In re L.H. CA2/1

Filed 10/31/22 In re L.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re L.H. et al., B318400
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 19CCJP06482)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
KARLA B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mary E. Kelly, 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 Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
_____________________
Karla B. (Mother) appeals from the juvenile court order
terminating her parental rights to her children L.H., J.H.,
J.H. Jr., G.H. and A.H. (children) pursuant to Welfare and
Institutions Code1 section 366.26. The children’s father is J.H.,
Sr. (Father).2
Mother contends the Los Angeles County Department of
Children and Family Services (DCFS) did not adequately
investigate each child’s potential status as an “Indian child” as
defined in the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901et seq.). She specifically contends that DCFS had a duty under
section 224.2, subdivision (b) and California Rules of Court, rule
5.481(a)(1) to inquire of “extended family members” whether the
children had any possible tribal affiliation, and that DCFS failed
to fulfill its duty by not inquiring of the maternal grandmother,
paternal grandmother, and a paternal aunt. She further
contends that DCFS’s failure to perform an adequate
investigation was prejudicial, and she asks this court to remand
the matter to the juvenile court to conduct a new section 366.26
hearing in conformity with ICWA and related California law.
DCFS contends that substantial evidence supports the
juvenile court’s determination that ICWA did not apply to the
1Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
2 Father is not a party to this appeal.
2
children. It further argues that any error was harmless because
the record does not demonstrate that any inquiry of extended
family members would bear meaningfully on the question of
whether the children are Indian children.
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
paternal grandmother, maternal grandmother and paternal aunt,
efforts by Mother, Father, paternal grandmother and paternal
aunt to have the children placed with paternal grandmother and
paternal aunt, and the lack of any information from maternal
grandmother, paternal grandmother and paternal aunt regarding
any possible tribal affiliation, 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 thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Dependency Proceedings3
1. Petition and Detention Regarding L.H., J.H., J.H. Jr.,
and G.H.
In September 2019, when Mother gave birth to G.H., both
she and the baby tested positive for amphetamine. At that time,
3 Because the sole issue on appeal is whether DCFS has
complied with its duty of inquiry under ICWA-related California
law, our summary of the dependency proceedings is abbreviated
and focused on the facts relevant to DCFS’s duty to inquire
regarding the children’s potential status as Indian children.
3
Mother had three other children—L.H. (aged 4), J.H. (aged 3) and
J.H. Jr. (aged 2).4 Both Mother and Father claim that Father is
the biological father of all four children.
DCFS was notified of the positive amphetamine results,
and emergency response social workers went to the hospital the
day after the birth and met with Mother. Mother admitted that
she had used methamphetamine two days before G.H.’s birth; she
claimed it was the first time she had used the drug, and that she
found it in Father’s wallet.
Mother stated that she, Father, and the children had been
living with paternal grandmother Maria H. since February 2019.
Mother indicated that two paternal uncles, Daniel M. and Oscar
V., also lived in paternal grandmother’s home. Mother said that
maternal grandmother Maria V. assisted with childcare for at
least J.H. and J.H. Jr. Mother reported that she considers
maternal grandmother as her support.
At the hospital, Mother and the social workers agreed to a
safety plan under which the children would be cared for by
maternal grandmother; Father was contacted by telephone and
agreed. The following day a social worker met with maternal
grandmother, who agreed to participate in the safety plan and
indicated she wanted to be considered as a placement option for
the children.
During Father’s first interview with DCFS, he reported
that he, Mother, and the children’s paternal grandfather lived in
4 Mother gave birth to a fifth child, A.H., in September
2020; L.H., J.H., J.H. Jr., G.H. and A.H. are the subjects of this
case. Mother gave birth to a sixth child in November 2021; that
child is not a subject of this case.
4
the family home. He said that paternal grandmother and the
paternal uncles had moved out of the home two months earlier.
He identified paternal grandmother as his family support and
identified paternal grandmother as a possible placement option
for the children.
Paternal grandmother informed DCFS that she ended her
relationship with paternal grandfather and left the family home
about two months earlier. She previously lived with paternal
grandfather along with Mother, Father, and their children.
Paternal grandmother confirmed she was living with the two
paternal uncles, Daniel and Oscar. Paternal grandmother
indicated that she would be willing to care for the children.
On October 1, 2019, DCFS informed maternal grandmother
that, because she had been involved in dependency proceedings
as a mother, DCFS would not place the children in her care. The
next day, October 2, Mother took the children to paternal
grandmother’s residence. DCFS obtained Mother’s and Father’s
consent to detain L.H., J.H., J.H. Jr. and G.H., and placed them
with their paternal grandmother.
On October 4, 2019, DCFS filed a section 300 petition on
behalf of L.H., J.H., J.H. Jr. and G.H., based on allegations that
G.H. was born positive for amphetamine, that Mother and Father
both had a history of substance abuse and continued to abuse
drugs, and that they had been involved in an incident of domestic
violence.
On October 7, 2019, the juvenile court held a detention
hearing, at which it found a prima facie case that L.H., J.H.,
J.H. Jr. and G.H. were children described under section 300 and
detained the children outside of the parents’ custody. The
5
juvenile court also found Father to be the presumed father of the
four children.
On November 15, 2019, DCFS filed a combined
jurisdiction/disposition report, in which it indicated that the
children remained in the care of paternal grandmother.
According to the report, L.H. told the social worker that her
parents were living with her maternal grandparents. Paternal
grandmother told the social worker that the children were living
with her and her two sons, Daniel and Oscar, and that Mother
and Father had participated in monitored visits with the children
at her residence. Paternal grandmother also stated that she had
two other children, Mayra H. and Cristina L.
Mother informed the social worker that she was raised by
maternal grandmother along with her siblings and extended
relatives in the family home. Mother said she maintained a close
relationship with maternal grandmother and her siblings and
identified maternal grandmother as her support system. Father
identified the paternal grandparents as his support system.
At the adjudication hearing held on December 10, 2019,
Mother and Father pled no contest to DCFS’s section 300
petition, as amended. The court declared L.H., J.H., J.H. Jr., and
G.H. dependents of the court, removed them from parental
custody, and ordered DCFS to provide family reunification
services including monitored visits.
On May 20, 2020, in a status report, DCFS indicated that
the children remained with paternal grandmother, and that
paternal grandmother’s home had been approved under the
Resource Family Approval (RFA) program. According to the
report, Mother visited the children three times a week and
Father separately visited twice a week, all at paternal
6
grandmother’s residence. Mother and Father both indicated that,
should they not be allowed to reunify with the children, they
wanted the children to remain in the care of paternal
grandmother.
2. Petition and Detention Regarding A.H.
In September 2020, Mother gave birth to her fifth child,
A.H. A DCFS social worker met with Mother and Father at the
hospital the day after the birth and informed them that DCFS
had placed a hospital hold on the baby and was removing A.H.
from their custody. DCFS placed A.H. in the care of a paternal
aunt, Cristina L., who lived at a different address than paternal
grandmother. A social worker visited the paternal aunt’s
residence four days after the birth and the paternal aunt picked
up A.H. from the hospital on that day.
On September 15, 2020, DCFS filed a section 300 petition
on behalf of A.H. based on the same allegations of drug use and
domestic violence supporting the section 300 petition regarding
the other children.5 According to a detention report filed by
DCFS, Mother told a social worker at the hospital that she was
staying with two of her siblings at their residence. Both Mother
and Father told the social worker that Father was the biological
father of A.H.
On September 18, 2020, the juvenile court held a detention
hearing, at which it found a prima facie case that A.H. was a
child described under section 300 and detained A.H. outside of
5 A nurse at the hospital reported to social workers that
A.H.’s medical records showed he had a heart murmur that was
attributed to Mother’s substance abuse.
7
the parents’ custody. Mother and Father were not present at this
hearing.
On September 22, 2020, Mother and Father appeared in
the juvenile court for the first time related to A.H.’s dependency
petition. The juvenile court found that Father was the presumed
father of A.H. The juvenile court ordered that A.H. remain
detained outside of the parents’ custody.
In a combined jurisdiction/disposition report, filed on
November 30, 2020, DCFS reported that A.H. remained in the
care of paternal aunt Cristina L. Mother and Father had
separate monitored visits with A.H.; the visits took place at the
paternal grandmother’s residence along with the other four
children.
On December 10, 2020, the juvenile court sustained the
allegations of DCFS’s section 300 petition, as amended, and
found that A.H. was described by section 300, subdivisions (b)(1)
and (j), due to the parents’ substance abuse and domestic
violence. The court declared A.H. a dependent of the court,
removed him from parental custody, and ordered DCFS to
provide family reunification services including monitored visits.
3. Status Review Hearings and Termination of Parental
Rights with Respect to L.H., J.H., J.H. Jr., G.H. and
A.H.
On February 25, 2021, in a status report, DCFS indicated
that L.H., J.H., J.H. Jr. and G.H. remained with paternal
grandmother. According to the report, on October 28, 2020, social
8
workers met with Mother, Father, paternal grandmother,6
paternal aunt and paternal uncle Daniel “to discuss the case.”
Both Mother and Father continued to have monitored visits with
L.H., J.H., J.H. Jr. and G.H.
On May 24, 2021, in a status report, DCFS indicated that
A.H. remained in the care of paternal aunt Cristina L., and that
the paternal aunt’s home had been approved under the RFA
program in February 2020. Paternal aunt and her partner
indicated that they were willing to adopt A.H. DCFS
recommended adoption by paternal aunt and her partner.
Mother and Father had visits with A.H. monitored by paternal
aunt. The report discussed conflicts between Mother with her in-
laws—paternal grandmother and paternal aunt—during visits;
DCFS indicated it was considering having maternal grandmother
serve as a monitor during visits. According to the report, Mother
declined Sunday visits because she was busy helping maternal
grandmother take care of other family members.
On June 10, 2021, at a combined six-month review hearing
for A.H. and 12-month review hearing for L.H., J.H., J.H. Jr., and
G.H., the juvenile court found that Mother had minimally
complied with her case plans and made minimal progress
towards mitigating the causes necessitating placement. The
court found by clear and convincing evidence that mother failed
to participate in the court-ordered treatment programs. The
court found no substantial probability of any of the children being
returned to Mother or Father within six months, ordered family
6 This individual was identified as “MGM,” i.e., maternal
grandmother, but it is clear from the name used and the context
that the individual was paternal grandmother.
9
reunification services for the parents terminated, and scheduled
a section 366.26 hearing for all five children. Mother’s counsel
requested the juvenile court to direct DCFS to consider maternal
grandmother as a monitor for visits.
In November 2021, Mother gave birth to her sixth child
with Father. The child tested positive for methamphetamine;
Mother admitted to having used methamphetamine during the
pregnancy.
On November 23, 2021, DCFS submitted a report to the
juvenile court in preparation for the section 366.26 hearing
regarding L.H., J.H., J.H. Jr. and G.H. According to the report, a
social worker monitored a visit between all five children (L.H.,
J.H., J.H. Jr., G.H. and A.H.) and maternal grandmother, three
maternal aunts and a maternal uncle. Maternal grandmother
declined to serve as a monitor for future visits but expressed
interest in having future visits with the children. DCFS believed
the best permanency plan for L.H., J.H., J.H. Jr., and G.H. was
adoption with the paternal grandmother. The paternal
grandmother expressed that she wanted to adopt the children,
the RFA program application for the paternal grandmother had
been approved, and she was identified as the prospective adoptive
mother.
DCFS filed a separate report regarding A.H. A.H.
remained with paternal aunt Cristina L., although in September
2021 Cristina L. had moved in with paternal grandmother.
According to the report, paternal aunt Cristina L. was interested
in adopting A.H., and DCFS identified her as a prospective
10
adoptive parent, but her current home was not approved under
the RFA program.7
On February 1, 2022, DCFS filed an addendum report in
which it indicated that the RFA program evaluation for paternal
aunt Cristina L. at her new temporary residence had been
approved on January 18, 2022. DCFS reported that it could move
forward with adoption by paternal aunt after the juvenile court
terminated the parental rights of Mother and Father.
On February 3, 2022, the juvenile court held the section
366.26 hearing regarding L.H., J.H., J.H. Jr., G.H. and A.H.8
The juvenile court found the children were adoptable and no
exception to termination of parental rights applied, and therefore
terminated Mother’s and Father’s parental rights. The juvenile
court designated paternal grandmother as L.H.’s, J.H.’s,
J.H. Jr.’s, and G.H.’s prospective adoptive parent and it
designated paternal aunt Cristina L. as A.H.’s prospective
adoptive parent.9
Mother filed a timely notice of appeal on February 3, 2022.
7 Paternal aunt’s prior home had been approved, but
paternal aunt had separated from her partner, who had been a
co-applicant, and she was in the process of applying as a sole
applicant.
8 Neither Mother nor Father appeared at the hearing,
which was held remotely. Mother’s counsel requested a
continuance, indicating Mother was aware of the hearing and
wanted to attend, but counsel’s calls to Mother’s phone went
directly to voicemail. The juvenile court denied the request.
9The juvenile court also denied a section 388 petition
Mother had filed.
11
B. ICWA Inquiry and Findings
With its section 300 petition regarding the four older
children, DCFS submitted Indian Child Inquiry Attachment
(ICWA-010(A)) forms indicating that Mother and Father were
interviewed in-person and that “[t]he child has no known Indian
ancestry.” In addition, Mother filed a Parental Notification of
Indian Status (ICWA-020) form (rev. Jan. 1, 2008) pertaining to
L.H., J.H., J.H. Jr., and G.H.10 Mother checked the box next to
the statement: “I have no Indian ancestry as far as I know.”
Father filed separate ICWA-020 forms (rev. Jan. 1, 2008) for
L.H., J.H., J.H. Jr., and G.H. On each respective form, Father
checked the box next to the statement: “I have no Indian
ancestry as far as I know.”
On October 7, 2019, at the detention hearing regarding the
four older children, both Mother and Father stated on the record
that they were not aware of any potential Native American
ancestry. The juvenile court found “[b]ased on the parents’
beliefs,” there was no reason to believe the children were subject
to ICWA.11 The juvenile court’s minute order states that the
10 The ICWA-020 form advises parents, “You must provide
all the requested information about the child’s Indian status by
completing this form. If you get new information that would
change your answers, you must let your attorney, all the
attorneys on the case, and the social worker . . . know
immediately and an updated form must be filed with the court.”
11 At the hearing, the juvenile court probed Mother’s and
Father’s denials of Native American ancestry, explaining to them
“I’m obliged to just do a little bit of inquiry just to ask you do
you—what is that based on? Did you ever have a discussion with
your family about where you came from?” and further stating,
12
“[p]arents are to keep [DCFS], their [a]ttorney and the [c]ourt
aware of any new information relating to possible ICWA status.”
In its combined jurisdiction/disposition report regarding the
four older children, DCFS reported that both Mother and Father
denied having any Native American ancestry.
On September 15, 2020, DCFS filed a section 300 petition
regarding A.H. and attached an Indian Child Inquiry Attachment
(ICWA-010(A)) form indicating an Indian child inquiry was made,
and A.H. had “no known Indian ancestry.” The ICWA-010(A)
form reflected that mother was interviewed on September 11,
2020; there is no indication that Father was interviewed.
On September 22, 2020, at a hearing regarding A.H.’s
detention, the juvenile court stated that both parents indicated
that they had no Native American ancestry in their family
lineage and found there was no reason to believe A.H. was
subject to the ICWA statute.12 Both parents appeared at the
hearing, but neither objected to the juvenile court’s finding or
provided any contrary information.
“like where your grandparents came from, what country they
came from. We’re obliged to find out if anybody has any Native
American ancestry, so I’m supposed to find out from you if you’ve
had any discussions with your family about where you’re from to
see if there’s any potential that you have Native American
ancestry.” Both Father and Mother responded no.
12Father filed an unsigned ICWA-020 form (rev. Mar. 25,
2020) wherein the box next to the statement “None of the above
apply” was checked. Mother did not file an ICWA-020 form; the
minute order states that “[c]ounsel for the mother will submit
paperwork for parentage, ICWA and JV-140 at a later date.
Court accepts counsel[’]s representations on the record.”
13
On December 13, 2021, in conjunction with dependency
proceedings regarding their sixth child,13 Mother and Father
filed separate Parental Notification of Indian Status (ICWA-020)
forms in the juvenile court, in which they denied any
circumstances suggesting the child was an Indian child.14
On June 16, 2022, in a report filed in anticipation of the
section 366.26 hearing regarding Mother’s and Father’s sixth
child, DCFS indicated that on June 15, 2022, paternal aunt
Cristina L. and a second paternal aunt, Mira H.,15 denied that
the family had any Native American ancestry.
DISCUSSION
The juvenile court and DCFS “have an affirmative and
continuing duty to inquire whether a child for whom a [section
300] petition . . . has been filed, is or may be an Indian child.” 16
13 On August 18, 2022, DCFS filed a motion for judicial
notice and to receive additional evidence on appeal, with attached
documents filed in dependency proceedings regarding Mother’s
and Father’s sixth child. We granted the motion on August 25,
2022.
14 Father’s form was the version revised January 1, 2020;
he did not check any of the boxes stating circumstances that
might suggest the child is an Indian child. Mother’s form was the
version revised March 25, 2020; she checked the box marked
“None of the above apply.”
15 This is presumably the same paternal aunt identified in
an earlier DCFS report as “Mayra H.”
16 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
14
(§ 224.2, subd. (a).) In addition, Mother contends that DCFS had
an express duty under section 224.2, subdivision (b)17 and
California Rules of Court, rule 5.481(a)(1)18 to inquire of
“extended family members” whether the children might be Indian
children. 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,
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)
[incorporating federal definition under state law].) “Being an
‘Indian child’ is thus not necessarily determined by the child’s
race, ancestry, or ‘blood quantum,’ but depends rather ‘on the
child’s political affiliation with a federally recognized Indian
Tribe.’ (81 Fed.Reg. 38801–38802 (June 14, 2016) . . . .” (In re
Austin J. (2020) 47 Cal.App.5th 870, 882.)
17 Section 224.2, subdivision (b) provides that “[i]f a child is
placed into the temporary custody of a county welfare
department pursuant to [s]ection 306 . . . , the county welfare
department . . . has a duty to inquire whether that child is an
Indian child[ that] 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.”
18 As of January 1, 2020, California Rules of Court, rule
5.481(a)(1) imposes a duty on a party seeking, among other
things, termination of parental rights to “ask . . . extended family
members . . . whether the child is or may be an Indian child.”
15
niece or nephew, first or second cousin or stepparent.” (25 U.S.C.
§ 1903(2).)19
Mother contends that DCFS breached its duty of inquiry by
not asking the maternal grandmother, paternal grandmother and
paternal aunt Cristina L. regarding the children’s potential
status as Indian children despite having contact with these
relatives. She further contends that the failure to conduct this
inquiry was prejudicial.
We conclude that Mother has not demonstrated that any
error by DCFS in conducting inquiries into the children’s
potential status as Indian children was prejudicial. This
conclusion is dispositive of her appeal.
As our prior decisions make clear, 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, 581; In re Darian R. (2022) 75
Cal.App.5th 502.) Instead, we must examine the record and
reverse or remand only if that review shows prejudice because
there was “information that was likely to bear meaningfully upon
whether the child is an Indian child.”20 (In re Darian R., supra,
19 Federal regulations implementing ICWA require that
state courts, “at the commencement of the proceeding,” “ask each
participant in an emergency or voluntary or involuntary child-
custody proceeding whether the participant knows or has reason
to know that the child is an Indian child.” (25 C.F.R. § 23.107(a)
(2022).) State courts must also “instruct the parties to inform the
court if they subsequently receive information that provides
reason to know the child is an Indian child.” (Ibid.)
20Because federal law does not impose a duty on social
workers to inquire of extended family members about tribal
16
at p. 509, quoting In re Benjamin M., supra, 70 Cal.App.5th at
p. 744.)
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. (Id. at p. 582.) We held that DCFS’s
failure to inquire of the maternal grandmother was harmless
because she, the mother’s counsel and the child’s counsel all had
“a strong incentive to bring to the court’s attention any facts that
suggest that [the child] is an Indian child” and “[t]heir failure to
do so implies that the maternal grandmother is unaware of such
facts.”21 (Ibid.)
affiliation, any error would be under state law. (In re Benjamin
M. (2021) 70 Cal.App.5th 735, 742; In re A.C. (2021) 65
Cal.App.5th 1060, 1069.) The usual test for prejudicial state law
error is whether, “ ‘after an examination of the entire cause,
including the evidence,’ ” we are “of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836; see In re Benjamin
M., supra, at p. 742 [Watson standard applies to agency’s failure
to comply with initial duty of inquiry under California’s ICWA-
related law].)
21 The maternal grandmother and counsel for the mother
and child all had an incentive to have the child identified as an
Indian child because they all requested that the court consider
placing the child with the maternal grandmother and that result
would be more likely if the child were identified as an Indian
child under ICWA, which provides that “preference shall be
17
In In re Darian R., supra, 75 Cal.App.5th 502, we found
that DFCS’s failure to inquire of the children’s maternal
grandfather and maternal aunt was error, but that 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 thus “it
was unlikely that any further inquiry of family members would
have yielded information about Indian ancestry.” (Id. at p. 504.)
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 followup 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, Mother does not point to any facts in the record that
support her contention that inquiring of maternal grandmother,
paternal grandmother, or paternal aunt Cristina L. would have
yielded information likely to bear meaningfully on the court’s
ICWA determination. Our own review of the record confirms
there are no such facts.
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. § 1915(a) & (b)(i).)
18
First, Mother and Father consistently informed DCFS and
the juvenile court that they were unaware of any information
suggesting the children might be Indian children. Mother
informed DCFS of this when she was interviewed at the hospital
the day after giving birth to G.H., and Father informed DCFS
when he was interviewed two days later. Then, prior to the
detention hearing for the four older children, both Mother and
Father submitted Parental Notification of Indian Status (ICWA-
020) forms indicating they had “no Indian ancestry as far as I
know.” At the detention hearing, both parents stated on the
record that they were unaware of any Native American ancestry.
During its further investigation, DCFS asked both parents again
and they denied being aware of any information suggesting the
children might be Indian children. When DCFS interviewed
Mother the day after A.H. was born, she stated that A.H. had no
known Native American ancestry. Soon after, Father filed an
ICWA-020 form (rev. Mar. 25, 2020) indicating he was unaware
of any information suggesting A.H. was an Indian child. At the
detention hearing for A.H., the juvenile court stated that the
parents both denied having any Native American ancestry, and
neither Mother nor Father objected or provided any contrary
information.
Second, Mother and Father had ongoing contact with
maternal grandmother, paternal grandmother and paternal aunt
Cristina L. Mother reported that she had a close relationship
with maternal grandmother, and she consistently spent time
with maternal grandmother during the dependency proceedings.
Maternal grandmother took care of the four older children for the
first few days after G.H. was born, and she expressed an interest
in having the children placed with her. Mother and Father had
19
lived with paternal grandmother prior to the dependency
proceedings. Early in the proceedings the four older children
were placed with paternal grandmother and they remained in her
care throughout the proceedings.22 Mother and Father
interacted with paternal grandmother during their visits with
the children. A.H. was placed with paternal aunt Cristina L.
after being released from the hospital, and he remained in her
care throughout the proceedings. Mother and Father interacted
with Cristina L. during their visits with A.H. Despite these
repeated contacts with maternal grandmother, paternal
grandmother and paternal aunt Cristina L., neither Mother nor
Father ever reported that any of these extended family members
had any information suggesting the children are Indian children.
(See In re Darian R., supra, 75 Cal.App.5th at p. 510 [finding
error by DCFS in failing to inquire of extended family members
was not prejudicial where the mother “at various times lived with
the relatives she claims DCFS failed to interview”].)
Third, as this court observed in In re S.S., supra, 75
Cal.App.5th at page 582, because preference is given to placing
an Indian child with extended family (25 U.S.C. § 1915(a) & (b)),
there is a strong incentive for parents and family members to
bring to the juvenile court’s attention facts suggesting that a
child is an Indian child. Here, paternal grandmother and
paternal aunt Cristina L. engaged in significant efforts to have
the children placed with them. Yet no one—not Mother, Father,
22 Mother and Father both supported the placement of the
children with paternal grandmother.
20
their attorneys,23 or these extended relatives—indicated that the
children may be Indian children. That they did not do so implies
they are unaware of facts that would bear meaningfully upon the
issue. (See In re S.S., supra, 75 Cal.App.5th at p. 582 [finding
error by DCFS in failing to inquire of maternal grandmother was
not prejudicial where maternal grandmother, mother’s counsel
and the child’s counsel all requested the court consider placing
the child with maternal grandmother and thus their failure to
bring to the court’s attention facts suggesting the child was an
Indian child “implies that the maternal grandmother is unaware
of such facts”].)
Parents also have an incentive to bring to the juvenile
court’s attention any information suggesting that a child may be
an Indian child because, when termination of parental rights is
sought, the juvenile court must make a finding that continued
custody of the child by the parent is likely to result in serious
emotional or physical damage to the child, and “under the ICWA
the state must prove the detriment beyond a reasonable doubt
and with a qualified expert witness, whereas under state law the
23 Los Angeles County local court rule 7.17 requires
parents’ attorneys to ask their clients whether they have a reason
to believe their child is an Indian child and to make every effort
to assist in confirming the child’s Indian status. (Super. Ct. L.A.
County, Local Rules, rule 7.17(a), (e)(3).) Moreover, the rule
requires parents’ counsel to “have a complete familiarity with the
facts of the case by reviewing the court file.” (Id., rule 7.17(e)(5).)
Thus, we may reasonably infer that Mother’s attorney would
have been aware of the placement preferences for Indian children
and motivated to assist in Mother’s efforts to have the children
placed with relatives. This lends further support to our
conclusion that Mother fails to show prejudice.
21
state need only prove the detriment by a preponderance of the
evidence.” (In re Matthew Z. (2000) 80 Cal.App.4th 545, 553.)
This higher burden of proof that DCFS would have faced if there
had been reason to know the children were Indian children
provided additional incentive for Mother to bring forward
information bearing on whether the children were Indian
children, and yet she did not bring forward any such information.
Finally, during dependency proceedings regarding Mother’s
and Father’s sixth child, paternal aunt Cristina L. (and another
paternal aunt) stated to DCFS that they were not aware of any
tribal affiliation.24
24 DCFS filed a motion asking us to receive this post-
judgment evidence from the dependency proceedings concerning
Mother’s and Father’s sixth child. In In re Zeth S. (2003) 31
Cal.4th 396, 413, our Supreme Court concluded “that
consideration of postjudgment evidence of changed circumstances
in an appeal of an order terminating parental rights, and the
liberal use of such evidence to reverse juvenile court judgments
and remand cases for new hearings, would violate both the
generally applicable rules of appellate procedure, and the express
provisions of section 366.26 which strictly circumscribe the
timing and scope of review of termination orders, for the very
purpose of expediting the proceedings and promoting the finality
of the juvenile court’s orders and judgment.” We conclude that In
re Zeth S. does not preclude us from granting DCFS’s motion and
considering this postjudgment evidence, and that consideration of
this evidence is proper. The evidence does not show changed
circumstances, it is not admitted to reverse the juvenile court’s
orders or judgment, and it supports the finality of the juvenile
court’s orders and judgment. (See In re A.B. (2008) 164
Cal.App.4th 832, 839-841 [augmenting record and considering
evidence of mother’s disclaimer of Native American heritage in a
22
In sum, it is unlikely that maternal grandmother or
paternal grandmother had knowledge of a possible tribal
affiliation superior to Mother’s and Father’s disclaimer of any
such ancestry. (Cf. In re A.C., supra, 75 Cal.App.5th at p. 1016
[where mother herself had been a product of foster care and “may
not have known her cultural heritage”]; In re Y.W. (2021) 70
Cal.App.5th 542, 554 [remanding for ICWA inquiry in matter
where appealing parent was adopted and estranged from her
parents].) In addition, the record discloses that paternal aunt
Cristina L. has denied being aware of any possible tribal
affiliation. Accordingly, any ICWA inquiry error under section
224.2, subdivision (b) or California Rules of Court, rule
5.481(a)(1) was harmless.
separate dependency proceeding to support conclusion that
agency’s failure to inquire under ICWA was harmless]; In re B.D.
(2008) 159 Cal.App.4th 1218, 1240 [considering postjudgment
evidence regarding children’s adoption to support finding of
harmless error]; In re Salvador M. (2005) 133 Cal.App.4th 1415,
1420-1422 [granting motion to augment record and considering
postjudgment evidence of adoption of child which partly mooted
the appeal]; Alicia B. v. Superior Court (2004) 116 Cal.App.4th
856, 867 [granting motion to augment partly because denying the
motion “would be counterproductive to ‘the state’s strong interest
in the expeditiousness and finality of juvenile court dependency
proceedings’ ”], citing In re Zeth S., supra, at p. 412.)
23
DISPOSITION
The juvenile court’s order terminating the parental rights
of Mother in L.H., J.H., J.H. Jr., G.H. and A.H. is affirmed.
NOT TO BE PUBLISHED
BENKE, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
24