Filed 8/17/22 In re D.P. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

J.B. (mother) appeals from the juvenile court’s order terminating her parental rights over her son D.P. (born in 2018) under Welfare and Institutions Code section 366.26.[1] She contends the juvenile court and the social services agency, Contra Costa County Children and Family Services (CFS), failed to comply with their inquiry duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law (§ 224).

We conclude the record does not demonstrate that the juvenile court satisfied its duty of inquiry, nor does it show CFS complied with its duty to inquire with extended family members regarding D.P.’s possible Indian ancestry. Therefore, there was a lack of substantial evidence to support the juvenile court’s finding that ICWA was inapplicable. Because we conclude this error was not harmless under the rule set forth in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), we conditionally reverse the order terminating parental rights and remand the matter to the juvenile court with directions that the court and CFS comply with the inquiry (and if appropriate) notice provisions of ICWA and related California law.

Factual and Procedural Background

We provide an abbreviated summary of D.P.’s dependency proceedings focused on the facts relevant to the sole issue on appeal, the adequacy of the ICWA inquiry.

On February 22, 2021[2], CFS filed a dependency petition pursuant to section 300(b) and (j) to declare then two-year-old D.P. a dependent of the juvenile court. The petition alleged D.P.’s mother and alleged father, J.P.[3], were unable to care for him due to their ongoing history of substance abuse which impaired their ability to provide adequate care and support for D.P. It also alleged they had failed to access adequate services and unify with four older children who were D.P.’s siblings. The petition noted that, on February 18, a social worker had asked mother and the alleged father about their Indian status and the inquiry gave CFS no reason to believe the child was or may be an Indian child.

On February 23, mother completed and executed an ICWA-020 “Parental Notification of Indian Status” form stating that none of the criteria for Indian status listed on the form applied.

CFS’s detention report contained an “ICWA Inquiry” section which summarized an inquiry from an earlier dependency proceeding, presumably involving one of D.P.’s older siblings, as follows: “According to the 366.26 report dated 06/26/2015, ‘The Indian Child Welfare Act does not apply. On January 20, 2015, both the mother, [J.B.], and father, [J.P.], reconfirmed earlier statements that there is no familial history of Native American Ancestry. Additionally, on May 15, 2013, both parents signed the Parental Notification of Indian Status (ICWA[-]020) form during court proceedings for the child’s older dependent siblings indicating that there was no known Native American Ancestry. The father also signed another Parental Notification of Indian Status (ICWA[-]020) form on December 17, 2014 specifically in regards to [an elder sibling] further stating no known Native American Ancestry. On March 2, 2015, the Court determined that the Child Welfare Act does not apply.’ ” The detention report noted that an ICWA-010(A) form was completed and signed for D.P. on February 19.

At the February 24 detention hearing, which took place over Zoom, mother appeared virtually but had a poor connection. She repeatedly dropped off the videoconference. The court passed the matter to allow mother to find somewhere with better reception.

When the court later recalled the case, mother’s attorney reported she had spoken with mother; mother was having technical difficulties and asked that the hearing go forward without her. Mother agreed to waive her appearance for the rest of the hearing. The court asked mother’s attorney if she was able to ask mother questions regarding ICWA, and mother’s attorney stated that she did not have time to do so. Nor did mother’s counsel have time to complete the ICWA inquiry with mother and suggested the ICWA inquiry be deferred. The court acknowledged receipt of mother’s executed ICWA-020 form which stated none of the ICWA inquiries applied to D.P. and then questioned the CFS social worker regarding the mother’s ICWA-020 form. The social worker informed the court that she met with mother the day before and mother completed the ICWA-020 form stating she and her children were not Native American. The social worker confirmed she had asked mother all the formal questions on the form, and that mother responded no and signed the form. There were no objections.

The court initially found that there was no reason to believe or know D.P. was an Indian child and that ICWA did not apply. However, when later completing the JV-410 “Findings and Orders After Detention Hearing” form, the court noted that because it had not made any ICWA inquiry “on the record directly to [m]other,” it would make no formal findings and reserve jurisdiction over ICWA.

The jurisdiction/disposition report referred to the ICWA-020 form mother signed and filed two months earlier which stated she had no Indian ancestry. It also stated that in May 2013 and January 2015, during two dependency cases involving D.P.’s older siblings, both parents had signed and filed ICWA-020 forms stating that there was no Indian ancestry as far as they knew. CFS requested a finding that D.P. was not an Indian child and ICWA did not apply.

At the April 9 jurisdiction and disposition hearing, which was conducted over Zoom, mother appeared telephonically with counsel. She objected to the juvenile court’s jurisdiction over D.P., but the court sustained the petition, declared D.P. a dependent of the court, removed him from his parents’ custody, and denied parents reunification services. As to ICWA, the court conducted no further inquiry before making its findings. The court noted that mother had submitted an ICWA-020 form stating D.P. did not have Native American heritage. The court also observed that the alleged father had not presented himself in these proceedings but had filled out ICWA forms in prior dependency proceedings which stated his other children, D.P.’s older siblings, did not have Native American ancestry. The court found there was no reason to believe D.P. was a Native American child and that ICWA did not apply. A section 366.26 hearing to select a permanent plan was also scheduled.

On August 31, the day of the section 366.26 hearing, mother filed a Request to Change Court Order pursuant to section 388 to change the court’s order denying her reunification services. She asserted she was clean and sober, had completed parenting and drug awareness classes, and had secured housing and employment. She requested reunification services, contending such services were in D.P.’s best interest because they had a close bond and he deserved a loving mother. The court denied mother’s section 388 petition and explained that mother had not demonstrated a change in circumstances. The court acknowledged mother’s claims regarding her current status, but found them insufficiently detailed and without documentary evidence or support. The court found it would not be in D.P.’s best interests to grant the section 388 petition or to prolong the case. Turning to the section 366.26 hearing, the court found by clear and convincing evidence that D.P. was adoptable and likely to be adopted. The court terminated the parental rights of mother and the alleged father and made adoption the permanent plan. Mother now appeals.

Discussion

Mother contends that the juvenile court’s finding that ICWA did not apply was not supported by substantial evidence because the juvenile court and CFS failed to comply with their duties of inquiry to determine whether D.P. had Indian ancestry. She asserts the findings and orders from the 366.26 hearing should be conditionally reversed.

“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) ICWA provides: “ ‘In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ [Citation.] This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.” (Id. at p. 5; see 25 U.S.C. § 1912(a), § 224.3, subd. (a).)

“ ‘ “ ‘ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts “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.” [Citation.] The court 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.” ’ ” ’ [Citations.] ‘State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an “affirmative and continuing duty to inquire” whether a child in the dependency proceeding “is or may be an Indian child.” ’ ” (In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).)

Section 224.2, subdivision (c) states: “At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” (§ 224.2, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(2) [requiring court at “the first appearance by a parent . . . in any dependency case . . . and at each hearing that may culminate in an order for foster care placement, termination of parental rights” to “[a]sk each participant present whether the participant knows or has reason to know the child is an Indian child”].)

Additionally, “[s]ection 224.2 ‘ “ ‘creates three distinct duties regarding ICWA in dependency proceedings.’ ” ’ [Citations.] First, section 224.2, subdivision (b), requires the child protective agency to ask ‘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.’ ” (J.C., supra, 77 Cal.App.5th at p. 77; see Cal. Rules of Court, rule 5.481(a)(1).) “Second, if the court or child protective agency ‘has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child,’ the court and the Department ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (J.C., at p. 77; § 224.2, subd. (e); Cal. Rules of Court, rule 5.481(a)(4).) “Third, if the further inquiry ‘ “ ‘results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.’ ” ’ ” (J.C., at p. 78; see 25 U.S.C. § 1912(a); § 224.3, subd. (a).)

“ ‘ “The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.” ’ [Citation.] ‘If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings.’ ” (In re Y.W. (2021) 70 Cal.App.5th 542, 552 (Y.W.); see § 224.2, subd. (i)(2).)

“[W]e review the juvenile court’s ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court’s order. [Citations.] We must uphold the court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.” (In re A.M. (2020) 47 Cal.App.5th 303, 314.)

Having reviewed the record, we conclude the court’s finding that ICWA was inapplicable was not supported by substantial evidence because the ICWA inquiry was inadequate. (See In re Josiah T. (2021) 71 Cal.App.5th 388, 408 [“the court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [child protective agency] inquiry that is not proper, adequate, or demonstrative of due diligence”].) Here, the record shows the court never asked mother about possible Indian ancestry at the detention hearing when she made her first appearance. At that hearing, which was conducted via videoconference, the court was unable to inquire directly with mother because of mother’s weak connection and the technical difficulties that precluded her from participating in the full proceeding. Recognizing this omission, the court reserved the ICWA issue but never returned to it at any subsequent hearing. Mother successfully appeared without technical problems at both the jurisdiction/disposition hearing and at the section 366.26 hearing, but the court never made any further inquiry of her regarding Indian ancestry.

In addition, the record fails to show that CFS conducted an adequate inquiry at the initial stage into whether D.P. may be an Indian child as CFS did not ask extended family members about any known Indian heritage. The record shows CFS had been in contact with at least one extended family member, D.P.’s maternal grandmother, who had cared for D.P. around the time he was detained. Social workers were able to contact D.P.’s maternal grandmother to obtain her whereabouts and to make an unannounced home visit while D.P. was in her care, but there is no indication she was ever asked whether D.P. was or might be an Indian child.

Further, nothing in the record shows the juvenile court ever followed up with CFS on its lack of outreach to extended relatives. (Y.W., supra, 70 Cal.App.5th at p. 555 [juvenile court had a duty to ensure the Department complied with § 224.2, subd. (b)]; In re N.G. (2018) 27 Cal.App.5th 474, 482 [juvenile court had a duty to ensure agency made the relevant inquiries, including asking the maternal uncle whether the child “may have maternal Indian ancestry”]; see also In re K.R. (2018) 20 Cal.App.5th 701, 709 [“the court has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so”].) There must be sufficient evidence of an adequate inquiry before the court can find that the ICWA does not apply. (Y.W., at p. 552; see § 224.2, subd. (i)(2).) Given these inquiry deficiencies, the juvenile court’s no-ICWA finding was not supported by substantial evidence.

While CFS acknowledges its own shortcomings at least with respect to its lack of inquiry to extended family members, it asserts that “the record in this matter fully supports” the no-ICWA finding. Among other things, it cites mother’s ICWA-020 form stating none of the ICWA inquiries applied to D.P.; the social worker’s confirmation to the court that she asked mother the same ICWA questions the court would have asked of mother at the initial detention hearing; the absence of any objection from any party on the ICWA inquiry issue at the detention hearing; and the specific lack of objection from mother after the court made its ICWA findings at the jurisdiction and disposition hearing in which she appeared.

This is not sufficient evidence to support the finding. CFS’s arguments ignore the juvenile court’s affirmative duty to directly ask mother about her Indian ancestry and a continuing duty to follow up on ICWA, neither of which happened. Nor was the agency’s duty to inquire with extended family members supplanted by the limited inquiry that occurred. (See In re Antonio R. (2022) 76 Cal.App.5th 421, 431 (Antonio R.) [“By requiring the Department to inquire of a child’s extended family members as to the child’s Indian ancestry, the Legislature determined that inquiry of the parents alone is not sufficient.”].) Further, CFS’s reliance on the fact that mother never objected to the ICWA findings or presented any information that D.P. may be an Indian child is unavailing. It is well established that the duty to develop information concerning whether a child is Indian rests with the agency, not mother or her counsel. (Id. at p. 430.) On this record where multiple statutory inquiry obligations were not satisfied, we cannot conclude the no-ICWA finding was supported by substantial evidence.

Having found error, we next consider whether the error was harmless. Mother contends it was not harmless error, while CFS contends the opposite. The parties also disagree on the standard for harmlessness to apply. There now appear to be four different rules that have been developed by the appellate courts to determine whether an ICWA inquiry error was harmless. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.) [reviewing three rules and proffering a fourth].)

At one end of the continuum, is the “automatic reversal” rule, which mandates reversal if the agency’s initial inquiry is deficient and thus infects the juvenile court’s ICWA finding. (See J.C., supra, 77 Cal.App.5th at pp. 80–82.) “Under this test, reversal is required no matter how ‘slim’ the odds are that further inquiry on remand might lead to a different ICWA finding by the juvenile court.” (Dezi C., supra, 79 Cal.App.5th at p. 777.)

At the opposite end of the continuum is the “presumptive affirmance” rule. (See In re A.C. (2021) 65 Cal.App.5th 1060, 1065, 1073.) Under this rule, if the agency’s initial inquiry is deficient, the defect will be treated as harmless unless the parent comes forward with a proffer on appeal as to why the further inquiry would lead to a different ICWA finding. (Ibid.)

In between these rules, is the self-described “middle ground” approach which has been termed the “readily obtainable information” rule whereby a defect in the agency’s initial inquiry is harmless unless “the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child” and that “probability of obtaining meaningful information is reasonable.” (Benjamin M., supra, 70 Cal.App.5th at p. 744; see Dezi C., supra, 79 Cal.App.5th at p. 777.)

Most recently, the court in Dezi C., supra, 79 Cal.App.5th 769, proffered a fourth rule for assessing harmlessness which it called the “reason to believe” rule. (Id. at pp. 778–779.) Under this rule, “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.) The “record” under this rule “includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal.” (Ibid.)

In mother’s view, the automatic reversal rule should apply, though she also notes that the readily obtainable information approach would also be appropriate and require remand. CFS endorses the reason to believe rule set forth in Dezi C.

In our view, the readily obtainable information rule set forth in Benjamin M., supra, 70 Cal.App.5th 735, is the preferred approach. There, as noted, the court held that in ICWA cases, “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.” (Id. at p. 744.) Hence, the court held that a conditional reversal and remand was required: “[a]lthough [f]ather never appeared in the juvenile court and thus it never asked whether he had reason to believe that Benjamin is an Indian child, [the agency] nevertheless failed its duty of initial inquiry by not asking ‘extended family members’ . . . whether Benjamin has Indian ancestry on his paternal side.” (Ibid.)

Under the Benjamin M., supra, 70 Cal.App.5th 735, standard of review, we have no difficulty concluding that CFS’s failure to meet its duty of initial inquiry in this case constitutes prejudicial and reversible error. As noted, the record does not show the agency made any efforts to at least question D.P.’s maternal grandmother about his possible Indian ancestry. Any information D.P.’s maternal grandmother could have given “would likely have shed meaningful light on whether there [was] reason to believe [D.P. was an Indian child] . . . [the grandmother’s] knowledge of [her] own Indian status, would be suggestive of [mother’s] status. While we cannot know how [the grandmother] would answer the inquiry, [her] answer is likely to bear meaningfully on the determination at issue,” namely D.P.’s possible maternal Indian ancestry. (Benjamin M., supra, 70 Cal.App.5th at pp. 744–745; see also Antonio R., supra, 76 Cal.App.5th at p. 435 [“[w]here the [agency] fails to discharge its initial duty of inquiry under ICWA and related California law, and the juvenile court finds ICWA does not apply notwithstanding the lack of an adequate inquiry, the error is in most circumstances, as here, prejudicial and reversible”].)

We agree with those courts that have held the automatic reversal rule should not apply for the reasons stated in those decisions. (See Dezi C., supra, 79 Cal.App.5th at pp. 782–785 [discussing undesirable consequences of automatic reversal rule]; Benjamin M., supra, 70 Cal.App.5th at p. 743 [“There are cases where the agency erred but where, considering the entire record, it was obvious that additional information would not have been meaningful to the inquiry”].). We also decline to adopt the reason to believe approach proffered in Dezi C., which that court noted was most like the readily obtainable information rule in Benjamin M. (See Dezi C., supra, 79 Cal.App.5th at pp. 785–786.) In deeming an agency’s failure to conduct a proper inquiry into a dependent’s Indian ancestry to be harmless “unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA,” (id. at p. 779) the rule in Dezi C. seems to shift the duty of developing information on Indian ancestry from the agency to the parents, who may mistakenly claim or disclaim Indian ancestry.

Additionally, section 224.2 requires inquiry of more than just the parents “to obtain information the parent may not have” (Y.W., supra, 70 Cal.App.5th at p. 556) because parents may not have the relevant information or may only possess vague or ambiguous information. (See Antonio R., supra, 76 Cal.App.5th at p. 432 [noting potential reasons, including ignorance, of why a parent might incorrectly report no American Indian heritage]; In re T.G. (2020) 58 Cal.App.5th 275, 289 [“[o]ral transmission of relevant information from generation to generation and the vagaries of translating from Indian languages to English combine to create the very real possibility that a parent’s or other relative’s identification of the family's tribal affiliation is not accurate.”]; In re S.R. (2021) 64 Cal.App.5th 303, 315–316 [grandparents’ disclosures that grandchildren had close connection to Indian tribe triggered further inquiry notwithstanding parents’ ICWA forms stating they did not know of any Indian ancestry on either side of family].) The rule in Dezi C. renders the statutory provisions requiring the agency to inquire with extended family members and other relevant individuals besides the parents meaningless, which frustrates the purpose of ICWA. (See id. at pp. 313–314 [discussing duties imposed on court and county welfare departments to effectuate ICWA’s purpose of enabling a tribe to determine whether dependent child is an Indian child].) Finally, since neither party has advocated for the presumptive-affirmance rule, we need not address it.

As the agency failed to make a proper inquiry of extended family members regarding D.P.’s possible Indian ancestry, the juvenile court failed to ensure the agency’s compliance with its duty of inquiry, and the court’s ICWA finding was therefore erroneous, we conditionally reverse and remand to permit the agency and the court to comply with ICWA and state law. On remand, the juvenile court should ask mother and any anyone else present at the hearings whether they know or have reason to know that the child is an Indian child and should also ensure, at a minimum, that the record reflects the agency’s complete and accurate inquires of mother and relatives. In so concluding, we note that a conditional reversal and remand could have easily been avoided here: even before filing a petition and during the ongoing dependency proceeding the agency social worker had spoken with D.P.’s maternal grandmother concerning the family’s circumstances, and “it would have taken very little additional effort to ask” her about possible Indian ancestry and document that information in the agency’s reports to the court. (J.C., supra, 77 Cal.App.5th at p. 79.)

“We are mindful of [a] child’s need for a permanent and stable home, and we agree that swift and early resolution of ICWA notice issues is ideal. But the federal and state statutes were clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child. The provisions of the California statute . . . recognize the importance of properly determining a child’s Indian status, even when a dependency proceeding has progressed beyond the initial stages.” (Isaiah W., supra, 1 Cal.5th at p. 12; see In re K.T. (2022) 76 Cal.App.5th 732, 745 [“our state’s goal of providing children with permanent and stable homes does not override the importance of properly determining a child’s Indian status and protecting the integrity and stability of Indian tribes”].) Because the only error is defective ICWA compliance, if it is “ultimately determined on remand that the child is not an Indian child, the matter . . . should end at that point,” thereby allowing the children “to achieve stability and permanency in the least protracted fashion the law permits.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 708.)

Disposition

The order terminating parental rights is conditionally reversed. The matter is remanded to permit the juvenile court and CFS to comply with the inquiry (and if appropriate) notice provisions of ICWA and state law. If, after compliance with the law, the juvenile court concludes ICWA does not apply, the orders terminating parental rights shall be immediately reinstated. If, after proper inquiry and notice to the applicable tribes, the court finds that D.P. is an Indian child, the court must proceed in conformity with ICWA.

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Petrou, J.

I CONCUR:

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Rodríguez, J.

A163724

TUCHER, P.J., Dissenting.

I agree with the majority that the juvenile court and the Contra Costa County Children and Family Services (CFS) failed to comply with their inquiry duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law (Welf. & Inst. Code, § 224), but I see no need to conditionally reverse because here the error appears to have been harmless. Early in these proceedings, Mother attested on the Parental Notification of Indian Status form (ICWA-020) that neither she nor D.P. had any known Native American ancestry, and both Mother and Father filled out the same form, making the same representation, about D.P.’s older sibling a few years earlier. The social worker testified about going over with Mother these questions about D.P.’s ancestry, and nothing in the record suggests that Mother was not truthful and well-informed about her own heritage when she provided this information. Not only does the trial court record lack any such evidence, but mother provides this court no evidence suggesting a reason to believe D.P. may be an “Indian child” for purposes of ICWA, or that it is reasonably probable remand to allow inquiry of Mother’s mother would change the outcome of the court’s ICWA determination. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 779 (Dezi C.).)

I realize the majority rejects the standard for harmless error articulated in Dezi C., but I am not persuaded by that portion of its reasoning. Appropriately, the majority declines “to shift the duty of developing information on Indian ancestry from the agency to the parents.” (Maj. opn. ante, at p. 14.) In this case, we already have information that D.P. has no Indian ancestry on his mother’s side, and if Mother has reason to believe the information she supplied the court was inaccurate or based on an incomplete understanding of her own heritage, she could have said so without taking on the burden of developing new information. This case is materially different from the examples Dezi C. gives of errors that were not harmless because the trial court entirely lacked reliable information that the child had no Native American heritage—for example, because an agency “never inquired into one of the two parents’ heritage at all,” or because an adopted parent’s “self-reporting of ‘no heritage’ may not be fully informed.” (Dezi C., supra, 79 Cal.App.5th at p. 779.)

In declining to follow Dezi C., the majority also reiterates that Welfare and Institutions Code section 224.2 requires inquiry of extended family members, objecting that to condone failure to make such inquiry is to render this statutory requirement “meaningless.” (Maj. opn. ante, at p. 14.) But it is the nature of harmless error review that we sometimes decline to disturb a decision of the trial court even where the court made errors in the course of reaching its decision. Our Constitution commands that reviewing courts not set aside a judgment unless the judgment “has resulted in a miscarriage of justice” (Cal. Const., art. VI, § 13), which our Supreme Court tells us occurs when “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). Here, because Mother informed the court that neither she nor D.P. has Indian ancestry and she gives us no reason to doubt the accuracy of this statement, I would conclude it is not reasonably probable the trial court will reach a contrary conclusion after remanding to allow maternal grandmother to answer the same questions.

With respect, I dissent.

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Tucher, P.J.

[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Subsequent date references are to 2021 unless otherwise stated.

[3] J.P., the alleged father, denied he was D.P.’s father when social workers contacted him. J.P. eventually became unreachable and did not appear at any of the hearings. The court found CFS had exercised due diligence in searching for the alleged father whose whereabouts were unknown.