Filed 6/8/23 In re L.L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re L.L., a Person Coming Under D081442
the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH (San Diego County
AND HUMAN SERVICES Super. Ct. No. NJ14135B)
AGENCY,
Plaintiff and Respondent,
v.
P.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael Imhoff, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
I.
INTRODUCTION
P.L. (Father) appeals a juvenile court order terminating parental rights
to his son, L.L. Father contends that the juvenile court erred in denying his
request for a continuance of the contested Welfare and Institutions Code 1
section 366.26 hearing in order to obtain a bonding study between Father and
L.L. Father also asserts that the Agency and court failed to satisfy their
duties of initial inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901
et seq. (ICWA)). Specifically, Father claims that the Agency and court failed
to inquire of the child’s mother (Mother), who has not appealed, and
unnamed maternal relatives as to whether L.L. may be an Indian child for
purposes of ICWA.
We reject the majority of Father’s contentions. The Agency concedes
error with respect to the Agency’s and court’s inquiry of Mother, however.
Nevertheless, we conclude that on this unique record the error was not
prejudicial. We therefore affirm the challenged order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. General background
Father has lost or relinquished custody of four children who are older
than L.L.2 He participated in a voluntary services case in 2002, as well as
three prior dependency cases in 2002 and 2009.
1 Further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
2 Mother has lost or relinquished custody of all seven of her other older
children.
2
In 2019, Father was granted legal and physical custody of L.L. by order
of the family court, with Mother having supervised visitation once a month.
Since L.L.’s birth in 2011, he has been the subject of 15 child welfare
hotline referrals; these referrals involved reports that L.L. was malnourished,
physically struck or pushed by Father, handcuffed and verbally abused by
Father’s girlfriend, and injured by another child in the home.
L.L. was diagnosed with autism spectrum disorder and moderate
intellectual disability. During the pendency of this case, L.L. was also
diagnosed with adjustment disorder with mixed anxiety and depressive
symptoms as a result of significant fear-based anxiety.
B. The detention and reunification period
Father started participating in a voluntary services case with respect to
L.L. beginning in April 2020. However, in July 2020, the Agency filed a
section 300, subdivision (a) dependency petition for then nine-year-old L.L.,
alleging that L.L. had suffered and/or was at substantial risk for suffering
serious physical harm. The Agency cited, among other things, the excessive
discipline, nutritional neglect, and risk of starvation that L.L. had
experienced while in Father’s care; the parents’ history of domestic violence
and failure to reunify with L.L.’s older sibling, A.L.; and Father’s failed
attempt at voluntary services. The Agency further noted that L.L. had been
placed in his paternal grandmother’s care in May 2020, and he was “rapidly
gain[ing] weight” and “expressed fear of returning to [Father].”
When interviewed by a social worker, Father denied having any Native
American Indian heritage. At the time the petition was filed, the Agency
could not locate Mother. However, the Agency noted with respect to Mother
that in connection with a 2008 jurisdictional report regarding another child,
Mother “reported that she does not have any known Native American
3
Heritage,” and further noted that “[p]er prior court findings, the mother does
not have Native American history.”
The trial court detained L.L. in late July 2020, ordered that L.L. be
placed in his paternal grandmother’s home, and ordered reunification
services for Father, alone, given that Mother’s whereabouts were unknown.
In late September 2020, the Agency located Mother and requested a
special hearing so that the court could appoint counsel for Mother. Mother
indicated that she had last visited with L.L. in person in November 2019, but
after that point in time, Father stopped communicating with her. The court
ordered reunification services for Mother.
Father completed a parenting education program in November 2020.
However, Father reported that he did not believe he had a need to attend a
child abuse group. Father repeatedly denied responsibility for the
dependency case and instead blamed others.
During the reunification period, Father engaged in visitation with L.L.
However, during the period between August 2020 and November 2020,
Father cancelled at least seven visits, only two of which he made up at a later
date. Father also cancelled some visits in March and April 2021. As of July
2021, L.L.’s caregiver reported to L.L.’s court-appointed special advocate
(CASA) that L.L. often returned from visits with Father in a negative,
anxious mood. L.L.’s parents and his caregiver (L.L.’s paternal grandmother)
independently reported that L.L. displayed increased fear, anxiety and
sadness during visits with his parents than he displayed in his “typical
emotional state.”
The trial court terminated Father’s reunification services at a contested
12-month status review hearing that took place on January 25, 2022.
4
Mother stopped participating in in-person visitation with L.L. in
August 2021. Mother’s services were ultimately terminated in June 2022.
C. The postreunification period
By August 2022, Father had begun shortening his weekly visits with
L.L. and was spending approximately an hour with L.L. As of mid-August
2022, L.L. began refusing visits with Father. In mid-September 2022, L.L.
informed the Family Visitation Center that he no longer wanted to visit with
his father; the Family Visitation Center closed Father’s visitation referral at
that point. L.L. continued to refuse visits with Father up until and through
the section 366.26 proceedings.
D. The permanency planning period
The section 366.26 hearing was initially set to take place in October
2022. Both parents were present by telephone for the hearing. However, the
Agency requested a two-week continuance in order to prepare and file its
section 366.26 report. The court granted the continuance and ordered the
parents to appear in person or by telephone on the continued hearing date.
Before the hearing concluded, however, counsel for Father asked the
court to “reiterate the current visitation order.” Counsel was referencing the
fact that there had been no visitation between L.L. and Father for a period of
time. Counsel indicated that Father had been told that there had been a
contractual issue between the visitation center and the Agency, which led to
visits being cancelled, which then led to L.L. being resistant to visits. At this
point, however, counsel for L.L. spoke and indicated that L.L. had
communicated to minor’s counsel that he “did not want to have any visits
with his parents at this point.” Counsel noted that he did not “want [L.L.] to
be forced to have visits if he doesn’t want to.” The court acknowledged that
L.L. “cannot be forced to go to the visit,” but encouraged the use of
5
“alternatives,” such as “phone contact or virtual contact” and indicated that
the parties would “sort through the particulars at the next hearing.”
The Agency then filed its section 366.26 report, in which it
recommended termination of parental rights and a permanent plan of
adoption for L.L. The social worker indicated that L.L.’s caregiver, his
paternal grandmother, was interested in adopting L.L., and also reported
that L.L. had indicated his desire to be adopted by his caregiver.
The continued section 366.26 hearing resumed on November 21, 2022.
On the record, the juvenile court noted that there had been a “brief chamber’s
conference.” The court noted that Father and Mother had requested a
contested section 366.26 hearing, and the court then asked the parties and
their attorneys whether that “fairly state[d] the chambers conference.” The
attorneys answered in the affirmative without further comment. The court
set the contested hearing to take place in early January 2023.
The juvenile court held the contested section 366.26 hearing on
January 6, 2023. Father was present, and Mother appeared telephonically.
At the beginning of the hearing, the court indicated that the parties
and counsel had just participated in a lengthy chambers conference, and the
court wanted to permit Father’s counsel to make a record regarding her
request for a continuance. Father’s counsel stated that she was requesting a
continuance of “at least 60 days,” given that Father “has had difficulty seeing
his child for his court-ordered visits since August.” Father’s counsel indicated
that she was asking for the 60-day continuance to give Father a chance to
establish the consistent visitation prong of the beneficial parent-child
relationship exception, and to allow Father to obtain a bonding study.
Counsel stated that she had informed the court “at the original .26 hearing
6
where [she] set th[e matter] for trial” that she “wished to use a bonding
expert for trial.”
As part of her argument in favor of the continuance, counsel contended
that the social worker had failed to communicate with Father about whether
L.L. would be produced for visits again, after the issue with the visitation
center occurred. Counsel raised the idea that Father had a “hostile”
relationship with L.L.’s paternal grandmother, paternal step-grandfather,
and paternal aunt, and argued, without citing evidence, that Father’s
position was that “the child has been coached and worked on and alienated
from his father in the time that he has not seen him.” Counsel stated that
her investigator had been on a telephone call with the social worker and L.L.,
and when the social worker asked L.L. if he’d like to visit his father, L.L.
responded in the affirmative. Counsel conceded, however, that L.L.
“sometimes gives different answers depending on who[m] he is talking to.”
Counsel argued that a bonding study would provide “the most fair
assessment of the attachment [L.L.] may or may not have with his father.”
Minor’s counsel and county counsel both disputed Father’s counsel’s
characterization of L.L.’s wishes. Both attorneys represented that L.L. was
very clear and adamant about not wanting to have visits with Father.
Minor’s counsel stated a concern about the “trauma he goes through”
regarding visitation, and stated that “as his guardian ad litem, I can’t in good
conscience keep putting him through that.”
The juvenile court determined that it would not be in L.L.’s best
interest to continue the matter for the completion of a bonding study and
denied Father’s request for a continuance, but indicated an openness to
revisiting the question should the evidence presented at trial warrant it. In
reaching its conclusion, the court expressly disagreed with Father’s position
7
that the social worker was to blame for the lack of visits between L.L. and
Father, and the court found instead that the social worker had “utilized a
very sensitive approach to empowering [L.L.] to make his own decision.” The
court further found that L.L. had been “remarkably consistent, not only in his
verbal responses, but in his emotional and physical responses to a request to
visit with his father,” and these requests had “all been negatively impactful
on him.”
The court then opened the trial, and heard testimony from the social
worker most recently assigned to L.L.’s case, as well as from Father.
After the close of evidence, Father’s counsel renewed her request for a
continuance to obtain a bonding study. Minor’s counsel and counsel for the
Agency opposed the request. The juvenile court again denied Father’s
request for a continuance, determining that a continuance would not be in
L.L.’s best interest for two reasons. First, there was no evidence that L.L.
had been coached, coerced, or influenced by anyone with respect to his refusal
to participate in visits with Father. Second, the record demonstrated that
L.L. had a “particular significant detrimental reaction” to having contact
with Father.
After hearing closing arguments from counsel, the court found by clear
and convincing evidence that it was likely that L.L. would be adopted. The
court further determined that Father had met his burden to prove regular
visitation and contact with the child because “the standard is for the Court to
determine the extent of visitation permitted.” Because L.L.’s refusal to visit
was not in Father’s control, the court concluded that Father had met his
burden to demonstrate regular visitation and contact “on these unique facts.”
However, the court made a finding that Father had not met his burden to
prove that he had a substantial, positive, emotional attachment with L.L.
8
Ultimately, the court stated that “overall the trauma [to L.L. from what
occurred while he was in Father’s care] is so great, the distress so deep that
this child feels, that it is a matter of trust for him,” and “he does not feel that
he can place trust in his father for maybe a great deal of reasons.” Finally,
the court determined that Father also failed to meet his burden to prove that
terminating Father’s parental rights would be detrimental to L.L. when
balanced against the benefits to L.L. of adoption.3
The court terminated parental rights and concluded that a permanent
plan of adoption would best serve L.L.’s interests.
Father timely appealed from the trial court’s order terminating his
parental rights.
III.
DISCUSSION
A. The trial court’s denial of a continuance to allow Father to obtain a
bonding study was neither an abuse of the court’s discretion nor a due
process violation
Father asserts that the juvenile court abused its discretion in denying
his request for a continuance to allow him to obtain a bonding study and that
the denial of the continuance for a bonding study violated his due process
rights. We disagree.
The law is clear that a juvenile court has no statutory obligation to
order a bonding study. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339–
1340 (Lorenzo C.).) Rather, a court has discretion to order or deny a bonding
study, and the standard of review applicable to challenge a court’s denial of a
request for a bonding study is “whether, under all the evidence viewed in a
3 The court also concluded that the sibling exception to adoption did not
apply.
9
light most favorable to the juvenile court’s action, the juvenile court could
have reasonably refrained from ordering a bonding study.” (Id. at p. 1341.)
When a parent’s request for a bonding study also involves a request for
a continuance of the proceeding, that request implicates an additional set of
concerns, in that “[c]ontinuances are discouraged in dependency cases.” (In
re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) Typically, a juvenile court
may grant a continuance in a dependency case only upon a showing of good
cause, and a court may not grant a continuance that would cause a hearing to
occur beyond an otherwise required time limit if the continuance would be
contrary to a minor’s interest. (§ 352, subd. (a)(1).) In considering the
minor’s interests, the court must give “substantial weight to a minor’s need
for prompt resolution of his or her custody status, the need to provide
children with stable environments, and the damage to a minor of prolonged
temporary placements.” (Ibid.) A trial court’s decision to grant or deny a
continuance, similar to a court’s decision to grant or deny a request for a
bonding study, “is a decision reviewed for abuse of discretion, a deferential
standard.” (Michael G. v. Superior Court of Orange County (2023) 14 Cal.5th
609, 637.) A court abuses its discretion only when “ ‘ “ ‘the trial court has
exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination.’ ” ’ ” (In re Caden C. (2021) 11 Cal.5th 614,
641 (Caden C.).)
Due process in the context of dependency proceedings generally
includes the right to notice and the right to a meaningful opportunity to be
heard. (In re R.F. (2021) 71 Cal.App.5th 459, 470.) Thus, “[w]hile it is not
beyond the juvenile court’s discretion to order a bonding study” even after the
termination of reunification services in situations in which “compelling
circumstances” counsel in favor of such a choice, a court’s “denial of a belated
10
request for such a study is fully consistent with the scheme of the dependency
statutes, and with due process.” (In re Richard C. (1998) 68 Cal.App.4th
1191, 1197; see In re M.M. (2022) 81 Cal.App.5th 61, 69 (M.M.).)
In this instance, Father did not seek the opportunity to obtain a
bonding study in the time between the court’s termination of Father’s
reunification services, which occurred in January 2022, and the setting of the
section 366.26 hearing. Father also said nothing about a bonding study
during his telephonic appearance, while represented by counsel, at the initial
section 366.26 hearing in October 2022; at that hearing, the court made a
finding that notice had been “given as required by law” and continued the
matter for two weeks to permit the Agency to prepare and file its section
366.26 report. Before the hearing concluded for the day, however, the court
permitted Father’s attorney to argue issues related to Father’s visitation with
L.L. Father’s attorney sought to have the court “reiterate the current
visitation order,” and mentioned Father had not seen L.L. “since August.”
Counsel noted that Father had been told that there had been a “gap between
visits due to some contract changes between [the supervised visitation center]
and the Agency,” and counsel represented that the “gap has resulted in [L.L.]
now being resistant towards visits.” Father’s counsel mentioned nothing
about a bonding study.
Nor did Father raise or request a bonding study on the record at the
continued hearing that occurred in November 2022.
Rather, on the date of the contested section 366.26 hearing in January
2023, Father’s attorney raised the issue of her desire to “use a bonding expert
for trial” and only then did Father request a two-month continuance. At that
time, Father’s attorney did indicate, however, that she had raised the issue of
a bonding study at an earlier point in time, saying, “At the original .26
11
hearing where I set this for trial, I did inform the Court that I wished to use a
bonding expert for trial. And I asked again that the Agency be directed to
follow the Court’s order and produce the child for visitation.” The transcript
from the November 2022 hearing at which both parents requested a
contested section 366.26 hearing does not include any mention of either
party’s desire to obtain a “bonding expert for trial”; however, the juvenile
court did make reference to an unreported “chamber’s conference” that
apparently occurred before the hearing, so it is possible that counsel did
make some mention of the desire to obtain a “bonding expert” during the
unreported conference. In any case, whether or not counsel mentioned
wanting to obtain a bonding study for the future contested hearing during an
unreported conference, Father had two additional months during which to
obtain such a study or seek court assistance with respect to procuring one,
yet he did not do so.
Instead, Father waited until the date that the contested section 366.26
hearing was set to begin to request a further continuance for the purpose of
obtaining a bonding study. The trial court acted well within its discretion in
denying the request. Father’s reunification services had already been
terminated for almost a year at that point, and the section 366.26 hearing
was ready to commence. By this time, the focus of the case was no longer
Father’s interest in maintaining the care, custody and companionship of L.L.,
but was instead L.L.’s interest in permanency and stability. (See, e.g., In re
Stephanie M. (1994) 7 Cal.4th 295, 317 [at the point where reunification
services have been terminated and a section 366.26 hearing has been set, a
parent’s “interests in the care, custody and companionship of the child are no
longer paramount”, and instead “ ‘the focus shifts to the needs of the child for
permanency and stability’ ”].) L.L. was thriving in the care of his paternal
12
grandmother, and he had been actively rejecting any visitation with Father
for many months. Given the history of this case, as well as the clear benefit
to L.L. from not further delaying his adoption by the caregiver who had been
providing him with companionship and care, we see no abuse in the court’s
decision to deny a two-month continuance for the purpose of conducting a
bonding study at this point in the proceedings.
We also reject Father’s contention that the court’s decision to deny a
continuance for this purpose amounted to a due process violation. This was a
belated request for additional time to conduct a bonding study. Father was
provided notice of all of the proceedings and was also provided multiple
opportunities to be heard. Importantly, Father was not entitled to a bonding
study at any point in the proceedings (Lorenzo C., supra, 54 Cal.App.4th at
p. 1339 [“[t]here is no requirement in statutory or case law that a court must
secure a bonding study as a condition precedent to” terminating parental
rights]. Although the Supreme Court has recently noted that “where
requested and appropriate,” a trial court should “seriously
consider . . . allowing for a bonding study or other relevant expert testimony”
(Caden C., supra, 11 Cal.5th at p. 633, fn. 4), the court’s phrasing
acknowledges the discretion conferred on trial courts to determine when a
bonding study would be “appropriate” and implicitly reaffirms that a parent
is not entitled to a bonding study as a matter of right. We therefore reject
Father’s suggestion that the trial court deprived him of the opportunity to
present a defense by not granting him a continuance in order to obtain a
bonding study. Consequently, the court’s decision to deny a continuance in
this case did not amount to a violation to Father’s right to due process. (See
M.M., supra, 81 Cal.App.5th at p. 69 [rejecting argument that denial of
continuance for bonding study violated parent’s right to due process].)
13
B. There is no basis for reversing the trial court’s order based on failures in
the duty of initial inquiry for purposes of ICWA
Father also challenges whether the Agency and the juvenile court
complied with the initial inquiry duty in connection with ICWA. Specifically,
Father argues that “[t]he Agency could have, and should have, inquired with
Mother and any known maternal relatives,” but the record does not disclose
that such inquiries were made.
In dependency proceedings, the juvenile court and the Agency have an
“affirmative and continuing duty to inquire” whether a child “is or may be an
Indian child.” (§ 224.2, subd. (a).) “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.” (In re D.F. (2020) 55 Cal.App.5th 558,
566.)
Section 224.2, subdivision (a) imposes on “[t]he court, county welfare
department, and the probation department . . . an affirmative and continuing
duty to inquire whether a child for whom a petition under Section 300, 601,
or 602 may be or has been filed, is or may be an Indian child.” The Agency is
required to ask “the party reporting child abuse or neglect whether the party
has any information that the child may be an Indian child” upon the initial
contact with the Agency. (§ 224.2, subd. (a).) In addition, state law requires
the court to pursue an inquiry “[a]t the first appearance in court of each
party” by asking “each participant present in the hearing whether the
participant knows or has reason to know that the child is an Indian child.”
(§ 224.2, subd. (c); see In re Ricky R. (2022) 82 Cal.App.5th 671, 678–679
(Ricky R.) [explaining that “[f]ederal regulations require state courts to ask
each participant ‘at the commencement’ of a child custody proceeding
‘whether the participant knows or has reason to know that the child is an
14
Indian child’ ”].) Moreover, in the circumstance in which a child is taken into
temporary custody pursuant to section 306, the Agency must also ask 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.
(§ 224.2, subd. (b); see In re Robert F. (2023) 90 Cal.App.5th 492, 500 (Robert
F.) [duty to inquire of extended family members under § 224.2, subd. (b) is
triggered when the child is taken into temporary emergency custody under
§ 306].)
“On appeal, we review a juvenile court’s ICWA findings for substantial
evidence.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1051 (D.S.).) However,
where the facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied. (Ibid.)
Father notes that the Agency had been unable to locate Mother until
the end of September 2020. He further contends that the trial court found at
the six-month review hearing on May 24, 2021, that notice under ICWA was
not required because the court knew L.L. was not an Indian child and that
reasonable inquiry had been made to determine whether L.L. may be an
Indian child. The court made this finding, Father argues, despite an absence
of information in the record to support a determination that the Agency or
the court ever made an inquiry of Mother upon her appearance in this
proceeding as to her possible Native American Indian heritage or whether
she knew or had reason to know that L.L. has Indian heritage. Father also
notes that at none of the hearings during which Mother was present, either
in person or by telephone, did the court inquire of her or her attorney with
respect to possible Indian ancestry. Accordingly, Father contends that at the
time the court made a finding that ICWA does not apply to this matter at the
section 366.26 hearing on January 6, 2023, the court “did not have sufficient
15
evidence this was true, due to the lack of proper inquiry with Mother or
maternal relatives.”
As an initial matter, we reject Father’s contention that the Agency
failed in its duty of initial inquiry with respect to L.L.’s maternal relatives.
The Agency argues that it was under no obligation under section 224.2,
subdivision (b) to interview or inquire with extended family members such as
the “maternal relatives” Father mentions. As the Robert F. court recently
explained, the plain language of subdivision (b) of section 224.2 requires
inquiry of extended family members only when a child has been removed
under section 306 (Robert F., supra, 90 Cal.App.5th at p. 500). This record
does not disclose that L.L. was removed pursuant to the emergency removal
procedures outlined in section 306. We agree with the Robert F. court’s
analysis and adopt it here.
However, the Agency concedes error with respect to the fact that the
Agency and the juvenile court failed in their duty of initial inquiry as to
Mother. The record demonstrates that at the outset of this case, Mother did
not appear and the Agency was unable to locate her for a period of time. The
Agency located Mother as of late September 2020. The record demonstrates
that when Mother was first contacted in September 2020, the Agency failed
to inquire of Mother as to whether there was reason to believe that L.L. is an
Indian child; the Agency’s reports from that time frame do not indicate that
the Agency made any ICWA inquiries of Mother, despite the requirement of
initial inquiry under section 224.2, subdivision (a). The record also indicates
that the juvenile court did not make any ICWA inquiry of Mother at her
initial appearance, in violation of the requirement of section 224.2,
subdivision (c) that the court “ask each participant [at the party’s first
appearance in court] whether the participant knows or has reason to know
16
that the child is an Indian child.” The record also does not disclose that the
court made any ICWA inquiry of Mother during subsequent proceedings.
The Agency contends, however, that under the unique circumstances of
this case, the error with respect to the initial inquiry as to Mother was
harmless. The standard by which an error in ICWA inquiry is assessed for
harmlessness is currently the subject of a split of authority among the courts
(see In re K.H. (2022) 84 Cal.App.5th 566, 611–618.) [summarizing varied
approaches to prejudice review in context of ICWA inquiry or notice error]),
and the Supreme Court has granted review on the issue (see In re Dezi C.
(2022) 79 Cal.App.5th 769, review granted September 21, 2022, S275578).
This division, however, has adopted the approach articulated in In re
Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.). (In re Y.M. (2022) 82
Cal.App.5th 901, 916 (Y.M.).) Under this approach, “a court must reverse
where the record demonstrates that the agency has not only failed in its duty
of initial inquiry, but where the record indicates that there was readily
obtainable information that was likely to bear meaningfully upon whether
the child is an Indian child.” (Benjamin M., at p. 744.)
Although we do not take lightly the question of harmlessness in the
context of errors in ICWA inquiry, we agree with the Agency that this unique
record establishes that any failure on the part of the Agency and the court to
inquire of Mother at the outset of her appearance in the case regarding her or
L.L.’s possible Native American Indian Heritage was harmless. Specifically,
this record demonstrates that there was not any missing but “readily
obtainable information that was likely to bear meaningfully upon whether”
(Benjamin M., supra, 70 Cal.App.5th at p. 744) L.L. is an Indian child that
could have come from Mother. First, even before the Agency located Mother,
the record in this case demonstrated that Mother had previously reported
17
that she has no known Native American Indian heritage, and that Mother
previously had a court finding that she did not have Native American Indian
ancestry. Second, the Agency ultimately did inquire of Mother regarding
L.L.’s possible Native American Indian ancestry. Specifically, in March 2021,
a social worker asked Mother about possible Native American Indian
ancestry. Mother “denied having any Native American ancestry,” and also
denied that L.L. had any Native American Indian ancestry.
Thus, although the main concern when an Agency or court has failed to
conduct the proper initial inquiry and make the information gathered from
such inquiry known is that it is generally impossible to know what the
inquiry might reveal (see Benjamin M., supra, 70 Cal.App.5th at pp. 742–
743), it is not impossible to know what a first contact/first appearance inquiry
would have revealed in this case. Mother denied Native American Indian
heritage before her appearance in this matter. Mother also denied such
heritage six months after she first appeared in the proceeding. There is no
reasonable possibility that Mother would have provided a different answer if
she had been asked these same questions when she was first located and
interviewed and at her first appearance in court. It would be pointless for us
to remand the matter for the Agency and the trial court to conduct an inquiry
of Mother that has now been conducted. Consequently, we conclude that the
ICWA inquiry error about which Father complains was harmless and does
not require reversal.
18
DISPOSITION
The juvenile court’s January 6, 2023 order is affirmed.
BUCHANAN, J.
WE CONCUR:
DATO, Acting P. J.
CASTILLO, J.
19