In re L.S. CA2/1

Filed 2/27/23 In re L.S. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE

In re L.S., et al., Persons Coming B318149, B315613,
Under the Juvenile Court Law. B315631

(Los Angeles County
Super. Ct. Nos. DK10350,
18LJJP00684)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Petitioner and Respondent,

v.

JESSICA D. et al.,

Objectors and Appellants.
 APPEALS from orders of the Superior Court of Los Angeles
County, Stephanie M. Davis, Judge Pro Tempore. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for
Objector and Appellant Jessica D.
Christopher R. Booth, under appointment by the Court of
Appeal, for Objector and Appellant Victor S.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Sally Son, Deputy County Counsel, for
Petitioner and Respondent.
__________________________________
On September 8, 2021, the juvenile court denied Welfare
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and Institutions Code section 388 petitions by Jessica D.
(mother) concerning her three children. On January 27, 2022,
the court terminated the parental rights of mother and Victor S.
(father) to the eldest of the children. In three appeals, mother
challenges these rulings, joined by father as to the last ruling.
The parents raise a single issue on appeal: whether the
trial court erred when it found the Indian Child Welfare Act of
1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply to the
children even though no inquiry was made of all available
members of mother’s extended family about their Native
American status.
DCFS contends substantial evidence supports the finding,
and any error was harmless because nothing in the record
suggests that asking more extended family members would bear
meaningfully on the ICWA question.

1
Undesignated statutory references will be to the Welfare
and Institutions Code.

2
 In light of the facts in the record, which include both
mother’s and father’s denials of affiliation with any Native
American tribe; the ongoing contact mother and father had with
their respective families, including the maternal grandparents;
the fact that inquiries were made of the available grandparents
on both sides; and the fact that if the children were Indian
children, the parents would have benefitted from a heightened
standard of proof before the juvenile court could terminate their
parental rights, we conclude additional inquiry of extended
relatives would not have yielded information that was likely to
bear meaningfully on the question of whether the children are
Indian children under ICWA.
Accordingly, any failure to inquire of extended family
members was harmless. We therefore affirm.
BACKGROUND
We will limit the presentation of facts to those pertinent to
the juvenile court’s ICWA finding, the sole topic of dispute on
appeal.
A. L.S.
In 2017, mother lived with her three older children (by
another father), the maternal grandparents, and a maternal
aunt. There were two other maternal aunts not residing in the
home. Mother reported she was born in California, was close to
her parents and siblings, and had never been in foster care.
In July 2017, L.S. was born testing positive for
methamphetamine and opiates, and mother admitted to using
heroin throughout her pregnancy. Mother also admitted to a
history of domestic violence with father, who was incarcerated.

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 The three older children were detained from mother and
placed with their father in 2017 and jurisdiction was terminated
in January 2019. That family is not part of this appeal.
L.S. was detained from mother and father and placed with
the paternal grandmother. A reunification plan was instituted
and services offered, but reunification efforts failed.
During four and a half years of proceedings, mother and
the maternal grandmother filed four section 388 petitions seeking
to have L.S. removed from the paternal grandmother and placed
with the maternal grandmother or a maternal aunt. The juvenile
court denied mother’s final section 388 petition on September 8,
2021, without a hearing. Mother appeals from that order.
On January 27, 2022, the juvenile court terminated
parental rights and determined L.S.’s permanent plan to be
adoption. Mother and father appeal from that order. We
consolidated the two appeals.
B. M.H. and D.H.
Mother gave birth to M.H. in 2018 and D.H. in 2019. Their
father is Max H., who is not party to any of these appeals. D.H.
tested positive for amphetamine at birth. Both children were
detained and initially placed with the maternal grandparents.
Mother waived reunification services for M.H. and was denied
them for D.H.
On August 31, 2021, mother filed a section 388 petition
requesting that M.H. and D.H. be returned to her care, or
alternatively, that she be granted reunification services and the
children be placed with a maternal aunt. Mother stated she had
completed a relapse prevention program, and currently resided in
a substance abuse treatment program. She was having weekly
visits with the children, and argued it would be in their best

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interests to have a continuing relationship with her. The juvenile
court denied the petition on September 9, 2021, without a
hearing. Mother appeals from that order.
On our own motion, we consolidated this third appeal with
the prior two for purposes of oral argument and decision.
C. Pre-Judgment ICWA Inquiries
1. L.S.
Mother denied Native American ancestry on at least six
occasions in the proceedings relating to her six children. Father
and the paternal grandmother also denied Native American
ancestry.
Both DCFS and the juvenile court had contact with several
maternal relatives throughout the cases—including the
grandparents, three aunts, a great-aunt, and the great-aunt’s
daughter—but these individuals were not questioned about the
family’s heritage.
On July 27, 2017, the juvenile court found that ICWA did
not apply to L.S., a ruling it reaffirmed several times over the
next four years, often also directing the parents to keep DCFS,
their attorneys, and the court informed of any new information
on the issue.
2. M.H. and D.H.
Max H., M.H.’s and D.H.’s father, completed an ICWA-020
form on November 26, 2019, in which he denied Native American
ancestry.
Based on this and mother’s denials, the juvenile court
found there was no reason to know that either M.H. or D.H. was
an Indian Child under ICWA.

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D. Post-Judgment ICWA Inquiries
While briefing was underway in these appeals, we granted
the department’s requests to consider a DCFS report filed in the
M.H. proceedings on November 8, 2022. In it, DCFS reported
that the maternal grandparents denied Native American
ancestry and stated no one in the family would know better about
that than they.
DCFS further reported that both Max H. and his mother
(M.H.’s and D.H.’s paternal grandmother) denied Native
American ancestry. Neither knew how to contact the paternal
grandfather, and both stated he had no Native American
ancestry anyway.
We also granted the department’s requests for judicial
notice of a November 22, 2022 minute order in the M.H.
proceedings, in which the court found, based on the
aforementioned DCFS report, that DCFS complied with its
obligations under ICWA, and no reason existed to believe that
ICWA applied to M.H.
On December 8, 2022, the department moved to dismiss as
moot mother’s appeal regarding M.H. and D.H.
DISCUSSION
A. Issue
Mother (joined by father as to the termination of parental
rights involving L.S.) contends no evidence in the record indicates
DCFS made sufficient inquiry about the children’s possible
Indian Child status, in derogation of state law (§ 224.2)
implementing ICWA and contrary to the requirement that the
department make and document such inquiries and any
responses. (See Cal. Rules of Court, rule 5.481(a)(5) [burden on
child welfare agency to provide detailed requirements of the

6
ICWA have been satisfied is appropriate]; In re A.M. (2020) 47
Cal.App.5th 303, 314.)
Specifically, mother contends DCFS should have attempted
to question more maternal relatives than simply the maternal
grandparents about the children’s possible Native American
ancestry. Absent such an inquiry, mother argues, the juvenile
court lacked the power to deny her section 388 petitions or
terminate her parental rights. She asks that the court’s orders
be reversed and the matters remanded for further inquiry into
the family’s ancestry.
Mother does not contend any ICWA error was made
pertaining to the children’s paternal relatives, nor that the
juvenile court erred on the merits in denying her section 388
petitions or terminating her parental rights as to L.S. Nor does
she oppose our consideration of respondent’s post-judgment
evidence.
B. Legal Principles
An “Indian child” is an unmarried person under 18 years of
age who is (1) a member of a federally recognized Indian tribe or
(2) is eligible for membership in a federally recognized tribe and
is the biological child of a member of a federally recognized tribe.
(25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal
definitions], subd. (b) [expanding the age range stated in the
federal definition to include persons over 18, but under 21, years
of age].)
The juvenile court and DCFS have an affirmative and
continuing duty, beginning at initial contact, to inquire whether a
child who is subject to dependency proceedings is or may be an
Indian child. (§ 224.2, subd. (a) [setting forth the “affirmative
and continuing duty to inquire”]; Cal. Rules of Court, rule
5.481(a) [same].)

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 The “[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.” (§ 224.2, subd. (b).)
Under ICWA, the term “extended family member” is “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).)
In general, we review the correctness of a juvenile court’s
order terminating parental rights as of the time it was made. (In
re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.).) “This rule
reflects an ‘essential distinction between the trial and the
appellate court . . . that it is the province of the trial court to
decide questions of fact and of the appellate court to decide
questions of law.’ [Citation.] The rule promotes the orderly
settling of factual questions and disputes in the trial court,
provides a meaningful record for review, and serves to avoid
prolonged delays on appeal.” (Ibid.)
However, Code of Civil Procedure section 909 authorizes a
reviewing court to “make factual determinations contrary to or in
addition to those made by the trial court.” “The reviewing court
may for the purpose of making the factual determinations or for
any other purpose in the interests of justice, take additional
evidence of or concerning facts occurring at any time prior to the
decision of the appeal . . . .” (Ibid.) As our Supreme Court has
directed, however, our authority under Code of Civil Procedure
section 909 “should be exercised sparingly,” in only a “rare and

8
compelling case,” and “ ‘[a]bsent exceptional circumstances, no
such findings should be made.’ ” (Zeth S., supra, 31 Cal.4th at
2
pp. 400, 405, italics omitted.)
Respondent essentially concedes that section 224.2 was not
followed but argues any error was harmless because as reflected
in the post-judgment DCFS report and minute order, a sufficient
ICWA inquiry was eventually made of the maternal
grandparents, who possessed the best information about whether
mother’s family had Native American heritage. We agree.
DCFS’s failure to inquire of extended family members does
not result in automatic reversal. (See In re A.C. (2022) 75
Cal.App.5th 1009; In re S.S. (2022) 75 Cal.App.5th 575; In re
Darian R. (2022) 75 Cal.App.5th 502.) The question is whether
“ ‘the probability of obtaining meaningful information is
reasonable in the context of ICWA.’ ” (In re Darian R., at p. 509.)
Information available from extended family members must be
both “readily obtainable,” and “likely to bear meaningfully upon
whether the child is an Indian child.” (In re Benjamin M. (2021)
70 Cal.App.5th 735, 744.) In making this determination, we
reject “a wooden approach to prejudice” (In re A.C., at p. 1017)
and refuse to require further inquiry when, based upon the

2
Whether an appellate court may take additional evidence
to remedy the failure of a child welfare agency and trial court to
comply with the inquiry, investigation, and notice requirements
of ICWA is currently under review by our Supreme Court. (In re
Kenneth D. (2022) 82 Cal.App.5th 1027, rev. granted Nov. 30,
2022;
https://supreme.courts.ca.gov/sites/default/files/supremecourt/def
ault/2022-12/pendingissues-civil%20-%20120922_0.pdf
[statement of issues].)

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particular circumstances revealed by the record, it is apparent
“that additional information would not have been meaningful to
the inquiry” (In re Benjamin M., at p. 743).
In In re Darian R., supra, 75 Cal.App.5th 502, we found
that DCFS’s failure to inquire of the children’s maternal
grandfather and maternal aunt was error, but the error was
harmless because both parents denied Indian ancestry, “mother
lived with maternal grandfather and aunt during the dependency
proceedings, and she was under court order to continue to provide
information relevant to ICWA” (id. at pp. 509, 510), and it was
therefore “unlikely that any further inquiry of family members
would have yielded information about Indian ancestry” (id. at p.
504).
In In re S.S., supra, 75 Cal.App.5th 575, where a mother
appealed a termination of her parental rights, we considered
whether DCFS’s failure to inquire of the maternal grandmother
was prejudicial, based on the mother’s contention that social
workers should have asked the maternal grandmother about the
child’s tribal affiliation, if any. (Id. at p. 582.) We held that
DCFS’s failure to inquire of the maternal grandmother was
harmless because, as the juvenile court placed the child with a
foster parent, the mother, the mother’s counsel, and the child’s
counsel, each of whom sought to have the child placed with
maternal grandmother, all had “a strong incentive to bring to the
court’s attention any facts that suggest that [the child] is an
Indian child.” (Ibid.) Specifically, ICWA provides that in placing
an Indian child, “preference shall be given, in the absence of good
cause to the contrary, to a placement with [¶] . . . [¶] . . . a
member of the Indian child’s extended family.” (25 U.S.C.

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§ 1915(a) & (b)(i).) Thus, “[t]heir failure to do so implie[d] that
the maternal grandmother [was] unaware of such facts.” (In re
S.S., supra, at p. 582.)
On the other side, in In re A.C., supra, 75 Cal.App.5th
1009, we concluded that DCFS’s failure to ask extended family
members about possible tribal affiliation was prejudicial because
the “mother, as a foster care product, may not know her cultural
heritage, but her biological relatives may have that information,”
and “although a detention report indicated [the child] may be an
Indian child, the record is devoid of any follow-up on that
representation.” (Id. at p. 1017.) In that case, the children were
placed with multiple maternal aunts and a maternal cousin, but
there was no indication that DCFS interviewed any of these
relatives about the child’s potential Indian heritage. (Id. at p.
1013.)
Here, the record does not support the conclusion that
inquiring of more of mother’s extended family than the maternal
grandparents would have yielded additional information likely to
bear meaningfully on the court’s ICWA determination.
Mother informed DCFS on approximately six occasions that
she was unaware of any Indian ancestry. Both father and Max
H.—and their available parents—also informed the juvenile court
they were unaware of any Indian ancestry on their side. After
finding there was no reason to know the children had Native
American ancestry, the juvenile court ordered the parents several
times to keep DCFS, their attorneys, and the court informed of
any new information on the issue.
Unlike In re A.C., supra, 75 Cal.App.5th 1009, where
reason existed to doubt that the mother was aware of her cultural
heritage because she was a product of foster care (id. at p. 1017),

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mother here had close and regular contact with her relatives
before and during the dependency proceedings. Although she
resided with or remained in contact with them, neither she nor
her attorney disclosed any new information, and at the hearing
on terminating parental rights, neither objected when the
juvenile court found L.S. was not an Indian child. Thus, the
record discloses no reason to suppose the maternal aunts, great-
aunt, or cousin had knowledge superior to that possessed by
mother or the maternal grandparents such that inquiring of the
aunts and cousin would have yielded different information. (In re
Darian R., supra, 75 Cal.App.5th at pp. 504, 509, 510.)
Additionally, mother and father had a strong statutory
incentive to bring to the juvenile court’s attention any facts
suggesting L.S. had Native American ancestry. When
termination of parental rights is sought, the evidence, including
expert testimony, must establish beyond a reasonable doubt that
the continued custody of an Indian child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child. (25 U.S.C. § 1912(f); § 366.26, subd.
(c)(2)(B)(ii).) This heightened burden of proof provided additional
incentive for mother, father, and their counsel to bring forward
information bearing on whether L.S. was an Indian Child. That
they did not do so suggests there was no such information.
Accordingly, we conclude any failure by DCFS to inquire of
more extended family members than the maternal grandparents
3
as to the children’s potential Indian status was harmless.

3
That said, mother’s appeal regarding M.H. and D.H. is not
moot because she requested that DCFS make inquiries of all the
maternal relatives, not just the maternal grandparents. As
discussed, however, such an inquiry was not required.

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 DISPOSITION
The orders denying mother’s section 388 petitions and
terminating parental rights are affirmed. Respondent’s motion to
dismiss Appeal No. B315631 is denied.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.

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