In re Antonio R.

Filed 3/29/22 (unmodified opn. and previous 3/17/22 mod. order attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ANTONIO R., a Person B314389
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 18CCJP06892)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN ORDER MODIFYING OPINION
AND FAMILY SERVICES, AND DENYING PETITION FOR
REHEARING
Plaintiff and Respondent,
(NO CHANGE IN THE
v. APPELLATE JUDGMENT)

ASHLEY R.,

Defendant and Appellant.

THE COURT:
The above-entitled opinion filed on March 16, 2022 is
modified as follows:
On pages 22 and 23, delete the last two sentences of the
disposition starting with “If the juvenile court determines after
additional inquiry and a hearing that the Department has
satisfied its inquiry and notice obligations under ICWA and
California law and there is no reason to believe Antonio is an
Indian child,” and replace the last two sentences with the
following language:

If the court finds Antonio is an Indian child, it shall
conduct a new section 366.26 hearing, as well as all further
proceedings, in compliance with ICWA and related California
law. If not, the court’s original section 366.26 order will remain
in effect.

Respondent’s petition for rehearing is denied.

There is no change in the appellate judgment.

PERLUSS, P. J. SEGAL, J. FEUER, J.

2
Filed 3/17/22 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ANTONIO R., a Person B314389
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 18CCJP06892)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN ORDER MODIFYING OPINION
AND FAMILY SERVICES,
(NO CHANGE IN THE
Plaintiff and Respondent, APPELLATE JUDGMENT)

v.

ASHLEY R.,

Defendant and Appellant.

THE COURT:
The above-entitled opinion filed on March 16, 2022 is
modified as follows:
On page 14, the second sentence in the first full paragraph
starting with “Because” and ending immediately before footnote 7
is replaced with the following sentence:
 Because the Department’s duty to inquire of a child’s
extended family members is imposed by California law, “we may
not reverse unless we find that the error was prejudicial.”

There is no change in the appellate judgment.

PERLUSS, P. J. SEGAL, J. FEUER, J.

2
Filed 3/16/22 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ANTONIO R., a Person B314389
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 18CCJP06892)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ASHLEY R.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Pete R. Navarro, Juvenile Court Referee.
Conditionally affirmed and remanded with directions.
Andre F.F. Toscano, under appointment by the Court of
Appeal, for Defendant and Appellant.
 Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.

__________________________

Ashley R. (Mother) appeals from the order terminating her
parental rights to four-year-old Antonio R. under Welfare and
Institutions Code section 366.26.1 Mother’s sole contention on
appeal is that the Los Angeles County Department of Children
and Family Services (the Department) and the juvenile court
failed to comply with the inquiry and notice provisions of the
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.;
ICWA) and related California law.
The juvenile court found ICWA did not apply as to either
Mother or Father (Antonio V.) based on Mother’s, Father’s, and
paternal great-grandmother’s denials of Indian ancestry.
However, the Department failed to inquire of maternal
grandmother and maternal grandfather, whom the court
designated as Antonio’s prospective adoptive parents, or of other
extended maternal relatives who were present in the courtroom
during the disposition hearing, whether Antonio is or may be an
Indian child. We agree with Mother that section 224.2,
subdivision (b), required the Department to inquire of the
maternal extended family members,2 and the juvenile court erred

1 All further undesignated statutory references are to the
Welfare and Institutions Code.
2 On remand the Department must make an initial inquiry of
the maternal relatives meeting the statutory definition of an

2
in finding ICWA did not apply despite the Department’s
insufficient inquiry. Further, in determining whether the failure
to make an adequate initial inquiry was prejudicial, we ask
whether the information in the hands of the extended family
members was likely to be meaningful in determining whether the
child is an Indian child. It was. In most circumstances, the
information in the possession of extended relatives is likely to be
meaningful in determining whether the child is an Indian child,
regardless of whether the information ultimately shows the child
is or is not an Indian child. We conclude the error was prejudicial
because we do not know what information the maternal relatives
would have provided had the Department or court inquired. We
conditionally affirm and remand for the juvenile court and the
Department to comply with the inquiry provisions of ICWA and
California law.

FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 2018 the Department received a referral
alleging caretaker absence, incapacity, and general neglect as to
then-one-year-old Antonio. On August 20 the social worker
interviewed Mother. Mother stated she and her family do not

“extended family member,” including Antonio’s maternal
grandparents, aunts, and uncle. (See 25 U.S.C. § 1903(2); Welf.
& Inst. Code, § 224.1, subd. (c).) Mother does not contend there
are other extended family members whom the Department needs
to contact.

3
have any Indian ancestry. On the same day the social worker
interviewed the maternal grandmother about the allegations, but
the social worker did not inquire whether maternal grandmother
knew if Antonio had Indian ancestry or whether other family
members may have information on Antonio’s possible Indian
ancestry.
On October 25, 2018 the Department filed a petition on
behalf of Antonio pursuant to section 300, subdivision (b)(1),
alleging Mother had a history of substance abuse and was a
current abuser of methamphetamine, had a history of leaving
Antonio in the care of unrelated caregivers without making an
ongoing plan for his care and supervision, and left Antonio with
Wendy S., who had physically abused Mother and the maternal
aunt when they were children. The petition further alleged
pursuant to section 300, subdivision (j), that Antonio’s older
brother, Andrew R., was a former dependent of the juvenile court
due to Mother’s drug abuse. The petition alleged Father’s
whereabouts were unknown.3
On October 26, 2018 Mother filed a parental notification of
Indian status form (ICWA-020), on which she checked the box
stating, “I have no Indian ancestry as far as I know.”

3 California Rules of Court, rule 5.481(a)(1) requires “[t]he
party seeking . . . termination of parental rights” to “complete the
Indian Child Inquiry Attachment (form ICWA-010(A)) and attach
it to the petition unless the party is filing a subsequent petition,
and there is no new information.” A form ICWA-010(A) was filled
out and attached to the petition; the form states, “The child has
no known Indian ancestry.” However, the form does not list any
persons who were questioned by the Department.

4
 At the October 26, 2018 detention hearing, the juvenile
court found ICWA did not apply as to Mother. Father was not
present. The court asked paternal great-grandmother whether
Father had any Indian ancestry “that [she is] aware of?”
Paternal great-grandmother answered, “No.” The court then
stated, “The court does not believe [the Department] has the
responsibility to make further inquiries, but the court can make
preliminary findings, has little information to believe that this
case falls under ICWA as far as Father is concerned.” The court
stated in its minute order, “The Court does not have a reason to
know that ICWA applies as to Mother. The determination of
ICWA status is deferred for [F]ather’s appearance.” The juvenile
court removed Antonio from Mother’s custody and ordered the
Department to provide family reunification services.
In its jurisdiction and disposition report, the Department
noted Mother had a good relationship with maternal grandfather,
with whom she continued to have contact by phone, and Mother
provided the Department the telephone number for maternal
grandfather. The Department reported that on December 4, 2018
paternal great-grandmother denied having Indian ancestry on
her side of the family and on December 5 Mother stated to her
knowledge Father had no Indian ancestry.
Father first appeared by telephone at the jurisdiction
hearing held on February 15, 2019. Father denied having Indian
ancestry. The juvenile court found ICWA did not apply as to
either parent. The juvenile court sustained the allegations in the
petition and found Antonio was a person described under
section 300, subdivisions (b)(1) and (j).
At the June 19, 2019 disposition hearing, the maternal
grandmother, maternal aunts, and a maternal uncle were

5
present in the courtroom. No one inquired whether Antonio may
have Indian ancestry. Mother submitted a relative information
sheet and requested assessment of the listed maternal relatives
for Antonio’s placement. At the continued June 20 disposition
hearing, the juvenile court declared Antonio a dependent of the
court. The court released Antonio to Father.
On September 24, 2019 the Department filed a subsequent
petition under section 342, alleging Father engaged in domestic
violence against his companion and abused methamphetamine.
The juvenile court removed Antonio from Father’s custody. In its
October 25, 2019 jurisdiction and disposition report, the
Department noted that on October 23, 2019 Father again denied
having Indian ancestry. On November 9, 2019 the juvenile court
sustained the section 342 petition as amended under section 300,
subdivision (b)(1), and again declared Antonio a dependent of the
court.
At the August 16, 2021 selection and implementation
hearing (§ 366.26), the juvenile court terminated Mother’s and
Father’s parental rights to Antonio and designated the maternal
grandmother and maternal grandfather as Antonio’s prospective
adoptive parents. During the hearing, maternal grandmother
was questioned under oath, but she was not asked whether
Antonio may have Indian ancestry.
Mother timely appealed from the order terminating her
parental rights.4

4 Father has not appealed from the order terminating his
parental rights.

6
 DISCUSSION

A. ICWA Inquiry and Notice Requirements
ICWA provides as to dependency proceedings, “[W]here the
court knows or has reason to know that an Indian child is
involved, the party seeking . . . 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); see In re Isaiah W. (2016)
1 Cal.5th 1, 5; In re T.G. (2020) 58 Cal.App.5th 275, 288; In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 784.) California law
similarly requires notice to the Indian tribe and the parent, legal
guardian, or Indian custodian if the court or the Department
“knows or has reason to know” the proceeding concerns an Indian
child. (§ 224.3, subd. (a); see In re T.G., at p. 288; In re
Elizabeth M., at p. 784; In re Breanna S. (2017) 8 Cal.App.5th
636, 649, disapproved on another ground in In re Caden C. (2021)
11 Cal.5th 614, 637, fn. 6; Cal. Rules of Court, rule 5.481(c)(1)
[notice is required “[i]f it is known or there is reason to know an
Indian child is involved in a proceeding listed in rule 5.480,”
which includes dependency cases filed under section 300].) The
notice requirement is at the heart of ICWA because it “enables a
tribe to determine whether the child is an Indian child and, if so,
whether to intervene in or exercise jurisdiction over the
proceeding.” (In re Isaiah W., at p. 5; accord, In re T.G., at p. 288;
see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, subd. (d).)
The juvenile court and the Department “have an
affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . may be or has been filed,

7
is or may be an Indian child.” (§ 224.2, subd. (a); see In re
Isaiah W., supra, 1 Cal.5th at p. 9; In re H.V. (Feb. 18, 2022,
B312153) ___ Cal.App.5th ___ [2022 Cal. App. LEXIS 132, at *4]
[“The trial court and [Department] have an affirmative and
continuing duty in every dependency proceeding to determine
whether ICWA applies.”].) “The continuing duty to inquire
whether a child is or may be an Indian child ‘can be divided into
three phases: the initial duty to inquire, the duty of further
inquiry, and the duty to provide formal ICWA notice.’” (In re
Y.W. (2021) 70 Cal.App.5th 542, 552; accord, In re H.V., at p. ___
[2022 Cal. App. LEXIS 132, at *4-5]; In re Josiah T. (2021)
71 Cal.App.5th 388, 402.)
“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)).” (In re
T.G., supra, 58 Cal.App.5th at p. 290; see In re H.V., supra,
___ Cal.App.5th at p. ___ [2022 Cal. App. LEXIS 132, at *4]
[“[F]rom the [Department]’s initial contact with a minor and his
family, [section 224.2] imposes a duty of inquiry to ask all
involved persons whether the child may be an Indian child.”].)
Section 224.2, subdivision (b), effective January 1, 2019,5
imposes on the Department a duty to inquire whether a child in

5 Because Mother is appealing from the August 16, 2021
termination of her parental rights, which occurred after the 2019
effective date of the amendment to section 224.2, the amended
provisions apply here. (In re A.M. (2020) 47 Cal.App.5th 303, 321
[“Since Mother is appealing from the findings made at the

8
the Department’s temporary custody is an Indian child, which
“[i]nquiry includes, but is not limited to, asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child . . . .” (Id.; see Cal. Rules of Court,
rule 5.481(a)(1) [the Department “must ask . . . extended family
members . . . whether the child is or may be an Indian child”]; In
re D.F. (2020) 55 Cal.App.5th 558, 566; In re Y.W., supra,
70 Cal.App.5th at pp. 551-552.) 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); see Welf. & Inst.
Code, § 224.1, subd. (c) [“As used in connection with an Indian
child custody proceeding, the terms ‘extended family member’
and ‘parent’ shall be defined as provided in Section 1903 of the
federal Indian Child Welfare Act.”].)
“State law also expressly requires the juvenile court to ask
participants who appear before the court about the child’s
potential Indian status. (§ 224.2, subd. (c).)” (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.);
accord, In re Josiah T., supra, 71 Cal.App.5th at p. 402.)
Similarly, under federal regulations, “[s]tate courts must ask
each participant in an . . . involuntary child-custody proceeding

September 6, 2019 section 366.26 hearing . . . , the current ICWA
statutes apply.”].)

9
whether the participant knows or has reason to know that the
child is an Indian child.” (25 C.F.R. § 23.107(a).)
The duty to develop information concerning whether a child
is an Indian child rests with the court and the Department, not
the parents or members of the parents’ families. (In re
Elizabeth M., supra, 19 Cal.App.5th at p. 785; see In re K.R.
(2018) 20 Cal.App.5th 701, 706 [“The court and the agency must
act upon information received from any source, not just the
parent [citations], and the parent’s failure to object in the
juvenile court to deficiencies in the investigation or noticing does
not preclude the parent from raising the issue for the first time
on appeal . . . .”].)

B. The Juvenile Court Failed To Ensure the Department
Complied with ICWA and Related California Law
On appeal, Mother contends the Department should have
inquired of maternal grandmother, maternal grandfather, the
maternal aunts, and a maternal uncle about Antonio’s possible
Indian ancestry.6 We agree the Department failed to satisfy its
initial duty of inquiry under section 224.2, subdivision (b).
Simply put, section 224.2 required the Department to inquire of

6 Mother also contends the Department should have
investigated and inquired of additional paternal extended family
members (in addition to paternal great-grandmother), but she
fails to identify any paternal relatives for whom she has contact
information or who may have information on Father’s possible
Indian ancestry. Thus, we focus on Mother’s argument of error
as to Antonio’s maternal extended family members.

10
Antonio’s extended family members regarding his possible Indian
ancestry, and it was error for the Department to fail to do so.
Information relevant to Antonio’s possible Indian ancestry
was readily obtainable from several of his extended family
members. The Department interviewed maternal grandmother
at the outset of the case on August 20, 2018. The court later
placed Antonio with maternal grandmother and grandfather.
Additionally, maternal grandmother testified under oath at the
August 16, 2021 selection and implementation hearing, and at
that hearing the juvenile court designated maternal grandmother
and grandfather as the prospective adoptive parents of Antonio.
Further, at the June 19, 2019 disposition hearing, the maternal
aunts and a maternal uncle were present.
Despite these multiple opportunities, the Department
failed to inquire of any of these maternal extended family
members as to Antonio’s possible Indian ancestry, and the court
erred in failing to ensure that the Department satisfied its duty
of inquiry and in finding ICWA did not apply absent an adequate
inquiry. Although section 224.2, subdivision (b), places on the
Department the duty to inquire, including of extended family
members, section 224.2, subdivision (a), makes clear that the
“affirmative and continuing duty to inquire” whether a child is or
may be an Indian child rests with both the Department and the
court. (See § 224.2, subdivision (i)(2) [“If the court makes a
finding that proper and adequate further inquiry and due
diligence as required in this section have been conducted and
there is no reason to know whether the child is an Indian child,
the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the
evidence.”].) Thus, a juvenile court errs in making a finding

11
ICWA does not apply to the proceedings without first ensuring
that the Department has made an adequate inquiry under ICWA
and California law, and if necessary, the court must continue the
proceedings and order the Department to fulfill its
responsibilities.
The Department contends substantial evidence supports
the juvenile court’s finding ICWA did not apply because Mother,
Father, and paternal great-grandmother denied Indian ancestry.
This position ignores the express obligation that section 224.2,
subdivision (b), imposes on the Department to inquire of a child’s
extended family members—regardless of whether the parents
deny Indian ancestry. By requiring the Department to inquire of
a child’s extended family members as to the child’s possible
Indian ancestry, the Legislature determined that inquiry of the
parents alone is not sufficient. (See In re Y.W., supra,
70 Cal.App.5th at p. 556 [“the point of the statutory requirement
that the social worker ask all relevant individuals whether a
child is or may be an Indian child” is “to obtain information the
parent may not have”]; Assem. Com. on Judiciary, Analysis of
Assem. Bill No. 3176 (2017-2018 Reg. Sess.) as amended Apr. 11,
2018, p. 3 [explaining the legislation “[e]xpands” the “current
requirement that a court, county welfare department, and the
probation department have an affirmative and continuing duty to
inquire whether a child is an Indian child, to begin at the first
contact with the child”].)
As the California ICWA Compliance Task Force Report to
the California Attorney General’s Bureau of Children’s Justice
observed in recommending California law be amended to require
inquiry of family members beyond the parents, “The parents or
Indian custodian may be fearful to self-identify, and social

12
workers are ill-equipped to overcome that by explaining the
rights a parent or Indian custodian has under the law. Parents
may even wish to avoid the tribe’s participation or assumption of
jurisdiction.” (Cal. ICWA Compliance Task Force, Rep. to Cal.
Atty. Gen.’s Bur. of Children’s Justice (2017) p. 28.)
Further, parents may lack knowledge of a child’s Indian
ancestry even where the child’s extended family members possess
strong evidence of the child’s possible Indian ancestry. (See In re
S.R. (2021) 64 Cal.App.5th 303, 314 [“[T]he children’s parents
apparently had no idea of their family’s connection to the Yaqui
tribe of Arizona, even though the children’s great-grandmother
was a member and still lived with the grandparents in
Colorado.”]; In re T.G., supra, 58 Cal.App.5th at p. 289 [“Oral
transmission of relevant information from generation to
generation and the vagaries of translating from Indian languages
to English combine to create the very real possibility that a
parent’s or other relative’s identification of the family’s tribal
affiliation is not accurate.”].)
Although paternal great-grandmother’s denial of Indian
ancestry provided some confirmation of Father’s denials, the
Department never interviewed any extended family members on
the maternal side regarding Antonio’s possible Indian ancestry.
Thus, the record does not support the juvenile court’s finding that
ICWA does not apply given the Department’s failure to satisfy its
initial duty of inquiry as to maternal extended family members,
and the court’s failure to ensure that the Department met its
duty. (See In re N.G. (2018) 27 Cal.App.5th 474, 484 [“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

13
substantial evidence supports the court’s finding that proper and
adequate ICWA notices were given or that ICWA did not
apply.”].)
The Department argues in the alternative that any error in
failing to inquire of Antonio’s extended family members was
harmless because “any such inquiry ‘was [not] likely to bear
meaningfully upon whether the child is an Indian child’ because
‘the evidence already uncovered in the initial inquiry was
sufficient for a reliable determination.’” Because it the
Department’s duty to inquire of a child’s extended family
members is imposed by California law, “we may not reverse
unless we find that the error was prejudicial.”7 (Benjamin M.,
supra, 70 Cal.App.5th at p. 742 [“Because the failure here
concerned the agency’s duty of initial inquiry, only state law is
involved.”]; see Cal. Const., art. VI, § 13 [“No judgment shall be
set aside . . . unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice”]; In
re Y.W., supra, 70 Cal.App.5th at p. 558 [“‘Any failure to comply
with a higher state standard . . . “must be held harmless unless
the appellant can show a reasonable probability that he or she

7 The juvenile court arguably also erred under federal law by
failing to inquire of maternal grandmother and grandfather,
whom the court designated as the prospective adoptive parents of
Antonio, and thus could have been considered “participants” in
the dependency proceeding. (See 25 C.F.R. § 23.107(a).)
However, neither federal nor California law defines a
“participant.”

14
would have enjoyed a more favorable result in the absence of the
error.”’”].) The error here was prejudicial.
We recognize the Courts of Appeal are divided as to
whether a parent must make an affirmative showing of prejudice
to support reversal where the Department failed fully to perform
its initial duty of inquiry. One line of cases requires that in order
to demonstrate prejudice, “a parent asserting failure to inquire
must show—at a minimum—that, if asked, he or she would, in
good faith, have claimed some kind of Indian ancestry.” (In re
A.C. (2021) 65 Cal.App.5th 1060, 1069; accord, In re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1431.) We rejected this approach in
In re Y.W., supra, 70 Cal.App.5th at page 556, explaining, “It is
unreasonable to require a parent to make an affirmative
representation of Indian ancestry where the Department’s failure
to conduct an adequate inquiry deprived the parent of the very
knowledge needed to make such a claim.” (Ibid.; accord, In re
H.V., supra, ___ Cal.App.5th at p. ___ & fn. 4 [2022 Cal. App.
LEXIS 132, at *6] [failure to discharge initial duty of inquiry was
prejudicial error because “[m]other does not have an affirmative
duty to make a factual assertion on appeal that she cannot
support with citations to the record” and the absence of
information in the record about the child’s possible Indian
ancestry resulted from the Department’s failure to discharge its
duty of inquiry]; Benjamin M., supra, 70 Cal.App.5th at p. 743
[“Requiring a parent to prove that the missing information would
have demonstrated ‘reason to believe’ would effectively impose a
duty on that parent to search for evidence that the Legislature
has imposed on only the agency.”].)
The court in Benjamin M., supra, 70 Cal.App.5th at page
744 articulated a different approach, concluding the reviewing

15
court “must reverse where the record demonstrates that the
agency has not only failed in its duty of initial inquiry, but where
the record indicates that there was readily obtainable
information that was likely to bear meaningfully upon whether
the child is an Indian child.” Division One of this district in In re
S.S. (Feb. 24, 2022, B314043) ___Cal.App.5th___ [2022 Cal. App.
LEXIS 156, at *10-11] and In re Darian R. (Feb. 24, 2022,
B314783) ___Cal.App.5th ___ [2022 Cal. App. LEXIS 155, at *11-
12] purported to apply this standard, but concluded the failure of
initial inquiry was harmless based on speculation that readily
obtainable information from extended family members was not
likely to bear meaningfully on whether the child was an Indian
child. In S.S., the court concluded the Department’s error in not
interviewing the maternal grandmother was not prejudicial
because the mother denied Indian ancestry and the maternal
grandmother requested the child be placed with her, giving the
grandmother “a strong incentive to bring to the court’s attention
any facts that suggest that S.S. is an Indian child” so that the
child could be placed with her. (In re S.S., at p. ___ [2022 Cal.
App. LEXIS 156, at *10-11].) The S.S. court reasoned that the
failure of the maternal grandmother and counsel to raise facts
related to S.S.’s possible Indian ancestry “implies that the
maternal grandmother is unaware of such facts.” (Id. at p. ___
[2022 Cal. App. LEXIS 156, at *11].)
Similarly, in In re Darian R., supra, ___Cal.App.5th ___
[2022 Cal. App. LEXIS 155, at *11-12], the same court concluded
the mother failed to show prejudice from the Department’s
failure to inquire of extended maternal family members where
mother lived with those family members during the dependency
proceedings and the juvenile court in 2015 dependency

16
proceedings had determined ICWA did not apply to two of the
three biological siblings.8 Thus, the Darian R. court concluded,
additional interviews of mother’s father and sister would not
have “meaningfully elucidated the children’s Indian ancestry.”
(Id., at p. ___ [2022 Cal. App. LEXIS 155, at *12].)9
We disagree with the reasoning of our colleagues in In re
S.S. and In re Darian R. (and their application of Benjamin M.)
and find no persuasive reason to depart from our decision in In re
Y.W., supra, 70 Cal.App.5th 542. Where the Department fails to

8 We note the juvenile court’s 2015 determination that ICWA
did not apply was made prior to the 2018 amendments to
section 224.2 requiring inquiry of extended family members.
9 Most recently, Division One of this district concluded the
Department’s failure to inquire of readily available extended
family members was prejudicial error where “mother, as a foster
care product, may not know her cultural heritage, but her
biological relatives may have that information.” (In re A.C.
(Mar. 4, 2022, No. B312391) ___Cal.App.5th___ [2022 Cal. App.
LEXIS 187, at *12-13].) Further, a detention report indicated the
child may be an Indian child but the Department did not “follow-
up on that representation.” (Id., at p. ___ [2022 Cal. App. LEXIS
187, at *13].) It was on this record that the court concluded there
was “readily obtainable information that was likely to bear
meaningfully on whether A.C. was an Indian child.” (Id., at
p. ___ [2022 Cal. App. LEXIS 187, at *12].) To the extent our
colleagues in Division One believe this the type of evidence is
necessary to demonstrate prejudicial error—showing a likelihood
extended family members will have information indicating the
child is an Indian child—in our view they set the bar too high for
showing inquiry error is prejudicial.

17
discharge its initial duty of inquiry under ICWA and related
California law, and the juvenile court finds ICWA does not apply
notwithstanding the lack of an adequate inquiry, the error is in
most circumstances, as here, prejudicial and reversible.
Speculation as to whether extended family members might have
information likely to bear meaningfully on whether the child is
an Indian child has no place in the analysis of prejudicial error
where there is an inadequate initial inquiry. Rather, in
determining whether the failure to make an adequate initial
inquiry is prejudicial, we ask whether the information in the
hands of the extended family members is likely to be meaningful
in determining whether the child is an Indian child, not whether
the information is likely to show the child is in fact an Indian
child. In most circumstances, the information in the possession
of extended relatives is likely to be meaningful in determining
whether the child is an Indian child—regardless of whether the
information ultimately shows the child is or is not an Indian
child. (See Benjamin M., supra, 70 Cal.App.5th at p. 745 [“While
we cannot know how Father’s brother would answer the inquiry,
his answer is likely to bear meaningfully on the determination at
issue about his brother.”].)10 We therefore reject the
Department’s contention at oral argument that the error here

10 At oral argument Mother’s counsel posited some
circumstances in which the failure to inquire of extended family
members might be harmless error, including where the parents
affirmatively confirm their ancestry is exclusively from a foreign
region without any relationship to a federally recognized Indian
tribe, for example, from Eastern Europe or Africa. We do not
reach this or other hypothetical situations where the error could
be harmless.

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was harmless because there were “slim” odds the information in
the possession of the extended maternal relatives would show
Antonio is qualified for membership in an Indian tribe. The
Department’s position would require us to engage in precisely the
type of speculation we consider inappropriate.
To conclude otherwise would frustrate the purpose of ICWA
and California law. In enacting ICWA, Congress expressly found
“there is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children”; “that an
alarmingly high percentage of Indian families are broken up by
the removal, often unwarranted, of their children from them by
nontribal public and private agencies and that an alarmingly
high percentage of such children are placed in non-Indian foster
and adoptive homes and institutions”; and “the States, exercising
their recognized jurisdiction over Indian child custody
proceedings through administrative and judicial bodies, have
often failed to recognize the essential tribal relations of Indian
people and the cultural and social standards prevailing in Indian
communities and families.” (25 U.S.C. § 1901(3)-(5); see H.R.Rep.
No. 95-1386, 2d Sess., p. 9 (1978) [“The wholesale separation of
Indian children from their families is perhaps the most tragic and
destructive aspect of American Indian life today.”].) A
dependency proceeding implicates “the tribe’s right to a
determination of a child’s Indian ancestry, but the tribe is not
present, and the agency is charged with obtaining information to
make that right meaningful.” (Benjamin M., supra,
70 Cal.App.5th at p. 745.)
We also reject the suggestion by the dissent in In re H.V.,
supra, ___Cal.App.5th at page ___ [2022 Cal. App. LEXIS 132, at
*9-10] (dis. opn. of Baker, J.) that the Welfare and Institutions

19
Code imposes a “Byzantine scheme of inquiry” and “further
inquiry” that burdens the Department such that “the costs
swamp the benefits when courts read the statutory scheme to
require child services agencies to undertake exhaustive efforts to
run down even the most remote, unlikely possibility of Indian
heritage such that the agencies functionally end up trying to
prove a negative.” All the Department needed to do was to
inquire of the maternal relatives—identified by Mother and later
present in the courtroom—whether Antonio is or may be an
Indian child. (§ 224.2, subd. (b); Cal. Rules of Court,
rule 5.481(a)(1).) The so-called burden on the Department (to
satisfy its responsibilities) cannot justify the potential to break
up Indian families given the country’s history of doing just that.
Nor can the sake of efficiency justify applying a relaxed
harmless error standard. Indeed, it is the failure of the
Department to satisfy its obligations during the dependency
proceeding that creates uncertainty and potential delay because a
juvenile court judgment is subject to collateral attack based on
later-discovered information that a child is an Indian child.
(Benjamin M., supra, 70 Cal.App.5th at p. 745; see 25 U.S.C.
§ 1914 [Indian child’s tribe may petition to invalidate action
conducted in violation of certain ICWA provisions].) “That risk
would be greater, and even more unacceptable, if the agency
forgoes basic inquiry into potentially meaningful, easily
acquirable information.” (Benjamin M., at p. 745.)

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 DISPOSITION

The August 16, 2021 order terminating Mother’s and
Father’s parental rights is conditionally affirmed.11 We remand
to the juvenile court for the Department and the court to comply
with the inquiry and notice provisions of ICWA and California
law consistent with this opinion, including inquiring of the
maternal extended family members. If the juvenile court
determines after additional inquiry and a hearing that the
Department has satisfied its inquiry and notice obligations under
ICWA and California law and there is no reason to believe
Antonio is an Indian child, the order terminating parental rights
shall remain the order of the court. If the Department or the
court after complying with the inquiry requirements of ICWA and

11 We are not persuaded by Mother’s contention that
conditional affirmance of the order terminating parental rights
will jeopardize her ability to appeal from a further order of the
juvenile court regarding ICWA compliance. (See § 395,
subdivision (a)(1) [“A judgment in a proceeding under Section 300
may be appealed in the same manner as any final judgment, and
any subsequent order may be appealed as an order after
judgment.”].)

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California law has reason to believe that Antonio is an Indian
child, the court shall vacate the order terminating Mother’s and
Father’s parental rights and proceed consistent with this opinion
and the inquiry and notice provisions of ICWA and California
law.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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