In re N.B. CA2/3

Filed 8/19/22 In re N.B. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re N.B., a Person Coming B319209
Under the Juvenile Court Law.

LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF Super. Ct.
CHILDREN AND FAMILY No. 19CCJP04189A)
SERVICES,

Plaintiff and Respondent,

v.

ROGER B.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Philip L. Soto, Judge. Conditionally affirmed
and remanded with directions.
Shaylah Padgett-Weibel, 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.
——————————
Father appeals from an order terminating his parental
rights. On appeal, he contends the juvenile court erred in finding
the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et
seq.) did not apply. Father argues the Los Angeles County
Department of Children and Family Services (DCFS) failed to
conduct an adequate inquiry of extended relatives to determine
whether N.B. is or may be an Indian child. We conditionally
affirm the juvenile court’s order and remand for further
proceedings as to father’s family.
FACTUAL AND PROCEDURAL BACKGROUND
Father raises a limited issue on appeal. We therefore only
briefly summarize the general background of this case. In
August 2019, the juvenile court sustained a petition alleging N.B.
and her two half-siblings were persons described by Welfare and
Institutions Code section 300, subdivisions (a), (b), and (d),1 as a
result of domestic violence between mother and father, and due
to father’s history as a registered sex offender with a past
criminal conviction for continuous sexual abuse of a child.
Although N.B. and her siblings were initially released to mother,
in November 2019, the juvenile court sustained a supplemental
petition alleging the parents failed to abide by a restraining order
requiring father to stay away from mother and the children
except for court-ordered visitation. The court removed N.B. from

1 Allundesignated statutory references are to the Welfare
and Institutions Code.

2
the parents and ordered reunification services for mother only.
The court did not order reunification services for father pursuant
to section 361.5, subdivision (b)(12) and (16). The court
terminated mother’s reunification services in April 2021.2 N.B.
and her siblings were living with a foster family that wished to
adopt them. In March 2022, the juvenile court terminated
parental rights.
ICWA background
The initial dependency petition indicated the social worker
questioned mother about Indian ancestry. Based on that
questioning, the Indian Child Inquiry Attachment to the petition
reported N.B. had no known Indian ancestry. Father was
incarcerated at the time. The July 2019 detention report again
indicated mother denied any Indian ancestry.3 However, at the
initial hearing, mother submitted a Parental Notification of
Indian Status form (ICWA-020), declaring she is or may be a
member of, or eligible for membership in, a federally recognized
Indian tribe. Mother wrote on the form: “unsure of tribe.” The
juvenile court asked mother if there was any reason to believe
father had American Indian heritage. Mother answered, “Yes,

2 ByNovember 2021, mother’s whereabouts were unknown.
DCFS noticed mother for the section 366.26 permanency
planning hearing by publication.
3 The detention report revealed the family was involved in
a prior dependency case beginning in 2016. Neither the
detention report nor any subsequent reports included information
about ICWA findings or investigation in the prior case. However,
mother’s ICWA-020 form stated a previous form had been filed
with the court.

3
but not a blood line. There’s no trace of it.” The court asked, “So
you don’t know of any?” Mother answered, “no.” The court found
the matter was not an ICWA case as to N.B. The minute order
reflected the detailed finding that the court had no reason to
know N.B. was an Indian child and no notice to any tribe or the
Bureau of Indian Affairs (BIA) was ordered. The parents were to
keep “[DCFS], their Attorney and the Court aware of any new
information relating to possible ICWA status.”
When father made his first appearance a few days later, he
submitted an ICWA-020 form stating he may have Indian
ancestry, writing on the form: “Hopi my paternal grandmother.”
The minute order from the proceeding reported the court found it
did not have a reason to know N.B. is an Indian child, did not
order notice to the BIA or any tribe, and again ordered the
parents to keep DCFS, their counsel, and the court aware of any
new information. However, the order further stated: “The court
is informed that there may be some Hopi Native American/Indian
heritage in the father’s background. [DCFS] is ordered to
investigate said claim.”
DCFS subsequently interviewed both parents about Indian
heritage. According to the jurisdiction and disposition report,
mother told a social worker, “I know we have something but I
wouldn’t know the bloodline.” She referred the social worker to
the maternal great-grandmother. The maternal great-
grandmother told the social worker her mother “had Native
American blood but she doesn’t know what tribe,” and she had no
additional information.
Father told the social worker he had Indian ancestry with
the Hopi and “Tonga San Gabriel Mission” tribes, but “no one is
enrolled or registered.” He indicated his aunt knew the family

4
history. Father also provided the names of his parents, the
names of his four grandparents, and the names of one set of his
great-grandparents. The social worker contacted father’s mother,
the paternal grandmother. The paternal grandmother told the
social worker she gave the social workers in the prior dependency
case information about the family and “HOPI Indian in Flagstaff,
AZ.” The social worker asked paternal grandmother to provide
the information again and for the paternal aunt’s contact
information. According to the report, paternal grandmother
provided the aunt’s contact information a couple days later. The
report indicated DCFS would follow up with contacting the aunt.
At the August 2019 jurisdiction and disposition hearing,
the juvenile court made no further ICWA findings. In the
October 2019 jurisdiction and disposition report, filed in advance
of the hearing on the supplemental petition, DCFS reported it
had contacted extended relatives for additional information about
father’s Indian ancestry and “is pending complete information to
be able to send out the ICWA notices.” At the November 15, 2019
disposition hearing, the court found ICWA did not apply.
All subsequent reports indicated only that ICWA did not
apply. The record does not reflect that DCFS or the juvenile
court conducted any further ICWA-related inquiry or
investigation.
DISCUSSION
On appeal, father raises only a single issue: he contends
DCFS and the juvenile court failed to conduct a proper inquiry as
to whether N.B. is or may be an Indian child. DCFS contends
substantial evidence supports the juvenile court’s finding that
ICWA does not apply in this case and any error in failing to
interview extended family members was harmless. We agree

5
that substantial evidence supported the juvenile court’s finding
with respect to mother’s side of the family. As to father’s side of
the family we conclude remand is necessary for further
proceedings.
I. Duty of inquiry
“ICWA was enacted ‘ “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .” [Citation.]’
(In re Isaiah W. (2016) 1 Cal.5th 1, 8 . . . ; see 25 U.S.C. § 1902.)”
(In re Q.M. (2022) 79 Cal.App.5th 1068, 1078.)
Section 224.2 sets forth the duties of a county welfare
department and the juvenile court in determining whether a
child is or may be an Indian child. An “ “Indian child’ ” is “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, subd. (a).)
Section 224.2, subdivision (a), provides that both the court
and the child welfare agency have an “affirmative and continuing
duty” to inquire whether a child is or may be an Indian child,
beginning with the “initial contact,” which includes asking the
party reporting abuse or neglect if they have any information
that the child may be an Indian child.
Under section 224.2, subdivision (b), if a child is placed in
the agency’s temporary custody, the agency must inquire whether
the child is or may be an Indian child, by asking a nonexclusive
group that includes the child, the parents, and extended family

6
members. Under section 224.2, subdivision (c), at the first court
appearance of each party, the juvenile court must ask whether
the appearing party knows or has reason to know that the child is
an Indian child. In addition, the court must instruct the parties
to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.
Under section 224.2, subdivision (e), if the court or social
worker has reason to believe an Indian child is involved in the
proceeding, but does not have enough information to determine
there is a reason to know the child is an Indian child, the court or
the social worker must make further inquiry, as soon as
practicable. “[R]eason to believe” means the court or 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.” (§ 224.2, subd. (e)(1).)
“Further inquiry” includes actions such as “[i]nterviewing
the parents, Indian custodian, and extended family members” to
gather information that would be necessary to provide notice to
any relevant tribes. (§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).)
It also includes contacting the BIA and State Department of
Social Services for assistance in identifying contact information of
relevant tribes, 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)(B)-(C).)
There is “reason to know” a child is an Indian child when:
a person having an interest in the child informs the court the
child is an Indian child; the residence of the child, the child’s
parents, or the child’s Indian custodian, is on a reservation or in
an Alaskan Native village; a participant in the proceeding, officer

7
of the court, Indian tribe or organization, or agency informs the
court it has discovered information indicating the child is an
Indian child; the child gives the court reason to know that the
child is an Indian child; the court is informed that the child is or
has been a ward of a tribal court; or the court is informed either
the parent or the child possesses an identification card indicating
membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)
Section 224.2, subdivision (i)(2), provides that if “the court
makes a finding that proper and adequate further inquiry and
due diligence as required in this section have been conducted and
there is no reason to know whether the child is an Indian child,
the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the
evidence.”
“ ‘ “[W]e review the juvenile court’s ICWA findings under
the substantial evidence test, which requires us to determine if
reasonable, credible evidence of solid value supports the court’s
order. [Citations.] We must uphold the court’s orders and
findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in
favor of affirmance.” ’ ” (In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
II. Inquiry of mother and mother’s relatives
In this case, mother indicated a belief that she may have
some Indian ancestry, but candidly told DCFS she could not
identify heritage with any specific tribe. She believed the
maternal great-grandmother was the person who might have
more information. Consistent with section 224.2, subdivision (b),
DCFS then interviewed the maternal great-grandmother, who
informed a social worker that her mother had “Native American

8
blood,” but she had no information about a relationship or
heritage with any specific tribe. The maternal great-
grandmother had no further information. Thus, DCFS inquired
of the extended relative mother identified as the person who
would have knowledge of mother’s Indian ancestry, if any. The
information mother and the maternal great-grandmother
provided did not give rise to a further “reason to believe” or
“reason to know” N.B. is or may be an Indian child. (In re T.G.
(2020) 58 Cal.App.5th 275, 294 [“[a]n ‘Indian child’ is defined in
terms of tribal membership, not ancestry”].)
The record contains no information suggesting mother and
the maternal great-grandmother were not credible with respect
to their knowledge of the extent of mother’s Indian ancestry, or
that they lacked information other family members might
possess. (Cf. In re Y.W. (2021) 70 Cal.App.5th 542, 548 [mother
was adopted and had no information about biological relatives];
In re Benjamin M. (2021) 70 Cal.App.5th 735, 740 [father never
appeared, and mother had no reason to know father’s ancestry].)
We conclude substantial evidence supported the juvenile court’s
implied finding that DCFS exercised due diligence in
investigating mother’s side of the family and the ultimate finding
that ICWA did not apply as to mother’s lineage.
Moreover, even if DCFS erred in failing to interview
additional maternal extended relatives, we would find any error
harmless, under the standard of prejudice as explained in In re
Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.). We agree with the
Dezi C. court that the proper application of our state’s test for
harmless error in this context is 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

9
information suggesting a reason to believe that the child 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. For this purpose, the ‘record’ includes both the
record of proceedings in the juvenile court and any proffer the
appealing parent makes on appeal.” (Id. at p. 779.)
This approach “effectuates the rights of the tribes in those
instances in which those rights are most likely at risk, which are
precisely the cases in which the tribe’s potential rights do justify
placing the children in a further period of limbo. The ‘reason to
believe’ rule also removes the incentive to use ICWA as a
thirteenth-hour delay tactic and, by allowing parents to cite their
proffers on appeal as well as the juvenile court record, still sends
a ‘message’ to agencies that ICWA’s mandates are not to be
ignored because remand will be ordered in any case where there
is reason to believe the failure to inquire mattered.”4 (Dezi C.,
supra, 79 Cal.App.5th at p. 782.)

4 We reject the automatic reversal rule adopted by some
courts. (See, e.g., In re H.V. (2022) 75 Cal.App.5th 433, 438; In re
Y.W., supra, 70 Cal.App.5th at p. 556.) We agree with the courts
and others who have concluded the automatic reversal approach
fails to acknowledge or reconcile the requirements of ICWA and
section 224.2 with the California Constitution’s mandate that a
judgment may not be set aside unless it has resulted in a
miscarriage of justice. (Dezi C., supra, 79 Cal.App.5th at p. 779;
In re A.C. (2022) 75 Cal.App.5th 1009, 1020 (conc. & dis. opn. of
Crandall, J.).) The automatic reversal approach also requires the
court to conclude parents’ reports of their own Indian heritage
cannot be trusted, irrespective of whether there are
circumstances warranting such distrust. (Dezi C., at p. 784; In re
Ezequiel G. (July 29, 2022, B314432) ___ Cal.App.5th ___ [2022

10
 While father contends DCFS failed to make an inquiry of a
maternal aunt who appeared at one hearing and wanted to
discuss placement of the children, there is no indication in the
record that this relative—mother’s sister—had information
different or additional to that provided by the maternal great-
grandmother relevant to whether N.B. is or may be an Indian
child.5 (In re Darian R. (2022) 75 Cal.App.5th 502, 510 [parents
and paternal aunt denied Indian ancestry; record did not support
“unvarnished contention” additional interviews of maternal
grandfather and aunt would have “meaningfully elucidated the
children’s Indian ancestry”].) Father has made no proffer on
appeal or representation that additional inquiry may have led to
the revelation of any information suggesting a reason to believe
N.B. is or may be an Indian child through mother’s lineage.
III. Inquiry of father and father’s relatives
In contrast, father indicated at his initial appearance that
he had Indian ancestry related to at least one federally
recognized tribe.6 Although he reported that no one in the family

Cal.App. Lexis 671, *33] [because tribal membership typically
requires affirmative act by parent, parent often will be reliable
source of information].)
5 Fatherdoes not identify any other maternal relatives
DCFS failed to ask to determine whether N.B. is or may be an
Indian child.
6 ICWA applies only to federally recognized tribes. (In re
K.P. (2009) 175 Cal.App.4th 1, 6 [ICWA does not cover an
allegation of membership in a tribe not recognized by federal
government].) “25 Code of Federal Regulations section 83.6(b)
requires the Secretary of the Interior to publish in the Federal

11
was registered or enrolled in the tribe, that by itself was not an
indication that N.B. is not a member or is ineligible for
membership in the tribe. (See § 224.2, subd. (h) [“Information
that the child is not enrolled, or is not eligible for enrollment in,
the tribe is not determinative of the child’s membership status
unless the tribe also confirms in writing that enrollment is a
prerequisite for membership under tribal law or custom”]; In re
S.R. (2021) 64 Cal.App.5th 303, 316–317.) The paternal
grandmother confirmed she also believed father has Hopi
ancestry and agreed to provide additional information to the
social worker. Father identified a particular relative he believed
has the most reliable information—a paternal great-aunt—and
paternal grandmother provided the aunt’s contact information.
Later reports suggested DCFS intended to send ICWA notices.
The lack of further information, or proof that ICWA notices were
sent, is unexplained.
On this record, there is “reason to believe” N.B. may be an
Indian child through father’s lineage and there was a need for
further inquiry. (In re M.E. (2022) 79 Cal.App.5th 73, 81–82
[further inquiry required where both parents claimed Indian
ancestry]; In re Michael V. (2016) 3 Cal.App.5th 225, 235 [further

Register a list of all Indian tribes which are recognized and
receiving services from the [BIA], and to update and publish that
list annually.” (In re Wanomi P. (1989) 216 Cal.App.3d 156, 166–
167.) The second tribe father named is not identified on the
current list, or on the list that was current in 2019. (Indian
Entities Recognized by and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 87 Fed.Reg. 4636
(Jan. 28, 2022) [current list]; id. 84 Fed.Reg. 1200 (Feb. 1, 2019)
[2019 list].)

12
inquiry required where mother suggested maternal grandmother
was member of two Indian tribes].) The record indicates DCFS
conducted further inquiry but then falls silent as to the results.
Without further reporting, the juvenile court did not have
sufficient evidence to find DCFS conducted “proper
and . . . further inquiry” or exercised the “due diligence” required
by section 224.2. (§ 224.2, subd. (i)(2); see In re N.G. (2018)
27 Cal.App.5th 474, 484–485 [deficient record showing
compliance with ICWA notice requirements mandates reversal].)
Substantial evidence did not support the juvenile court’s finding
that ICWA does not apply.
We cannot find the error harmless. Father and paternal
grandmother reported the family has Indian ancestry with a
specific tribe and the record suggests DCFS obtained information
leading it to believe notice to a tribe was necessary. (Dezi C.,
supra, 79 Cal.App.5th at p. 779 [failure to conduct proper initial
inquiry may be prejudicial if agency did not follow up on report of
possible Indian heritage].)
We therefore conditionally affirm the juvenile court order,
remanding the matter for further inquiry and compliance with
ICWA.

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 DISPOSITION
The juvenile court’s order terminating parental rights is
conditionally affirmed. The case is remanded to the juvenile
court to order DCFS to immediately comply with the inquiry
provisions of Welfare and Institutions Code section 224.2 as to
available paternal relatives. After ensuring DCFS has complied
with the inquiry, and, if applicable, notice provisions of ICWA
and related California law, the juvenile court shall determine
whether ICWA applies. If the court determines ICWA does not
apply, the order terminating parental rights shall remain in
effect. If the court determines ICWA does apply, it shall vacate
its order terminating parental rights and proceed consistent with
ICWA and related state law.
NOT TO BE PUBLISHED.

ADAMS, J.*

I concur:

EGERTON, J.

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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LAVIN, J., Concurring:

I concur in the judgment. I write separately to clarify that I
disagree with the harmless error analysis in In re Dezi C. (2022)
79 Cal.App.5th 769.

LAVIN, Acting P. J.