In re D.M. CA2/1

Filed 4/11/22 In re D.M. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re D.M. Jr., et al., B314577

Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 18LJJP00066)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CYNTHIA R.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Michael C. Kelley, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
 Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
_____________________

Following the birth of each of mother Cynthia R.’s and
father D.M. Sr.’s three children, the Los Angeles County
Department of Children and Family Services (the Department),
filed a petition alleging substantial risk of harm to the child
based on the parents’ current substance abuse. Three and a half
years after the first petition was filed, the juvenile court
terminated parental rights as to each child. During those years,
Mother denied eight times that she or her children had Indian
ancestry. As to the first child, Father denied Indian ancestry,
and paternal grandmother denied that she or Father had Indian
ancestry.
Mother’s sole contention on appeal is that the Department
failed to comply with its duty under state law implementing the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.) to inquire of extended family members whether her children
may be Indian children. (See Welf. & Inst. Code,1 § 224.2.)
Mother argues this error was prejudicial. We conclude it was not,
and thus, we affirm.

1 Subsequent unspecified statutory references are to the
Welfare and Institutions Code.

2
 BACKGROUND2
A. D.M. Jr.
On January 25, 2018, the Department filed a section 300
petition alleging, inter alia, that newborn D.M. Jr. was at
substantial risk of harm due to Mother’s and Father’s substance
abuse as well as Father’s failure to protect D.M. Jr.’s paternal
half-sibling.3 The Department attached to the petition a Judicial
Council of California ICWA-010(A) form indicating that according
to Mother, D.M. Jr. “has no known Indian ancestry.”
On January 26, 2018, the juvenile court held a detention
hearing. It found Father (who was not present or represented by
counsel) to be D.M. Jr.’s presumed father.4 On that same date,
Mother filed an ICWA-020 form,5 in which she stated, “I have no
Indian ancestry as far as I know.” The form advised Mother that
she must inform her attorney, the court, and the Department of
any new information about D.M. Jr.’s Indian status. The court

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.
Father is not a party to this appeal.
3The petition alleged D.M. Jr.’s half sibling was a
dependent of the juvenile court and received permanent
placement services due to Father’s substance abuse.
4 Mother and Father told a Department social worker that
Father was D.M. Jr.’s biological father. D.M. Jr.’s birth
certificate lists D.M. Sr. as his father.
5 In each instance described in this opinion, Mother signed
the January 2008 version of the ICWA-020 form.

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determined it did not have reason to know D.M. Jr. was an
Indian child, but deferred the determination of ICWA status for
Father’s appearance. It ordered Mother to provide new
information relevant to ICWA to the court and the Department.
On March 16, 2018, and March 20, 2018, a Department
social worker spoke with Father and Mother, respectively, and
each of them denied having Indian ancestry. The social worker
also spoke with maternal great grandmother, maternal step-
great grandfather, maternal aunt, and paternal grandmother,
who lived in Nevada. Paternal grandmother expressed interest
in having D.M. Jr. placed in her care.6 During the course of the
proceedings, the Department also spoke with or was aware of
maternal great aunt, two paternal aunts, and maternal cousin,
who also sought to be assessed for placement. The Department
did not ask any of these relatives about their Indian ancestry or
whether the children were Indian children.
On April 3, 2018, the juvenile court held a combined
jurisdictional and dispositional hearing. Neither parent7
attended the hearing. However, paternal grandmother and a

6 Throughout the proceedings, paternal grandmother
maintained she wanted the children placed with her and made
efforts to complete the required paperwork. She moved from
Nevada to California, but faced obstacles in quickly obtaining
permanent housing. Further, she acknowledged that placement
with her was unlikely due to a felony conviction.
7 Father was arrested for a domestic incident in April 2018
and in jail during part of Summer 2018. His whereabouts were
frequently unknown. At times, he did not live with Mother, and
the Department had difficulty contacting him. In or around July
2019, Father had an outstanding warrant for his arrest.

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paternal aunt were present. The court asked paternal
grandmother, “Do you have any Indian ancestry?” She
responded, “Not that I can prove. I’ve heard.” The court then
asked, “Are you registered . . . with a tribe?” She said she was
not. The court went on, “How about your son. [D.M. Sr.], is he
registered or has he registered with a tribe?” She responded,
“No.” Thus, the court found there was no reason to believe ICWA
applied to Father’s side of the family.8
The juvenile court sustained allegations of failure to protect
due to substance abuse as to Mother and Father and allegations
of abuse of a sibling as to Father, declared D.M. Jr. to be a
dependent of the court, and placed him in foster care. The court
ordered both parents to participate in reunification services and
granted monitored visitation. It also ordered the Department to
assess several relatives for placement, including maternal cousin
and paternal grandmother (through initiating an Interstate
Compact on the Placement of Children in Nevada) and to assess a
paternal aunt as a monitor.
Father made his first—and only—appearance at an
October 3, 2018 section 366.21, subdivision (e) review hearing.
He filed an ICWA-020 form that day, checking the box that he
had no Indian ancestry. The court found it did not have reason to
know that ICWA applied to Father, and ordered the parents to
notify the court and the Department of any new information
concerning ICWA status.
At a July 11, 2019 12-month review hearing, the juvenile
court found the parents’ progress in alleviating the causes

8According to Father, paternal grandfather was not
“around,” and Father “never knew him.”

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necessitating D.M. Jr.’s placement was “nonexistent.” It
terminated reunification services, scheduled a section 366.26
hearing, and ordered the Department to continue to assess
maternal cousin for placement.
B. Noah
On July 26, 2019, the Department filed a dependency
petition relating to two-month-old Noah, alleging a risk of
substantial harm due to substance abuse and abuse of a sibling.
In an ICWA-010(A) form, a social worker averred that she asked
Mother on June 18, 2019, about Noah’s Indian status. Mother
reported Noah had no known Indian ancestry.
On July 29, 2019, the juvenile court held a detention
hearing. Mother filed an ICWA-020 form stating that she did not
have Indian ancestry, and the court determined there was no
reason to know that ICWA applied to Mother. It deferred its
paternity finding and determination of ICWA status for Father’s
appearance. The court ordered Noah detained and placed with
the same foster family as D.M. Jr.
On August 27, 2019, Mother reported to a social worker
that neither she nor Father have any known Indian ancestry.
At the September 16, 2019 jurisdictional and dispositional
hearing, the juvenile court sustained allegations in the petition
and ordered Noah removed from his parents. Father did not
attend the hearing, and the court did not make any ICWA
findings.
A year later, on September 16, 2020, the juvenile court
found that Mother did not make substantive progress in her case
plan and terminated reunification services relating to Noah.

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 On July 13, 2021, the juvenile court found that D.M. Sr.
was Noah’s presumed father9 and that there was no reason to
know that Noah was an Indian child.
C. N.M.
In June 2020, Mother gave birth to a daughter, N.M., who
was in poor condition at the time of her birth. In investigating
the referral relating to N.M., a Department social worker spoke
with Mother, who denied Indian heritage.
On July 14, 2020, the Department filed a dependency
petition containing similar allegations as those relating to N.M.’s
siblings, including that at the time of N.M.’s birth, Mother tested
positive for amphetamine and cocaine. Attached to the petition is
an ICWA-010(A) form in which the social worker declared she
had made an inquiry and that N.M. did not have Indian ancestry.
It is not clear from the record whether the inquiry was the same
as the one made in June 2020.
On July 17, 2020, the juvenile court held a detention
hearing. Mother filed form ICWA-020 stating that she had no
Indian ancestry as far as she knew.10 The court found it did not

9Mother stated Father was Noah’s biological father; Father
signed Noah’s birth certificate; a social worker observed Father
at Mother’s residence, “visiting” Noah; and Mother stated in a
parentage questionnaire that Father was present at Noah’s birth
and held him out as his child.
10 Mother did not sign the July 17, 2020 ICWA-020 form.
The form indicates she provided the information to her counsel
telephonically, presumably due to the COVID-19 pandemic limits
on in-person contact. Mother does not argue this information is
incorrect.

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have reason to know ICWA applied to Mother and deferred its
paternity determination pending Father’s appearance.
On September 1, 2020, the juvenile court found true the
allegations in the petition.
On September 16, 2020, the juvenile court found D.M. Sr.
to be N.M.’s presumed father.11 It bypassed reunification
services for Mother and Father on the bases that it had
terminated reunification services relating to a sibling and that
the parents resisted prior court-ordered treatments for substance
abuse. (§ 361.5, subd. (b)(10), (13).) It also found that ICWA did
not apply.
D. Termination of Parental Rights
On August 17, 2021, the juvenile court terminated Mother’s
and Father’s parental rights relating to all three children.
Mother filed a timely notice of appeal.
DISCUSSION
Under California law implementing ICWA, “the child
welfare agency and the juvenile court have a statutory initial
duty to inquire into whether a child is, or may be, an Indian
child.” (In re Darian R. (2022) 75 Cal.App.5th 502, 507, fn.
omitted.) This “[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

11Father was listed on N.M.’s birth certificate as her
father. He also visited N.M. in the hospital shortly after her
birth and signed, as her father, a consent form for N.M. to receive
donor milk. Mother identified Father as N.M.’s father on a
parentage questionnaire in which she indicated he was present at
N.M.’s birth and held the child out as his own.

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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.”12 (§ 224.2, subd. (b), italics
added.)
It is undisputed that the Department did not ask maternal
great grandmother, maternal great grandfather,13 maternal
great aunt, maternal aunt, maternal cousin,14 or paternal aunts
about any of the children’s possible status as Indian children.
The Department’s failure to do so was error. Whether we reverse

12 The Department argues that after 2019 and 2020
amendments to section 224.2, the Department no longer need
inquire of extended family members after the parents deny
Indian ancestry. We disagree. Section 224.2, subdivision (b)
unequivocally requires an initial inquiry of “extended family
members.”
13Maternal great grandfather is Mother’s step-
grandfather, which suggests he may be less likely to have
meaningful information concerning the children’s Indian status.
14 Mother argues the Department failed to inquire of
maternal cousin, maternal uncle, and paternal uncle. The record
reveals that these are all the same person, an individual named
Prince W. Although maternal cousin expressed an interest in
having D.M. Jr. placed with him, the record reflects concerns
with, inter alia, a DUI and that his girlfriend (who would provide
child care) refused to submit to a drug test.
Mother also argues the Department failed to make an
inquiry of paternal great grandmother. There is no such person
in the record. Maternal great grandmother, Nancy S., is
identified incorrectly in the record as paternal great grandmother
on two occasions.

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depends on whether this error was prejudicial. (In re Benjamin
M. (2021) 70 Cal.App.5th 735, 742.)
A recent opinion of this court underscores the challenges of
defining prejudice in this context. In In re A.C. (2022) 75
Cal.App.5th 1009, the majority, following In re Benjamin M.,
supra, 70 Cal.App.5th 735, concluded prejudice exists when the
Department fails to conduct an initial inquiry of extended family
members if the record discloses readily obtainable information
that is likely to bear meaningfully upon whether a child is an
Indian child. (In re A.C., supra, at p. 1017; see also In re S.S.
(2022) 75 Cal.App.5th 575, 582.) Following a Watson15 harmless
error formulation, the dissent posited the proper approach was to
require the appellant to show a reasonable probability that if the
Department had made the inquiry, it would have uncovered
evidence suggesting a “ ‘reason to believe’ ” the child was an
Indian child. (In re A.C., supra, at p. 1024 (conc. & dis. opn. of
Crandall, J.).) As we describe below, there is no prejudice under
either standard.
Mother argues the error was prejudicial “[a]s stated in” In
re Benjamin M., supra, 70 Cal.App.5th at p. 742 and In re Josiah
T. (2021) 71 Cal.App.5th 388. But there is a critical difference
between those cases and the one before us. In In re Benjamin M.
and In re Josiah T., the court had no information about the
fathers’ Indian status. (See In re Josiah T., supra, at p. 403; In re

15 People v. Watson (1956) 46 Cal.2d 818, 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”).

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Benjamin M., supra, at pp. 744-745.) Thus, inquiring of paternal
extended family members would provide information about the
child’s Indian status where previously there was none.
Here, the court did not completely lack information from
either parent, and the circumstances demonstrate that the notion
that inquiring of extended family members would have yielded
meaningful information is mere speculation.
We first consider the Department’s failure to inquire of
maternal relatives: maternal great grandparents, maternal great
aunt, maternal aunt, and maternal cousin. In D.M. Jr.’s case,
Mother denied Indian ancestry on three separate occasions. She
was advised and ordered to provide new information relevant to
ICWA to the Department and the court. Notwithstanding the
advisement and order, the length of the proceedings, and that at
times during the proceedings, she lived with her grandparents,
sister, and aunt, and was in contact with her cousin, she never
advised the court of any additional information about Indian
ancestry. To the contrary, in Noah’s and N.M.’s proceedings, she
affirmed five more times that she had no known Indian ancestry.
Thus, the record does not support the conclusion that maternal
relatives would provide information that would bear
meaningfully on the court’s ICWA determination. (See Darian
R., supra, 75 Cal.App.5th at p. 510 [holding where the parent
challenging ICWA was under court order to provide information
relevant to ICWA, was not estranged from her family, and a prior
court order involving the same biologic parents found ICWA
inapplicable, the record did not support the conclusion that
readily obtainable information would bear meaningfully on
whether the children were Indian children].)

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 Further, throughout the proceedings, maternal cousin,
Mother, and Mother’s counsel maintained that the children
should be placed with maternal cousin. As this court observed in
In re S.S., supra, 75 Cal.App.5th 575, because preference is given
to placing an Indian child with extended family (25 U.S.C.
§ 1915(a) & (b)), there is a strong incentive to bring to the court’s
attention any facts suggesting that a child is an Indian child.
That Mother and maternal cousin did not so do implies maternal
cousin is unaware of facts that would bear meaningfully upon
whether the children are Indian children.
Turning to the children’s paternal extended family
members, in the case of D.M. Jr., both Father and paternal
grandmother reported they had no Indian ancestry. Thus, unlike
In re Benjamin M., supra, 70 Cal.App.5th 735 and In re Josiah
T., supra, 71 Cal.App.5th 388, the court had substantial evidence
from which it could conclude that ICWA did not apply to D.M. Jr.
via his paternal relations. That paternal aunts would have
provided any different information is again speculative. Indeed,
one paternal aunt was present in court when paternal
grandmother was questioned about Indian ancestry. She
remained silent on the issue.
Although the Department did not make any ICWA inquiry
of Father or paternal grandmother in Noah’s or N.M.’s cases,
Mother affirmatively represented that D.M. Jr. and Noah are
Father’s biologic children and never disputed that N.M. is also
his biologic child. Further, Mother, paternal grandmother, and
paternal aunts each disclosed a desire to have the children placed
with their paternal family. That they failed to come forward with
information suggesting the children were Indian children,

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supports the inference that there was no such information to
provide. (See In re S.S., supra, 75 Cal.App.5th 575.)
In sum, the record does not reveal readily obtainable
information that was likely to bear meaningfully on the
determination of whether the children were subject to ICWA.
Mother also failed to demonstrate a reasonable probability
that if the Department had made the inquiry, it would have
uncovered evidence suggesting a “ ‘reason to believe’ ” the child
was an Indian child. (In re A.C., supra, 75 Cal.App.5th at p. 1024
(conc. & dis. opn. of Crandall, J.).) Indeed, Mother makes no
mention of any additional ICWA information that the
Department would have uncovered had it conducted the inquiry
of the children’s extended family members.
DISPOSITION
The orders terminating Mother’s and Father’s parental
rights as to their three children are affirmed.
NOT TO BE PUBLISHED

CRANDALL, J.*

I concur:

CHANEY, 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.

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BENDIX, Acting P. J., Concurring and Dissenting.

I concur in the holding that mother has not demonstrated
prejudice because the record does not disclose readily obtainable
information that is likely to bear meaningfully upon whether the
children are Indian children. (In re Darian R. (2022)
75 Cal.App.5th 502, 509–510; In re Benjamin M. (2021)
70 Cal.App.5th 735, 744.) To the extent the majority concludes
that prejudice should be evaluated under People v. Watson (1956)
46 Cal.2d 818, 836, I disagree.

BENDIX, Acting P. J.