In re Juan A. CA2/1

Filed 6/1/22 In re Juan A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 JUAN A., a Person B313287
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 20LJJP00589)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

J.A.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Davis, Judge Pro Tempore.
Affirmed with directions.
 Christine E. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, William D. Thetford, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________________
1
In this dependency case (Welf. & Inst. Code, § 300 et seq.),
J.A. (Father) appeals from the juvenile court’s disposition order.
He contends we must reverse the disposition order because the
court and the Los Angeles County Department of Children and
Family Services (DCFS) failed to comply with the duty to inquire
under section 224.2 whether his son, Juan A., is or may be an
Indian child within the meaning of the Indian Child Welfare Act
(25 U.S.C. § 1901 et seq.; (ICWA)). For the reasons explained
below, we conclude DCFS’s failure to ask extended family
members about potential Indian ancestry, as required under
section 224.2, subdivision (b), was prejudicial. Therefore, we
remand the matter with directions for the juvenile court to order
DCFS to comply with section 224.2.
2
BACKGROUND
On September 7, 2020, DCFS received a referral alleging
3
Father and Rosa L. (Mother), the parents of then four-year-old

1
Further statutory references are to the Welfare and
Institutions Code.
2
We include here only the facts related to the issue on
appeal: the juvenile court’s and DCFS’s compliance with
California law implementing ICWA.
3
Mother is not a party to this appeal.

2
Juan A., engaged in a violent altercation at a gathering at the
home of Juan’s maternal grandmother. During DCFS’s
investigation of the referral, a social worker spoke with Juan’s
maternal grandmother, maternal aunt, paternal grandmother,
and Father’s cousin. During her interview, the maternal aunt
provided the social worker with the name of another maternal
aunt. There is no indication in the record that the social worker
asked any of these relatives whether Juan may be an Indian
child. The record shows that Juan’s maternal and paternal
grandmothers communicated with one another regarding
conflicts between Father and Mother.
On September 9, 2020, the social worker interviewed
Mother, who reported Juan has no known Indian ancestry. At
this point, DCFS was not yet in contact with Father.
On September 16, 2020, DCFS obtained a removal order for
Juan (and his half sibling, who is not involved in this appeal).
The same day, the social worker picked up Juan from his
paternal grandmother’s home and placed him with a resource
family.
In the Detention Report, filed with the juvenile court on
September 18, 2020, DCFS stated: “[ICWA] does not apply. [¶]
On 09/09/2020, [the social worker] interviewed [M]other and
asked about Indian Ancestry. Mother stated that her family does
not have any Indian Ancestry. [¶] . . . [¶] [The social worker]
could not interview [F]ather . . . as his whereabouts are
unknown.”
On September 18, 2020, DCFS filed a dependency petition
under section 300, subdivisions (a) and (b), alleging Juan was at
risk of serious physical harm, damage, and danger based on,
among other things, a history of violent altercations between

3
Father and Mother (counts a-1 & b-1); Father’s violent conduct
(brandishing a gun) toward another guest at the September 7,
2020 family gathering (counts a-2 & b-4); Father’s physical abuse
of Juan (count a-3); and the detrimental and endangering
situation created by Father and Mother in having guns in the
family home where Juan and his half sibling could access them
4
(count b-6). Form ICWA-010(A), attached to the dependency
petition, reflects that on September 9, 2020, during an in person
contact, Mother reported to DCFS that Juan has no known
Indian ancestry.
Mother appeared at a September 23, 2020 detention
hearing; Father did not. Mother signed and submitted to the
juvenile court form ICWA-020. Thereon, she checked the box
indicating “I have no Indian ancestry as far as I know.” The
court noted the filing of Mother’s form ICWA-020, and stated in
its minute order from the detention hearing: “The Court does not
have reason to know that ICWA applies as to Mother. The
determination of ICWA status is deferred for [F]ather’s
appearance.” The court found DCFS made a prima facie showing
that Juan was a person described by section 300, and the court
detained Juan from Mother and Father. Upon Mother’s request,
the court ordered DCFS to assess Juan’s paternal grandmother
for placement and granted DCFS discretion to place Juan with
any appropriate relative or nonrelative extended family member.
On October 29, 2020, a DCFS dependency investigator
spoke with Father and gave him notice of his November 4, 2020

4
This summary includes only the allegations that were
later sustained by the juvenile court at the March 10, 2021
adjudication hearing.

4
arraignment hearing. The juvenile court appointed counsel for
Father at the arraignment hearing; Father was not present at
the hearing. Father’s counsel submitted a form ICWA-020 on
Father’s behalf, indicating none of the statements on the form
regarding potential Indian status apply to Juan, based on
representations Father made to his counsel over the phone. The
court stated at the hearing: “Based on both parents[’] forms with
respect to [ICWA] the court has no reason to believe that this is
an [ICWA] case as it applies to [Juan].” The court’s minute order
from the November 4, 2020 arraignment hearing states, in
pertinent part: “The Court does not have reason to know that
[Juan] is an Indian Child, as defined under ICWA, and does not
order notice to any tribe or the BIA. Parents are to keep [DCFS],
their Attorney [sic] and the Court aware of any new information
relating to possible ICWA status. ICWA-020, the Parental
Notification of Indian Status[,] is signed and filed. The Court
5
does not have reason to know that ICWA applies as to Father.”
Juan remained placed in foster care.
In the Jurisdiction/Disposition Report, filed with the
juvenile court on November 12, 2020, DCFS stated, in pertinent
part: On 09/23/2020, the Court deferred ICWA finding as to
[Juan] for the appearance of [Father.] [¶] On 10/29/2020,
[Mother] denied having any American-Indian ancestry. [¶] On

5
Father did not sign his form ICWA-020. His counsel filled
out the form for Father based on Father’s representations during
a telephone call with counsel.

5
10/29/2020, [Father] denied having any American-Indian
ancestry.”
In preparation of the Jurisdiction/Disposition Report, a
DCFS dependency investigator interviewed Juan’s maternal and
paternal grandmothers. There is no indication in the record that
the investigator asked either whether Juan may be an Indian
child. Father told the investigator that he was raised by Juan’s
paternal great-grandparents, and they remained his support
system. Father disclosed that Juan’s paternal grandfather was
deported to Mexico when Father was young; the record does not
indicate if Father maintained a relationship with him.
In a Last Minute Information for the Court for the March
20, 2021 adjudication hearing, DCFS reported that Father and
Mother lived together, and DCFS approved Juan’s paternal
grandmother to be present at Mother’s visits with Juan. Father
and Mother were present at the adjudication hearing. The
juvenile court sustained the allegations in the dependency
petition, as summarized above.
In a Last Minute Information for the Court for the May 13,
2021 disposition hearing, DCFS reported that it planned to
replace Juan from a foster home to the home of his paternal
grandmother. Father and Mother were present at the disposition
hearing. The juvenile court declared Juan a dependent of the
court, removed him from Father’s and Mother’s custody, and
granted Father and Mother reunification services and monitored
visitation.
The record does not indicate that any of Juan’s extended
family members was present at any of the juvenile court’s
hearings.

6
 DISCUSSION
I. Applicable Law
Under ICWA, an “Indian child” is an unmarried person
under 18 years of age who is (1) a member of a federally
recognized Indian tribe or (2) is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see
§ 224.1, subd. (a) [adopting federal definitions].)
DCFS and the juvenile court “have an affirmative and
continuing duty to inquire whether a child” involved in
dependency proceedings “is or may be an Indian child.” (§ 224.2,
subd. (a).) When DCFS detains a child and places that child in
foster care, its duty to inquire “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 and where the child, the
parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).)
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).)
“At the first appearance in court of each party, the court
shall ask each participant present in the hearing whether the
participant knows or has reason to know that the child is an
Indian child” (§ 224.2, subd. (c)) and order the parents to

7
complete form ICWA-020 (Parental Notification of Indian
Status). (Cal. Rules of Court, rule 5.481(a)(2)(C).)
If the juvenile court or social worker “has reason to believe
that an Indian child is involved in a proceeding,” based on the
initial inquiry described above, the court or social worker “shall
make further inquiry regarding the possible Indian status of the
child,” including, but not limited to: (1) interviewing the parents
and extended family members; (2) contacting the Bureau of
Indian Affairs and the State Department of Social Services for
assistance in identifying and contacting tribes; and (3) contacting
tribes and others “that may reasonably be expected to have
information regarding the child’s membership status, or
eligibility.” (§ 224.2, subd. (e).) There is reason to believe a child
is an Indian child if there is information suggesting that either
the child or the parent is a member or may be eligible for
membership in an Indian tribe. (§ 224.2, subd. (e)(1).) ICWA
notice is required if DCFS or the juvenile court knows or has
reason to know a child is an Indian child under any of the
circumstances described in section 224.2, subdivision (d). (25
U.S.C. § 1912(a); § 224.3, subd. (a); Cal. Rules of Court, rule
5.481(b)(1).)
II. Analysis
As set forth above, DCFS came into contact with several of
Juan’s extended family members (the maternal and paternal
grandmothers, a maternal aunt, a paternal cousin), but did not
inquire whether the children may be Indian children, as required
under section 224.2, subdivision (b). We must decide whether
DCFS’s failure to conduct this inquiry requires that we affirm the
disposition order—which Father does not challenge on any other

8
ground—and remand the matter for DCFS to comply with its
duty of inquiry.
Father argues a remand is required regardless of whether
he can demonstrate he was prejudiced by the inadequate inquiry.
(See In re Y.W. (2021) 70 Cal.App.5th 542, 556 [“The
Department’s failure to conduct an adequate inquiry into [the
children’s] possible Indian ancestry makes it impossible for [the
parents] to demonstrate prejudice”].) DCFS argues the matter is
subject to a harmless error analysis under California law, and a
remand is required only if Father can demonstrate that it is
reasonably probable that a result more favorable to him would
have been reached in the absence of error. (See People v. Watson
(1956) 46 Cal.2d 818, 836 [standard for determining whether an
error under state law was prejudicial].)
We agree with DCFS that the matter is subject to a
harmless error analysis, but in conducting this analysis, we apply
the definition of prejudice set forth in In re Benjamin M. (2021)
70 Cal.App.5th 735 (Benjamin M.), rather than Watson. Under
the Benjamin M. standard, for cases where the agency conducts
an inadequate initial inquiry under section 224.2, we will remand
the matter only “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.” (Benjamin M., at p. 744; In re S.S. (2022) 75
Cal.App.5th 575, 582-583; In re Darian R. (2022) 75 Cal.App.5th
502, 509-510.) “Under this approach, we require continued
inquiry where the probability of obtaining meaningful
information is reasonable in the context of ICWA.” (Benjamin
M., at p. 744.)

9
 Here, several paternal and maternal relatives were readily
available to DCFS and had information that was likely to bear
meaningfully upon whether Juan is an Indian child, i.e.,
information about Juan’s ancestry. In its appellate briefing,
DCFS notes that Father and Mother were in close contact with
these paternal and maternal relatives, but this fact is not
dispositive because the duty of inquiry lies with DCFS, not the
parents. DCFS also argues there is nothing in the record
indicating Father and Mother lacked information about their own
ancestry. We will not speculate about what Father and Mother
did or did not know about their ancestry. Suffice it to say that
section 224.2, subdivision (b) requires the agency to inquire of
extended family members regardless of whether the parents deny
Indian ancestry; and parental disclaimers of Indian ancestry are
insufficient to dispel Father’s claim of prejudice here, where the
record indicates there was readily obtainable information that
was likely to bear meaningfully upon whether Juan is an Indian
child. (See In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016; see
also Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Because we conclude DCFS’s failure to inquire of the
extended family members about Juan’s potential Indian ancestry
was prejudicial under the Benjamin M. standard, we remand the
matter for the appropriate inquiry under section 224.2. We
disagree with Father’s position that conditional reversal of the
disposition order is required here. Instead, we affirm the order
with directions, as specified below.
DISPOSITION
The disposition order is affirmed. The matter is remanded
to the juvenile court, which is directed to order DCFS (1) to
comply with the requirements of Welfare and Institutions Code

10
section 224.2 and California Rules of Court, rule 5.481(a)
forthwith, and (2) to file a report with the juvenile court within
30 days of our remittitur containing the information required by
California Rules of Court, rule 5.481(a)(5), including a description
of all inquiries to extended family members. The juvenile court
shall conduct further proceedings in accordance with the ICWA,
if applicable, and related California law.
NOT TO BE PUBLISHED

CHANEY, J.

I concur:

BENDIX, Acting P.J.

11
CRANDALL, J.,* Dissenting.

I would conclude that the Los Angeles County Department of
Children and Family Services’ (Department) admitted failure to
interview extended family members under the Indian Child Welfare
Act of 1978 (25 U.S.C. § 1901 et seq.) was harmless as described in my
dissent in In re A.C. (2022) 75 Cal.App.5th 1009. To wit, father J.A.
has not demonstrated that, had the Department inquired of extended
family members, they would have provided a reason to believe Juan A.
was an Indian child.

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.