In re Baby Boy P. CA2/7

Filed 5/16/22 In re Baby Boy P. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

In re BABY BOY P., a Person B315112
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 18CCJP04077)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

STEPHANIE P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Gabriela H. Shapiro, Juvenile Court
Referee. Conditionally affirmed and remanded with directions.
 John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Deputy County
Counsel, for Plaintiff and Respondent.

__________________________

Stephanie P. (Mother) appeals from the order terminating
her parental rights to 21-month-old Baby Boy P. 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 (Alfredo C.) based on the parents’ denials of
Indian ancestry. However, the Department failed to inquire of
any extended family members whether Baby Boy was or may be
an Indian child, including the maternal grandfather, maternal
aunt, and maternal uncle, each of whom was interviewed by the
Department. Nor did the Department obtain contact information
from Mother and Father for other extended family members or
inquire of any of Father’s extended family members. We agree
with Mother that section 224.2, subdivision (b), required the
Department to inquire of the maternal and paternal family

1 All further undesignated statutory references are to the
Welfare and Institutions Code.

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members,2 and the juvenile court erred in finding ICWA did not
apply despite the Department’s insufficient inquiry. Further, the
error was prejudicial because we do not know what information
the 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

A. The Current Dependency Case
On November 26, 2019 the Department received a referral
alleging Mother gave birth to Baby Boy while she was in custody
following her arrest for grand theft. According to the sheriff’s
deputy, Mother was on suicide watch based on her “‘really
bizarre’” behavior. Mother acknowledged she had been diagnosed
with bipolar disorder and had used methamphetamine while she
was pregnant with Baby Boy. Mother was in a relationship with
Father, who was also the father of one of Mother’s other children,
Johnathan P. In response to the referral, the social worker went
to Mother’s home and spoke with the maternal aunt (Brenda P.)
and maternal grandfather (Philip P.).

2 On remand the Department must make an inquiry of the
relatives meeting the statutory definition of an “‘extended family
member,’” including Baby Boy’s maternal grandfather, aunt, and
uncle and the extended paternal family members. (See 25 U.S.C.
§ 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).) Through these
interviews (and further interviews of Mother and Father), the
Department should determine whether there are other extended
family members who need to be interviewed.

3
 On December 2, 2019 the Department filed a petition on
behalf of Baby Boy pursuant to section 300, subdivision (b)(1),
alleging Mother had a history of substance abuse and had tested
positive for methamphetamine and amphetamine in July 2019;
Father failed to protect Baby Boy from Mother’s substance abuse;
and four of Mother’s other children had been declared dependents
of the juvenile court. The petition also alleged Mother had
mental and emotional problems, including suicidal ideation, and
she had been diagnosed with bipolar disorder, major depression,
and schizophrenia, rendering her incapable of caring for Baby
Boy. The petition alleged further under section 300, subdivision
(j), that Johnathan was a current dependent of the juvenile court
and three half-siblings, Alexis G., Bridgette M., and Xavier P.
were former dependents of the juvenile court.3
The petition attached Judicial Council form ICWA-010,
which stated an inquiry was made as to Baby Boy’s ancestry and
Mother had been questioned and denied any knowledge of Indian
ancestry. The form did not state whether the child may have
Indian ancestry.
At Mother’s December 9, 2019 arraignment, Mother filed a
parental notification of Indian status form (Judicial Council form
ICWA-020), on which she checked the box stating, “I have no
Indian ancestry as far as I know.” She also noted that a previous
form ICWA-020 had been filed with the court. The juvenile
court4 acknowledged that Mother filed the parental notification of

3 Adoptions have been finalized as to all four siblings and
half-siblings.
4 Juvenile Court Referee Emma Castro presided over the
case through the jurisdiction and disposition hearing.

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Indian status form and Father had not yet appeared. The court
found, “So at this time the court has no reason to know that this
child is an Indian child as described by [ICWA].”
Father first appeared on February 13, 2020 and filed a
parental notification of Indian status form on which he checked
the box stating, “I have no Indian ancestry as far as I know.” At
Father’s arraignment on that date, the juvenile court again found
it had no reason to know Baby Boy was an Indian child under
ICWA.
After Baby Boy was detained from Mother, he was placed
with the family who had adopted Johnathan. On January 22,
2020 the social worker visited Mother and Father at the home of
the maternal grandfather and talked to the maternal
grandfather, the maternal aunt, and the maternal uncle (Phillip
P.).
In its February 13, 2020 jurisdiction/disposition report, the
Department reported that the juvenile court on December 9, 2019
had found it had no reason to know Baby Boy was an Indian
child. The report did not reflect any inquiry of the maternal or
paternal extended family members as to whether Baby Boy may
be an Indian child.
At the September 1, 2020 jurisdiction and disposition
hearing, the juvenile court sustained the allegations in the
petition, declared Baby Boy a dependent of the juvenile court
under section 300, subdivisions (b)(1) and (j), and removed him
from Mother’s and Father’s custody. The court ordered
reunification services be provided to Father, but not to Mother.
The court granted Mother and Father two monitored visits each
week for 30 minutes each visit. The court did not address ICWA.

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At the 12-month review hearing, the juvenile court5 terminated
Father’s reunification services.
The July 14, 2021 report for the selection and
implementation hearing (§ 366.26) again reported the juvenile
court’s December 9, 2020 finding the court had no reason to know
Baby Boy was an Indian child. The report did not reflect any
inquiry of the maternal or paternal extended family member as
to whether Baby Boy may be an Indian child.
On September 13, 2021 Mother filed a section 388 petition
seeking family reunification services on the basis she had
received additional psychotherapy and medication management
services. After a hearing on September 14, 2021, the juvenile
court denied Mother’s petition. At the selection and
implementation hearing held on the same date, the juvenile
court6 found returning Baby Boy to Mother and Father would be
detrimental to the child and the child was adoptable. The court
terminated Mother’s and Father’s parental rights. The non-
related caregivers were identified as the prospective adoptive
parents. The court did not make any findings as to ICWA.
Mother timely appealed from the order terminating her
parental rights.7

5 Judge Debra L. Losnick.
6 Juvenile Court Referee Gabriella H. Shapiro.
7 Mother stated in her notice of appeal that she is also
appealing from the September 14, 2021 order denying her
section 388 petition requesting her reunification services be
restored. However, she does not present any argument on appeal
as to the section 388 petition. Father is not a party to this
appeal.

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B. ICWA Inquiry in Johnathan’s Dependency Case
At the June 29, 2018 detention hearing in Johnathan’s
dependency case, Mother filed a parental notification of Indian
status form stating, “I have no Indian ancestry as far as I know.”
Father also filed a parental notification form on that date.8 The
juvenile court found at the June 29 detention hearing, “The Court
does not have a reason to know that this is an Indian Child, as
defined under ICWA, and does not order notice to any tribe or the
[Bureau of Indian Affairs].”

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)

8 The Department has requested we take judicial notice of
the June 29, 2018 minute order filed in Johnathan’s dependency
case, Los Angeles Superior Court case number 18CCJP04077A,
and the parental notification of Indian status form filed by
Mother on the same date. We grant the Department’s request.
(Evid. Code, §§ 452, subd. (d), 459.) The Department has not
submitted or requested we take judicial notice of the parental
notification of Indian status form Father filed in Johnathan’s
dependency case.

7
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,
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 Antonio R. (2022)
76 Cal.App.5th 421, 429; In re H.V. (2022) 75 Cal.App.5th 433,
437.) “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 Antonio R., at p. 429; In re H.V., at p. 437.)
“The duty to inquire begins with initial contact (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective

8
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 Antonio R., supra,
76 Cal.App.5th at p. 429; In re H.V., supra, 75 Cal.App.5th at
p. 437 [“[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,
imposes on the Department a duty to inquire whether a child in
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 . . . .” (§ 224.2, subd. (b); 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 Antonio R., supra, 76 Cal.App.5th at p. 430; 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.”].)

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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 the maternal and paternal extended family members
about Baby Boy’s possible Indian ancestry. We agree the
Department failed to satisfy its affirmative and continuing duty
of inquiry under section 224.2, subdivision (b), and we once again
reject the Department’s contention that inquiring of Mother and
Father was sufficient.
Information relevant to Baby Boy’s possible Indian
ancestry was readily obtainable from several of the extended
family members. In November 2019 the social worker spoke with
the maternal grandfather and the maternal aunt. At Mother’s
arraignment on December 9, 2019 the juvenile court made a
finding it had no reason to know Baby Boy was an Indian child
even though no inquiry had been made at that point other than of
Mother. This finding was repeated in the jurisdiction/disposition
report and again in the report for the selection and
implementation hearing. The court made the same finding on
February 13, 2020 at Father’s arraignment based on Father’s
denial of Indian ancestry on his parental notification of Indian
status form. On January 22, 2020 the social worker again spoke
with the maternal grandfather, as well as the maternal aunt and
the maternal uncle. Yet the Department failed to inquire of any
of these maternal relatives (or any paternal relatives) as to
whether they had any information bearing on whether Baby Boy
was an Indian child. Nor did the Department make any inquiry
of Mother or Father as to whether there were other relatives who
may have information bearing on whether Baby Boy was an
Indian child. And the juvenile court failed at the September 1,

10
2020 jurisdiction and disposition hearing and the September 14,
2021 selection and implementation hearing to determine whether
the Department had made an inquiry of the maternal or paternal
extended family members. Nor did the court make any findings
as to whether Baby Boy was an Indian child.
Despite having multiple opportunities, the Department
failed to inquire of any of these family members as to Baby Boy’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 despite the lack of an adequate inquiry. (See
In re J.C. (2022) 77 Cal.App.5th 70, 79 [“The juvenile court, too,
did not satisfy its duty to ensure the Department adequately
investigated whether J.C. may be an Indian child. There is no
indication in the record that, after the detention hearing, the
juvenile court gave ICWA another thought in the almost three
years of this dependency case.”]; In re Antonio R., supra,
76 Cal.App.5th at p. 431 [“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 also § 224.2, subd. (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.”].)
Contrary to the Department’s contention, Mother was not
required to make an affirmative representation that she had

11
Indian ancestry to prevail on appeal. We disagree with the
holding in In re A.C. (2021) 65 Cal.App.5th 1060, 1069 that “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.” 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.” (Accord, In re J.C.,
supra, 77 Cal.App.5th at p. 80 [“where, as here, the Department’s
failure to conduct an adequate inquiry makes it impossible for
the parent to show prejudice, we must remand for a proper
inquiry”]; In re H.V., supra, 75 Cal.App.5th at p. 438, 442 & fn. 4
[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].)
Further, it is the Department, not the parents, that bears
the duty to develop information whether a child is an Indian
child. (In re Antonio R., supra, 76 Cal.App.5th at p. 430; In re
Benjamin M. (2021) 70 Cal.App.5th 735, 742 [“the agency has a
duty to gather information by conducting an initial inquiry,
where the other party—here a parent . . . has no similar
obligation”]; 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

12
noticing does not preclude the parent from raising the issue for
the first time on appeal . . . .”].)
The Department also notes that Mother had previously
denied Indian ancestry in Johnathan’s dependency proceeding,
and the juvenile court in that proceeding concluded Johnathan
was not an Indian child. The fact that Mother has now twice
denied any Indian ancestry does not relieve the Department of its
obligation to inquire of readily ascertainable extended family
members whether Baby Boy is an Indian child. Further, the
juvenile court’s finding in June 2018 at the detention hearing
that it had no reason to know Johnathan was an Indian child
does not mean Baby Boy is not an Indian child. The juvenile
court’s finding was made prior to the January 1, 2019 effective
date of the 2018 amendment of section 224.2, subdivision (b), by
Assembly Bill No. 3176 (Stats. 2018, ch. 833, § 5), which required
inquiry of extended family members. Thus, we have no reason to
believe the Department inquired of Johnathan’s extended family
members in making a finding the court had no reason to know
Johnathan was an Indian child. And we have no information on
what inquiry, if any, was made after the detention hearing (or
whether the juvenile court made further findings under ICWA).
The Department attempts to distinguish In re Y.W., supra,
70 Cal.App.5th at page 553 on the basis Mother and Father,
unlike the mother in Y.W., were not adopted. But our holding in
Y.W. was not so narrow. (See In re J.C., supra, 77 Cal.App.5th at
p. 80, fn. 4 [“That the mother in In re Y.W. was adopted was all
the more reason the Department should have followed up on an
obvious lead to locate her biological parents.”].) Rather, we
explained in In re Y.W. that the Department was required to
“make meaningful efforts to locate and interview” extended

13
family members, which in the case of the mother in Y.W.,
included her biological family members. (Y.W., at pp. 552-553.)
The Department also argues that because Mother resided
with her family members, inquiry of those family members
regarding Indian ancestry was not likely to bear meaningfully on
whether Baby Boy was an Indian child, citing to In re Benjamin
M., supra, 70 Cal.App.5th at page 744. This argument assumes
Mother would have discussed her Indian ancestry with her family
members. But 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.”].) Further, there are many reasons
parents may not want to reveal their Indian ancestry, including
the parents’ fear of being identified as Indian or concern that the
tribe may want to participate in the case or assume jurisdiction.
(In re Antonio R., supra, 76 Cal.App.5th at p. 432.)
The Department’s 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

14
the child’s possible Indian ancestry, the Legislature determined
that inquiry of the parents alone is not sufficient.” (In re Antonio
R., supra, 76 Cal.App.5th at p. 431; 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”].)
The Department also argues that any error in failing to
inquire of Mother’s and Father’s family members was harmless
given the Department’s questioning of Mother at the arraignment
because any inquiry of extended family members was not likely
to bear meaningfully upon whether Baby Boy was an Indian
child, citing In re Benjamin M., supra, 70 Cal.App.5th at
page 742. We disagree with the Department’s interpretation of
the standard for harmless error articulated in In re Benjamin M.,
which concluded the reviewing 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.” (Id. at
p. 744.) As we observed in In re Antonio R., supra,
76 Cal.App.5th at page 435, “Where the Department fails to
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

15
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.” (See In re Benjamin M., 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.”].)
The maternal and paternal extended family members are
likely to have meaningful information about whether Baby Boy is
an Indian child—regardless of whether the inquiry ultimately
reveals he is. The Department’s failure in the course of its
interviews of the maternal relatives to ask the simple question
whether they had any reason to believe Baby Boy was an Indian
child is troubling. On remand, the Department must inquire at a
minimum of the maternal grandfather, maternal aunt, and
maternal uncle. The Department should also use reasonable
diligence to locate and interview other extended family members
on both the maternal and paternal sides of the family, starting
with an inquiry of Mother and Father to identify and provide
contact information for the extended family members.

DISPOSITION

The September 14, 2021 order terminating Mother’s and
Father’s parental rights is conditionally affirmed. We remand for
the Department and the juvenile court to comply with the inquiry
and notice provisions of ICWA and California law. If the court
finds Baby Boy is an Indian child, it shall conduct a new section

16
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 orders will remain in effect.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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