In re H.L. CA2/5

Filed 11/23/21 In re H.L. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re H.L., a Person Coming B311601
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK21764A)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

J.B.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Stephen C. Marpet, Judge Pro Tempore.
Conditionally affirmed.
 Lisa A. Raneri, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, David Michael Miller, Deputy County
Counsel for Plaintiff and Respondent.
________________________________

J.B. (mother) appeals from the order terminating parental
rights to her child, H.L. (minor), under Welfare and Institutions
Code section 366.26.1 Mother contends the Los Angeles County
Department of Children and Family Services (the Department)
and the juvenile court failed to comply with the inquiry
requirements of the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.). We conditionally affirm, and remand
for ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

Because the sole issue raised in mother’s appeal is ICWA
compliance, we focus primarily on the facts and procedural
background relevant to that issue.2
Minor was taken into Department custody on February 19,
2017, after she disclosed mother had been hitting her with an

1 Further statutory references areto the Welfare and
Institutions Code unless stated otherwise.
2 Minor’s alleged father, G.D., is deceased and is not a party
to this appeal.

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extension cord, leaving marks.3 Ten years old at the time, minor
told the investigating social worker she would like to reside with
her “Aunt JJ” who lives in St. Louis. Minor did not have the
relative’s full name or contact information. According to the
Department’s detention report, the social worker attempted to
reach mother by phone the day the child was taken into custody, and
left mother a message that the child was at the police station. Mother
called the social worker back the next day, but mother refused to
provide even basic identifying information and terminated the
attempted interview by disconnecting the call. The social worker
attempted a visit to mother’s address that same day, but no one
answered the door. The detention report noted, “[t]here were no
relatives or parent to interview as to the status of [American
Indian] heritage at the time of detention or later during the
investigation.” Minor remained in foster care for the next year
and a half until she was placed with her maternal great aunt
Melissa L. in St. Louis, Missouri, in September 2018.
Mother appeared at the February 23, 2017 detention
hearing and filed a Judicial Council form titled “Parental
Notification of Indian Status (ICWA-020)” stating she may have
Indian ancestry through maternal great-grandmother and
maternal great-grandfather, and that maternal grandmother
would know the tribe. The court questioned mother, and mother
told the court maternal grandmother’s name, and that maternal
grandmother lived in Minnesota and mother could provide
maternal grandmother’s new telephone number because she had

3 The juvenile court declared minor to be a dependent
described under section 300, subdivisions (a) and (b), based on
mother’s physical abuse of minor. Mother was arrested for
inflicting corporal injury on a child, and the criminal court issued
a restraining order protecting minor from mother.

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it in an email. Mother stated she needed to call maternal
grandmother because “both my grandparents, which is her
parents, were full blooded Indian.” The court found there was no
reason to know that minor was an Indian child, 4 but directed the
Department to investigate further and instructed mother to keep
the Department, her attorney, and the court apprised of any new
information relating to minor’s ICWA status.
In June 2017, the court reiterated its order to interview the
maternal grandmother regarding ICWA. The social worker
followed up on July 7, 2017, and maternal grandmother stated
she had no Indian ancestry. In a subsequent follow up, on
August 11, 2017, maternal grandmother again denied having any
Indian ancestry, and also stated that the biological maternal
grandfather, who was never involved in mother’s life, had no
Indian ancestry.
At the adjudication hearing on August 17, 2017, mother
and her counsel clarified mother’s claim of Indian ancestry.
According to mother, her mother (maternal grandmother) would
not release information about her biological father (biological
maternal grandfather), but that mother’s great-grandparents told
mother’s grandparents that biological maternal grandfather was
a “full-blooded Indian.” Based on the evidence before it, the court
found there was no reason to know minor was an Indian child.
At county counsel’s prompting, the court advised mother to
continue investigating and to provide any additional information
to the social worker.

4 All the Department’s subsequent review reports reference
this finding, stating “On 2/23/17, the Court found that the Indian
Child Welfare Act does not apply.”

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 On Friday October 13, 2017, mother and maternal
grandmother separately informed the social worker that a family
member had passed away in Missouri, and asked for minor to be
present at the funeral, which was scheduled to take place that
weekend. Mother wanted minor to be able to say goodbye to her
favorite uncle. According to the social worker, there was not
enough time to arrange minor’s travel, which would need court
approval. By November 2017, mother had only made very
limited contact with the social worker, had yet to enroll in
services, and had not yet arranged to visit minor.
In a January 2018 six-month review report, the
Department reported that Melissa (minor’s maternal great aunt
in St. Louis, Missouri) and her sister wanted to seek joint legal
guardianship of minor. Minor confirmed that she was speaking
with Melissa on a weekly basis, and that she had previously lived
with Melissa. The Department asked the court to start the
process under the Interstate Compact on Placement of Children
(ICPC; Fam. Code, § 7900 et seq.) for placing minor with Melissa.
At the six-month review hearing in February 2018, the court
ordered an ICPC initiated for the state of Missouri.
The social worker contacted Melissa in early March 2018 to
discuss placement, and the 12-month review report advised the
court of additional requirements for the Missouri ICPC request.
There is nothing in the 12-month review report indicating that
anyone from the Department asked Melissa or anyone else about
mother’s claim of Indian ancestry. In May 2018, the court
terminated mother’s reunification services.
In August 2018 the Missouri Department of Social Services
prepared a relative home assessment, evaluating Melissa and her
home. The assessment was positive, and included the following

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observations: Melissa’s parents (minor’s great grandparents)
died in 2009 and 2010. Melissa believed she had a good
relationship with her family members, but would also maintain
appropriate boundaries to ensure minor’s safety. Melissa was
“heavily involved in the planning of family reunions and other
family functions where the child will be around extended family
members.” The ICPC was approved in August 2018, and the
Department contacted Melissa to explain the rights and
responsibilities of adoption. The Department recommended the
court sign an order for an adoption home study for Melissa. In
September 2018, the court approved minor’s placement with
Melissa.
In February 2019, Melissa informed the social worker that
maternal grandmother told her that minor’s birth father had
recently died. The Department confirmed this information
through other sources. Minor was having regular visits with
maternal relatives in Missouri, and sporadic monitored phone
contact with maternal grandmother. Shortly before a March
2019 review hearing, the Department submitted a report stating
that a Department social worker remained in regular contact
with minor and Melissa as a support and advocate.
The Department’s February 2021 supplemental section
366.26 report states, “On 2/23/17, the Court found that the Indian
Child Welfare Act does not apply. . . .” At the section 366.26
hearing on February 17, 2021, the juvenile court terminated
mother’s parental rights as to minor; it made no express ICWA
findings on the record. Mother filed a timely notice of appeal.

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 DISCUSSION

ICWA requirements and standard of review

“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’
[Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).)
“In California, . . . persistent noncompliance with ICWA led the
Legislature in 2006 to ‘incorporate[ ] ICWA’s requirements into
California statutory law.’ [Citations.]” (In re Abbigail A. (2016) 1
Cal.5th 83, 91; see also In re Breanna S. (2017) 8 Cal.App.5th
636, 650 [California law “incorporates and enhances ICWA’s
requirements”].) Both ICWA and California law define an
“Indian child” as a child who is either a member of an Indian
tribe or is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe. (25 U.S.C.
§ 1903(4); § 224.1, subds. (a) & (b); see also In re Elizabeth M.
(2018) 19 Cal.App.5th 768, 783.)
The court and the Department have an affirmative and
continuing duty under ICWA and related California law to
inquire whether a child who is the subject of a dependency
proceeding is or may be an Indian child. (Isaiah W., supra, 1
Cal.5th at pp. 7–8.) The scope of the duty of inquiry is defined in
regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et
seq. (2020)), California statutes, and rules of court. (In re T.G.

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(2020) 58 Cal.App.5th 275, 290–291 (In re T.G.).) Here, we apply
the federal and state statutes in effect in February 2021, when
the section 366.26 hearing took place. (In re A.M. (2020) 47
Cal.App.5th 303, 321.)
The Department’s initial duty of inquiry at the beginning of
a child welfare proceeding 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.” (§ 224.2, subd. (b).) The court must inquire at each
party’s first appearance, whether any participant in the
proceeding “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) Part of the initial inquiry
includes requiring each party to complete the ICWA-020 form.
(Cal. Rules of Court, rule 5.481(a)(2)(C).)
When there is “reason to believe that an Indian child is
involved in a proceeding,” further inquiry is required. (§224.2,
subd. (e); In re T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)
Effective September 18, 2020, section 224.2, subdivision (e)(1),
explains that “reason to believe” exists “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.” Further
inquiry may include interviewing parents and extended family
members to obtain information such as the names of the child’s
“biological parents, grandparents, and great-grandparents, . . . as
well as their current and former addresses, birth dates, places of
birth and death, tribal enrollment information of other direct
lineal ancestors of the child, and any other identifying
information, if known.” (§ 224.2, subd. (e)(2)(A); 224.3, subd.

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(a)(5)(C); Cal. Rules of Court, rule 5.481(a)(4)(A).) The agency
engaging in further inquiry may also need to contact the Bureau
of Indian Affairs, the State Department of Social Services, and
any 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, subds. (e)(2)(B) & (e)(2)(C); Cal.
Rules of Court, rule 5.481(a)(4)(B)&(C).)
If the Department’s further inquiry efforts result in
information that would give the court or the Department “reason
to know” that the child is an Indian child under ICWA, then the
relevant tribes must be given notice of the proceedings. (25
U.S.C. § 1912, subd. (a); §224.3, subd. (a); §224.2, subd. (d)
[describing circumstances where there is “reason to know” a child
is an Indian child].)
On undisputed facts, we make an independent
determination about whether ICWA’s requirements have been
satisfied. (In re D.F. (2020) 55 Cal.App.5th 558, 565 (D.F.).) We
review the juvenile court’s ICWA findings for substantial
evidence, and the appellant bears the burden of showing
insufficient evidence to support the ICWA finding. (Ibid.)

Inquiry duties under ICWA

Mother contends the Department failed to satisfy its duties
of initial and further inquiry under section 224.2, subdivisions
(a), (b), and (e), because it did not ask maternal grandmother for
any contact information for biological maternal grandfather or
his family members, nor did it ask Melissa, the child’s maternal
great aunt, about her knowledge of minor’s possible Indian
ancestry. She argues that absent evidence that the Department

9
attempted to follow up with maternal grandmother or ask
Melissa about mother’s claim of Indian ancestry, the court’s
implied “no ICWA” finding at the section 366.26 hearing on
February 17, 2021 was in error. The Department counters that
there was substantial evidence to support the court’s
determination that ICWA was inapplicable, and even if mother’s
statements warranted additional inquiry, mother has not
demonstrated prejudicial error. We conclude that the record
lacks substantial evidence of a meaningful inquiry following
mother’s clarification about her claim of Indian ancestry, and so
the court’s later reliance on its implied ICWA finding was in
error.

1. Initial inquiry

We first address mother’s contention that the juvenile court
and the Department failed to satisfy ICWA’s “initial inquiry”
requirement when they failed to ask Melissa if she had any
information about minor’s possible Indian ancestry. Because
there is no evidence the Department was in contact with Melissa
until sometime after the six-month review hearing, mother’s
initial inquiry argument is not well taken. “[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.
(§ 224.2, subds. (a)–(c); [Citation.]” (In re T.G., supra, 58
Cal.App.5th at p. 290.) Here, as substantiated in the detention
report, there were no individuals available with any knowledge of
minor’s Indian ancestry. Later, after mother completed and filed
an ICWA-020 form at the detention hearing, the court questioned

10
mother about her claim of Indian ancestry and ordered the
Department conduct further inquiry by contacting maternal
grandmother, the person identified by mother as having
additional information. On June 28, 2017, the court again
ordered the Department to follow up with maternal grandmother,
which the department did. The juvenile court, therefore, met
ICWA’s initial inquiry requirements. (In re T.G., supra, 58
Cal.App.5th at p. 293 [finding the juvenile court “fulfilled its
initial obligation to ask about” “possible Indian ancestry” when
mother was asked about her Indian ancestry at the detention
hearing and filed an ICWA-020 form at that time].)

2. Further inquiry

Mother also contends that under the duty of further
inquiry, the Department inadequately investigated mother’s
claim that her Indian ancestry was based on her biological father,
rather than her adoptive father. Mother argues that the
Department should have asked maternal grandmother if she had
contact information for the biological maternal grandfather or
any of his extended family, and that the Department should have
asked Melissa if she had any information relevant to mother’s
claim.
The Department argues that mother’s generalized
assertion of Indian ancestry without identifying any tribe or
suggesting tribal membership was insufficient to trigger the duty
of further inquiry. The Department relies on In re Austin J.
(2020) 47 Cal.App.5th 870 (Austin J.), which held statements of
Indian ancestry alone, without further indication the child was
an “Indian child” within the meaning of the specific ICWA

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definition of that term, were insufficient to trigger the duty of
inquiry. (Id. at p. 889.) However, we believe the nature and
quality of information in this case was sufficient to trigger the
duty of further inquiry. (See, e.g., In re T.G., supra, 58
Cal.App.5th at pp. 294–295.)
The Department points to the maternal grandmother’s
denial of any Indian ancestry as substantial evidence that it
complied with the duty of further inquiry under ICWA. The
Department argues that mother only identified maternal
grandmother and great-grandparents as sources of information,
and since the great grandparents were no longer living and
maternal grandmother had already denied that maternal
biological grandfather had any Indian ancestry, the duty of
further inquiry was satisfied.
The Department has an obligation under its duty of further
inquiry to contact “any other person that may reasonably be
expected to have information regarding the child’s membership
status or eligibility.” (Welf. & Inst. Code § 224.2, subd. (e)(2)(B);
see In re K.R. (2018) 20 Cal.App.5th 701, 709 [“a social services
agency 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”].) If we were to only consider the information provided by
mother at the detention hearing, we might agree with the
Department that it had satisfied its duty of further inquiry when
it contacted maternal grandmother, who denied any Indian
ancestry for herself and for biological maternal grandfather.
However, mother subsequently clarified that according to her
grandparents (maternal great-grandparents), biological maternal
grandfather was a full-blooded Indian, but maternal

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grandmother was unwilling to divulge to mother information
about maternal biological grandfather. The Department
remained in contact with both maternal grandmother and
maternal great aunt Melissa well past mother’s clarification, but
there is no evidence that anyone asked either relative for any
additional information about biological maternal grandfather.
This absence of any effort to gather information stands in
contrast to other cases where reviewing courts found the duty of
further inquiry satisfied because the record contained evidence of
a meaningful inquiry into the possibility that a minor was an
Indian child. (See, e.g., In re D.F., supra, 55 Cal.App.5th at pp.
569–570 [agency’s “repeated efforts to gather information
concerning maternal ancestry,” including interviewing
grandparents and other family members, provided substantial
evidence of further inquiry]; In re D.S. (2020) 46 Cal.App.5th
1041, 1046–1047, 1052–1054 (In re D.S.) [agency detailed the
efforts by minor’s aunt (who was also minor’s caregiver) to
determine whether there was any chance of tribal membership,
and contacted multiple tribes with no success in determining
minor’s eligibility for tribal membership].) Acknowledging that
the Department “is not required to ‘cast about’ for information or
pursue unproductive investigative leads” (In re D.S., supra, 46
Cal.App.5th at p. 1053), we still conclude that without any
evidence that the Department asked maternal grandmother and
Melissa for any information relevant to mother’s claim that her
biological father was a full-blooded Indian, the court erred in
finding ICWA inapplicable.

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Prejudicial Error

Although it is typically the appellant’s burden to
demonstrate prejudice, when the silent record is caused by the
Department’s and the court’s failure to make the appropriate
inquiries, we cannot find harmless error. (In re N.G. (2018) 27
Cal.App.5th 474, 484 [when the record is silent as to whether the
Department asked the mother or other maternal relatives
whether minor may have maternal Indian ancestry, ICWA error
was necessarily prejudicial]; In re K.R., supra, 20 Cal.App.5th at
p. 708 [appellate review of ICWA compliance “should not be
derailed simply because the parent is unable to produce an
adequate record”]; but see In re A.C. (2021) 65 Cal.App.5th 1060,
1071–1073 [finding ICWA error harmless because father never
claimed Indian ancestry].) On a record that contains no evidence
that the Department conducted any additional investigation after
mother gave additional detail at the August 17, 2017 adjudication
hearing, we cannot know within any degree of reasonable
probability whether, had the Department made the requisite
effort to clarify the discrepancy between mother’s and maternal
grandmother’s conflicting claims, it would have discovered
information necessitating further interviews or notice to one or
more Indian tribes. Accordingly, remand is required for the
Department and the court to document additional investigative
efforts.

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 DISPOSITION

The juvenile court’s order terminating parental rights
under section 366.26 is conditionally affirmed. The case is
remanded to the juvenile court to order the Department to ask
maternal grandmother and maternal great aunt Melissa whether
they have any information relevant to mother’s claim that H.L.’s
maternal biological grandfather had Indian ancestry and to
report on the results of the Department’s investigation. Based on
the information presented, if the juvenile court determines that
no additional inquiry or notice to tribes is necessary, the
termination of mother’s parental rights is affirmed. If additional
inquiry or notice is warranted, the court shall make orders
consistent with ensuring compliance with ICWA and related
California law.

MOOR, J.

We concur:

BAKER, Acting P.J.

KIM, J.

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