In re Desmond L. CA2/7

Filed 7/20/22 In re Desmond L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re DESMOND L., Jr., a B313494
Person Coming Under the (Los Angeles County Super.
Juvenile Court Law. Ct. No. 19CCJP04616)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DESMOND L., Sr., et al.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Robin Kesler, Juvenile Referee. Conditionally
affirmed and remanded with directions.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant Desmond L., Sr.
 Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant Chevette P.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
__________________________

Chevette P. (Mother) and Desmond L., Sr., (Father) appeal
from the juvenile court’s order terminating their parental rights
over two-year-old Desmond L., Jr., (Desmond) under Welfare and
Institutions Code section 366.26.1 They contend the juvenile
court erred in finding the beneficial parental relationship
exception to termination of parental rights did not apply. The
parents also argue 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 did not abuse its discretion in finding
the beneficial parental relationship exception did not apply.
However, we agree the Department and the juvenile court erred
in failing to comply with the inquiry and notice provisions, and
the error was prejudicial. We conditionally affirm and remand
for the juvenile court and the Department to comply with the
inquiry and notice provisions of ICWA and California law.

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

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 FACTUAL AND PROCEDURAL BACKGROUND

A. The Referral, Dependency Petition, and Detention
On July 4, 2019 the Department received a referral after
Mother locked herself and one-month-old Desmond in the
bedroom. Father called law enforcement “‘to get her (Mother) to
the mental hospital.’” Father denied Mother had threatened to
kill herself or the baby; however, he reported Mother had
previously made this threat.2 Mother was involuntarily
hospitalized because she was “‘agitated’” and experiencing
“‘active psychosis’” and “‘delusional paranoid thoughts.’” The
paternal grandmother (Priscila L.) expressed concern about
Mother’s failure to take her medication. The paternal
grandmother reported she had urged Father to file for custody of
Desmond and to move back to Virginia where she and the
paternal aunts could help care for the baby.
After the incident, Desmond remained in Father’s care.
The social worker observed Father was well bonded with
Desmond and attentive to the baby’s needs. But Desmond
appeared “‘very tense’”—he “would cry in a high[-]pitched tone
with an arched back and ‘squirm’ hysterically while being held”
by Father or the social worker. According to the social worker,
“Father was very patient and never appeared angered or
frustrated” by Desmond’s behavior. However, on July 17, 2019

2 From September 21, 2017 to July 4, 2019 law enforcement
came to the home 11 times in response to calls reporting that
Mother had threatened to harm herself or others; on some of the
occasions Mother had a weapon.

3
the Department obtained a removal order after learning Father
had been diagnosed with schizoaffective disorder and had other
mental health issues; he was not consistently taking his
psychotropic medication; and he intended to continue residing in
the home with Mother after her release from the hospital.
On July 22, 2019 the Department filed a dependency
petition on behalf of then-two-month-old Desmond. The petition
alleged Mother has “bipolar disorder, schizophrenia, severe
depression, suicidal and homicidal ideations, paranoid thoughts
and audio and visual hallucinations which renders [her]
incapable of providing the child with regular care and
supervision.” Mother failed to take her psychotropic medication
on a regular basis, and she was hospitalized on July 12, 2018 and
July 4, 2019 for mental health treatment. Mother’s older child
C.P. was a prior dependent of the court and received permanent
placement services due to Mother’s mental health problems.
Father failed to protect Desmond because he knew of Mother’s
mental health problems and allowed her to reside in the home
with unlimited access to Desmond.
The petition also alleged Father was diagnosed with
schizoaffective disorder, moderate post-traumatic-stress disorder,
a slight developmental delay, and “psychoactiv[ity].”3 Father
failed to take psychotropic medication as prescribed. Father’s
mental and emotional problems rendered him incapable of

3 Father’s therapist explained Father’s psychoactive
diagnosis related to Father’s alcohol use. According to the
therapist, Father was in “‘full remission’” because he did not
currently use alcohol.

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providing Desmond with regular care and supervision,
endangered the child’s physical health and safety, and placed
Desmond at risk of serious physical harm.
At the July 23, 2019 detention hearing, the juvenile court
detained Desmond from Mother and Father.4 The court granted
Mother monitored visits two times a week for one to two hours
per visit. The court granted Father monitored visits three times
a week for two hours each visit.

B. The First Amended Petition
On August 14, 2019 Mother and Father arrived three and a
half hours early for their visit with Desmond. Mother had a
“‘blank stare’” and signed in multiple times on different
clipboards. The visitation monitor reported Mother “appeared
very mad, flustered and frustrated.” Mother flung a diaper bag
across the room while trying to remove the pacifier attached to
the bag. Mother later fed Desmond only half a bottle of formula
even though it appeared he was still hungry and was crying for
more. While Father was in the bathroom, Mother buckled
Desmond in the car seat, placed the diaper bag on her shoulder
and walked quickly towards the door with him. When the
monitor asked Mother where she was going, Mother responded,
“‘Me and my baby are going home.’” The monitor called security,
who came to assess the situation. The monitor reported that
when Father walked back he was informed of what had

4 The juvenile court made an initial ICWA inquiry at the
detention hearing. We discuss below the inquiry by the
Department and the court.

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transpired and became visibly upset, asking Mother “why would
you do something so stupid?”
On September 6, 2019 the Department filed a first
amended petition. Amended counts b-1 and j-1 alleged that on
August 14 Mother “failed to take her psychotropic medication,
[and] displayed aggressive and erratic behaviors. Consequently,
the child’s mother attempted to take the child during the
monitored visit.”

C. The Jurisdiction and Disposition Hearing
At the September 25, 2019 jurisdiction and disposition
hearing, the juvenile court sustained the first amended petition
under section 300, subdivisions (b)(1) and (j), declared Desmond a
dependent of the court, and removed him from Mother’s and
Father’s custody. The court ordered Mother and Father to
participate in parenting classes for infants, a psychiatric
evaluation (and a psychological assessment for Mother), mental
health counseling, and weekly individual counseling with a
licensed therapist. In addition, the court ordered the parents to
take all prescribed psychotropic medications. The court also
ordered Father to submit to alcohol testing. The court ordered
the Department to provide family reunification services to
Mother and Father.
The court denied visitation for Mother until she provided
proof of enrollment in mental health services. The court reduced
Father’s visitation to weekly one-hour visits out of a concern for
Desmond’s emotional well-being in light of his crying
uncontrollably whenever Father picked him up. However, the
court indicated it would address the duration and frequency of
the visits in the future.

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D. Visitation During the Family Reunification Period
During September 2019 Father had four monitored visits
with Desmond. While Desmond was “calm and alert before the
visits,” he immediately cried when Father “pick[ed] him up from
his car seat.” Desmond would continue “crying for 45 minutes to
up to an hour and 20 minutes straight until he [fell] asleep in
[Father’s] arms.” Father tried “to calm Desmond by rocking him
in his arms, walking around the room, giving him a bottle,
changing his diaper, [and] burping him.” Desmond only stopped
crying when he drank formula, but once he finished the bottle, he
would start crying again. After the visits, Desmond would
become “calm and quiet again.”
Mother was hospitalized in late August and September to
treat her mental health, and as a result she did not visit
Desmond. Mother was again hospitalized in October 2019
following a “horrific” multiple vehicle accident in which she broke
her pelvic bone. Mother’s and Father’s visits were postponed
while Mother was in the hospital. In November 2019 Mother and
Father resumed monitored visits with Desmond. The visitation
monitor reported the November 12 “visit went surprisingly well.”
Mother held Desmond for a few minutes then handed him back to
Father. Mother and Father “were fully engaged with” Desmond,
and the child “responded well to [M]other and [F]ather.”
On December 6, 2019 the juvenile court granted Mother
monitored one-hour weekly visits and Father monitored two-hour
twice weekly visits. The social worker urged Father to visit
Desmond twice a week, but Father continued to have a single
one-hour visits with Mother present.

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 In March 2020 the Department reported Mother often held
Desmond “for less than 5 minutes throughout the duration of the
visit.” During most visits, Desmond would cry “profusely while in
[F]ather’s care.” Father “attempt[ed] to soothe [Desmond] by
holding him, rocking him, and speaking gently.” More recently,
Father had been able to calm down Desmond.
During the COVID-19 pandemic, Mother and Father had
video chats with Desmond in lieu of in-person visits. When in-
person visits resumed in July 2020, Desmond “would cry for long
periods of time” until he gradually adjusted to the visits. When
Father visited Desmond without Mother, the two would play at
the park. Father was “very cautious and patient” with Desmond
and was “careful around anything that could be dangerous” for
Desmond. Desmond “appear[ed] to be well bonded” with Mother
and Father during visits. On September 23, 2020 the juvenile
court found Mother and Father had made substantial progress in
their case plans and ordered continued family reunification
services.
Starting on November 13, 2020 Father began having a
second one-hour visit with Desmond without Mother. Mother
and Father arrived on time for their visits and were attentive
toward Desmond. The monitor reported the visits were “going
well” and Desmond was no longer crying around Father like he
did during earlier visits. The following month the Department
extended Mother’s visits to two hours.

E. The 18-month Review Hearing
At the March 9, 2021 18-month review hearing (§ 366.22),
the juvenile court found Mother’s progress had “been
unsatisfactory towards alleviating or mitigating the causes

8
necessitating placement.” Father had been visiting Desmond
during the prior year and was “engaged in his case plan services,
but he ha[d] not completed his case plan services that were
ordered a year and a half ago.” The court terminated Mother’s
and Father’s family reunification services, explaining Desmond
was only two months old when he was detained and the parents
had been given 18 months of family reunifications services.

F. The Section 366.26 Report
The June 15, 2021 section 366.26 report for the selection
and implementation hearing stated two-year-old Desmond had
been placed with his caregivers since he was two months old.
The caregivers loved Desmond, treated him as their son, and
wanted to adopt him. They were “able and willing to meet all of
Desmond’s needs,” including regional center services and
treatment of his Kawasaki’s disease.5 Desmond was “thriving” in
their home. The caregivers were “the only family that Desmond
has known,” and he appeared “to very comfortable and attached
to his caregivers.”
Mother and Father continued to have weekly monitored
visits with Desmond for two hours each visit. Mother and Father
were “consistent with their visits and there [were] no reported
concerns.” The social worker observed during an April 2021 visit
that the parents brought snacks and toys to the visit, and they

5 “Kawasaki disease” is “an acute inflammatory illness
involving blood vessels throughout the body that is of unknown
cause and chiefly affects infants and children.” (See Merriam-
Webster’s Online Dict. (2022) [as of July 20, 2022],
archived at https://perma.cc/H83X-RXJG.)

9
were attentive to Desmond. Desmond was happy to see Mother
and Father.

G. The Selection and Implementation Hearing
At the June 30, 2021 selection and implementation hearing
(§ 366.26), Father testified he and Mother had in-person visits
every Thursday with Desmond. Father brought clothes, shoes,
toys, and food to the visits for Desmond. Father changed
Desmond’s diaper, played with him, and made sure Desmond was
safe and did not run from the visit site into traffic. Father taught
Desmond “his colors, and his shapes, and how to count.” Mother
was in a wheelchair, but she was able to interact with Desmond
during the visits. Mother and Father also had virtual visits by
video for five to 20 minutes every day. Desmond called Father
“Da-Da” and referred to Mother as his mother. Father objected to
the adoption and asked the court “to give [him] a chance to be a
good father.”
Father’s counsel requested the court find the beneficial
parental relationship exception applied. She admitted Father
only had monitored visits but noted Father had visited
consistently, brought food, clothes, and toys to the visits, and
played with Desmond. Further, Father “does act as a parent
during these visits. . . . [Father] changes his diaper, and he
teaches Desmond how to count, what his colors are, and what his
shapes are. Additionally, Desmond . . . still does call [Father] da-
da. . . . [Father] asserts he’s occupied a parental role in
Desmond[’s] life.” Mother’s counsel argued the parents had
“consistently visited” and “these visits are positive and the child
does recognize his parents as his parents.”

10
 The Department’s counsel acknowledged the parents had
“consistent visitation” with Desmond, but she argued the
beneficial parental relationship exception did not apply because
“this visitation doesn’t rise to the level of acting in a parental
role, or creating a relationship that it would be detrimental to
this child to sever this relationship.” Minor’s counsel joined with
the Department to request the court terminate parental rights,
arguing no exceptions applied.
The juvenile court found by clear and convincing evidence
Desmond was adoptable and no exception to termination of
parental rights applied. The court explained, “While the parents
have maintained consistent visitation with the child, it has
. . . not risen above the monitored status to even unmonitored.
The parents have not occupied a parental role with the child.
While the child may call and recognize the parents as the
parents, I cannot find it would be a detriment to sever the
relationship between the parents and the child.” The court
terminated parental rights and designated the caregivers as the
prospective adoptive parents.
Mother and Father timely appealed.

DISCUSSION

A. The Beneficial Parental Relationship Exception
“At the section 366.26 hearing, the focus shifts away from
family reunification and toward the selection and implementation
of a permanent plan for the child.” (In re S.B. (2009) 46 Cal.4th
529, 532; accord, In re Caden C. (2021) 11 Cal.5th 614, 630
(Caden C.).) “‘Once the court determines the child is likely to be
adopted, the burden shifts to the parent to show that termination

11
of parental rights would be detrimental to the child under one of
the exceptions listed in section 366.26, subdivision (c)(1).’” (In re
B.D. (2021) 66 Cal.App.5th 1218, 1224-1225; accord, In re Celine
R. (2003) 31 Cal.4th 45, 53 [“the court must order adoption and
its necessary consequence, termination of parental rights, unless
one of the specified circumstances provides a compelling reason
for finding that termination of parental rights would be
detrimental to the child”].)
Under section 366.26, subdivision (c)(1)(B)(i), “the parent
may avoid termination of parental rights” if the parent
establishes by a preponderance of the evidence “that the parent
has regularly visited with the child, that the child would benefit
from continuing the relationship, and that terminating the
relationship would be detrimental to the child. [Citations.] The
language of this exception, along with its history and place in the
larger dependency scheme, show that the exception applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child.” (Caden C., supra, 11 Cal.5th at
pp. 629-630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)
A parent has regular visitation and contact when the
parent “‘visit[s] consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, 11 Cal.5th at
p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.)
Whether “‘the child would benefit from continuing the
relationship’” with his or her parent is shaped by factors “such as
‘[t]he age of the child, the portion of the child’s life spent in the
parent’s custody, the “positive” or “negative” effect of interaction
between parent and child, and the child’s particular needs.’”

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(Caden C., at p. 632; accord, In re Katherine J. (2022)
75 Cal.App.5th 303, 317 (Katherine J.).) “‘If severing the natural
parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that,’ even
considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental
rights.” (Caden C., at p. 633; Katherine J., at p. 317.) “While
application of the beneficial parental relationship exception rests
on a variety of factual determinations properly reviewed for
substantial evidence, the ultimate decision that termination
would be harmful is subject to review for abuse of discretion.”
(Caden C., at p. 630; accord, In re B.D., supra, 66 Cal.App.5th at
p. 1225.)

B. The Juvenile Court Did Not Abuse Its Discretion in Finding
the Beneficial Parental Relationship Exception Did Not
Apply
Mother and Father contend the juvenile court abused its
discretion in finding the beneficial parental relationship
exception did not apply because the court only considered
whether the parents occupied a parental role, which is improper
under Caden C.6 The Supreme Court in Caden C. did not bar
juvenile courts from considering whether a parent occupies a
“parental role” in deciding whether the beneficial parental
relationship exception applies; instead, the court explained that
even where a parent continues to struggle with the problems that
led to the dependency proceedings, the juvenile court’s inquiry as

6 It is undisputed the parents had regular visits with
Desmond.

13
to whether the beneficial parental relationship exception applies
should focus on whether those challenges interfere with the
parent’s relationship with the child, whether the child has a
substantial, positive emotional attachment to the parent, and
whether loss of the relationship would be detrimental to the
child. (Caden C., supra, 11 Cal.5th at p. 642; see In re D.M.
(2021) 71 Cal.App.5th 261, 271-272 [reversing order terminating
parental rights following Caden C. where juvenile court
improperly found father did not occupy parental role solely
because he failed to attend his children’s dental and medical
appointments and to understand their medical needs]; In re J.D.
(2020) 70 Cal.App.5th 833, 863-865, 870 [juvenile court
improperly held beneficial parental relationship exception did not
apply because mother’s positive relationship with child “did not
‘amount to a parental bond’” in light of mother’s failure to meet
child’s daily needs]; In re B.D., supra, 66 Cal.App.5th at pp. 1229-
1230 [reversing juvenile court’s order terminating parental
rights, and ordering new hearing in light of Caden C. to
determine whether juvenile court’s finding that parent did not
serve in “parental role” was improperly based on parents’ ability
to provide for the children’s daily needs and parents’ sobriety].)
As the Court of Appeal recently explained in Katherine J.,
supra, 75 Cal.App.5th at page 309, “Caden C. prohibits juvenile
courts from finding against a beneficial relationship solely
because a parent has failed to surmount the issues that initially
brought the child into dependency care—a standard that few
parents facing termination of parental rights could hope to meet.”
(Accord, In re L.A.-O. (2021) 73 Cal.App.5th 197, 211-212
[reversing order terminating parental rights, and remanding for
new section 366.26 hearing because “trial court’s terse ruling”

14
that “the parents ‘ha[d] not acted in a parental role in a long
time’” could erroneously mean the parents “were not capable of
taking custody, or had not been good parents, or had not been
providing necessary parental care”].) However, a finding the
parent does not serve in a “‘parental role’” in the child’s life does
not necessarily mean the juvenile court failed to consider the
child’s substantial, positive emotional attachment to the parent
as required by Caden C., supra, 11 Cal.5th at page 636 and
section 366.26, subdivision (c)(1)(B)(1). (Katherine J., at pp. 309,
321-322 [affirming order terminating parental rights despite
juvenile court’s finding father had not served in parental role in
child’s life where father’s unresolved issues prevented him from
maintaining strong, positive attachment with child, thereby
diminishing benefits to child from relationship].)
Although the juvenile court found Mother and Father had
not “occupied a parental role” with Desmond, the court was
responding to an argument by Father’s counsel that Father “does
act as a parent during these visits.” It is troubling that the
juvenile court did not explain what it meant by the parents
occupying a “parental role,” but any error in not clarifying its
findings was harmless because Mother and Father failed to meet
their burden to show Desmond developed a substantial, positive
emotional attachment with them during the limited monitored
visits each week, as a result of which Desmond would benefit
from continuing the relationship. (Caden C., supra, 11 Cal.5th at
p. 636; see In re Jesusa V. (2004) 32 Cal.4th 588, 624 [harmless
error standard applies in dependency cases]; In re Malick T.
(2022) 73 Cal.App.5th 1109, 1128 [same].)
Desmond was only two months old when he was detained
from Mother and Father and placed with his caregivers. During

15
the first year of visitation, Mother held Desmond for only a few
minutes before handing him back to Father. And Desmond cried
uncontrollably when Father held him, except when Desmond
drank formula from his bottle or fell asleep in Father’s arms. It
was not until September 2020 that Father started having a
second visit each week with Desmond, during which Father had
more positive interactions with Desmond in the park (but without
Mother). The social worker observed that at the weekly visits in
2020 Desmond “appear[ed] to be well bonded” with Mother and
Father during the visits, but the record does not reflect any
indicia of a bond other than that the parents were attentive to
Desmond and brought snacks and toys to the visits.
In June 2021 the Department reported Mother and Father
were “consistent with their visits and there were no reported
concerns.” Further, the social worker observed Desmond was
happy to see Mother and Father. However, Father’s testimony at
the selection and implementation hearing did not address the
emotional attachment Desmond had with the parents, instead
focusing on the fact Father played with Desmond and taught him
about colors, shapes, and how to count. The only other evidence
of a relationship was that Desmond called Father “Da-Da” and
referred to Mother as his mother. Thus, at most the evidence
shows that by 2021 Mother and Father developed a bond with
Desmond through their weekly monitored visits, but the parents
failed to prove Desmond had “a substantial, positive, emotional
attachment” with them. (Caden C., supra, 11 Cal.5th at p. 636;
see Katherine J., supra, 75 Cal.App.5th at p. 317.)
Moreover, Mother and Father did not meet their burden to
show it would be detrimental to Desmond to sever his
relationship with the parents. Desmond’s caregivers were “the

16
only family that Desmond has known,” and they treated
Desmond as their son. The caregivers were the prospective
adoptive parents, and they were “able and willing to meet all of
Desmond’s needs” including regional center services and
treatment of his Kawasaki’s disease; and Desmond thrived in
their care. The court did not abuse its discretion in impliedly
finding the benefit and security provided by Desmond’s continued
placement with his prospective adoptive parents outweighed any
harm that would be caused by the loss of his relationship with
Mother and Father. (Caden C., supra, 11 Cal.5th at p. 634;
Katherine J., supra, 75 Cal.App.5th at p. 317.)

C. The Juvenile Court and the Department Failed To Comply
with ICWA and Related California Law
1. ICWA inquiry, notice, and findings
At the detention hearing on July 23, 2019 Father filed a
parental notification of Indian status form (ICWA-020), on which
he checked the box stating, “I have no Indian ancestry as far as I
know.” Mother also filed a parental notification of Indian status
form, on which she checked the box stating, “I may have Indian
ancestry.” Mother wrote her “[m]aternal side of family” might
have “Blackfoot” ancestry, and she listed the names of maternal
grandfather James P. and maternal cousin Ida A.
At the hearing, the juvenile court questioned Mother and
maternal grandmother Yvette T. about the family’s Indian
ancestry. The court asked Yvette, “Can you tell me if you have
any American Indian ancestry on your side of the family?” Yvette
answered, “No.” The court then asked, “So, if you daughter
claimed on her ICWA-20 form, which is a form regarding
parental notification of Indian status that she may have Indian

17
ancestry on the maternal side of the family and she claims,
Blackfoot, would that be true?” Yvette responded, “I guess,
yeah.” The court responded, “Well, you just said ‘no.’” Yvette
replied, “I don’t know if my family history, but her father[’s]
history—.” The court interrupted, “I’m talking about your
history, maternal side of the family.” Yvette answered, “No.”
Yvette stated James was still alive but she did not have his
phone number. Minor’s counsel reported Yvette had provided
him with the maternal uncle’s phone number, explaining “we
think he has a way to get ahold of the maternal grandfather.”
Yvette also told minor’s counsel “she may have [James’s] address
at home.”
The juvenile court asked Mother, “[D]o you have any
information that on your father’s side of the family there is any
Blackfoot heritage?” Mother answered, “No.” Mother stated she
was told as a child by her maternal cousin (Ida) that “we have
Blackfoot Indian ancestry.” Yvette responded she did not “have
any knowledge of it.” Yvette informed the court she had a phone
number for Ida, and she would try to obtain the most recent one.
The court ordered the Department to investigate Mother’s
claim of Blackfoot ancestry by contacting Ida and James, and “if
they confirm Blackfoot heritage,” to provide ICWA notice to the
tribe.7 The court did not inquire about the paternal family’s

7 “[T]here is frequently confusion between the Blackfeet
tribe, which is federally recognized, and the related Blackfoot
tribe, which is found in Canada and thus not entitled to notice of
dependency proceedings. When Blackfoot heritage is claimed,
part of the Agency’s duty of inquiry is to clarify whether the
parent is actually claiming Blackfoot or Blackfeet heritage so

18
possible Indian ancestry. The July 23, 2019 minute order stated,
“The Court does not have a reason to know that ICWA applies to
Father.”
The court did not make any findings as to ICWA at the
jurisdiction and disposition hearing. At the continued 18-month
review hearing held on March 9, 2021 the Department submitted
the IWCA notices (ICWA-030) the Department had previously
sent to the Blackfeet Tribe of Montana, the Bureau of Indian
Affairs, and the Secretary of the Interior on November 14, 2019.
The notices stated Mother’s, Father’s, and maternal grandmother
Yvette’s birth date and birth place were “unknown.” Further, the
ICWA notices listed the paternal grandmother Priscila’s current
and former address and her birth date and place as “unknown.”
The ICWA notice did not provide any information about the
maternal and paternal grandfathers, the maternal and paternal
great-grandparents, or any other relatives.
On January 21, 2020 Mary R. Cooper, the ICWA Tech for
the Blackfeet Tribe, sent a letter in response to the ICWA notice.
Cooper wrote she was unable to find Desmond listed on the tribal
rolls and he was not eligible for enrollment because “our blood
quantum requirement for enrollment is 1/4 Blackfeet blood.”
Cooper added, “If you are able to gather more information on the
ancestry of the parents, please contact me again and I will review
the tribal rolls.”
On February 4, 2021 a social worker emailed Cooper to
inquire about James and Ida, and whether Desmond was an
Indian child. Cooper responded that if neither Mother nor Father

that it can discharge its additional duty to notice the relevant
tribes.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)

19
was registered as a Blackfeet tribe member, then Desmond was
not a member of the tribe. At the March 9, 2021 18-month review
hearing, the juvenile court found it did not have reason to know
Desmond was an Indian child, and ICWA did not apply.

2. ICWA inquiry and notice requirements
ICWA provides as to dependency proceedings, “[W]here the
court knows or has reason to know that an Indian child is
involved, the party seeking . . . termination of parental rights
to . . . an Indian child shall notify the parent or Indian custodian
and the Indian child’s tribe, by registered mail with return
receipt requested, of the pending proceedings and of their right of
intervention.” (25 U.S.C. § 1912(a); see In re Isaiah W. (2016)
1 Cal.5th 1, 5; In re Antonio R. (2022) 76 Cal.App.5th 421, 428
(Antonio R.); In re T.G. (2020) 58 Cal.App.5th 275, 288.)
California law also 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 Antonio R., at
p. 429; In re T.G., at p. 288; 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, Antonio R., at
p. 428; In re T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst.
Code, § 224.3, subd. (d).)

20
 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 H.V. (2022) Cal.App.5th 433,
437 [“The trial court and [Department] have an affirmative and
continuing duty in every dependency proceeding to determine
whether ICWA applies.”].) “The continuing duty to inquire
whether a child is or may be an Indian child ‘can be divided into
three phases: the initial duty to inquire, the duty of further
inquiry, and the duty to provide formal ICWA notice.’” (In re
Y.W. (2021) 70 Cal.App.5th 542, 552; accord, In re H.V., at p. 437;
In re Josiah T. (2021) 71 Cal.App.5th 388, 402.)
“The duty to inquire begins with initial contact (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child. (§ 224.2, subds. (a)-(c)).” (In re
T.G., supra, 58 Cal.App.5th at p. 290; accord, In re J.C. (2022)
77 Cal.App.5th 70, 77; 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 . . . .” (Id.; see Cal. Rules of Court,

21
rule 5.481(a)(1) [the Department “must ask . . . extended family
members . . . whether the child is or may be an Indian child”]; In
re D.F. (2020) 55 Cal.App.5th 558, 566; In re Y.W., supra,
70 Cal.App.5th at pp. 551-552.) Under ICWA, the term
“extended family member” is “defined by the law or custom of the
Indian child’s tribe or, in the absence of such law or custom, shall
be a person who has reached the age of eighteen and who is the
Indian child’s grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or second
cousin or stepparent.” (25 U.S.C. § 1903(2); see Welf. & Inst.
Code, § 224.1, subd. (c) [“As used in connection with an Indian
child custody proceeding, the terms ‘extended family member’
and ‘parent’ shall be defined as provided in Section 1903 of the
federal Indian Child Welfare Act.”].)
“State law also expressly requires the juvenile court to ask
participants who appear before the court about the child’s
potential Indian status. (§ 224.2, subd. (c).)” (In re Benjamin M.
(2021) 70 Cal.App.5th 735, 742; accord, In re Josiah T., supra,
71 Cal.App.5th at p. 402.) Similarly, under federal regulations,
“[s]tate courts must ask each participant in an . . . involuntary
child-custody proceeding whether the participant knows or has
reason to know that the child is an Indian child.” (25 C.F.R.
§ 23.107(a) (2022).) “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.” (Antonio R., supra, 76 Cal.App.5th at p. 430; see In re
K.R. (2018) 20 Cal.App.5th 701, 706 [“The court and the agency
must act upon information received from any source, not just the
parent [citations], and the parent’s failure to object in the
juvenile court to deficiencies in the investigation or noticing does

22
not preclude the parent from raising the issue for the first time
on appeal . . . .”].)
“[I]f the court or child protective agency ‘has reason to
believe that an Indian child is involved in a proceeding, but does
not have sufficient information to determine that there is reason
to know that the child is an Indian child,’ the court and the
Department ‘shall make further inquiry regarding the possible
Indian status of the child, and shall make that inquiry as soon as
practicable.’” (In re J.C., supra, 77 Cal.App.5th at p. 78, quoting
§ 224.2, subd. (e); see In re H.V., supra, 75 Cal.App.5th at p. 437;
In re T.G., supra, 58 Cal.App.5th at p. 290; Cal. Rules of Court,
rule 5.481(a)(4).)

3. The juvenile court failed to ensure the Department
satisfied its duty of inquiry
Mother and Father contend the Department should have
inquired of the paternal extended family members under
section 224.2, subdivision (b), including the paternal
grandmother, regarding Desmond’s possible Indian ancestry.
The parents also argue the Department failed to make a
sufficient further inquiry of the maternal relatives under section
224.2, subdivision (e), based on Mother’s statement that she
might have “Blackfoot ancestry” on the maternal side of the
family. The Department does not argue it complied with ICWA,
instead stating it “submits on the ICWA issue.” We agree with
Mother and Father that the Department and the juvenile court
failed to comply with their inquiry and notice obligations under
ICWA and California law.
Notwithstanding Father’s denial of Indian ancestry,
section 224.2, subdivision (b), obligates the Department to

23
inquire of Desmond’s extended family members as to the child’s
possible ancestry. (Antonio R., supra, 76 Cal.App.5th at p. 431
[“By requiring the Department to inquire of a child’s extended
family members as to the child’s possible Indian ancestry, the
Legislature determined that inquiry of the parents alone is not
sufficient.”]; see In re Y.W., supra, 70 Cal.App.5th at p. 556 [“the
point of the statutory requirement that the social worker ask all
relevant individuals whether a child is or may be an Indian child”
is “to obtain information the parent may not have”].) Information
relevant to Desmond’s possible Indian ancestry was readily
obtainable from paternal grandmother, who was interviewed by a
social worker at the outset of the case on July 8, 2019, and again
on November 17, 2020 as a possible relative placement.
Moreover, the social worker never contacted the paternal aunts
in Virginia to inquire about Desmond’s possible Indian ancestry.
The Department also failed to conduct a further inquiry
into Desmond’s possible Blackfeet Indian ancestry on the
maternal side of the family. Although Mother identified James
and Ida as sources of information, the Department made no effort
to contact them. At the detention hearing, Yvette stated she had
a phone number for Ida and may have James’s address at home.
Yvette also provided minor’s counsel with the maternal uncle’s
phone number and indicated the uncle had James’s contact
information. The juvenile court ordered the Department to
investigate Mother’s claim of Blackfeet ancestry by contacting
James and Ida, but the Department never contacted either one or
requested contact information from Yvette or the maternal uncle.
Thus, although the court and the Department had “reason to
believe the child is an Indian child,” the Department failed to

24
make further inquiry as required under section 224.2, subdivision
(e).
The juvenile court erred in finding IWCA did not apply
because the Department failed to satisfy its duty of inquiry under
section 224.2, subdivisions (b) and (e), and the court failed to
ensure the Department complied with the inquiry obligations.
(In re J.C., supra, 77 Cal.App.5th at p. 74 [“the court’s finding
ICWA did not apply” was not supported by substantial evidence
where the court “failed to ensure the Department fulfilled its
duty of inquiry under section 224.2, subdivision (b)”]; Antonio R.,
supra, 76 Cal.App.5th at p. 432 [court’s finding ICWA did not
apply was erroneous where Department failed to inquire of
child’s extended family members about possible Indian ancestry,
and court failed to ensure Department satisfied its duty of initial
inquiry].)8

4. The Department did not give proper notice to the
Blackfeet Tribe
The Department also failed to send a complete ICWA notice
to the Blackfeet Tribe. The ICWA notice omitted Mother’s,
Father’s, and Yvette’s date and place of birth, and the paternal
grandmother’s current and former addresses and date and place
of birth. Moreover, the notice did not provide any information

8 The Department does not argue the error was harmless,
noting only that some Courts of Appeal have deemed similar
ICWA inquiry errors to be harmless, but this court has held
otherwise. The error here in not inquiring of any paternal
relatives and failing to inquire of any maternal relatives beyond
the maternal grandmother was not harmless.

25
about the maternal and paternal grandfathers, the maternal and
paternal great-grandparents, or any other relatives.
This essential background information was required by the
federal regulation and related California law. “Federal
regulations implementing ICWA provide that the notice must
include, in addition to information about the child and the child’s
parents, “‘[i]f known, the names, birthdates, birthplaces, and
Tribal enrollment information of other direct lineal ancestors of
the child, such as grandparents.’” (In re Y.W., supra,
70 Cal.App.5th at pp. 556-557; accord, In re E.H. (2018)
26 Cal.App.5th 1058, 1069; see 25 C.F.R. §§ 23.11(a) &
23.111(d)(1)-(3) (2022).) Further, “[s]ection 224.3,
subdivision (a)(5)(C), requires ICWA notices to include ‘[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.’” (In re Y.W., at p. 557; see In re T.G., supra,
58 Cal.App.5th at p. 294, fn. 18.)
“‘ICWA notice requirements are strictly construed’
[citation] and ‘“must include enough information for the tribe to
‘conduct a meaningful review of its records to determine the
child’s eligibility for membership.’”’” (In re Y.W., supra,
70 Cal.App.5th at pp. 556-557; accord, In re J.S. (2021)
62 Cal.App.5th 678, 688.) “‘‘‘[O]rdinarily failure in the juvenile
court to secure compliance with [ICWA’s] notice provisions is
prejudicial error.” [Citations.] Any failure to comply with a
higher state standard, however, “must be held harmless unless

26
the appellant can show a reasonable probability that he or she
would have enjoyed a more favorable result in the absence of the
error.’’’” (In re Y.W., at p. 558; accord, In re E.H., supra,
26 Cal.App.5th at p. 1072.)
Here, the incomplete ICWA notice fails to comply with
federal regulations and state law. (See In re Y.W., supra,
70 Cal.App.5th at pp. 558 [notices to tribes, which omitted
paternal great-grandmother’s place of birth, and date and place
of death, violated both federal regulations and state law]; In re
Breanna S. (2017) 8 Cal.App.5th 636, 654 [“the Department
violated the requirements of both federal and state law regarding
the content of an ICWA notice” by omitting information
pertaining to maternal great-grandmother, her husband, and
daughter], disapproved on other grounds in Caden C., supra,
11 Cal.5th at pp. 637, fn. 6 & 638, fn. 7.)
Although Cooper concluded Desmond was neither listed on
the tribal rolls nor eligible for enrollment, her determination was
based on incomplete information in the ICWA notice. Cooper
informed the Department that she would “review the tribal rolls”
again if the Department was “able to gather more information on
the ancestry of the parents.” There is no evidence the
Department provided any additional information even though the
social workers were in contact with Mother, Father, and both
grandmothers. Moreover, Cooper’s statement that either Mother
or Father had to be a registered tribe member for Desmond to be
a member does not mean the errors in the ICWA notice were
harmless. Any search by Cooper for Mother’s and Father’s names
in the Blackfeet tribal rolls was necessarily limited because the
ICWA notice failed to include Mother’s and Father’s date and
place of birth. The ICWA notice’s omission of essential

27
background information pertaining to Desmond’s maternal and
paternal relatives was therefore prejudicial error. (In re Y.W.,
supra, 70 Cal.App.5th at p. 558 [“We cannot say the Cherokee
tribes would have made the same determination [the children]
were not Indian children had the Department fulfilled its
obligations under ICWA and related California law and mailed
notices with more complete information.”]; In re E.H., supra,
26 Cal.App.5th at p. 1074 [social service agency’s failure to
comply with ICWA and related California law was prejudicial
error because “the Agency’s failure to include accurate
information about [maternal grandmother’s] father in its ICWA
Notice may have altered the tribe’s determination as to whether
E.H. was an Indian child.”]; In re Breanna S., supra,
8 Cal.App.5th at p. 655 [“[O]nce ICWA notice is required, . . . we
would be extremely reluctant under most circumstances to
foreclose the tribe’s prerogative to evaluate a child’s membership
rights without it first being provided all available information
mandated by ICWA.”)

DISPOSITION

The order terminating Mother’s and Father’s parental
rights is conditionally affirmed. We remand to the juvenile court
for the Department and the court to comply with the inquiry and
notice provisions of ICWA and related California law, including
inquiry of the maternal grandparents, the maternal uncle,
maternal cousin Ida, the paternal grandmother, the paternal
aunts, and any other reasonably available extended family
members; to follow up on any information the Department may
obtain about Desmond’s possible Indian ancestry; and to send a

28
new ICWA notice to the Blackfeet Tribe that includes complete
biographical information for Mother, Father, the maternal and
paternal grandparents, maternal and paternal great-
grandparents, and maternal cousin Ida. If the court finds
Desmond is an Indian child, it shall conduct a new section 366.26
hearing, as well as all further proceedings, in compliance with
ICWA and related California law. If not, the court’s original
section 366.26 orders will remain in effect.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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