In re A.C.

Filed 3/4/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re A.C., a Person Coming B312391
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20CCJP01943)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

ALEXANDER C.,

Defendant and Appellant.
 APPEAL from the jurisdictional and dispositional orders
of the Superior Court of Los Angeles County, Julie Fox
Blackshaw, Judge. Affirmed with instructions.
Patricia K. Saucier, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
____________________

It is undisputed that the Los Angeles County Department
of Children and Family Services (DCFS) failed to ask extended
family members about Indian ancestry in derogation of state law
(Welf. & Inst. Code, § 224.2) 1 implementing the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq). The only
issue before us is whether that failure was prejudicial. This is
father’s sole appellate challenge to the juvenile court’s
jurisdictional and dispositional orders regarding his son, A.C.
Defining prejudice can sometimes resemble Lewis Carroll’s
description of logic in Through the Looking-Glass: “ ‘[I]f it was
so, it might be; and if it were so, it would be but as it isn’t, it
ain’t.’ ” (Carroll, Alice’s Adventures in Wonderland and Through
the Looking-Glass (1998) p. 157.)
As eloquently summarized in the dissent, recent appellate
jurisprudence has adopted a continuum of tests for prejudice
stemming from error in following California statutes
implementing ICWA ranging from a per se rule that any error is

1 Undesignated statutory citations are to the Welfare and
Institutions Code.

2
always prejudicial, to a test advocated by the dissent finding no
prejudice unless the appealing parent makes a proffer that
interviewing extended family members would yield information
about potential Indian ancestry. We acknowledge the policy
arguments in favor of this latter test not the least of which is
preventing the delay caused by remanding a case for additional
inquiry into a child’s Indian status and the resulting inability to
comply with competing statutory obligations expeditiously to
provide a safe and permanent home for children within the
juvenile court’s jurisdiction.
We conclude, however, under the facts of this case, that
DCFS’s failure to ask extended family members about potential
Indian ancestry was prejudicial. The dictates of our high court
and mandatory statutory duties of initial inquiry compel this
conclusion. Our conclusion, moreover, is consistent with the very
purpose of ICWA—to remedy a history of removal of Indian
children from their communities and cultural heritage.
Accordingly, we remand the matter with directions for the
juvenile court to order DCFS to comply with section 224.2.

BACKGROUND

1. The Juvenile Court Assumed Jurisdiction Over the
Children 2
For an undisclosed period prior to her 18th birthday,
mother, who was born in 1985, was in foster care. Mother has

2 Because the sole issue on appeal is compliance with the
state statute implementing ICWA, a detailed recitation of the
non-ICWA related background is not necessary to the resolution
of this appeal. Additionally, we focus only on A.C. (not T.F. or

3
three children, T.F. (born in 2009), S.F. (born in 2011), and A.C.
(born in 2017). Father is A.C.’s father. At the time the
dependency proceedings commenced, the children were living
with mother, and mother reported that father helped with A.C.

a. Section 300 petition
DCFS became involved with the family after mother drove
while under the influence of alcohol and collided with another
vehicle. The children were in mother’s car during this collision.
DCFS filed a section 300 petition, and the juvenile court
sustained allegations that A.C. was at risk of suffering serious
physical harm based on mother driving while under the
influence. The juvenile court allowed the children to remain in
mother’s care. As part of the case plan dated July 7, 2020, the
court recommended father take parenting classes. The juvenile
court ordered that father’s visits occur in mother’s home unless
father participated in an interview with social workers and an
assessment of his home. The juvenile court ordered mother to
attend a six-month drug and alcohol program and to undergo
random drug testing every other week. The court also ordered
mother to attend parenting classes and to cooperate with DCFS
for unannounced home visits.

b. Section 360 petition
On December 18, 2020, DCFS filed a section 360 petition
alleging that the original disposition was ineffective in
ameliorating the situation that required jurisdiction. Mother
failed to comply with random drug testing. DCFS alleged that

S.F.) because father’s argument concerns only A.C. Mother is not
a party to the appeal.

4
mother has a history of alcohol use and currently abused
marijuana. DCFS further alleged that father failed to comply
with court orders, including participating in parenting classes.

c. Section 342 petition
On January 12, 2021, DCFS filed a section 342 petition
alleging that domestic violence involving mother and father
placed A.C. at substantial risk of suffering serious physical harm.
DCFS also alleged A.C. was at substantial risk of harm based on
father’s abusive conduct, father’s substance abuse, and mother’s
failure to protect A.C. from father.
Following a hearing at which father testified, the court
sustained the section 360 and 342 petitions. The juvenile court
ordered A.C. removed from parental custody and granted mother
and father reunification services. The juvenile court ordered both
parents to attend a drug and alcohol program, weekly random
drug and alcohol testing, parenting classes, domestic violence
programs, and individual counseling.

2. Background on A.C.’s Indian Heritage
A DCFS report dated April 8, 2020 indicates that mother
“denied the family [has] any known Indian Ancestry . . . .” but
DCFS nevertheless concluded for unidentified reasons that ICWA
“may apply.” The record does not indicate that social workers
asked father about potential Indian ancestry.
Mother completed a form indicating she had no known
Indian ancestry. The form states, “Note: This form is not
intended to constitute a complete inquiry into Indian heritage.
Further inquiry may be required by the Indian Child Welfare
Act.” Father also completed a form (different from the one
mother completed), checking the box, “None of the above apply.”

5
The “above” unchecked boxes describing Indian ancestry were as
follows: (1) “I am or may be a member of, or eligible for
membership in, a federally recognized Indian tribe”; (2) “The
child is or may be a member of, or eligible for membership in, a
federally recognized Indian tribe”; (3) “One or more of my
parents, grandparents, or other lineal ancestors is or was a
member of a federally recognized tribe”; (4) “I am a resident of or
am domiciled on a reservation, rancheria, Alaska Native village,
or other tribal trust land”; (5) “The child is a resident of or is
domiciled on a reservation, rancheria, Alaska Native village, or
other tribal trust land”; (6) “The child is or has been a ward of a
tribal court”; and (7) “Either parent or the child possesses an
Indian identification card indicating membership or citizenship
in an Indian tribe.” Father’s form also stated, “Note: This form
is not intended to constitute a complete inquiry into Indian
heritage. Further inquiry may be required by the Indian Child
Welfare Act.”
In December 2020, DCFS reported that T.F. and A.C. were
placed with a maternal aunt and S.F. was placed with a different
maternal aunt. The record does not indicate that social workers
asked maternal relatives about Indian ancestry. The January 15,
2021 report indicated that T.F. and A.C. were placed with a
maternal cousin and S.F. was placed with a maternal aunt.
There is no indication that DCFS interviewed either the
maternal cousin or maternal aunt about A.C.’s potential Indian
heritage.
After making interim findings that ICWA did not apply,
on January 15, 2021, the juvenile court again concluded that
ICWA did not apply, reasoning: Father “submits his ICWA-020
form. And the court reviews his ICWA-020 form. He indicates he

6
has no American Indian heritage.” “[O]n mother’s original WIC
300 petition, mother had submitted her ICWA-020 form. And she
indicated that she had no American Indian heritage. [¶] So as to
the child [A.C.] . . . , the court has no reason to know that this is
an Indian child as described by the Indian Child Welfare Act, or
no reason to believe, based on both parents submitting executed
ICWA-020 forms denying American Indian heritage.”

DISCUSSION
Father argues DCFS’s failure to satisfy its statutory duty of
initial inquiry as to extended family members was prejudicial.
His argument is well-taken.

A. Legal Background
ICWA is about Indian patrimony. “The ICWA was
designed to remedy a unique and longstanding record of child
welfare abuses by federal and state officials, state court judges,
and private adoption agencies that led to widespread removal of
Indian children from their homes and communities. Extensive
congressional hearings on the topic of Indian child welfare in the
1970s established that ‘[t]he wholesale separation of Indian
children from their families is perhaps the most tragic and
destructive aspect of American Indian life today.’ [Citation.]”
(Atwood, Flashpoints Under the Indian Child Welfare Act:
Toward a New Understanding of State Court Resistance (2002)
51 Emory L.J. 587, 601.) “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 that a state court,
except in emergencies, must follow before removing an Indian

7
child from his or her family.” (In re Austin J. (2020)
47 Cal.App.5th 870, 881 (Austin J.).)
Given this history, ICWA and related state legislation
collectively impose obligations on the juvenile court and child
welfare agencies to cull information from the parents and
extended family members about potential Indian ancestry. These
are mandatory duties commensurate with the importance of
ICWA’s remedial goals.
California law requires at the outset of a dependency case
that the child welfare agency and juvenile court inquire into
whether a child is, or may be an Indian child. “The child welfare
department’s initial duty of inquiry includes ‘asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.’ ” (Austin J., supra, 47 Cal.App.5th at
p. 883, quoting § 224.2, subd. (b), italics added; see also
Cal. Rules of Court, rule 5.481(a).)
Under ICWA, the term “extended family member” is
“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
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).)
In this case, DCFS failed to comply with its “obligation to
make a meaningful effort to . . . interview extended family
members to obtain whatever information they may have as to the

8
child’s possible Indian status.” 3 (In re K.R. (2018)
20 Cal.App.5th 701, 709; see also In re Josiah T. (2021)
71 Cal.App.5th 388, 402 [state law requires DCFS to inquire of
extended family members whether child may be Indian child]; In
re Benjamin M. (2021) 70 Cal.App.5th735,742 [same].) When
during the proceedings, the children were placed with mother’s
extended family, DCFS did not ask mother’s relatives about
A.C.’s potential Indian heritage. Father lived with his mother
and brother. DCFS did not ask them either about A.C.’s
potential Indian heritage. Yet early on, these relatives were
readily available to consult regarding Indian ancestry.
The juvenile court merely relied on mother’s and father’s
ICWA forms in concluding A.C. is not an Indian child. 4 The

3 California law imposes a duty of further inquiry
regarding Indian ancestry when the court, social worker or
probation officer “has reason to believe that an Indian child is
involved in a proceeding . . . .” (§ 224.2, subd. (e); see Austin J.,
supra, 47 Cal.App.5th at p. 883.) Federal and California law
require that notice be given to the relevant Indian tribe “when
‘the court knows or has reason to know that an Indian child is
involved.’ (25 U.S.C. § 1912(a); see also Welf. & Inst. Code,
§ 224.3, subd. (a) [if ‘the court, a social worker, or probation
officer knows or has reason to know . . . that an Indian child is
involved’ in the dependency proceeding, ‘notice shall be sent to
the [child’s] parents or legal guardian, Indian custodian, if any,
and the child’s tribe’]; Cal. Rules of Court, rule 5.481(b)(1).)”
(Austin J., supra, at p. 884.) None of these additional statutory
duties is at issue in this appeal.
4 Father argues that the Judicial Council form he signed is
incomplete because it focuses on reason to know that the child is
an Indian child rather than reason to believe the child is an

9
ICWA forms themselves state that the form “is not intended to
constitute a complete inquiry into Indian heritage”; this case
involved no further inquiry. Here, mother was the product of
foster care and thus may not have known her cultural heritage.
(In re Y.W. (2021) 70 Cal.App.5th 542, 554.) The same may not
have been true of her biological relatives. One of the detention
reports also indicated that A.C. may be an Indian child. We thus
cannot conclude from this equivocal record that DCFS’s failure to
conduct any inquiry as to mother and father’s extended family
members was not prejudicial.
The dissent effectively catalogues the different standards of
prejudice appellate courts have applied. It thoughtfully sets forth
the policy reasons why appellant should be required to make an
offer of proof of potential Indian ancestry before remanding a
case for the purpose of asking extended family members about
Indian ancestry. The dissent cites delay in permanency visited
upon children in dependency courts whenever a case is remanded
for further ICWA inquiry, and the resulting negative impact on
juvenile court funding.
The dissent concludes that to obtain a remand for further
ICWA inquiry, appellant must, in effect, make a proffer that a
relative has information about Indian ancestry. Indeed, the
dissent goes further to argue that it should be the obligation of a
parent’s trial counsel to ask parents and extended family
members about Indian ancestry with the implication that

Indian child. Father also argues that DCFS and the juvenile
court failed to comply with other statutory requirements related
to asking mother and father about their Indian ancestry. These
arguments are moot in light of our disposition.

10
imposing this obligation on trial counsel would preclude finding
prejudice on appeal.
We do not quarrel with the policy arguments the dissent so
elegantly elucidates. These arguments are grist for the
legislative mill. They, however, do not detract from our high
court’s guidance in In re Isaiah W. underscoring the importance
of ICWA’s goals despite the delay in permanency caused by
enforcing ICWA’s and related state law requirements. (In re
Isaiah W. (2016) 1 Cal.5th 1, 12–15.)
Thus, in Isaiah W., the Supreme Court permitted a parent
to challenge ICWA compliance in an appeal from an order
terminating parental rights even though the parent did not
appeal from an earlier dispositional order finding that ICWA did
not apply and placing the child in foster care. (In re Isaiah W.,
supra, 1 Cal.5th at p. 6.) The Supreme Court remanded the
matter for further ICWA inquiry notwithstanding the ensuing
delay in a permanent home for the child. (Id. at p. 15.)
As our high court observed: “We are mindful of the child’s
need for a permanent and stable home, and we agree that swift
and early resolution of ICWA notice issues is ideal. But the
federal and state statutes were clearly written to protect the
integrity and stability of Indian tribes despite the potential for
delay in placing a child. The provisions of the California statute
just discussed, as well as others, recognize the importance of
properly determining a child’s Indian status, even when a
dependency proceeding has progressed beyond the initial stages.”
(In re Isaiah W., supra, 1 Cal.5th at p. 12.) The statutes and
regulations implementing ICWA, moreover, expressly require
that the juvenile court and child welfare agency (and not parents’

11
counsel) inquire about a child’s potential Indian ancestry.
(§ 224.2; 25 C.F.R. § 23.107(a).)
Unlike in In re S.S. (Feb. 24, 2022, B314043)
___ Cal.App.5th ___ [2022 WL 556884] and In re Darian R.
(Feb. 24, 2022, B314783) ___Cal.App.5th ___ [2022 WL 556905],
the record reveals readily obtainable information that was likely
to bear meaningfully on whether A.C. was an Indian child. As
noted above, mother, as a foster care product, may not know her
cultural heritage, but her biological relatives may have that
information. As also previously noted, although a detention
report indicated A.C. may be an Indian child, the record is devoid
of any follow-up on that representation. We thus cannot assume
that the parents’ mere denial of Indian ancestry on a form was
sufficient to dispel prejudice from DCFS’s failure to ask A.C.’s
extended family members about potential Indian ancestry.
By remanding here today, we do not advocate a wooden
approach to prejudice. In In re Darian R., we held that
interviewing extended family members would not have shed
meaningful light on whether three dependent children were
Indian children when “[t]here was a prior juvenile court finding
that two of [the] children [sharing the same biologic parents as
the child at issue] are not Indian children, the juvenile court
asked mother, father, and paternal aunt about Indian ancestry,
both parents eschewed Indian ancestry, and mother was living
with extended family members whom she could have asked about
potential Indian ancestry.” (Supra, ___ Cal.App.5th at p. ___
[2022 WL 556905 at p. *1].) Similarly, in In re S.S., we found the
failure to interview maternal grandmother was not prejudicial
where maternal grandmother requested placement of the
dependent child in her care but never revealed any Indian

12
ancestry throughout the dependency proceedings, despite having
every incentive to do so. (Supra, ___ Cal.App.5th at p. ___ [2022
WL 556884 at p. *4].)
Put simply, we are tasked with important, but competing
legislative mandates. Prejudice must be viewed through this
multi-faceted legislative prism. (See Willis v. State of California
(1994) 22 Cal.App.4th 287, 293 [“We must follow the language
used by the Legislature ‘whatever may be thought of the wisdom,
expediency, or policy of the’ ” law.].)

DISPOSITION
The jurisdiction and disposition orders concerning A.C. are
affirmed with instructions. The case is remanded to the trial
court to comply with Welfare and Institutions Code section 224.2.
The juvenile court shall order that within 30 days of the
remittitur, DCFS report its investigation of A.C.’s potential
Indian ancestry by interviewing available extended family
members.
CERTIFIED FOR PUBLICATION.

BENDIX, J.

I concur:

ROTHSCHILD, P. J.

13
CRANDALL, J.,* Concurring and Dissenting.

For the better part of two decades appellate courts have wrestled
with the “harmless error” doctrine in the context of inquiries by social
workers and juvenile courts regarding a dependent child’s potential
Native American status. What to do when such inquiries fall below
enumerated statutory standards presents a complex question positing
the explicit commands of California dependency laws against the
laudable goals of the Indian Child Welfare Act of 1978 (ICWA; 25
U.S.C. § 1901 et seq.). The problem is not going to go away soon;
indeed, the appellate dockets seem to be burgeoning with such cases.
There are powerful arguments on both sides. On the one hand,
our state recognizes that a child needs prompt resolution of his or her
custody status and a stable environment, and that prolonged temporary
placements are damaging. (Welf. & Inst. Code, 1 § 352, subd. (a)(1); see
In re Isaiah W. (2016) 1 Cal.5th 1, 16 (dis. opn. of Chin, J.) [describing
negative effects of delay on both the child and the tribe including that
“ ‘[c]hildhood is fleeting and “[i]t is axiomatic, of course, that the longer
children remain in foster homes, the more difficult it is to find families
willing to adopt them” ’ ”].) Juvenile courts are therefore admonished
to proceed to disposition no later than 60 days after the initial
detention hearing. (§ 352, subd. (b).) These and other bedrock
timelines provide children who have been taken away from their
parents with the permanence and stability to which they are legally
entitled. (See id., subd. (a); Renee S. v. Superior Court (1999) 76
Cal.App.4th 187, 197; In re Sean E. (1992) 3 Cal.App.4th 1594, 1597.)
The deadlines are to be extended only for “good cause” and/or
“exceptional circumstances.” (§ 352, subds. (a)(2), (b).) A juvenile
court’s failure to meet these deadlines can also jeopardize vital funding
provided by the federal government to the State of California. (See 42

1Subsequent undesignated statutory references are to the
Welfare and Institutions Code, unless otherwise stated.
U.S.C. §§ 671(a)(15), 672(a), 675(1)(E); see also New York v. U.S. Dept.
of Health and Human (2d Cir. 2009) 556 F.3d 90, 100.)
On the other side of the equation, the ICWA’s purpose is “to
protect Indian children and to promote 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.” (In re Austin J. (2020) 47
Cal.App.5th 870, 881.) Accordingly, while “mindful of the child’s need
for a permanent and stable home,” the California Supreme Court has
cautioned that the ICWA and related California statutes “were clearly
written to protect the integrity and stability of Indian tribes despite the
potential for delay in placing a child.” (In re Isaiah W., supra, 1 Cal.5th
at p. 12; see In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1338,
citing 25 U.S.C. § 1901(3) [“there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their children”];
cf. In re Isaiah W., supra, at p. 18 (dis. opn. of Chin, J.) [observing that
delay also places the tribe in a difficult position “of having to urge that
a child be removed from a long-standing foster care relationship”].)
Consequently, juvenile courts are directed not to proceed with
dispositional and other post-dispositional hearings absent ICWA
compliance, even though these courts have little control over when
“extended family members” might come forward with information
regarding Native American ancestry, or how tribes may respond to
ICWA notices. (See, e.g., In re N.D. (2020) 46 Cal.App.5th 620, 623
[finding juvenile court not authorized to proceed with foster placement
absent ICWA compliance]; In re Desiree F. (2000) 83 Cal.App.4th 460,
474-475 [“[S]tate courts have no jurisdiction to proceed with
dependency proceedings involving a possible Indian child until a period
of at least 10 days after the receipt of such notice. The notice
requirement is not satisfied unless there is strict adherence to the
federal statute”].)
As someone who handled a busy dependency calendar for the
three and a half years immediately preceding this assignment, it is
hard to understate the havoc, expense, and uncertainty caused by these

2
conflicting mandates. 2 The recent dissent of Acting Presiding Justice
Lamar Baker in In re H.V., supra, ___ Cal.App.5th ___ [2022 WL
499730], pointedly discusses the “unpredictability in the law,” the real
impact to the Los Angeles County Department of Children and Family
Services’ (Department) “core mission of keeping children healthy and
safe,” and the disutility of requiring “child services agencies to
undertake exhaustive efforts to run down even the most remote,

2 Appellate courts have struggled mightily with the
permanency/ICWA dichotomy. As one way of attempting to reconcile
these conflicting duties, appellate courts currently are resorting to
dispositional orders, i.e., “conditional affirmances” or “conditional
reversals,” that require the ICWA inquiry without supposedly
upsetting the permanency applecart. (See In re H.V. (Feb. 18, 2022,
B312153) ___ Cal.App.5th ___ [2022 WL 499730 at p. *3] [conditionally
affirming dispositional order]; In re Benjamin M. (2021) 70 Cal.App.5th
735, 746 [conditionally reversing order terminating parental rights]
(Benjamin M.); In re N.D. (2020) 46 Cal.App.5th 620, 622 [conditionally
reversing dispositional order]; In re Elizabeth M. (2018) 19 Cal.App.5th
768, 788 [conditionally affirming order terminating parental rights].)
However, such dispositions not only contravene the very nature of a
final judgment (see Sontag Chain Stores Co. v. Superior Court (1941)
18 Cal.2d 92, 94 [“there must be an end to litigation, and hence it is the
long established policy of the law to, so far as possible, prohibit the
further contest of an issue once judicially decided and to accord finality
to judgments”]; 2 Witkin, Cal. Procedure (2022) Jurisdiction, § 432
[“Jurisdiction over a cause or parties after a final judgment, order, or
decree is exceptional and limited to special situations”]) but, to be sure,
cause juvenile courts considerable consternation upon remand. For
example, does a conditional reversal for the ICWA inquiry truly
prevent an aggrieved parent from filing a section 388 petition to
recommence services based upon that parent’s progress since the date
of the section 366.26 hearing? Does the “conditional reversal” preclude
a parent from attempting to prove that the previously “changing”
circumstances should now be considered fully “changed” based upon the
additional substantial passage of time? How would an appellate court
rule if that petition were denied? Juvenile judges are left without
guidance on these questions, which will create further uncertainty and
appellate review.

3
unlikely possibility of Indian heritage such that the agencies
functionally end up trying to prove a negative.” (Id. at p. ___ (dis. opn.
of Baker, J.) [2022 WL 499730 at p. *4].) His assessment is spot on.
Practically speaking, if we must cast the initial ICWA inquiry far
and wide to include “extended family members,” and combine it with
the ability to raise a failure of the process at any point in the case
(including on appeal), then we must, I propose, continue to apply a
“harmless error” standard that places some reasonable burden on the
appealing party to show prejudice based upon the Department’s
incomplete ICWA inquiry. 3 (People v. Watson (1956) 46 Cal.2d 818.)
This case aptly illustrates the problem of presuming prejudicial
error. 4 Alexander C. (Father) represented to the court via an ICWA-
020 Judicial Council form that neither he, his child, his parents, his

3 The Department’s failure to comply with its affirmative
statutory duty of initial inquiry of “extended family members” under
the 2019 amendments to section 224.2 (id., subd. (b); cf. 25 C.F.R.
§ 23.107(a)) immediately begs the question of the appropriate standard
of review to employ when such error occurs. Neither the California
Supreme Court nor the Legislature has weighed in on this issue. Thus,
we may, without contravening the “language used by the Legislature”
(Willis v. State of California (1994) 22 Cal.App.4th 287, 293), urge the
continued application of the Watson harmless error standard. And
although the procedural posture of this case is an appeal from a
dispositional order and does not, at present, involve either termination
of services or of parental rights, there is no reason why the “harmless
error” analysis should not be identical in either circumstance.
4 The “third option” of sometimes finding presumed prejudice,
adopted by the Benjamin M. court and followed in this case, does not
provide a workable solution to the ICWA dilemma but merely shifts the
appellate battleground to whether there was “readily obtainable
information that was likely to bear meaningfully upon whether the
child is an Indian child” and whether “the probability of obtaining
meaningful information is reasonable.” (Benjamin M., supra, 70
Cal.App.5th at p. 744.) Aside from continuing to foment appeals, there
are multiple situations, easy to visualize, in which Benjamin M.’s test
would lead to inconsistencies with Watson.

4
grandparents, or his lineal ancestors were members or eligible for
membership of a federally-recognized Indian tribe; that neither he nor
his child were residents of or domiciled on a reservation, ranchera,
Alaskan Native Village, or other tribal trust land; and that neither he
nor his child possessed an Indian identification card demonstrating
membership or citizenship in an Indian tribe. The form admonished
Father to provide any new information on the topic to the court. 5
Father remained silent. Thus, the juvenile court had information upon
which it could (and did) conclude that A.C. was likely not an Indian
child, certainly stemming from his paternal relations.
To carry the point one step further, Father has made no claim,
either in the juvenile court or on this appeal that, had the juvenile
court or the Department continued to ask him or the mother about
A.C.’s Indian status, or made inquiries of A.C.’s extended family
members about A.C.’s Indian status, they would have discovered
information triggering the need for further ICWA inquiry or notice.
There being no information in the record whatsoever that A.C.
might indeed be an Indian child, case law (at least until the recent
past) fully supported a finding of an absence of prejudice and,
commensurately, “harmless error.” (See In re Rebecca R. (2006) 143
Cal.App.4th 1426, 1431 [“The burden on an appealing parent to make
an affirmative representation of Indian heritage is de minimis. In the
absence of such a representation, there can be no prejudice and no
miscarriage of justice requiring reversal”]; In re S.B. (2005) 130
Cal.App.4th 1148, 1162 [“any failure to comply with a higher state
standard, above and beyond what the [federal] 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”]; see also People v. Watson, supra, 46 Cal.2d

5 Although the form is unsigned, neither Father nor his counsel
(in the juvenile court or on appeal) argues that the representations
Father made on the form were incorrect. Counsel usually help a parent
complete this form.

5
at p. 836 [“a ‘miscarriage of justice’ should be declared only when the
court, ‘after an examination of the entire cause, including the evidence,’
is of the ‘opinion’ that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the
absence of the error”]; In re J.F. (2019) 39 Cal.App.5th 70, 79 [“The
juvenile court’s orders are ‘presumed to be correct, and it is [the]
appellant’s burden to affirmatively show error’ ”].)
The most compelling arguments in favor of the “presumed
prejudice” approach are that: (1) knowledge of Indian ancestry is not a
matter wholly within an appealing parent’s knowledge, and the
Department’s failure to conduct an adequate inquiry should not inure
to its benefit (Benjamin M., supra, 70 Cal.App.5th at p. 743 [stating
parents cannot always easily obtain such information]; In re Y.W.
(2021) 70 Cal.App.5th 542, 554 [citing cases acknowledging parents
“may not know their possible relationship with or connection to an
Indian tribe”]; In re A.C. (2021) 65 Cal.App.5th 1060, 1075 (dis. opn. of
Menetrez, J.) [disagreeing that knowledge of any Indian connection is
wholly within the appealing parent’s knowledge]); (2) “it is in part the
tribe’s right to a determination of a child’s Indian ancestry, but the
tribe is not present, and [thus,] the agency[, not the parent,] is charged
with obtaining information to make that right meaningful” (In re
Benjamin M., supra, at p. 745); and (3) appellate courts are not
supposed to consider facts outside the lower court record. (In re A.C.,
supra, at p. 1077 (dis. opn. of Menetrez, J.) [citing In re Zeth S. (2003)
31 Cal.4th 396, 492 for the proposition that an appellate court should
not look to postjudgment evidence to reverse a judgment because doing
so undermines “ ‘the state’s strong interest in the expeditiousness and
finality of juvenile dependency proceedings’ ”]; see also In re H.V.,
supra, ___ Cal.App.5th at p. ___ [2022 WL 499730 at p. *3] [“[The
m]other does not have an affirmative duty to make a factual assertion
on appeal that she cannot support with citations to the record”].)
Whatever may be said of the Department’s affirmative duty to
investigate, we should also expect parents’ counsel to actively pursue a
child’s Native American status, both in juvenile court and on appeal, by

6
timely inquiring of their own client and contacting any “extended
family members” that either they or their client might identify. If these
efforts were expected of counsel, the Watson standard likely could be
met in situations where the child had a reasonable chance of actual
tribal membership. However, in terms of fundamental fairness, it is
untenable gamesmanship to allow a parent to stand idly by and then
raise a “winning” ICWA issue on appeal merely by pointing out the
Department’s error in not speaking with a single extended family
member.
Some have posited that appellate counsel are not paid to conduct
investigations of facts outside the record. This questionable
assumption could be readily mitigated if parents’ trial counsel actively
participated in identifying information relevant to the Indian child
inquiry and making it part of the appellate record. After all, juvenile
dependency proceedings are special proceedings (In re Chantal S.
(1996) 13 Cal.4th 196, 200) for which “[t]he goal of . . . both trial and
appellate [courts], is to safeguard the welfare of California’s children.”
(In re Josiah Z. (2005) 36 Cal.4th 664, 673.) Dependency proceedings
are collaborative to the extent that counsel for all parties understand
that “[t]he best interests of the child are paramount.” (Ibid.; see Cal.
Rules of Court, rule 5.660(d)(1) [parties entitled to competent counsel,
who have adequate knowledge of “the purposes and goals of
dependency proceedings”].) Because “it is in the best interests of the
child to retain tribal ties and cultural heritage” (In re Desiree F., supra,
83 Cal.App.4th at p. 469), parents’ counsel, too, should be expected to
fully and timely participate in the ongoing ICWA inquiry, even if the
end result could be an earlier termination of their client’s parental
rights. Viewing the ICWA inquiry through an adversarial lens
disserves both the child and the tribe.
Neither should we fret about appellate courts receiving evidence
outside the lower court record. This restriction is not absolute. (Code
Civ. Proc., § 909; In re A.C., supra, 65 Cal.App.5th at p. 1071; In re B.D.
(2019) 35 Cal.App.5th 803, 809; see In re Zeth S., supra, 31 Cal.4th at
pp. 399, 405, 413 [limiting consideration of new evidence by the

7
appellate court under Code Civ. Proc., § 909 to “exceptional” or “rare
and compelling” circumstances].) Especially given the significant harm
to the child caused by fruitless “extended family member” inquiries, we
should acknowledge ICWA appeals relating to this issue as “rare and
compelling” to the extent that appellate counsel must produce some
evidence (either in conjunction with minor’s counsel and/or the
Department) overcoming the Watson standard of “harmless error.” (In
re A.C., supra, 65 Cal.App.5th at pp. 1071, 1076 [recognizing that in
“ ‘rare and compelling’ ” circumstances appellate courts may “ ‘receive
and consider postjudgment evidence that was never before the juvenile
court[ ] and rely on such evidence outside the record on appeal to
reverse the judgment’ ”].) Again, we should insist upon rather than
minimize or ignore the collaboration that often occurs in juvenile court.
We must remain mindful that ICWA’s laudable purpose is rarely
furthered by a remand where (as here) each parent has already
affirmed that neither they, their child, their parents, grandparents, or
lineal ancestors are or may be a member of an Indian tribe or eligible
for membership in an Indian tribe, and no party raised any ICWA
concerns in the juvenile court. Further, the ICWA definition of an
Indian child is narrow, requiring either that the child or the child’s
biological parent be a member of an Indian tribe (25 U.S.C. § 1903). 6
Because such basic information is often known or easily discoverable by
each respective parent, there is limited utility in remanding such
matters for “extended family member” inquiry.
It also must be plainly stated that the presumption of prejudice
(including Benjamin M.’s “third option” of “sometimes prejudice”),
considered in conjunction with the Department’s extraordinarily broad
inquiry duty, provides parents with a last-minute, readily-available
delay tactic. In this regard it is sometimes true that the temptation of

6 Relatedly, section 224.1, subdivision (b), states in relevant part
that “the term ‘Indian child’ also means an unmarried person who is 18
years of age or over, but under 21 years of age, who is a member of an
Indian tribe or eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.”

8
a parent, or a parent’s relative, to invent or exaggerate ICWA ancestry,
can be overwhelming when the anticipated effect is to delay or defeat
termination of parental rights. As pointed out by Justice Baker, “there
are only so many hours in a day and only so many child services agency
employees on the payroll. While these costs at even a high price are
worth the benefit . . . , the costs swamp the benefits when courts read
the statutory scheme [so expansively]” and when the result is the
harmful postponement of a permanent, stable home for children in
dependency court. (In re H.V., supra, ___ Cal.App.5th at p. ___ (dis.
opn. of Baker, J.) [2022 WL 499730 at p. *4]; see In re Rebecca R.,
supra, 143 Cal.App.4th at p. 1431 [“In the absence of [a representation
of some Indian connection sufficient to invoke the ICWA], the matter
amounts to nothing more than trifling with the courts. . . . The ICWA
is not a ‘get out of jail free’ card” by which parents should be permitted
“to cause additional unwarranted delay and hardship, without any
showing whatsoever that the interests protected by the ICWA are
implicated in any way”].)
Balancing the often-conflicting interests of the child dependency
statutory scheme against the ICWA, as well as the costs, and the
limited utility of a remand, the better approach is to continue to place a
burden on the appealing parent to make an affirmative representation
of “a reason to believe” that the child is an Indian child. Without some
offer of proof from Father that a “reason to believe” exists, the juvenile
court’s error was harmless, and remand is unwarranted.
Therefore, while I concur with the jurisdiction and disposition
orders concerning A.C., I respectfully dissent with respect to the
instructions and remand.

CRANDALL, J. *

*Judge of the San Luis Obispo County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

9