In re H.S. CA2/4

Filed 7/26/22 In re H.S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR

In re H.S., a Person Coming Under B314792
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP05225)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

MARY P. et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County,
Lisa A. Brackelmanns, Commissioner. Affirmed.
The Law Office of Richard L. Knight and Richard L. Knight, under
appointment by the Court of Appeal, for Defendant and Appellant Mary P.
Susanne M. Nicholson, under appointment by the Court of Appeal, for
Defendant and Appellant R.S.
 Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County
Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and
Respondent.

INTRODUCTION
Mother (Mary P.) and father (R.S.) appeal from the juvenile court’s
order terminating parental rights over their child, H.S. (born Dec. 2017)
under Welfare and Institutions Code section 366.26.1 Both parents contend
that the Los Angeles County Department of Children and Family Services
(DCFS) failed to comply with the inquiry requirements under the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California
statutes (§ 224 et seq.). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND2
On August 14, 2019, DCFS filed a dependency petition on behalf of H.S.
under section 300, subdivision (b)(1). A first amended petition was then filed
on December 3, 2019, and on February 5, 2020, the petition was sustained as
amended by interlineation.3
Attached to the original petition was the ICWA-010 form, wherein
DCFS noted that H.S. may have Indian ancestry based on mother’s

1 All statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 Our summary of the facts is limited to those needed for resolution of
the ICWA issues raised on appeal and to provide relevant context.

3 The juvenile court found R.S. to be H.S.’s presumed father.

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statement that maternal great grandfather (Walter P.) was in the Cherokee
tribe.
On August 15, 2019, mother and R.S. each filed a parental notification
of Indian status (ICWA-020 form). Mother stated she may have Indian
ancestry (Cherokee). R.S. stated he had no Indian ancestry as far as he
knew.
At the detention hearing on the original petition, the juvenile court was
informed there may be some Cherokee heritage in mother’s background.
When asked by the court if mother wanted to provide additional information,
she replied, “No.” The court deferred the ICWA finding and ordered DCFS to
investigate mother’s claim of Indian ancestry. The court confirmed with
father that he indicated ICWA did not apply, and he had no Indian ancestry.
The court found it did not have reason to know that ICWA applied as to
father.
On multiple occasions, the dependency investigator attempted to
contact mother to set up an interview to inquire about her Cherokee heritage.
Mother did not return any of her messages.
On September 17, 2019, the dependency investigator was able to
contact maternal grandmother, Amber P. (hereafter, MGM). MGM informed
the social worker that there were reports of Cherokee heritage through
maternal great grandfather, Walter Eugene P. (born on Sept. 12, 1952 in
Minnesota). Walter P. was also half-German descent. She reported that
maternal great grandmother was Mary Lou P. (born Apr. 22, 1952 in
Minnesota). However, she stated she had no information as to maternal
great-great grandparents. Also, no one in her family confirmed the claim of
Cherokee ancestry with the government or enrolled in any tribe.

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 That same day, the dependency investigator sent out ICWA notices
(ICWA-030) to the Bureau of Indian Affairs (BIA), Secretary of the Interior,
Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah
Band of Cherokee Indians of Oklahoma. The notices listed the name, current
state residence, and date and place of birth of maternal grandmother (Amber
P.); the name, current state residence, and date of birth of maternal
grandfather (Kevin Allen H.); the name, date and place of birth of maternal
great grandmother (Mary Lou P.); and the name, date and place of birth of
maternal great grandfather (Walter Eugene P.).
On October 7, 2019, DCFS received a response from the Eastern Band
of Cherokee Indians regarding H.S.’s ICWA eligibility. The tribe stated that
H.S. “is neither registered nor eligible to register as a member of this tribe,”
and therefore the tribe would not intervene in the case.
On November 6, 2019, the dependency investigator interviewed father.
Father stated H.S. “is not an Indian child.” During this conversation, father
provided paternal grandmother’s and grandfather’s names, address, and
phone number. Father had previously taken a DNA test to establish
paternity, which indicated his race was “Asian Indian.” H.S.’s birth certificate
stated that father was born in Malaysia.
On November 13, 2019, the juvenile court found it had no reason to
know that the ICWA applied in this case and, if any other information was
available as to ICWA, that it should be included in a report.
On December 10, 2019, the dependency investigator sent out a second
set of ICWA notices (ICWA-030) to the BIA, Secretary of the Interior,
Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah
Band of Cherokee Indians of Oklahoma. The notices listed the name, date
and place of birth of maternal grandmother (Amber P.); the name, current

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address, date and place of birth of maternal grandfather (Thomas Allen F.);
the name, date and place of birth of maternal great grandmother and
maternal great-great grandmother (Mary Lou P.B. and Mary A.,
respectively); the name, date and place of birth of maternal great grandfather
(Walter P.); and the name of maternal great-great grandfather (Russell B.).4
On December 17, 2019, the dependency investigator spoke to paternal
grandmother over the phone. Paternal grandmother (Kamal K.) stated that
she and paternal aunt (Mina K.) were unable to take care of H.S. Paternal
grandmother was unwilling to provide paternal aunt’s contact information
but would allow the investigator to send a letter addressed to paternal aunt
to paternal grandmother’s home.
On December 31, 2019, DCFS received a response from the Cherokee
Nation, stating that H.S. is not an Indian child in relation to the tribe, and
therefore the tribe did not have legal standing to intervene in the case.
On January 31, 2020, the dependency investigator contacted MGM and
requested family member’s names and contact information to follow-up
regarding Indian heritage. MGM declined and stated that she had spoken to
her family, and the family agreed MGM had provided DCFS with all of the
relevant information. Specifically, maternal uncle and maternal great
grandmother had “nothing else to add.” When the social worker asked for
maternal great grandmother’s contact information, MGM declined and stated
she would pass along the social worker’s contact information to maternal
great grandmother herself.

4 The date of birth listed for Mary Lou P.B. and Walter P. were switched
from the prior notice.

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 At the February 5, 2020 adjudication hearing, DCFS requested that the
juvenile court make a finding as to ICWA. The court found that ICWA notice
was proper, and all of the attempts made to notice the Cherokee tribes that
were included in DCFS reports and the information DCFS received led to the
conclusion that ICWA did not apply as to mother. The court also found ICWA
did not apply as to father.
On November 18, 2020, the juvenile court terminated reunification
services and set a permanency planning hearing. On August 19, 2021, the
court terminated parental rights and designated H.S.’s current caretakers as
the prospective adoptive parents. Mother and father timely filed a notice of
appeal.

DISCUSSION
Both parents contend DCFS failed to comply with their duties of
inquiry under ICWA and related state law. Each parent identifies a different
failure.5 Father contends DCFS failed to fulfill its duty of initial inquiry
under section 224.2, subdivision (b), because it did not ask his extended
family members whether H.S. may have Indian heritage. Mother contends
DCFS failed to fulfill its duty of further inquiry under section 224.2,
subdivision (e), after she provided them reason to believe H.S. was an Indian
child. DCFS concedes error as to father, but contends it was harmless. We
agree the error was harmless. We also conclude that DCFS did meet its duty
of further inquiry into mother’s Indian ancestry.

5 Each parent also joins the arguments contained in the other’s briefs to
the extent they are beneficial. (Cal. Rules of Court, rule 8.200(a)(5).)

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 A. Applicable Law and Standard of Review
ICWA 6 reflects “a congressional determination to protect Indian
children and to promote the stability and security of Indian tribes and
families by establishing minimum federal standards that a state court ...
must follow before removing an Indian child from his or her family.” (In re
Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).) Both ICWA and the
Welfare and Institutions Code define an “Indian child” as “any unmarried
person who is under age eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, subds. (a)
and (b) [incorporating federal definitions].)
The juvenile court and DCFS 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. (2016) 1 Cal.5th 1, 9, 11–12.) This continuing duty can be divided
into three phases: the initial duty to inquire, the duty of further inquiry, and
the duty to provide formal ICWA notice. The phases at issue here are the
initial duty to inquire and the duty of further inquiry.
The duty to inquire whether a child is an Indian child begins with “the
initial contact,” i.e., when the referring party reports child abuse or neglect
that jumpstarts DCFS investigation. (§ 224.2, subd. (a).) DCFS’s initial duty
to inquire includes asking the child, parents, legal guardian, extended family
members, and others who have an interest in the child whether the child is,
or may be, an Indian child. (Id. subd. (b).) Similarly, the juvenile court must
inquire at each parent’s first appearance whether he or she “knows or has

6 Our state Legislature incorporated ICWA’s requirements into
California statutory law in 2006. (In re Abbigail A. (2016) 1 Cal.5th 83, 91.)

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reason to know that the child is an Indian child.” (Id. subd. (c).) The juvenile
court must also require each parent to complete Judicial Council form ICWA-
020, Parental Notification of Indian Status. (Cal. Rules of Court, rule
5.481(a)(2)(C).) The parties are instructed to inform the court “if they
subsequently receive information that provides reason to know the child is an
Indian child.” (25 C.F.R. § 23.107(a); § 224.2, subd. (c).)
A duty of further inquiry is imposed when DCFS or the juvenile court
has “reason to believe that an Indian child is involved” in the proceedings.
(§ 224.2, subd. (e); Austin J., supra, 47 Cal.App.5th at pp. 883–884, and In re
D.S. (2020) 46 Cal.App.5th 1041, 1048–1049 (D.S.).) The Legislature did not
define what constitutes “reason to believe.” (See ibid.)
Further inquiry as to the possible Indian status of the child includes:
(1) interviewing the parents and extended family members to gather required
information;7 (2) contacting the BIA and State Department of Social Services
for assistance in identifying the tribes in which the child may be a member or
eligible for membership in; and (3) contacting the tribes and any other person
that may reasonably be expected to have information regarding the child’s
membership or eligibility. (§§ 224.2, subds. (e)(1)–(2) & 224.3, subds.
(a)(5)(A)–(C); Cal. Rules of Court, rule 5.481(a)(4) [sets forth same
requirements].) Contact with a tribe must include, at a minimum,
“telephone, facsimile, or electronic mail contact to each tribe’s designated
agent” and include information “necessary for the tribe to make a

7 This required information includes: All known names of the Indian
child, biological parents, grandparents, and great-grandparents, 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. (§ 224.3, subd. (a)(5).)

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membership or eligibility determination.” (§ 224.2, subd. (e)(1)(C).) The
sharing of information with tribes at the further inquiry stage is distinct from
formal ICWA notice, which requires a “reason to know,” rather than a
“reason to believe,” that the child is an Indian child. (D.S., supra, 46
Cal.App.5th at p. 1052.)
We review a juvenile court’s ICWA findings for substantial evidence.
(In re Josiah T. (2021) 71 Cal.App.5th 388, 401; In re S.R. (2021) 64
Cal.App.5th 303, 312.)

B. Analysis
1. Initial Inquiry into Father’s Possible Indian Ancestry
Father argues DCFS failed its initial inquiry under section 224.2,
subdivision (b),8 because the dependency investigator did not make any effort
to contact his extended family members about Indian ancestry. DCFS
concedes error, but argues any error was harmless. We agree.
“At this point in time, the California courts have staked out three
different rules for assessing whether a defective initial inquiry is harmless.”
(In re Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.).) We believe a fourth rule
recently adopted by our colleagues in Dezi C. is the better approach. In Dezi
C., the court stated that “an agency’s failure to conduct a proper initial
inquiry into a dependent child’s American Indian heritage is harmless unless
the record contains information suggesting a reason to believe that the child

8 Under section 224.2, subdivision (b), “[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 and where the child, the parents, or Indian custodian is
domiciled.”

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may be an ‘Indian child’ within the meaning of ICWA, such that the absence
of further inquiry was prejudicial to the juvenile court’s ICWA finding.” (Id.
at p. *4.)
Here, the record does not provide a “reason to believe” that H.S. is an
Indian child. Rather, father repeatedly denied any Indian ancestry to DCFS
(orally and on the ICWA-020 form) and to the juvenile court during his initial
appearance. Moreover, H.S.’s birth certificate stated that father was born in
Malaysia, and father’s DNA test (taken to establish paternity) demonstrated
his genetic background was Asian and East Indian. In short, nothing in the
record suggests any reason to believe that father’s knowledge of his heritage
is incorrect or that H.S. might have Indian ancestry. Therefore, we conclude
that DCFS’s error in this case was harmless.

2. Further Inquiry in Mother’s Possible Indian Ancestry
Mother contends DCFS failed its further inquiry duties under section
224.2, subdivision (e), because the dependency investigator did not interview
all available extended family members about Indian ancestry, and DCFS
failed to provide full and complete documentation of its investigation.
Mother’s contention that DCFS should have reached out to all available
maternal relatives is unavailing. DCFS “must inquire as to possible Indian
ancestry and act on any information it receives, but it has no duty to conduct
an extensive independent investigation for information.” (In re C.Y. (2012)
208 Cal.App.4th 34, 41; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413
[“the obligation is only one of inquiry and not an absolute duty to ascertain or
refute [Indian] ancestry”]; In re Levi U. (2000) 78 Cal.App.4th 191, 199,
superseded by statute on other grounds as stated in In re B.E. (2020) 46

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Cal.App.5th 932, 940 [DCFS is not required to conduct an extensive
independent investigation or to “cast about” for investigative leads].)
Here, DCFS could not have obtained any further information from any
of mother’s relatives. Mother had ignored the dependency investigator’s
multiple attempts to contact her about Indian ancestry. The investigator
then interviewed MGM, who provided information on possible relatives who
were believed to have Indian heritage. MGM stated that no maternal family
member confirmed the claim of Cherokee ancestry with any government
entity or was an enrolled member in any tribe.
After sending out the first set of ICWA notices, the dependency
investigator again contacted MGM to request family members’ names and
contact information to follow up on Indian ancestry. MGM refused to provide
such information and stated she had spoken with her family who said MGM
provided all the information that they would have provided to her. MGM had
specifically asked her brother (maternal uncle) and her mother (maternal
great grandmother), and they had “nothing else to add.” When asked for
maternal great grandmother’s contact information, MGM responded that she
would call her to ask if she wanted to talk to the dependency investigator.
MGM would only provide great grandmother the investigator’s contact
information. No further inquiry, thus, was possible or required. (E.g., In re
K.M. (2009) 172 Cal.App.4th 115, 119 [where DCFS “attempted on several
occasions to elicit further information from the child’s family, but was
unsuccessful due to the family’s hostility” toward the agency, the agency “did
all that can or should be reasonably expected of it to meet its obligation to the
child, to the family, to the tribes and to the court”].)
Mother further contends that DCFS failed to provide full and complete
documentation of its investigation. That is not the case. DCFS documented

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all of its inquiries with mother and MGM, as well as its attempts to contact
additional extended family members—an argument we have previously
rejected.
In challenging DCFS’s alleged lack of clarity in reporting, mother
asserts that its identification of MGM created confusion because the
investigator referred to both Amber H. and Amber P. as MGM in the DCFS
reports, with the latter only on the ICWA notices. However, MGM had
explained to the investigator that although she was married to Kevin Allen
H., he was not mother’s biological father. Therefore, MGM’s maiden name is
listed in the ICWA notices as Amber P. Contrary to mother’s contention, it is
clear from the record that Amber P. and Amber H. are not two different
people.
We conclude DCFS’s repeated efforts to gather information concerning
H.S.’s maternal ancestry constitutes substantial evidence that DCFS met its
duty of further inquiry.9

9 To the extent the parents challenge the adequacy of the notices DCFS
mailed to the tribes, it is irrelevant. ICWA notice is required only if after
initial and further inquiries there is “reason to know” that an Indian child is
involved in the proceeding. (§ 224.2, subd. (f).) There is “reason to know” a
child is an Indian child if any one of six statutory criteria is met—e.g., if the
court is advised that the child is a member or eligible for membership in an
Indian tribe, the child’s or parent’s residence is on a reservation, the child is
or has been a ward of a tribal court, or either parent or the child possess an
identification card indicating membership or citizenship in an Indian tribe.
(Id. subd. (d).) Here, none of these statutory criteria was met, and thus
ICWA notice was not required. (In re Q.M. (2022) 79 Cal.App.5th 1068.)

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 DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.
We concur:

MANELLA, P. J.

CURREY, J.

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