.C.), CFS argues that any error in not contacting the three individuals

was harmless because there is no reason to believe that doing so would have made any

difference in the outcome. We agree. The information obtained from Parents, MGPs,

and the tribes confirmed the children were not Indian children under ICWA or the state

statutes.

“Deficiencies or errors in an ICWA notice are subject to harmless error review.”

(In re Charlotte V., supra, 6 Cal.App.5th at p. 57.) As we noted in K.R., “in general, an

appellant has the burden of producing an adequate record that demonstrates reversible

error. [Citation.] However, ICWA compliance presents a unique situation, in that, as we

have just discussed, although the parent has no burden to object to deficiencies in ICWA

compliance in the juvenile court, the parent may nevertheless raise the issue on appeal.

[Citation.] The purpose of ICWA and the California statutes is to provide notice to the

tribe sufficient to allow it to determine whether the child is an Indian child and whether it

wishes to intervene in the proceedings. [Citation.] The parent is in effect acting as a

surrogate for the tribe in raising compliance issues on appeal. Appellate review of

procedures and rulings that are preserved for review irrespective of any action or inaction

on the part of the parent should not be derailed simply because the parent is unable to

produce an adequate record.” (K.R., supra, 20 Cal.App.5th at p. 708.)

In K.R., we concluded there was prejudicial error because the social services

agency had not provided a record of its efforts undertaken to comply with ICWA. There

was no evidence the agency had contacted the paternal aunt, paternal grandparents, or

20
paternal great-grandmother, even though there was contact information available for

them. In K.R., we remanded the matter for further inquiry because, unlike in the instant

case, the record indicated that the paternal aunt, paternal grandparents, and paternal great-

grandmother would likely provide additional information that would assist in determining

whether the children had Indian ancestry. (K.R., supra, 20 Cal.App.5th at pp. 707-708.)

In A.C., supra, 65 Cal.App.5th 1060, we did not remand the matter for further

inquiry because we concluded there was no prejudicial error. In A.C., the father did not

provide any evidence of Indian ancestry or claim Indian ancestry in the juvenile or

appellate courts. (Id. at p. 1067, 1073.) We held in A.C. the error did not constitute

reversable prejudicial error because the father could have, but did not, establish prejudice

by submitting on appeal post-judgment evidence showing he had Indian ancestry and the

juvenile court record was silent as to whether he had Indian ancestry because CFS did not

inquire. (Ibid.)

Even though A.C. is distinguishable, this court’s discussion in A.C., of prejudicial

error in general is instructive here. As we explained in A.C., “‘[A]ny failure to comply

with a higher state standard, above and beyond what . . . ICWA itself requires, must be

held harmless unless the appellant can show a reasonable probability that he or she would

have enjoyed a more favorable result in the absence of the error. [Citations.]’

[Citations.]” (A.C., supra, 65 Cal.App.5th 1069.) This means a parent asserting failure

to inquire as to an extended family member must show, at a minimum, that, if asked, the

extended family member would have provided new information of Indian ancestry.

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Where the record below fails to demonstrate this, a miscarriage of justice has not been

established and reversal is not required. (A.C., supra, at p. 1069.)

Any error here in CFS not contacting the Aunt, MGGF, or Godfather is not one of

federal law. (A.C., supra, 65 Cal.App.5th at p. 1069.) “There is no federal duty to

inquire of extended family members. In any event, assuming there was a federal

statutory error, and assuming (without deciding) that the reversibility of such an error is a

federal question [citation], there is a harmless error rule under federal law, too. (28

U.S.C. § 2111.) ‘[T]he party that “seeks to have a judgment set aside because of an

erroneous ruling carries the burden of showing that prejudice resulted.” [Citations.]’

[Citation.]” (A.C., supra, 65 Cal.App.5th at pp. 1069-1070.)

In A.C., we rejected the father’s argument he did not have to make an affirmative

showing of prejudicial error because “a parent will not necessarily be aware of his or her

Indian ancestry. Part of the error here is that CFS failed to inquire of extended family

members. Thus, we cannot know for certain whether the error did or did not prevent it

from discovering Indian ancestry on the father’s side.” (A.C., supra, 65 Cal.App.5th at p.

1070.)

As we noted in A.C., “[t]he flaw in this argument is that ‘an appellant has the

burden of producing an adequate record that demonstrates reversible error. [Citation.]’

[Citation.].) Admittedly, in In re K.R., we recognized an exception to this rule when the

record is inadequate because of the social services agency’s failure to document its

inquiries. [Citations.]” (A.C., supra, 65 Cal.App.5th at p. 1070, citing In re K.R., supra,

22
at p. 705 and In re N.G. (2018) 27 Cal.App.5th 474, 481.) That exception does not apply

here because this case does not involve CFS failing to document its inquiries.

In In re N.G., supra, 27 Cal.App.5th at page 482, the court noted regarding the

exception to the burden of proof rule, that the “holding in K.R. is at odds with established

case law which has applied the substantial evidence rule to claims of ICWA error, and

which has treated the appellant (usually a parent) as having the burden of demonstrating

prejudicial ICWA error on appeal based on an adequate record. (E.g., In re Charlotte V.,

supra, 6 Cal.App.5th at pp. 57-58.) But in a case such as this one, where the record does

not show what, if any, efforts the agency made to discharge its duty of inquiry (§ 224.3,

subd. (a); [In re] Michael V., [(2018)] 3 Cal.App.5th [225,] 233), and the record also does

not show that all required ICWA notices were given or that the ICWA notices that were

given included all known identifying information, the burden of making an adequate

record demonstrating the court’s and the agency’s efforts to comply with ICWA’s inquiry

and notice requirements must fall squarely and affirmatively on the court and the agency.

In the absence of an appellate record affirmatively showing the court’s and the agency’s

efforts to comply with ICWA’s inquiry and notice requirements, we will not, as a general

rule, conclude that substantial evidence supports the court’s finding that proper and

adequate ICWA notices were given or that ICWA did not apply. Instead, as a general

rule, we will find the appellant’s claims of ICWA error prejudicial and reversible.”

Here, unlike in N.G. and K.R., the appellate record affirmatively shows the court’s

and CFS’s efforts to comply with ICWA’s inquiry and notice requirements. Thus, any

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error in the CFS not contacting Aunt, MGGF, or Godfather is subject to harmless error

review and is not presumed prejudicial, with the burden of proof on Parents to show

prejudice. (In re Charlotte V., supra, 6 Cal.App.5th at p. 57.) Based on the record, we

conclude that Parents have not met their burden of proof of establishing prejudicial error.

Unlike in K.R. and N.G., the record demonstrates CFS made a concerted effort to

discharge its duty of further inquiry and that all required ICWA notices were given and

included all known identifying information. We therefore conclude CFS and the court

fulfilled their duty of further inquiry by the time the court ordered that ICWA did not

apply, even though Aunt, MGGF, and Godfather had not been contacted. The juvenile

court and CFS could have reasonably found that it was unlikely that any additional

inquiry would have produced additional information regarding the children’s Indian

ancestry.

A parent asserting failure to inquire as to an extended family member must show,

at a minimum, that, if asked, the extended family member would have provided new

information of Indian ancestry. Where the record below fails to demonstrate this, a

miscarriage of justice has not been established and reversal is not required. (A.C., supra,

65 Cal.App.5th at p. 1069.) There is no evidence in the record that Aunt, MGGF, or

Godfather had or might have any new information regarding the children’s Indian

ancestry. In addition, 27 of the 29 noticed tribes confirmed that the children were not

members or eligible, and the remaining two tribes, confirmed receipt of ICWA notice but

did not bother to respond.

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 Substantial evidence shows that CFS thoroughly investigated the children’s Indian

ancestry and the investigation demonstrated that the children do not have Indian ancestry

through either parent and are not Indian children under ICWA or the state statutes. We

therefore conclude that, if there was any error in CFS and the court not contacting Aunt,

MGGF, or Godfather, such omission was harmless error.

E. Notice to Cherokee Tribes, Green Card Receipts, and Letters

Mother contends in her AOB that CFS and the court’s compliance with the duty of

further inquiry was inadequate because CFS did not provide ICWA notice to Cherokee

tribes and did not obtain green card receipts or letters of non-enrollment from the San

Carlos Apache and Rosebud Sioux tribes. The record does not support these contentions.

The ICWA Declaration of Due Diligence filed on October 28, 2020, states that CFS

noticed three Cherokee tribes, and receipts confirming service were signed for two of the

Cherokee tribes. As to the third Cherokee tribe noticed, the tribe provided letters

confirming no enrollment of the children and no intervention by the tribe. Another

Cherokee tribe also provided letters confirming no enrollment of the children and no

intervention by the tribe. The record shows notice was provided to the Cherokee tribes.

The record also shows that CFS obtained green card receipts and letters of non-

enrollment from the San Carlos Apache and Rosebud Sioux tribes. CFS received a

signed green card for the Rosebud Sioux tribe acknowledging receipt of notice. CFS also

received a letter from the tribe confirming the children were not enrolled in the tribe or

eligible. There is also evidence in the record that notice was provided to the San Carlos

25
Apache tribe, including a signed green card acknowledging receipt of notice.

V.

VISITATION

Father contends his due process rights were violated by being denied visitation

after his release from prison. He argues that had he been able to visit the children, he

could have established the beneficial parent-child relationship exception to adoption

applied. He also argues that there was insufficient evidence that CFS properly discharged

its duties to secure visitation for Father in accordance with the court’s orders. We

conclude there was no violation of Father’s due process rights because of Father not

being able to visit the children after his release from prison.

Father did not live with the children after his incarceration on June 14, 2018, and

was not released from prison until December 6, 2020. The court ordered supervised

visitation for Father one time per week for two hours, upon his release from prison. After

his release, Father attempted to contact CFS and left messages on December 8, 9, and 14,

2020. CFS spoke to Father on December 16, 2020, during which Father requested

visitation. CFS told Father most likely visitation would not be possible at that time

because MGPs and the children were leaving for Texas on December 16, 2020, for the

winter break. CFS told Father to call back to arrange for visitation upon their return from

Texas.

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 During the section 366.26 hearing on February 24, 2021, Father testified that he

had lived with the children from the time of their birth until he was incarcerated on June

14, 2018. Mother brought the children to the jail to visit him once or twice a week for 11

months, during which he saw them through a glass barrier. That ended on May 16, 2019,

when he was moved to state prison. This was the last time he saw the children. Father

did not have any contact with the children while in prison or after his release on

December 6, 2020.

The CFS social worker, J.A., testified that when Father contacted her after his

release from prison, she told him that, because the children were leaving for Texas for the

winter break the following day, a visit before then would probably not be possible. J.A.

told Father to call her back to schedule a visit, but he never did. To her knowledge, he

also did not call anyone else at CFS or MGPs to ask for visitation.

During the section 366.26 hearing, the court found that Father had not made a

sufficiently concerted effort to reach out to the children while in prison or visit them after

his release. He also had not stood in a parental role for quite some time. The court

therefore found that the benefits of adoption outweighed any benefit of Father

maintaining a parent-child relationship, and thus terminated his parental rights.

“At a section 366.26 hearing the juvenile court has three options: (1) to terminate

parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for

the dependent child; or (3) to order the child be placed in long-term foster care.

[Citation.] Adoption is the preferred plan and, absent an enumerated exception, the

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juvenile court is required to select adoption as the permanent plan. [Citation.] The

burden falls to the parent to show that the termination of parental rights would be

detrimental to the child under one of the exceptions.” (In re Fernando M. (2006) 138

Cal.App.4th 529, 534.) “Because a section 366.26 hearing occurs only after the court has

repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary

case that preservation of the parent’s rights will prevail over the Legislature’s preference

for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

One of the exceptions to the preference for adoption is the beneficial parent-child

relationship exception. The exception provides that the court shall terminate parental

rights unless “[t]he court finds a compelling reason for determining that termination

would be detrimental to the child” where “[t]he parents have maintained regular visitation

and contact with the child and the child would benefit from continuing the relationship.”

(§ 366.26, subd. (c)(1)(B)(i).) The existence of this relationship is determined by taking

into consideration “[t]he age of the child, the portion of the child’s life spent in the

parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and

child, and the child’s particular needs.” (In re Autumn H. (1994) 27 Cal.App.4th 567,

576.)

The parent must not only demonstrate the positive aspects of the relationship, but

“must show the child would suffer detriment if his or her relationship with the parent

were terminated.” (In re C.F. (2011) 193 Cal.App.4th 549, 555.) For the exception to

apply, severing of the relationship must “‘deprive the child of a substantial, positive

28
emotional attachment such that the child would be greatly harmed.’” (In re Marcelo B.

(2012) 209 Cal.App.4th 635, 643.) “‘A biological parent who has failed to reunify with

an adoptable child may not derail an adoption merely by showing the child would derive

some benefit from continuing a relationship maintained during periods of visitation with

the parent.’” (Ibid.)

Although there is the possibility that CFS could have immediately responded to

Father’s first call on December 8, 2020, and arranged for a supervised, two-hour visit

before the children left for Texas, there is no evidence doing so would have made any

difference in the outcome of the case. Even if there was error in CFS not arranging a

visit in December 2020, it was thus harmless error. It is highly unlikely that such a visit,

or even visits thereafter, which he never took any initiative to arrange, would have

resulted in the court finding the beneficial parent-child relationship exception to adoption

applied.

There also is no evidence that terminating Father’s parental rights would be

detrimental to the children. Father had not lived with them for over two and a half years

and he had not had any contact with the children while in prison. Therefore, if there was

any error in CFS not arranging for Father to visit the children after his release from

prison, it was harmless error.

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 VI.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

We concur:

SLOUGH
J.

FIELDS
J.

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