Filed 9/21/22 In re A.H. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re A.H., a Person Coming B316347
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20CCJP03836)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALEX H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stacy Wiese, Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey M. Blount, Deputy County
Counsel, for Plaintiff and Respondent.
******
Alex H. (father) appeals from an order terminating his
parental rights to A.H. (born July 2020). Father’s sole contention
is that the juvenile court and the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with the requirements of the Indian Child Welfare Act of
1978 (ICWA) (25 U.S.C. § 1901 et seq.)
We affirm the juvenile court’s order.
BACKGROUND
Detention and petition
K.N. (mother) gave birth to A.H. in July 2020.1 Father was
not present at the time of A.H.’s birth and declined to report to
the hospital to sign A.H.’s birth certificate. Following discharge
from the hospital, the maternal grandmother (MGM) took mother
to a mental health evaluation, which resulted in mother being
placed on a Welfare and Institutions Code section 5150 hold due
to her odd behavior.2 Mother was diagnosed, prescribed
medication, and later released.
1 Mother died during the pendency of this dependency case
and therefore is not a party to this appeal.
2 All further statutory references are to the Welfare and
Institutions Code.
2
On July 16, 2020, MGM received a call claiming mother
was seen at a park placing A.H. in a diaper bag. MGM went to
the park and brought A.H. and mother back to her home. Over
the next several hours, mother made several attempts to leave
MGM’s home with A.H. Due to mother showing signs of mental
instability, MGM contacted the Los Angeles Police Department
(LAPD), who then contacted DCFS and the Department of
Mental Health.
Responding social workers attempted to interview mother,
who was uncooperative, difficult to engage, and refused to
provide father’s date of birth or contact information. Mother
refused to answer questions regarding any possible American
Indian heritage. Mother also refused to sign any forms, including
forms pertinent to ICWA. After being assessed by a doctor,
mother’s condition was determined to present a child safety
concern. A.H. was detained from mother and placed with great-
aunt, Johanna R. Mother had no further contact with A.H.
On July 20, 2020, DCFS filed a petition on behalf of A.H.
pursuant to section 300, subdivision (b).
Mother’s older child (six years old) had been placed with a
maternal aunt, Martha R., at the age of five months. The
maternal aunt was the child’s legal guardian.
Father was located and interviewed at the home of paternal
grandfather Raymond H. Father said that he and mother ended
their relationship, that he did not know A.H. was born, and that
mother would not let him see A.H. Father knew that mother had
mental health issues. Mother was twice hospitalized for mental
health issues during their relationship. Father admitted to using
marijuana, but denied domestic violence, medical or mental
3
health issues, sexual abuse or criminal history. Father denied
any Indian ancestry.
A social worker reported that father had a criminal history
involving controlled substances. There were allegations reported
by maternal relatives that father was currently using drugs. The
social worker recommended that A.H. remain suitably placed.
At the July 23, 2020 detention hearing, father advised the
juvenile court that he had no American Indian heritage. Mother
said she might have Cherokee tribal heritage. The juvenile court
ordered DCFS to send appropriate notices in accordance with
ICWA. The court detained A.H. from both parents.
Jurisdiction
DCFS prepared a jurisdiction/disposition report, which was
filed on September 9, 2020. The dependency investigator had
interviewed MGM regarding American Indian ancestry. MGM
denied any knowledge of Cherokee Indian heritage. The
dependency investigator reported that notices were sent to the
Cherokee tribes, the Bureau of Indian Affairs, and the Secretary
of Interior.
Mother and father failed to make themselves available for
interviews. Father also failed to report for his on-demand drug
test.
On October 2, 2020, the juvenile court sustained the section
300 petition.
Disposition
On November 30, 2020, the dependency investigator filed a
last minute information for the court advising that mother had
been killed while trying to walk across a freeway.
It was also reported that father had only one visit with
A.H. and had not arranged to make any further visits.
4
The disposition hearing was continued to address issues
including the receipt of paternity tests and an update regarding
ICWA.
On January 14, 2020, a report was prepared for the
juvenile court advising that the Cherokee tribes responded that
A.H. was not enrolled, or eligible for enrollment, as a member of
the Cherokee tribes. Father had a single visit with A.H. and
failed to contact DCFS for more. Paternity test results were not
yet available.
On March 16, 2021, DCFS provided a last minute
information for the court indicating that father’s probability of
paternity of A.H. is 99.99 percent. DCFS recommended that the
juvenile court declare father to be A.H.’s biological father only, as
father had only a single visit with A.H. and failed to request
additional visits. A.H. was thriving in his placement. It was
recommended that the juvenile court schedule a permanency
planning hearing pursuant to section 366.26.
At the March 16, 2020 disposition hearing, the court
declared father to be A.H.’s biological father. A.H. was declared a
dependent of the court and removed from father’s custody. The
juvenile court ordered no reunification services for father and
scheduled a section 366.26 permanency planning hearing.
Subsequent reports
In its section 366.26 permanency planning report filed on
July 1, 2021, DCFS noted that the juvenile court had not made
findings pursuant to ICWA, despite a report that MGM denied
any American Indian heritage and proof that all three Cherokee
tribes, the Bureau of Indian Affairs, and the Secretary of Interior
were notified and reported that A.H. was not eligible for
membership.
5
A.H. was placed in foster care on July 15, 2020, and then
placed with a relative on September 11, 2020. By then father had
only two visits with A.H. DCFS recommended that the child’s
permanent plan be adoption by his caregiver.
Permanency planning hearing
The permanency planning hearing was held on July 13,
2021. Father was present when the juvenile court found that
ICWA did not apply, and did not object. The matter was
continued, and father was ordered to be present for the continued
proceedings.
At the November 8, 2021 continued permanency planning
hearing, father was present by telephone. DCFS and the minor’s
counsel requested that the juvenile court terminate father’s
parental rights. Father’s counsel objected, but offered no
argument. The juvenile court found A.H. adoptable, found no
exception to adoption applied, and ordered parental rights
terminated.
Notice of appeal
On November 9, 2021, father filed a timely notice of appeal
from the November 8, 2021 juvenile court orders.
DISCUSSION
I. Applicable law and standard of review
ICWA and related California statutes reflect the
Legislature’s intent “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.” (25
U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706,
fn. 3.) An “Indian child” is defined as any unmarried person
6
under the age of 18 who is either a member of an Indian tribe or
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); Welf.
& Inst. Code, § 224.1, subds. (a), (b).)
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 741
(Benjamin M.).) “The duty to inquire begins with the initial
contact, including, but not limited to, asking the party reporting
child abuse or neglect whether the party has any information
that the child may be an Indian child.” (§ 224.2, subd. (a).) The
court and child welfare 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 may be an Indian
child. (§ 224.2, subd. (a).)
Under California law, the child welfare department’s initial
duty of inquiry includes, but is not limited to, “asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
term “extended family member” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be a person who has reached the age of eighteen
and who is the Indian child’s grandparent, aunt or uncle, brother
or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2).)
7
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile 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. (Ibid.)
If the “initial inquiry creates a ‘reason to believe’ the child
is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make
that inquiry as soon as practicable.’ ([§ 224.2], subd. (e), italics
added.) [I]f that further inquiry results in a reason to know the
child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to
inquire at the first appearance whether anyone ‘knows or has
reason to know that the child is an Indian child’]; id., subd. (d)
[defining circumstances that establish a ‘reason to know’ a child
is an Indian child]; § 224.3 [ICWA notice is required if there is a
‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
We review a 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
ICWA finding.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 777
(Dezi C.).) Even if substantial evidence does not support the
juvenile court’s ICWA findings, we may not reverse unless that
we find that error was prejudicial. (Cal. Const., art. VI, § 13;
Benjamin M., supra, 70 Cal.App.5th at p. 742.)
At this time, California appellate courts have taken varying
positions on the rules for assessing whether a defective initial
8
inquiry is harmless. The varying approaches have led to “a
continuum of tests for prejudice stemming from error in following
California statutes implementing ICWA.” (In re A.C. (2022) 75
Cal.App.5th 1009, 1011 (A.C.); see Dezi C., supra, 79 Cal.App.5th
at pp. 777-778.) Our division has adopted the following rule:
“[A]n 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 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.” (In re
Dezi C., supra, 79 Cal.App.5th at p. 779.)3
II. Substantial evidence review
Father contends that although both mother and father
denied American Indian ancestry, DCFS failed to ask all of A.H.’s
extended relatives whether A.H. had possible Indian heritage.
However, DCFS did make appropriate inquiries of MGM, who
3 The number of appellate decisions on this topic continues to
increase, as more recent appellate decisions on this topic, not
referenced in A.C. or Dezi C., have been published. In In re E.V.
(2022) 80 Cal.App.5th 691, the Fourth District, Division Three,
followed In re A.R. (2022) 77 Cal.App.5th 197 in determining that
a clear rule of reversal should be followed in all cases where the
ICWA inquiry rules were not followed. More recently, in In re
Rylei S. (2022) 81 Cal.App.5th 309, Division Seven of this court
determined that conditional reversal was appropriate where
DCFS failed to make a meaningful and thorough inquiry
regarding the child’s possible Indian ancestry. This recent case
law does not change our position on this issue.
9
denied having any Indian ancestry. Father argues that DCFS
did not inquire about Indian ancestry with other extended family
members, including maternal relatives Martha R. and
Johanna R., and the paternal grandfather Raymond H.
The statutory duty to ask extended family members about
a child’s possible Indian heritage is imposed by California law on
child welfare agencies. (§ 224.2, subd. (b).) The failure to inquire
of extended family members accordingly is error under state law.
DCFS provides no evidence contradicting father’s claim that
DCFS failed to inquire of the three extended family members,
whose respective contact information was available to DCFS,
whether A.H. may be an Indian child. Because section 224.2,
subdivision (b) requires that DCFS ask of extended family
members as part of the initial inquiry under ICWA, substantial
evidence is lacking to support the juvenile court’s ICWA finding.
However, under California law, we may not reverse unless that
we find that error was prejudicial. (Cal. Const., art. VI, § 13;
Benjamin M., supra, 70 Cal.App.5th at p. 742.)
C. Harmless error analysis
Despite the technical violation of section 224.2, subdivision
(b), we apply the “‘reason to believe’ rule” that we adopted in In re
Dezi C., supra, 79 Cal.App.5th at pages 779-780, and conclude
that the error was harmless because nothing in the record
suggests a reason to believe that A.H. is an Indian child within
the meaning of ICWA. MGM denied Indian heritage, as did
mother.4 Father also denied Indian heritage. There is no special
circumstance suggesting that father would not know his own
4 Mother’s claim of a possible link to the Cherokee tribe was
refuted by the tribe.
10
heritage—he was residing with paternal grandfather at the time
of his interview. Father makes no proffer on appeal that he has
any Indian heritage, or that he had any information regarding
possible Indian heritage on mother’s side. In sum, there is no
evidence that any extended relative had any information
pertaining to whether A.H. had Indian heritage. Remand is
unwarranted under the circumstances.
DISPOSITION
The order is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
____________________________
HOFFSTADT, J.
11