In re T.F.P. CA2/5

Filed 10/20/22 In re T.F.P. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re T.F.P., a Person Coming B318437
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. CK94393D)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
ORDER MODIFYING
Plaintiff and Respondent, OPINION

v.
[There is No Change in
M.F. et al., Judgment]

Defendants and Appellants.

BY THE COURT:
It is ordered that the opinion authored by Presiding Justice
Rubin and filed herein on October 17, 2022, is modified as
follows:

Page 2, first paragraph, last sentence which starts with
“This opinion . . .” is deleted and replaced with “This opinion and
Justice Baker’s concurrence affirm the termination of parental
rights and conclude substantial evidence supports the juvenile
court’s ICWA finding.”
 Page 2, second paragraph, last sentence is deleted and
replaced with “I focus my discussion on the full siblings.”

Page 3, second paragraph, the two instances of “N.P.” are
deleted and replaced with “N.F.”

Page 7, second paragraph, third sentence that starts with
“However, this error . . .” is deleted and replaced with “However,
this error was not prejudicial, and substantial evidence supported
the juvenile court’s ICWA finding.”

Page 9, first full paragraph, first sentence, “N.P.” is deleted
and replaced with “N.F.”

There is no change in judgment.

_____________________
RUBIN, P. J.

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Filed 10/17/22 In re T.F.P. CA2/5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re T.F.P., a Person Coming B318437
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. CK94393D)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.F. et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los
Angeles County, Susan Ser, Judge. Affirmed.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant Mother.
Pamela Deavours, under appointment by the Court of
Appeal, for Defendant and Appellant Father.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________________
 INTRODUCTION
The parents appeal from termination of their parental
rights to their son. They argue that the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with its initial inquiry duties under Welfare and
Institutions Code section 224.2, subdivision (b)—the California
statute implementing the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.).1 This opinion and Justice
Baker’s concurrence affirms the termination of parental rights
and concludes substantial evidence supports the juvenile court’s
ICWA finding.
FACTUAL AND PROCEDURAL BACKGROUND
1. Siblings’ Dependency History
The parents have been involved in dependency proceedings
since 2012, when they engaged in domestic violence in the
presence of son’s half sibling. Son (born in 2016) has four older
siblings (two are full siblings); all were involved in dependency
cases. I focus our discussion on the full siblings.
In November 2014, the juvenile court sustained section 300
petitions on behalf of full sibling J.P. (born 2013; case No.
CK94393B) and full sibling N.F. (born 2014; case No. CK94393C)
based on mother pulling hair out of their half-sibling’s scalp and
wrapping a belt around the half-sibling’s neck and dragging him
by the neck, inflicting deep lacerations and abrasions. At an
August 27, 2014 hearing, the juvenile court found: “The Court
does not have a reason to know that [J.P or N.F.] is an Indian
Child, as defined under ICWA, and does not order notice to any

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

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tribe or the [Bureau of Indian Affairs]. Parents are to keep the
Department, their Attorney and the Court aware of any new
information relating to possible ICWA status.”2
In 2018, the court terminated parental rights to these
siblings. The parents appealed from the denial of mother’s
section 388 petition and termination of parental rights. Each
appeal was dismissed after counsel filed briefs pursuant to In re
Phoenix H. (2009) 47 Cal.4th 835, raising no issues.
2. Son’s Dependency Case
On November 23, 2016, DCFS filed a section 300 petition
on behalf of newborn son, alleging the child was at substantial
risk of suffering serious physical harm based on the parents’
domestic violence history, father’s substance abuse history, and
the parents’ physical abuse of son’s older half-sibling. The
detention report acknowledged the parents’ three pending
dependency cases, in which the parents had not reunited with
son’s two older full-siblings (J.P. and N.P.) and older half sibling.
The report stated: “The father and mother have previously
stated he may have Cherokee heritage. Following notice to the
tribes, Secretary of the Interior, and Bureau of Indian Affairs,
This Court found on 08/27/2014 that a sibling, [N.P.], is not an
Indian Child under ICWA.”3 That same day, at the arraignment

2 DCFS requested this court to take judicial notice of the
minute order from J.P. and N.F.’s August 27, 2014 dependency
hearing, where the court found ICWA did not apply. Parents’
counsel does not object. The request is granted. (See Evid. Code,
§ 452, subd. (d).)

3 It is unclear whether notice was actually given to the
tribes, given that the August 27, 2014 minute order stated: “The
Court . . . does not order notice to any tribe or the BIA.”

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and detention hearing, the court asked and father indicated he
did not have Native American Ancestry.
On November 28, 2016, the parents filed “Parental
Notification of Indian Status” (ICWA-020) forms. Both parents
checked a box indicating they had no Indian ancestry as far as
they knew, and declared under the penalty of perjury that this
information was true and correct. That same day, the juvenile
court held a detention hearing, and found there was no reason to
know son was an “Indian child” as defined by federal and state
law. The court ordered the parents to keep their attorneys,
DCFS, and the court “aware of any new information relating to
possible ICWA status.”
In July 2017, the juvenile court found jurisdiction over son
based on its findings that the parents’ domestic violence and
father’s substance abuse placed the child at substantial risk of
suffering serious physical harm. At a January 2018 disposition
hearing, the juvenile court removed son from parental custody.
The court granted family reunification services.
In December 2018, the juvenile court returned son and his
half sibling to mother’s physical custody, granted family
maintenance services to mother and enhancement services to
father, and continued its jurisdiction over son and his half
sibling. In August 2019, DCFS detained both children from
mother’s custody and filed a section 342 petition. The petition
(amended in September 2019) alleged that mother physically and
emotionally abused then-two-year-old son, hitting him on the
butt and pushing son’s face into his urine when he had toilet
training accidents. The petition also alleged that mother hit
son’s twelve-year-old half sibling with a belt and hit his face with
her fists, causing abrasions and bruises.

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 In August 2019, in conjunction with the section 342
petition, DCFS asked mother whether son had Indian ancestry
and mother replied “Yes.” DCFS then filed an ICWA-010(A)
form, which stated “The child may have Indian ancestry.” In the
detention report, after DCFS noted mother replied affirmatively
that the children may have Indian ancestry, DCFS noted:
“During the PRC hearing held on 12/10/2012 on behalf of [the
half sibling], Juvenile Dependency Court found ‘Court has no
reason to believe this case comes under the ICWA statute.’ This
order was reiterated at the Adjudication/Disposition hearing held
on 01/16/2013. [¶] At the Detention hearing held on 11/23/2016
on behalf of [son], Juvenile Dependency Court found ‘The Court
does not have a reason to know that this is an Indian Child, as
defined under ICWA, and does not order notice to any tribe or the
BIA.’ ”
Three weeks later, the ICWA-010(A) form attached to the
amended section 342 supplemental petition (dated September 10,
2019) stated an Indian child inquiry was made and the child has
no known Indian ancestry. The record does not provide details
about the inquiry.
In July 2020, the juvenile court found mother had
physically and emotionally abused son. In September 2020, the
juvenile court removed son from parental custody, denied both
parents family reunification services, and scheduled a section
366.26 hearing to select son’s permanent plan.
On February 4, 2022, the juvenile court terminated
parental rights to son. The court found that son was adoptable,
no exception to adoption applied, and there was no reason to
know the child was an Indian child. The parents appealed.

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 DISCUSSION
The parents join in each other’s briefs and assert DCFS
failed to comply with its duty to inquire with extended family
members about Indian heritage.
1. ICWA and the Standard of Review
The juvenile court and DCFS have an affirmative and
continuing duty under ICWA and related California law to
inquire whether a child who is the subject of a dependency
proceeding is or may be an Indian child. (In re Isaiah W. (2016)
1 Cal.5th 1, 10–11.) The scope of the duty of inquiry is defined in
regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et
seq. (2020)), California statutes, and rules of court. (In re T.G.
(2020) 58 Cal.App.5th 275, 290–291 (T.G.).) Here, courts apply
the statutes in effect in February 2021, when the section 366.26
hearing took place. (In re A.M. (2020) 47 Cal.App.5th 303, 321.)
By statute, DCFS’s initial duty of inquiry at the beginning
of a child welfare proceeding includes “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 . . . .” (§ 224.2, subd. (b).) The court must inquire at each
party’s first appearance, whether any participant in the
proceeding “knows or has reason to know that the child is an
Indian child.” (Id. at subd. (c).) Part of the initial inquiry
includes requiring each party to complete the ICWA-020 form.
(Cal. Rules of Court, rule 5.481(a)(2)(C).) When there is “reason
to believe that an Indian child is involved in a proceeding,”
further inquiry is required. (§ 224.2, subd. (e); T.G., supra,
58 Cal.App.5th at p. 290, fn. 14.)

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 “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
A.M. (2020) 47 Cal.App.5th 303, 314.) On undisputed facts, the
appellate court makes an independent determination whether
ICWA’s requirements have been satisfied. (In re D.F. (2020)
55 Cal.App.5th 558, 565.)
2. Substantial Evidence Supports the Court’s Finding
The parents contend that DCFS failed to inquire of
extended family members (maternal and paternal aunts, cousins,
and grandmothers are mentioned throughout the record) as
required by section 224.2, subdivision (b). (See In re Y.W. (2021)
70 Cal.App.5th 542, 554.) However, this error was not
prejudicial, and that substantial evidence supported the juvenile
court’s ICWA finding. (See In re Dezi C. (2022) 79 Cal.App.5th
769, 777, review granted Sept. 21, 2022, S275578 [“Where, as
here, there is no doubt that the Department’s inquiry was
erroneous, our examination as to whether substantial evidence
supports the juvenile court’s ICWA finding ends up turning on
whether that error by the Department was harmless—in other
words, we must assess whether it is reasonably probable that the
juvenile court would have made the same ICWA finding had the
inquiry been done properly.”].)
Son’s case was part of his siblings’ ongoing dependency
proceedings—sharing the same juvenile court case No. CK94393.
In 2014, the court found there was no reason to know either full
sibling was an Indian child, as defined under ICWA.4 This

4 It is correct, as Justice Moor’s opinion points out, that the
ICWA inquiry requirements changed in 2019 after DCFS

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finding went unchallenged by the parents (despite multiple
appeals), and in 2018, the court terminated parental rights to
those siblings. In the interim, in 2016, when son was detained
after birth, the parents reiterated that they had no Native
American heritage.
The trial court reasonably relied on its prior findings
within the related dependency cases when it concluded there was
no reason to know son was an Indian child. Although the record
is inconsistent as to whether the tribes and BIA were contacted
in the full sibling cases, the 2016 detention report acknowledges
that the parents had reported Cherokee heritage and that it was
investigated. The parents never contested the court’s finding
that ICWA was inapplicable at any time prior to termination of
parental rights. And in the siblings’ cases, parents filed an
appeal from the termination of parental rights, raising no issues.
I must infer that the court found Mother’s 2019 “yes” response to
DCFS’s ICWA inquiry not credible given the parents’ previous
statements and the prior investigation of Native American
heritage claims.
The parents cite In re Robert A. (2007) 147 Cal.App.4th 982
(Robert A.), to argue that the trial court cannot rely on ICWA
findings for siblings. In that case, the appellate court rejected
ICWA notices from a half sibling’s case that the department
provided on appeal because the notices postdated the father’s
notice of appeal and because the half sibling’s dependency case
was heard by the juvenile court in a different city and by a

completed ICWA inquiry in the sibling cases. However, the
court’s standard for assessing whether ICWA applies has not
changed in a manner that affects the current appeal. (In re A.M.,
supra, 47 Cal.App.5th at p. 315.)

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different judicial officer. (Id. at p. 989.) In re Robert A. is
distinguishable as the present appeal involves ICWA inquiry that
occurred in advance of the court’s appealed finding and the full
sibling’s case was heard by the same court (in fact, the cases
overlapped and had the same case number).5 This case more
closely resembles In re E.W. (2009) 170 Cal.App.4th 396, 401, in
which the appellate court concluded any ICWA notice error was
harmless where DCFS completed tribal investigations for a
sibling in a related case (who shared the same father whose
heritage was at issue in the appeal) and was found not to be an
Indian child. The court explained that since the investigation
would yield the same results as the sibling case, “Even a
conditional reversal with limited remand would be an empty
formality and a waste of ever-more-scarce judicial resources.”
(Id. at pp. 401–402.) The same rationale applies here.
To the extent the parents argue the court did not take
judicial notice of the prior ICWA findings in J.P. and N.P.’s cases,
the detention report provided this information to the court.
There is nothing in the record to suggest the juvenile court failed
to consider the information presented to it. Significantly, it was
the same court that made those findings within this same group
of cases, and presumably that court was aware of its findings
when the issue arose for son.
Father’s brief also asserts that parents may have been
intimidated by the trial court’s earlier findings of no Indian
heritage when parents retracted claims of Native American

5 In re M.E. (2022) 79 Cal.App.5th 73,78 is likewise
distinguishable as the ICWA findings came from a sibling case in
a different county and court.

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ancestry. This contention is fanciful, and clearly not what
happened here as mother again asserted heritage in 2019.
Substantial evidence supports the trial court’s finding that
there was no Native American heritage, and, under the
circumstances presented here, DCFS’s failure to inquire with
extended family members was harmless. (In re Darian R. (2022)
75 Cal.App.5th 502, 509–510 [inquiry error harmless where the
juvenile court previously found that it did not have reason to
know full siblings were Indian children].) The juvenile court’s
ICWA finding was supported by substantial evidence based on
the parents’ repeated denials of Native American heritage and
the previous ICWA findings in the full siblings’ cases.
DISPOSITION
The order terminating parental rights to son is affirmed.

RUBIN, P. J.

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In re T.F.P.
B318437

BAKER, J., Concurring

I agree we should affirm the juvenile court’s order, but
not on harmlessness grounds. In my view, there is
substantial evidence supporting the juvenile court’s Indian
Child Welfare Act-related finding. (In re H.V. (2022) 75
Cal.App.5th 433, 441 (dis. opn. of Baker, J.); see also In re
Ezequiel G. (2022) 81 Cal.App.5th 984.)

BAKER, J.
MOOR, J., Dissenting.

I disagree with my colleagues that substantial evidence
supports the juvenile court’s February 4, 2022 determination
under the Indian Child Welfare Act of 1978 (ICWA) (25
U.S.C. § 1901 et seq.), and with the view of the majority that
the order of the juvenile court should be affirmed. The
juvenile court’s ICWA finding constitutes prejudicial error,
and I would conditionally reverse and remand the matter for
compliance with ICWA.
In August 2019, the Department of Children and
Family Services (the Department) asked mother about the
possibility that son had Indian ancestry, and she responded
“[y]es.” There is no cognizable evidence that, either before or
after mother’s assertion, the Department made any effort to
ask mother’s extended family members about mother’s
assertion specifically, or about the possibility of Indian
ancestry generally. The lead opinion acknowledges as
much—stating that “DCFS failed to inquire of extended
family members (maternal and paternal aunts, cousins, and
grandmothers are mentioned throughout the record) as
required by [Welfare and Institutions Code] section 224.2,
subdivision (b)”—but concludes that “this error was not
prejudicial.” (Lead opn. ante, at p. 7.) The opinion offers two
reasons to overlook the error, neither of which has merit.
First, the lead opinion relies on prior ICWA findings
pertaining to the minor’s older siblings, citing to In re
Darian R. (2022) 75 Cal.App.5th 502. However, the juvenile
court’s earlier ICWA findings were based on prior law; since
the time of those findings, the law has been amended
expressly to require inquiry of extended family members.
(Stats. 2018, ch. 833, § 5.) As explained in In re J.C. (2022)
77 Cal.App.5th 70, 82–83, “Between the [ICWA] findings in
the prior case [involving siblings] and those in the later case,
however, the law governing the duty to inquire under ICWA
changed: The Legislature amended [Welfare and
Institutions Code] sections 224.2 and 224.3, effective
January 1, 2019, to require inquiry of extended family
members.” “The court in In re Darian R. did not consider
whether applying these new laws, which expanded the duty
of inquiry, would necessarily produce the same result.”
(Ibid.) In the circumstances present here, it would be flawed
reasoning to blindly rely on ICWA determinations made
prior to 2019, even as to minor’s siblings.
State law imposes on the Department “an affirmative
and continuing duty to inquire” whether a child subject to a
section 300 petition may be an Indian child. (§ 224.2, subd.
(a).) After the statutory changes that took effect in 2019, the
Department’s “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.” (In re
D.F. (2020) 55 Cal.App.5th 558, 566.) The duties of initial
and further inquiry each require certain efforts to contact
and inquire of extended family members whether they have
any information about the possibility of Indian ancestry. (§
224.2, subds. (b), (e)(2)(A).) The juvenile court must

2
determine whether the Department has asked extended
relatives if they have any information about Indian ancestry
even when both parents have denied any such possibility.
(In re J.C., supra, 77 Cal.App.5th at pp. 79–80.) Without
evidence of adequate inquiry efforts, the juvenile court errs
in finding ICWA inapplicable. (In re Josiah T. (2021)
71 Cal.App.5th 388, 408 [“the court may not find that ICWA
does not apply when the absence of evidence that a child is
an Indian child results from [the Department’s] inquiry that
is not proper, adequate, or demonstrative of due diligence”].)
Because we apply the law in effect at the time of the ICWA
finding, the record before us does not support a finding that
the prior ICWA determinations resulted from a proper and
adequate inquiry, demonstrative of due diligence.
Second, the lead opinion shifts the focus away from the
Department’s wholesale failure of inquiry and toward the
credibility of mother’s assertion of possible Indian ancestry
and the parents’ failure to challenge the earlier ICWA
findings on appeal. Interpreting the juvenile court’s ruling
as an implicit comment on mother’s credibility is at best
strained, if not incorrect. The lack of an earlier appeal
demonstrates nothing, since the governing law was different,
as already explained. Regardless, questions of credibility or
earlier appeals are mostly beside the point: no matter what
information one parent provides regarding possible Indian
ancestry, credible or not, the Department and the juvenile
court cannot simply choose to ignore gathering readily
obtainable information from other relatives and persons

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specified in the statute. As Division Seven explained in In re
T.G. (2020) 58 Cal.App.5th 275, 295, initial information
provided by family members “will often be inadequate to
ensure the necessary protection of the rights and cultural
heritage of Indian children, Indian families and Indian
tribes. [Citation.] General information from the family
about its ancestry frequently provides the only available
basis to believe an Indian child may be involved.” “[I]t is
essential to the enforcement of the court’s and child
protective agency’s ‘affirmative and continuing duty to
inquire’ to construe broadly the duty to make further
inquiry.” (Ibid.)
On the record presented here, because it appears there
are available extended family members who may have
readily obtainable information but who were never asked
about possible Indian ancestry, I would find court’s ICWA
determination to be prejudicial error requiring a conditional
reversal and remand for compliance with ICWA’s
requirements. (Welf. & Inst. Code, § 224.2; see, e.g., In re
J.C., supra, 77 Cal.App.5th at pp. 78–84.)

MOOR, J.

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