Filed 1/25/24 In re Avery L. CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

In re AVERY L., B327700 a Person Coming Under the Juvenile (Los Angeles County Court Law. Super. Ct. No. 21CCJP02686) LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S. L., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tara Newman, Judge. Affirmed.

Jamie A. Moran, by appointment of the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION S.L. (mother) appeals from the juvenile court’s order terminating parental rights (Welf. & Inst. Code, § 366.26)1 over her child Avery L. (born May 2021). Mother’s sole contention on appeal is that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the “initial duty to inquire” under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California statutes (§ 224 et seq.).

We agree with mother that DCFS failed to conduct a proper initial inquiry into Avery’s Indian ancestry by not interviewing certain extended family members. We conclude, however, that DCFS’s error was harmless.

Accordingly, we affirm.

The parties are familiar with the facts and procedural history of the case, so we do not restate those details in full here. Below, we discuss only the facts and procedural history germane to the issue on appeal.

DISCUSSION A. Applicable Law and Standard of Review ICWA2 reflects “a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court . . . must follow before removing an Indian child from his or her family.” (In re Austin J. (2020) 47 Cal.App.5th 870, 881.) Both ICWA and the Welfare and Institutions Code define an “Indian child” as “any unmarried person who is

The duty to inquire whether a child is an Indian child begins with “the initial contact,” i.e., when the referring party reports child abuse or neglect that triggers DCFS’s investigation. (§ 224.2, subd. (a).) DCFS’s initial duty to inquire includes asking 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. (Id., subd. (b).) Similarly, the juvenile court must inquire at each parent’s first appearance whether he or she “knows or has reason to know that the child is an Indian child.” (Id., subd. (c).) The juvenile court must also require each parent to complete the parental notification of Indian status form (ICWA-020). (Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed to inform the court “if they subsequently receive information that provides reason to know the child is an Indian child.” (25 C.F.R. § 23.107(a); § 224.2, subd. (c).)

Here, the juvenile court found ICWA did not apply, stating “[t]he [c]ourt does not have reason to know that [Avery] is an Indian [c]hild, as defined under ICWA.” We review the court’s ICWA finding for substantial evidence. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401; In re S.R. (2021) 64 Cal.App.5th 303, 312.)

B. Initial Inquiry Mother contends DCFS did not fulfill its initial duty to inquire because DCFS did not ask Avery’s aunts and uncles whether Avery had Indian ancestry.4 We agree.

As discussed, section 224.2, subdivision (b) imposes on DCFS a duty of initial inquiry, which includes asking “extended family members” whether the child may be an Indian child. “Extended family members” are defined as the “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.” (See 25 U.S.C. § 1903(2) and § 224.1, subd. (c).) Mother and A.J.S. (father)5 each told DCFS that they had siblings, but there is no evidence DCFS contacted Avery’s aunts or uncles about whether Avery may be an Indian child. DCFS concedes that it erred in failing to contact these extended family members.

We, therefore, conclude that DCFS did not conduct a proper initial inquiry.

Based on our conclusion, we must next determine whether the error was harmless.

C. Harmless Error “Where, as here, there is no doubt that [DCFS’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. [Citation.] If so, the error is harmless and we should affirm; otherwise, we must send it back for the Department to conduct a more comprehensive inquiry.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.), review granted Sept. 21, 2022, S275578.)

California appellate courts have crafted several different tests for deciding whether a defective initial inquiry is harmless. (Dezi C., supra, 79 Cal.App.th at pp. 777–782.) Unless and until our Supreme Court weighs in on the matter, we will apply the rule set forth in Dezi C. Under that standard, “an agency’s failure to conduct a proper initial inquiry into a dependent child’s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court’s ICWA finding.” (Id. at p. 779.)

Following Dezi C., we conclude any error in failing to interview extended family members was harmless.

Here, the record does not contain information suggesting a reason to believe that Avery may be an Indian child under ICWA. Rather, mother and father repeatedly denied Indian ancestry. After interviewing mother, DCFS filed the Indian child inquiry form (ICWA-010 form), demonstrating mother had been interviewed about Avery’s Indian status and gave DCFS no reason to believe Avery is or may be an Indian child. A month later, mother also

signed an ICWA-020 form, indicating she had no known Indian ancestry.

Likewise, father filed an ICWA-020 form stating he had no Indian ancestry as far as he knew. The juvenile court also acknowledged receipt of the ICWA- forms and found ICWA did not apply. The court ordered the parents to keep DCFS, their counsel, and the court aware of any new information relating to possible ICWA status. There is no evidence that the parents provided new information regarding ICWA status, and mother does not proffer any on appeal.

There is also no indication that the parents would lack knowledge of their family history, as both were raised by their biological parents. (Cf. Dezi C., supra, 79 Cal.App.5th at p. 779 [failure to inquire of extended family members may not be harmless if the record indicates that one or both of the parents were adopted and hence their self-reporting of no ancestry may not be fully informed]; see also In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1015 [in many cases, a child’s parents will be a reliable source for determining whether the child or parent may be a tribal member].)

The extended family members DCFS contacted also denied Indian ancestry. The maternal grandparents and paternal grandfather reported that the family did not have any Indian ancestry within the meaning of ICWA.6 DCFS also contacted paternal grandmother twice to inquire about Indian ancestry, but she never responded.

Presumably, the aunts and uncles who grew up in the same households as mother and father would not have differing information about Indian ancestry.

We also note, despite multiple opportunities to do so over the course of the dependency case, neither parent, nor any interviewed extended family member, suggested that a particular family member who had not been contacted might know more about their ancestry. And mother does not proffer such information on appeal. Thus, we conclude DCFS’s failure to comply with its section 224.2, subdivision (b) duty of initial inquiry is harmless error.

DISPOSITION The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, J.

WE CONCUR:

CURREY, P. J. MORI, J.

United States”].) Further, maternal grandmother stated any relatives with information about Canadian native ancestry were deceased.