In re Rylei S.

Filed 7/18/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re RYLEI S., a Person B316877
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
21LJJP00113A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

NATASHA S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Stephanie M. Davis, Juvenile Court Referee.
Conditionally affirmed and remanded with directions.
Lelah S. Fisher, under appointment by the Court of Appeal,
for Defendant and Appellant.
 Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
___________________
Rylei S. was declared a dependent child of the juvenile
court on June 14, 2021 and removed from her parents,
Natasha S. and Philip A., after the court sustained an amended
petition pursuant to Welfare and Institutions Code section 300,
subdivisions (a) (serious physical harm), (b)(1) (failure to protect)
and (j) (abuse of sibling), due to Natasha’s history of violent
behavior and Natasha’s and Philip’s history of substance abuse.
On appeal Natasha contends the Los Angeles County
Department of Children and Family Services violated Welfare
and Institutions Code section 224.2, subdivision (e), and
California Rules of Court, rule 5.481(a)(4), adopted to implement
the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
(ICWA), by failing to make an adequate “further inquiry” after
she advised the Department and the court she and Rylei may
have Cherokee ancestry though the maternal grandfather.
The Department does not dispute it violated the
requirements of section 224.2 1 and rule 5.481(a)(4). 2 And it
concedes the error requires reversal under the governing
harmless error standard we articulated in In re Antonio R. (2022)
76 Cal.App.5th 421 and In re Y.W. (2021) 70 Cal.App.5th 542.
Nonetheless, the Department has not stipulated to a remand to
allow it to comply with ICWA and related California law, as it

1 Undesignated statutory references are to the Welfare and
Institutions Code.
2 References to rules are to the California Rules of Court.

2
has done in numerous appeals pending in this division, thereby
avoiding the “unnecessary delay” it asserts our decisions create.
Instead, the Department contends this court’s 14-year-old
decision in In re H.B. (2008) 161 Cal.App.4th 115, which involved
harmless error analysis prior to the Legislature’s 2018
amendments to California law expanding a child protective
agency’s investigative obligations, cannot be reconciled with our
more recent decisions considering harmless error under current
law. Then, misapplying the rationale of In re H.B., the
Department argues its multiple violations of express statutory
requirements should be deemed harmless because, although she
advised the juvenile court she may have Cherokee ancestry
through her maternal grandfather, Natasha provided no
additional evidence on appeal demonstrating Rylei is, in fact, an
Indian child within the meaning of ICWA. We once again reject
this cramped view of our obligations as an appellate court to
ensure the Department complies with the robust duty of inquiry
mandated by the Legislature.
FACTUAL AND PROCEDURAL BACKGROUND
The Department filed the section 300 petition on behalf of
Rylei on February 25, 2021. The Indian Child Inquiry
Attachment to the petition (Judicial Council form ICWA-010(A))
stated the social worker had questioned Natasha on February 2,
2021 and Natasha gave the social worker no reason to believe
Rylei was or might be an Indian child. However, when Natasha,
represented by counsel, made her first appearance in the
proceedings on March 11, 2021, she filed the Parental
Notification of Indian Status form (ICWA-020), checking the box
stating, “I may have Indian ancestry,” and adding (with a

3
declaration under penalty of perjury), “Cherokee—on MGF’s
side—MGM has more information.”
At the March 11, 2021 arraignment hearing the court,
referring to Natasha’s ICWA form, stated, “Based on the form,
the mother’s indicating she may have Cherokee heritage on the
maternal grandfather’s side and the maternal grandmother is the
one who has the information. So the Department is asked to
inquire of the maternal grandmother about possible Indian
heritage. If the notice requirements are triggered, the
Department’s to provide notice, appropriate notice.” 3 Although
not included in the reporter’s transcript of the proceedings, the
minute order for March 11, 2021 stated the order regarding
notice was not conditioned on the results of the Department’s
inquiry: “DCFS is to notice the Indian tribes to determine if this
case falls within [ICWA].” The minute order also stated the court
ordered the Department to contact the Bureau of Indian Affairs
and to include the notices and any responses in the report for the
next court hearing.
In the jurisdiction/disposition report filed April 14, 2021 the
Department stated ICWA “does or may apply.” According to the
report, on March 17, 2021 a dependency investigator interviewed

3 At his first appearance on April 16, 2021, Philip filed an
ICWA-020 form checking the box indicating none of the
indicators of possible Indian ancestry applied to him. At Philip’s
arraignment the court, based on this form, found ICWA did not
apply to him, but noted, “We still have outstanding inquiry with
respect to the mother.” As was the case at Natasha’s
arraignment, the court failed to advise Philip to inform the court
if he subsequently received information that provided reason to
know the child was an Indian child, as required by section 224.2,
subdivision (c), and rule 5.481(a)(2)(B).

4
the maternal grandmother, with whom Rylei had been placed.
The maternal grandmother said she had no knowledge of Indian
ancestry “on her side of the family”; if there was, “it would be so
far back it would be untraceable”; and she had no knowledge of
what tribe the possible ancestry would be. The report also stated
the maternal grandmother provided the investigator information
for ICWA notices, which “were initiated” on April 9, 2021.
However, the report did not detail the information provided (not
even the maternal grandfather’s name) and did not attach copies
of the ICWA notices sent by the Department.
The jurisdiction/disposition report stated efforts to
interview Natasha about possible Indian ancestry were
unsuccessful. However, elsewhere the report summarizes the
dependency investigator’s interview with Natasha regarding the
allegations in the section 300 petition. The report does not
indicate the Department made any attempt to interview the
maternal grandfather 4 or any other of Rylei’s maternal relatives,

4 Natasha’s appellate counsel points out that the
Department’s reports identify the maternal grandmother and her
husband with a different surname from Natasha’s, suggesting the
maternal grandmother remarried. Counsel also speculates the
maternal grandfather referred to in Natasha’s ICWA-020 form
may have died, noting the detention report’s summary of
Natasha’s prior history with the Department indicates a child
residing with Natasha in March 2013 told a social worker he had
missed school for two days “for MGF’s funeral in Las Vegas.”
Whether that child is Rylei’s half sibling or stepbrother is not
specified, nor is it clear whether “MGF” is Natasha’s father.
Neither the Department’s jurisdiction/disposition report nor any
other filing with the juvenile court in the appellate record states
whether the maternal grandfather is still alive or provides any
other information about the maternal grandfather.

5
nor does it say whether the maternal grandfather had any
siblings.
At the jurisdiction hearing on April 29, 2021, after the
Department’s counsel directed the court to the brief summary of
the interview with Rylei’s maternal grandmother in the
jurisdiction/disposition report, the court stated, “The Department
is not required to interview the maternal grandmother any
further. I just need the results of the notices that were sent.”
The court did not address the adequacy of the Department’s
efforts to interview any of Rylei’s other maternal relatives.
On May 25, 2021 the Department filed a last minute
information report for the court, attaching an April 27, 2021
letter from the United States Department of the Interior stating
the notice provided by the Department contained insufficient
information to determine any tribal affiliation for Rylei. The
letter also stated, “[W]hen additional information becomes
available, please forward the Notice to the appropriate Tribe(s).”
No copies of any notice to, or response from, the Cherokee Tribe
were submitted.
At the June 14, 2021 disposition hearing, after stating
“notices were sent out over 60 days ago,”—without seeing those
notices or reviewing their adequacy—the court found it had no
reason to believe ICWA applied to Natasha, Philip or Rylei. The
court declared Rylei a dependent child of the court, removed her
from parental custody and ordered her suitably placed under the
supervision of the Department with that placement to remain
with the maternal grandmother. The court ordered reunification
services for Natasha, but denied services to Philip based on his
failure to make reasonable efforts to treat the problems that led

6
to the removal and termination of Philip’s parental rights as to a
half sibling of Rylei. (§ 361.5, subd. (b)(11), (13).)
Natasha filed a timely notice of appeal.
DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
ICWA and governing federal regulations (25 C.F.R.
§ 23.101 et seq. (2022)) set minimal procedural protections for
state courts to follow before removing Indian children and placing
them in foster care or adoptive homes. (In re Y.W., supra,
70 Cal.App.5th at p. 551.) The statute authorizes states to
provide “‘a higher standard of protection’” to Indian children,
their families and their tribes than the rights provided under
ICWA. (In re T.G. (2020) 58 Cal.App.5th 275, 287-288;
see 25 U.S.C. § 1921.) In addition to significantly limiting state
court actions concerning out-of-family placements for Indian
children (see In re T.G., at pp. 287-288), ICWA permits an Indian
child’s tribe to intervene in or, where appropriate, exercise
jurisdiction over a child custody proceeding (see 25 U.S.C.
§ 1911(c); In re Isaiah W. (2016) 1 Cal.5th 1, 8).
To ensure Indian tribes may exercise their rights in
dependency proceedings as guaranteed by ICWA and related
state law, investigation of a family member’s belief a child may
have Indian ancestry must be undertaken and notice provided to
the appropriate tribes. (§ 224.2, subd. (a) [imposing on the court
and child protective services agencies “an affirmative and
continuing duty to inquire whether a child . . . is or may be an
Indian child”]; see In re Charles W. (2021) 66 Cal.App.5th 483,
489.) 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

7
child may be an Indian child.” (In re T.G., supra, 58 Cal.App.5th
at p. 290; accord, In re Antonio R., supra, 76 Cal.App.5th at
p. 429; see § 224.2, subds. (a)-(c).)
In addition, section 224.2, subdivision (e), imposes a duty of
further inquiry regarding the possible Indian status of the child
“[i]f the court, social worker, or probation officer has reason to
believe that an Indian child is involved in a proceeding, but does
not have sufficient information to determine there is reason to
know that the child is an Indian child.” Rule 5.481(a)(4) provides
that further inquiry must be conducted if the social worker
“knows or has reason to know or believe that an Indian child is or
may be involved.” Further inquiry includes, “but is not limited
to,” interviewing, as soon as practicable, extended family
members to gather the biographical information required by
section 224.3, subdivision (a)(5), to be included in ICWA notices,
contacting the Bureau of Indian Affairs and contacting “the tribe
or tribes and any other person that may reasonably be expected
to have information regarding the child’s membership,
citizenship status, or eligibility.” (§ 224.2, subd. (e)(2).)
If those inquiries result in reason to know the child is an
Indian child, 5 notice to the relevant tribes is required. (25 U.S.C.
§ 1912(a); Welf. & Inst. Code, § 224.3; see In re J.S. (2021)
62 Cal.App.5th 678, 686; In re T.G., supra, 58 Cal.App.5th at

5 “For purposes of ICWA, an ‘Indian child’ is an unmarried
individual under age 18 who is either a member of a federally
recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe.” (In re T.G., supra, 58 Cal.App.5th
at p. 287, fn. 10; see 25 U.S.C. § 1903(4) [definition of “‘Indian
child’”] & (8) [definition of “‘Indian tribe’”]; see also Welf. & Inst.
Code, § 224.1, subd. (a) [adopting federal definitions].)

8
p. 290.) The governing federal regulations require ICWA notices
to include, if known, the names, birthdates, birthplaces and tribal
enrollment information of all direct lineal ancestors of the child.
(25 C.F.R. § 23.111(d)(3) (2022).) State law mandates inclusion of
“[a]ll names known of the Indian child’s biological parents,
grandparents, and great-grandparents, or Indian custodians,
including maiden, married, and former names or aliases, as well
as their current and former addresses, birth dates, places of birth
and death, tribal enrollment information of other direct lineal
ancestors of the child, and any other identifying information, if
known.” (§ 224.3, subd. (a)(5)(C); see In re A.M. (2020)
47 Cal.App.5th 303, 317 [“‘If the notice duty is triggered under
ICWA, the notice to a tribe must include a wide range of
information about relatives, including grandparents and great-
grandparents, to enable the tribe to properly identify the
children’s Indian ancestry. [Citation.] Any violation of this
policy requires the appellate court to vacate the offending order
and remand the matter for further proceedings consistent with
ICWA requirements’”].)
“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 Antonio R., supra, 76 Cal.App.5th at p. 430]; accord, 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 the parent . . . has no similar
obligation”]; see also In re K.R. (2018) 20 Cal.App.5th 701, 706
[“[t]he 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

9
investigation or noticing does not preclude the parent from
raising the issue for the first time on appeal”].)
2. The Department Failed To Adequately Investigate Rylei’s
Possible Indian Ancestry
Regardless of a parent’s response concerning his or her
possible Indian ancestry on the ICWA-020 Parental Notification
of Indian Status form or when questioned by the court at the
initial appearance, if, as here, a child has been detained and
placed in the temporary custody of a child protective agency,
section 224.2, subdivision (b), requires the agency to ask the
child, the parents, extended family members 6 and others who
have an interest in the child whether the child is, or may be, an
Indian child. (In re Antonio R., supra, 76 Cal.App.5th at p. 429
[“‘[t]he duty to inquire begins with initial contact [citation] and
obligates the juvenile court and child protective agencies to ask
all relevant involved individuals whether the child may be an
Indian child’”]; In re S.R. (2021) 64 Cal.App.5th 303, 314 [same].)
Although a dependency investigator interviewed Rylei’s maternal
grandmother, nothing in the record, including the
jurisdiction/disposition report prepared by the Department,
which summarized its ICWA-inquiry efforts, indicates the
Department met this obligation by contacting (or attempting to

6 ICWA provides, “‘[E]xtended family member’ shall be as
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).) Welfare and Institutions Code
section 224.1, subdivision (c), provides “extended family member”
is defined as provided in ICWA.

10
contact) any other member of Natasha’s family who might have
information concerning Natasha’s understanding the maternal
grandfather may have Cherokee ancestry. Indeed, even though
Natasha was interviewed in April 2021 about the allegations of
violence and substance abuse in the dependency petition, it
appears no effort was made to inquire further about the basis for
her report of possible Cherokee ancestry on the ICWA-020 form,
let alone to reconcile that statement with the social worker’s
comment in the ICWA-010(A) form that Natasha had provided no
information indicating Indian ancestry. As the Department’s
appellate counsel essentially concedes, the Department failed to
satisfy its duty of inquiry under section 224.2, subdivision (b).
But this is not simply a case involving what is sometimes
(and somewhat inaccurately) referred to as the Department’s
initial duty of inquiry. (Cf. In re J.C. (2022) 77 Cal.App.5th 70,
77 [“[a]lthough commonly referred to as the ‘initial duty of
inquiry,’ it ‘begins with the initial contact’ [citation] and
continues throughout the dependency proceedings”].) As the
Department reported to the court on April 14, 2021, ICWA “does
or may apply” to Rylei. Because it had reason to believe an
Indian child may be involved, 7 the Department was obligated

7 As amended effective September 18, 2020—five months
prior to the initiation of these dependency proceedings—
section 224.2, subdivision (e)(1), provides there is “reason to
believe a child involved in a proceeding is an Indian child” (as
opposed to “reason to know,” as defined in section 224,
subdivision (d)), whenever the court or the social worker “has
information suggesting that either the parent of the child or the
child is a member or may be eligible for membership in an Indian
tribe.” Rule 5.481(a)(4) clarifies further inquiry is required if a
social worker or investigator has reason to believe an Indian child

11
under section 224.2, subdivision (e), and rule 5.481(a)(4), to
“make further inquiry regarding the possible Indian status of the
child” and to “make that inquiry as soon as practicable.” (See
In re Josiah T. (2021) 71 Cal.App.5th 388, 404 [paternal
grandmother’s statement she had Cherokee ancestry through her
grandmother triggered the duty of further inquiry even though
she declined to provide further information about the
grandmother and denied having further information about the
family’s Indian ancestry]; In re T.G., supra, 58 Cal.App.5th at
p. 292 [mother’s ICWA-020 form declaring her belief she had
Cherokee ancestry on her maternal side and also indicating
possible Indian ancestry through her paternal grandfather
without identifying a tribe “unquestionably provided reason to
believe Indian children might be involved”]; In re A.M., supra,
47 Cal.App.5th at p. 322 [mother’s statement she had been told
she may have Indian ancestry with Blackfeet and Cherokee
tribes and identification of her grandfather as having possible
Indian ancestry, while not requiring ICWA notice, were sufficient
to require further inquiry under section 224.2, subdivision (e)];
see also In re Elizabeth M. (2018) 19 Cal.App.5th 768, 786-787.)
As discussed, that duty of further inquiry required interviewing,
“as soon as practicable,” extended family members to develop
specific biographical information, contacting the Bureau of Indian
Affairs and “[c]ontacting the tribe or tribes and any other person
that may reasonably be expected to have information regarding
the child’s membership, citizenship status, or eligibility.”
(§ 224.2, subd. (e)(2)(A)-(C).) That informal contact with the tribe
must include “sharing information identified by the tribe as

may be involved. (See In re T.G., supra, 58 Cal.App.5th at
p. 291.)

12
necessary for the tribe to make a membership or eligibility
determination.” (§ 224.2, subd. (e)(2)(C); see In re D.F. (2020)
55 Cal.App.5th 558, 567.)
The Department completely failed to satisfy any of these
duties. Not only was there no contact with any extended family
members other than the maternal grandmother, but also there is
no indication the Department attempted to have informal contact
with the Cherokee Tribe as required by section 224.2,
subdivision (e)(2)(C). (See In re K.T. (2022) 76 Cal.App.5th 732,
744 [child protective service agencies “do[] not discharge their
duty of further inquiry until they make a ‘meaningful effort’ to
locate and interview extended family members and to contact
BIA and the tribes”].)
Responsibility for the errors and omissions here does not
rest solely with the Department. The juvenile court also erred in
failing to ensure the Department had satisfied its duties of
inquiry before finding ICWA did not apply to the proceedings.
(§ 224.2, subd. (i)(2) [court may make a finding that ICWA does
not apply to the proceedings if the court makes a finding,
supported by sufficient evidence, “that proper and adequate
further inquiry and due diligence as required in this section have
been conducted”]; see In re J.C., supra, 77 Cal.App.5th at p. 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 [“[a]lthough
section 224.2, subdivision (b), places on the Department the duty
to inquire, including of extended family members, section 224.2,

13
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 In re K.R.,
supra, 20 Cal.App.5th at p. 709 [“the court has a responsibility to
ascertain that the agency has conducted an adequate
investigation and cannot simply sign off on the notices as legally
adequate without doing so”].)
3. The Department’s and Juvenile Court’s Failures To
Comply with Section 224.2 Were Not Harmless Error
For obvious reasons, the Department does not suggest it
complied with its duty of inquiry under section 224.2,
subdivision (b), or its duty of further inquiry under section 224.2,
subdivision (e), nor does it contend substantial evidence
supported the juvenile court’s finding that ICWA did not apply to
the case. Yet it argues we should affirm the no-ICWA finding
because, “without some offer of proof or affirmative
representation indicating some Indian connection, any error is
harmless.”
As the Department recognizes, we have previously rejected
this argument, holding an offer of proof is not required to
demonstrate prejudice in the context of section 224.2,
subdivision (b), error—that is, in situations where the parent
stated she had no knowledge of Indian ancestry and the
Department, notwithstanding its statutory obligation to do so,
failed to question extended family members about the child’s
possible Indian status. (In re Y.W., supra, 70 Cal.App.5th at
p. 556 [A parent “does not need to assert he or she has Indian
ancestry to show a child protective agency’s failure to make an
appropriate inquiry under ICWA and related law is
prejudicial. . . . It is unreasonable to require a parent to make an

14
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”];
In re Antonio R., supra, 76 Cal.App.5th at p. 435 [“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”].)
But this appeal does not involve a mother who said she was
not aware of any possible Indian ancestry. Here, the Department
failed to conduct further inquiry as required by section 224.2,
subdivision (e), after Natasha declared under penalty of perjury
she may have Cherokee ancestry (and the Department reported
to the court that ICWA “does or may apply”)—precisely the
“affirmative representation indicating some Indian connection”
the Department contends is necessary to demonstrate its
statutory violations were not harmless.
Apparently recognizing the futility of this argument,
elsewhere in its brief the Department suggests not simply that
some affirmative representation of the child’s Indian status by a
parent is required before we reverse a no-ICWA finding made
without an adequate investigation, but that the parent should be
required to come forward with information sufficient to establish
the child is in fact an Indian child. The Department asserts,
“Considering the purpose of the ICWA and the definition of
‘Indian child,’ it is unreasonable to conclude that a parent may
not know they are a registered member of a Federally recognized

15
Indian tribe or that their family is an intact Indian family
deserving of protection.” 8
The Department’s assumption as to what a parent should
know overlooks recent findings on the impact this country’s
decades-long efforts to destroy Indian families and eradicate
Indian history and culture, including through abuses of the child
welfare system, may have on a family’s awareness of its Indian
ancestry. 9 (See Executive Summary to Bureau of Indian Affairs
ICWA Regulations, 81 Fed.Reg. 38778 (June 14, 2016)
[separation of Indian children from their families and placement
in non-Indian foster care and adoptive homes “contributed to a
number of problems, including the erosion of a generation of
Indians from Tribal communities, loss of Indian traditions and
culture, and long-term emotional effects on Indian children
caused by loss of their Indian identity”].) As explained in the
California ICWA Compliance Task Force’s 2017 Report to the

8 Contrary to the Department’s suggestion, ICWA’s
definition of an “Indian child” does not require the parent be a
“registered member” of a federally recognized tribe. Indeed, “a
person need not be a registered member of a tribe to be a member
of a tribe.” (In re B.H. (2015) 241 Cal.App.4th 603, 606-607.)
Moreover, the issue of tribal membership—a question to be
determined by tribes, not the courts or child protective agencies
(§ 224.2, subd. (h))—is not nearly so simple as the Department
suggests. (See, e.g., In re B.H., at p. 607 [“it is possible for a child
to be an Indian child on the basis of a grandparent’s membership
in a tribe”].)
9 The Department’s claim is also at odds with common
experience. For many of us, particularly those descended from
victims of historic trauma, our children’s grandparents and great-
grandparents have a far clearer understanding of our family’s
ancestry than do we.

16
California Attorney General’s Bureau of Children’s Justice,
“When parents are the sole target of the initial inquiry, it should
be understood that there are a variety of reasons why relying on
the parents does not necessarily protect the child’s best interests,
or the rights of the tribe. Parents may simply not have that
information, or may possess only vague or ambiguous
information. [¶] The parents or Indian custodian may be fearful
to self-identify, and social 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.” (Id. at p. 28, fns.
omitted.) For this reason, the Legislature in 2018 added new
section 224.2, subdivision (b), to California’s ICWA-related law,
expressly mandating that, from the outset, child protective
agencies not limit their investigation of a child’s possible Indian
status to the child’s parents. (Assem. Bill No. 3176 (Stats. 2018,
ch. 833) § 5; see In re T.G., supra, 58 Cal.App.5th at p. 295 [“the
imposition of a duty to inquire that is significantly more
expansive than the duty to provide ICWA notice is premised on
the commonsense understanding that, over time, Indian families,
particularly those living in major urban centers like Los Angeles,
may well have lost the ability to convey accurate information
regarding their tribal status”].) 10

10 Rejecting the harmless error analysis we have adopted in
ICWA inquiry cases, our colleagues in Division Two in In re
Dezi C. (2022) 79 Cal.App.5th 769 also ignore this real-world
consequence of the historic mistreatment of our country’s native
population, declaiming, “We decline to adopt a rule that obligates
us to view with a jaundiced eye whatever parents report about
their heritage, at least in the usual case where the parents were
not adopted and thus can be presumed to be knowledgeable.” (Id.

17
 In yet another challenge to our harmless error analysis in
ICWA inquiry cases, the Department observes that in In re Y.W.,
supra, 70 Cal.App.5th 542, “this Court failed to reconcile its
contrary decision in In re H.B., supra, 161 Cal.App.4th at p. 122.”
The Department is correct In re H.B. was not discussed in In re
Y.W. Nor was it cited in the Department’s brief, and no petition
for rehearing was filed suggesting its omission justified
reconsideration of our decision.
The absence of In re H.B., supra, 161 Cal.App.4th 115 from
the Department’s brief and then our opinion in In re Y.W. is
understandable. Rather than citing In re H.B., the Department
relied on In re Rebecca R. (2006) 143 Cal.App.4th 1426, in which
the court of appeal found harmless the child protective agency’s
failure to document the results of a court-ordered ICWA-related
inquiry, stating the father “should have made an offer of proof or
other affirmative representation that, had he been asked, he
would have been able to proffer some Indian connection”—
language we cited in In re H.B., at page 122. Our opinion in
In re Y.W. addressed In re Rebecca R. at some length and
explained why, given the Department’s failure to comply with the
expanded duties of inquiry imposed in 2018 by section 224.2,
subdivision (b), no affirmative showing by a parent on appeal was
necessary to justify a reversal and remand for a proper inquiry.
(In re Y.W., supra, 70 Cal.App.5th at pp. 555-556; accord, In re
Benjamin M., supra, 70 Cal.App.5th at p. 743 [“[r]equiring a
parent to prove that the missing information would have
demonstrated ‘reason to believe’ would effectively impose a duty

at p. 784.) Yet that is precisely what the Legislature mandated
when it added new section 224.2, subdivision (b), in 2018.

18
on that parent to search for evidence that the Legislature has
imposed on only the agency”].)
It is that significant difference between the limited state
law obligation to ask a parent about possible Indian ancestry that
existed in 2005 and 2006 when the pertinent events took place in
In re H.B., supra, 161 Cal.App.4th 115, 11 and the far broader
duties of inquiry the Department failed to satisfy in 2020 and
2021, that belies the Department’s contention our decision in
In re H.B. is somehow fatally inconsistent with our more recent
decision (and may well explain why the Department omitted any
reference to In re H.B. in its briefing in In re Y.W.). In its filing
before the jurisdiction/disposition hearing on June 29, 2005 in
In re H.B., the Department reported the mother had been
interviewed and said she had no American Indian ancestry. (Id.
at p. 119.) At the jurisdiction hearing in that case, the mother’s
first appearance in the proceedings, the juvenile court did not ask
the mother whether her child may be an Indian child or have
Indian ancestry or order the mother to complete the Parental
Notification of Indian Status form (then JV-130), as required by

11 When we decided In re H.B., the source of any duty to
inquire about a child’s Indian status was California, not federal,
law. (See In re H.B., supra, 161 Cal.App.4th at p. 120 [“ICWA
itself does not expressly impose any duty to inquire as to
American Indian ancestry; nor do the controlling federal
regulations”].) However, federal regulations governing ICWA
adopted in December 2016 now require an ICWA inquiry be made
at the inception of dependency proceedings, as well as at all
proceedings that “may culminate” in foster care placement or
termination of parental rights. (25 C.F.R. §§ 23.2(2), 23.107(a)
(2022); see In re Austin J. (2020) 47 Cal.App.5th 870, 883.)

19
former rule 1439(d)(3) (now rule 5.481(a)(2)). 12 We held, in light
of the mother’s statement to the social worker denying any
Indian ancestry and the absence of any suggestion in the juvenile
court or on appeal she would have given a different answer had
she been required to complete form JV-130 or to respond on the
record to the court’s inquiry, the errors were harmless. (In re
H.B., at p. 122.) That is, the required inquiry had been made (the
mother was asked by the social worker), and the response
documented (she denied any Indian ancestry). The error found
harmless was the failure to confirm that answer in response to a
question from the court and in a Judicial Council form.
Here and in In re Y.W., supra, 70 Cal.App.5th 542, in
contrast, the errors were the Department’s nearly complete
failure to make the additional inquiries of extended family
members now required by section 224.2, subdivision (b) (and, in
this case, the inquiries under section 224.2, subdivision (e), as
well), not merely the failure to confirm an answer previously
given. As we observed in In re Antonio R., supra, 76 Cal.App.5th
at page 435, that missing information was, at the very least,

12 Former rule 1439(d) provided in part, “(2) In dependency
cases, the social worker must ask the child, if the child is old
enough, and the parents or legal guardians whether the child
may be an Indian child or may have Indian ancestors. [¶] (3) At
the first appearance by a parent or guardian in any dependency
case, or in juvenile wardship proceedings in which the child is at
risk of entering foster care or is in foster care, the parent or
guardian must be ordered to complete form JV-130, Parental
Notification of Indian Status.” The Legislature codified these
requirements with its enactment of Senate Bill No. 678 (Stats.
2006, ch. 838, §§ 1-57), effective January 1, 2007, in former
section 224.3.

20
likely to be meaningful in determining whether the children
involved were Indian children—whether the information
ultimately showed they were or established they were not.
Because we do not know what we do not know, nothing more in
the way of prejudice need be shown.
Finally, the Department incorrectly contends our recent
decisions effectively apply the doctrine of structural error in the
guise of the constitutionally required harmless error analysis for
violations of state law. (See Cal. Const., art. VI, § 13; In re
Celine R. (2003) 31 Cal.4th 45, 49-50 [constitutional “miscarriage
of justice” standard for assessing prejudicial error applies in
dependency matters].) To be sure, we—and a number of other
courts of appeal applying a similar analysis of prejudice in Indian
status cases—have explained that, when the child protective
agency’s failure to conduct an adequate inquiry makes it
impossible for the parent to show prejudice, we will remand for a
proper inquiry. (E.g., In re J.C., supra, 77 Cal.App.5th at p. 80;
In re H.V. (2022) 75 Cal.App.5th 433, 438 & fn. 4; In re N.G.
(2018) 27 Cal.App.5th 474, 484.) But that is a far cry from
holding any misstep by the Department in the process of
investigating a child’s possible Indian status will require reversal
of a no-ICWA finding. 13

13 The court in In re Dezi C., supra, 79 Cal.App.5th at
page 785 similarly mischaracterizes our decisions as requiring
“automatic” reversal “if any stone is left unturned.” Although
decisions from other courts have suggested as much (see, e.g.,
In re E.V. (June 30, 2022, G061025) __ Cal.App.5th __,
[2022 Cal.App. Lexis 581] [p. 11], we have never said anything of
that sort.

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 A simplistic hypothetical—similar to one we discussed in a
prior opinion—will illustrate the point: A child’s mother submits
an ICWA-020 form indicating she may have Indian ancestry
through the maternal grandfather but states she has no
additional information. The child protective agency interviews
the maternal grandfather; several, but not all of his four siblings;
and the maternal grandfather’s surviving parent, none of whom
indicates the family has any Indian ancestry. The failure to
interview the grandfather’s remaining siblings would certainly be
harmless absent some additional unusual circumstance. The
difference between this extreme example and the case at bar (and
the facts in In re Y.W. and In re Antonio R.) is that the
hypothetical agency, unlike the Department, made a genuine
effort to investigate the child’s Indian status by complying in
good faith with the mandate of section 224.2, subdivisions (b) and
(e). That is all that is necessary.
Our harmless error analysis thus parallels that adopted by
the Supreme Court in In re Manzy W. (1997) 14 Cal.4th 1199,
which involved a juvenile court’s failure to declare a wobbler
offense either a misdemeanor or a felony in accordance with
section 702. After holding the duty to express that decision on
the record was mandatory—as is the Department’s duty under
section 224.2, subdivision (b), to ask extended family members
about a child’s possible Indian status—the Court held a remand
was not “automatic,” but rather depended on whether the record
otherwise reflected the exercise of discretion to declare the
offense a felony. (In re Manzy W., at p. 1209.) That is, the failure
to fully comply with a mandatory duty may be harmless error, so
long as the record affirmatively reflects that the protections
intended to be afforded through the exercise of that duty have

22
been provided. (See In re G.C. (2020) 8 Cal.5th 1119, 1131
[remand for failure to comply with section 702 would amount to
harmless error “‘when remand would be merely redundant’”];
see also Guardianship of Christian G. (2011) 195 Cal.App.4th
581, 607-608.)
In sum, further inquiry is required in this case. 14 On
remand the juvenile court must promptly direct the Department

14 We grant the Department’s motion to receive on appeal
evidence of minute orders from two hearings held while
Natasha’s appeal has been pending—the six-month review
hearing (§ 366.21, subd. (e)), held on December 14, 2021, and a
12-month review hearing (§ 366.21, subd. (f)), held on June 14,
2022 and continued to July 20, 2022, as well as the status review
report prepared for the June 14, 2022 12-month review hearing
and a last minute information report filed June 30, 2022. With
respect to ICWA, the status review report states, “On 06/14/2021,
the court found that ICWA does not apply to this case. During
this review period, there have been reports of Native American
Ancestry.” The June 30, 2022 report corrects this statement to
read, “During this review period, there have been no reports of
Native American Ancestry. The mother has not maintained
contact with the Department for a majority of this review period,
and the current caregivers (the maternal grandparents), have
reported no new information as to ICWA.” The Department does
not explain, however, that the man referred to as a maternal
grandparent appears not to be the maternal grandfather
identified by Natasha as the family member through whom there
is Cherokee ancestry. (See fn. 4, above.)
We deny the Department’s motion to dismiss the appeal as
frivolous. In that motion the Department notes that neither
minute order indicates Natasha raised an ICWA issue at the
December 14, 2021 or the June 14, 2022 hearing. Of more
significance, however, is that, notwithstanding the Department’s
and the juvenile court’s “affirmative and continuing duty to

23
to make a meaningful and thorough inquiry regarding Rylei’s
possible Indian ancestry, including interviews with extended
family members and any other persons who may reasonably be
expected to have information regarding the child’s tribal
membership or eligibility for membership and contact with the
Cherokee tribe or any other tribes that may have such
information. If that information establishes a reason to know an
Indian child is involved, notice in accordance with section 224.3
must be provided to any tribe that has been identified or, if the
tribe could not be identified, to the Bureau of Indian Affairs. The
Department shall thereafter notify the court of its actions and file
certified mail return receipts for any ICWA notices that were
sent, together with any responses received. The court must
determine, on the record, whether the ICWA inquiry and notice
requirements have been satisfied and whether Rylei is an Indian
child. If the court finds she is an Indian child, it is to vacate its
June 14, 2021 disposition order and conduct a new disposition
hearing, as well as all further proceedings, in compliance with
ICWA and related California law. If not, the court’s original
disposition order may remain in effect.

inquire” whether Rylei may be an Indian child, neither minute
order nor the Department’s reports indicate the Department,
which conceded in its respondent’s brief that it failed to comply
with its duty of inquiry, made any effort to correct its error, let
alone notified the juvenile court that it needed to do so.

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 DISPOSITION
The June 14, 2021 disposition order is conditionally
affirmed. The cause is remanded to the juvenile court for full
compliance with the inquiry and notice provisions of ICWA and
related California law and for further proceedings not
inconsistent with this opinion.

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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