Filed 7/12/22 In re M.G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Christie Canales Norris, Judge.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Appellant Danielle M. (mother) is the mother of M.G. (the child), who is the subject of a dependency case. Mother challenges the juvenile court’s order terminating her parental rights at a Welfare and Institutions Code[1] section 366.26 hearing. Mother’s sole claim is that the juvenile court and the Kern County Department of Human Services (the department) failed to comply with the inquiry provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

In April 2021, the child was taken into protective custody, shortly after her birth, as a result of mother’s untreated mental health issues and prior stabbing of her infant child in 2011. The department filed a petition alleging the child was at substantial risk of suffering nonaccidental and serious physical harm under section 300, subdivisions (a), (b), and (j). Mother was interviewed by a department social worker regarding potential Indian ancestry prior to the detention hearing, and mother informed the worker that she had Indian ancestry with an unknown tribe. The whereabouts of the child’s alleged father, Michael C., were not known to mother.

None of mother’s living children were in her custody as two siblings were adopted by her cousin, B.W., as a result of dependency proceedings that initiated from the May 2011 stabbing of one of the siblings by mother. Another sibling resided with his father, and one sibling died in 2009. Mother was reportedly arrested and investigated for the murder of her deceased child.

Mother provided the address and contact information for the child’s maternal grandmother where she occasionally slept on the couch. The child’s maternal grandmother and great-grandmother lived together, and they would not allow mother and the child to live with them. The social worker also spoke to a maternal aunt, Jennifer P., who was interested in applying for emergency placement of the child. Jennifer and mother were sisters, but they were not very close. Jennifer identified the maternal grandmother as her mother, and she explained that they shared the same father. Prior to the detention hearing, mother’s counsel completed a Parental Notification of Indian Status form (ICWA-020) on mother’s behalf, which indicated mother is or may be a member of an unknown Indian tribe.

At a continued detention hearing held on April 22, 2021, mother and a maternal aunt were present. The report for the detention hearing indicated that the juvenile court previously made a finding in July 2011 that ICWA did not apply as to mother during a combined jurisdiction and disposition hearing for the child’s siblings. Mother’s child welfare referral history noted that she previously lived with her parents, a minor brother, and a nephew and niece, in 2013. The juvenile court initiated an extensive inquiry of mother by asking whether she had possible Indian ancestry. Mother initially stated, “I do, but I don’t have an Indian number or anything like that; so it doesn’t⸻it doesn’t apply to my children.”

Mother did not remember the name of the tribe, but she claimed her father would know because the Indian ancestry came from his side of the family. The child’s maternal grandmother was claimed by mother to be “Indian too, but she doesn’t know.” Mother provided the name of her father along with a phone number, and she indicated that he was the only person on her father’s side of the family with information on his Indian ancestry. Mother denied knowing if anyone in her family was an actual member of a tribe, lived on an Indian reservation, or ever received benefits from an Indian tribe.

In regard to the possible Indian ancestry through the child’s maternal grandmother, mother denied knowing which tribe the Indian ancestry was from. Mother also indicated that no one in her family has information on the maternal grandmother’s Indian ancestry. Mother became aware of the unknown Indian ancestry after the maternal grandmother told her that mother’s grandfather (the child’s maternal great‑grandfather) was “Indian.” Mother claimed the maternal grandmother and great-grandmother did not have phones for communication. No one in mother’s family had contact information for the maternal grandmother. When asked if the maternal grandmother has an address, mother stated, “No. She comes and visits me.” Mother declined to provide the maternal great-grandmother’s address on the record, but she agreed to provide the social worker with the address at a later time.

The juvenile court reserved the issue of ICWA and requested that the social worker meet with mother in person to gather information. County counsel noted conflicting information as it was reported by the social worker that mother lived with the maternal grandmother, and the department used maternal grandmother’s cell phone to reach mother. The juvenile court ordered the child detained from mother and set a combined jurisdiction and disposition hearing for May 7, 2021.

The social study prepared for the jurisdiction hearing detailed mother’s claim of Indian ancestry on the maternal grandfather’s side of the family, without reference to the claim through the maternal grandmother. In the social worker’s interview of the maternal grandfather, he denied having any Indian ancestry and acknowledged going through the same questions during the 2011 dependency case involving the child’s siblings. He requested the social worker review the records from the prior case where it was determined that mother had no Indian ancestry on either side of her family. The report also referenced the prior finding that ICWA was not applicable to the child’s siblings in August 2011.

On May 20, 2021, the juvenile court proceeded with the jurisdiction hearing, found the allegations in the petition true, and continued the disposition hearing to June 11, 2021. The department’s report for disposition provided documentation of its additional efforts of further ICWA inquiry. Jennifer was contacted by the department, and she denied the family had any proof of Indian ancestry. She claimed the Indian ancestry came from the maternal grandfather’s side of the family, and all information was provided during the prior dependency case involving the child’s siblings. The maternal grandfather was contacted a second time, and he confirmed that the family had received no new information on potential eligibility with the Choctaw tribes since the case involving the child’s siblings.

The department reviewed the information on Indian ancestry regarding mother and compared it with the information received from the maternal grandfather. It was confirmed that the information obtained was the same as that contained in the previous ICWA notice for the child’s siblings. The department’s records contained responses from three Choctaw tribes indicating the child’s siblings were not eligible for membership. The inquiry into mother’s claim of Indian ancestry was closed based on the lack of new information provided.

Mother lived with the maternal grandmother “off and on,” and she had good communication with her. The department’s family finding unit contacted B.W., who was interested in placement, but she resided out of state. The maternal grandmother and mother were also contacted by the family finding unit social worker, and they reviewed their family tree together and provided additional family information. Jennifer also provided family information and explained her status in seeking resource family approval. Two nonrelative extended family members were also interested in seeking placement of the child. After a child and family team meeting, the child was placed with a nonrelative extended family member, Susan W.

On June 11, 2021, the juvenile court appointed a guardian ad litem for mother at her request. County counsel requested the juvenile court find that ICWA was not applicable based upon the lack of new information since the prior ICWA finding was made in the case of the child’s siblings. The juvenile court found ICWA was not applicable without objection from the parties.

Mother failed to appear at the continued disposition hearing held on July 13, 2021. The juvenile court denied reunification services to mother pursuant to section 361.5, subdivision (b)(6), (7) and (11), and it set a section 366.26 hearing for November 10, 2021.

The report for the section 366.26 hearing recommended that parental rights for mother and the alleged father be terminated and a plan of adoption be selected. The juvenile court’s previous finding from June 2021 regarding ICWA was noted with no new information received by the department. The child remained placed in the home of Susan and her husband, but Jennifer filed a section 388 petition requesting placement of the child in August of 2021. The juvenile court granted Susan’s request for de facto parent status in November 2021.

On January 27, 2022, Susan and Jennifer were both present with retained counsel at the section 366.26 hearing while mother failed to appear. The juvenile court found the child was likely to be adopted and proceeded to terminate the parental rights of mother and the alleged father. Susan and her husband were designated as prospective adoptive parents, and the juvenile court continued the hearing on Jennifer’s section 388 petition to March 2022. Mother’s guardian ad litem filed a timely notice of appeal on mother’s behalf.

DISCUSSION

Mother contends the juvenile court’s finding that ICWA did not apply was not supported by sufficient evidence because the record does not include interviews conducted by the department with all maternal family members regarding her claim of unknown Indian ancestry. Mother also argues that the juvenile court erred by primarily relying on an ICWA finding from the previous dependency proceedings involving the child’s siblings.

1. Legal Principles

ICWA 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, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224.2, subd. (e)). An “ ‘Indian child’ ” is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)

In every dependency proceeding, the department and the juvenile court have an “affirmative and continuing duty to inquire whether a child is or may be an Indian child .…” (Cal. Rules of Court, rule 5.481(a)[3]; see also § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child “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 (D.F.).)

The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has “any information that the child may be an Indian child.” (§ 224.2, subd. (a).) Once a child is received into temporary custody, the 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. (§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she “knows or has reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete form ICWA-020. (Rule 5.481(a)(2)(C).)

Next, a duty of further inquiry arises when the department or the juvenile court has “reason to believe” the proceedings involve an Indian child but “does not have sufficient information to determine that there is reason to know that the child is an Indian child.” (§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists when the juvenile court or department “has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.” (Id. subd. (e)(1).)

If there is a reason to believe an Indian child is involved, the juvenile court or the department “shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e); In re Y.W. (2021) 70 Cal.App.5th 542, 552.) Further inquiry includes, but is not limited to, “nterviewing the parents, Indian custodian, and extended family members,” and contacting the Bureau of Indian Affairs (BIA), the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)–(C).)

The final duty component arises when the court or department has “reason to know” the child is an Indian child. ([i]D.F., supra, 55 Cal.App.5th at p. 567.) A “ ‘reason to know’ ” exists if one of the following circumstances is present: “(1) A person having an interest in the child … informs the court that the child is an Indian child[;] [¶] (2) The residence … of the child [or] the child’s parents … is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child … gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] [or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)−(6).)

“The duty to provide notice is narrower than the duty of inquiry. Although the duty of inquiry applies to every ‘child for whom a petition under Section 300, 601, or 602 may be or has been filed’ [citation], and the duty of further inquiry applies when there is a ‘reason to believe that an Indian child is involved in a proceeding’ [citation], the duty to provide notice to Indian tribes applies only when one knows or has ‘reason to know … an Indian child is involved,’ and only ‘for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement.’ ” (In re Austin J. (2020) 47 Cal.App.5th 870, 884 (Austin J.).)

“Once [the department] or the juvenile court has a reason to know an Indian child is involved, notice pursuant to ICWA must be sent to the pertinent tribe(s) via registered or certified mail. … [¶] It is this ‘notice requirement, which … 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.’ ” (D.F., supra, 55 Cal.App.5th at p. 568, italics omitted.)

An Indian tribe’s determination that a child is or is not a member of, or eligible for membership in, that tribe is conclusive. Information that the child is not enrolled or is not eligible for enrollment in the tribe is not determinative unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom. (§ 224.2, subd. (h).)

If the juvenile court makes a finding that proper and adequate further inquiry and due diligence 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, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)

Social workers have no duty under federal law to ask extended family members about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, is an error of state law. (Ibid.) The test for prejudicial state law error is whether, after an examination of the entire case, 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.)

B. Standard of Review

Where, as here, the juvenile court finds ICWA does not apply to a child, “[t]he finding implies that … social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry.” (Austin J., supra, 47 Cal.App.5th at p. 885.) We review the juvenile court’s ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) We must uphold the juvenile 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 Alexzander C. (2017) 18 Cal.App.5th 438, 446.) The appellant “has the burden to show that the evidence was not sufficient to support the findings and orders.” (Ibid.)

C. Analysis

Mother contends the department failed in its duty of inquiry because the record does not indicate it inquired of any extended family members except for the maternal grandfather about possible Indian ancestry. We disagree.

Adequacy of Further Inquiry

In the present case, mother informed the department and juvenile court that she had Indian ancestry with an unknown tribe. During an extensive inquiry by the juvenile court, mother denied having an enrollment number and acknowledged that the Indian ancestry did not apply to her children. Mother also denied knowing whether anyone in her family was a member of a tribe, lived on an Indian reservation, or received benefits from an Indian tribe. Mother indicated that the maternal grandfather was the only person with knowledge regarding information about Indian ancestry on his side of the family. Mother also claimed that the maternal grandmother once told her that the child’s great‑grandfather was “Indian,” but she stated that neither her mother nor anyone else in the family had information about Indian ancestry on the maternal side of her family.

The department conducted multiple interviews with the maternal grandfather, who denied having Indian ancestry. He acknowledged having been interviewed during the 2011 case without having any new information to provide. Jennifer, the maternal aunt who was requesting placement, was also interviewed by the department. She provided biographical family information, and she denied that the family had any proof of Indian ancestry. She specifically stated that any Indian ancestry came only from their father’s side of the family, and she also claimed that all information was provided during the previous dependency case. The department also made contact with the maternal cousin, B.W., who had placement of the child’s adopted siblings. B.W. indicated an interest in placement of the child as well. The mother and maternal grandmother reviewed their family tree with a social worker and provided additional family information.

Biographical family information, which is relevant to determining a child’s Indian ancestry, was clearly provided by mother’s maternal relatives. The department confirmed that the only family member alleged to have knowledge of mother’s claim of Indian ancestry had no new information to provide. It is true that the department’s description of each of these interviews does not expressly indicate that the family’s Indian ancestry was discussed. The department’s documentation of its duty of further inquiry may have been imperfect in that regard, but it cannot be said that these efforts were so inadequate as to invalidate the juvenile court’s finding that ICWA did not apply. We do not agree with mother’s contention that substantial evidence cannot support a finding that ICWA does not apply where the record does not contain interviews of every available extended family member about Indian ancestry. (See, e.g., In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [a silent record regarding interviews of additional family members regarding Indian ancestry did not render ICWA inquiry inadequate].)

“Under both ICWA and California law, ‘ “extended family member[s]” ’ include 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.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053 (D.S.); 25 U.S.C. § 1903(2); § 224.1, subd. (c).) “It does not include great-grandparents.” (D.S., at p. 1053.) We recognize that the department also had an obligation to contact “any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(C).) Although the maternal “great-[grandfather] may fall within this category, the [department] reasonably could [have] conclude[d] … that no further inquiry was needed because there was no further information of value to obtain from this third party.” (D.S., at p. 1053.)

Maternal great-grandmother was maternal grandmother’s mother. The department had already interviewed maternal grandmother regarding the maternal family tree, mother denied that anyone in the family had information about the maternal grandmother’s Indian ancestry, and mother’s sister denied that the maternal grandmother’s side of the family had Indian ancestry. We also note that it is unclear whether the maternal great‑grandmother was available given mother’s statements that she did not have a phone number and her initial refusal to provide an address. Therefore, it is speculative to assume that the interviews of any other members of the maternal family contained additional information about mother’s claim of unknown Indian ancestry. (See In re Gerardo A., supra, 119 Cal.App.4th at p. 995 [“appellant assumes without any basis in the record that … other [] maternal relatives were available to be interviewed … and could have supplied” missing information].) The record supports a finding the department adequately interviewed mother’s family to determine what information was known to them.

As discussed above, an “Indian child” is a member of a federally recognized Indian tribe, or is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1904(4), (8).) “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.’ ” (Austin J., supra, 47 Cal.App.5th at p. 882; see In re T.G. (2020) 58 Cal.App.5th 275, 294 [“[a]n ‘Indian child’ is defined in terms of tribal membership, not ancestry”].)

“Without the identity of a tribe, let alone a federally recognized one, or at least a specific geographic area of possible ancestry origin, the BIA could not have assisted the [d]epartment in identifying the tribal agent for any relevant federally recognized tribes.” (In re J.S. (2021) 62 Cal.App.5th 678, 689 [Transmission of a notice to the BIA would have been an “idle act” where department interviewed only family members identified as having information on unknown Indian ancestry.].) Furthermore, there is no evidence that mother was currently claiming ancestry in a specific tribe, and she did not reiterate an apparent past claim that she had Choctaw ancestry. Without more information, the department was unable to contact any tribes. (See In re Hunter W., supra, 200 Cal.App.4th at p. 1469 [ICWA finding upheld where mother could not identify tribe or provide any other relative who could reveal more information].)

Based on this record—including the maternal grandfather’s repeated denials, Jennifer’s denial that the family had any proof of Indian ancestry, and mother’s express denial that anyone except maternal grandfather had information on her claims of unknown Indian ancestry—there was substantial evidence supporting the juvenile court’s conclusion that the department complied with its further inquiry obligations. (See In re A.M. (2020) 47 Cal.App.5th 303, 323.) “n this case [the department] could not have obtained any further information from any other maternal relatives.” ([i]Ibid.)

As mother argues, the juvenile court and department have a continuing duty to determine whether ICWA applies and must revisit a prior determination that ICWA does not apply “if they subsequently receive information that provides reason to know the child is an Indian child.” (§ 224.2, subd. (c); rule 5.481(a); In re Isaiah W., supra, 1 Cal.5th at pp. 10−11.) However, if there are no changes in mother’s information, the “Agency is not required to ‘cast about’ for information or pursue unproductive investigative leads.” (D.S., supra, 46 Cal.App.5th at p. 1053 [“the Agency followed the proper procedures in conducting its further inquiry, but the limited information provided by Aunt was too attenuated for the Agency to do anything further”].)

In sum, the juvenile court and the department made an adequate inquiry into the child’s possible Indian ancestry, relying on a prior court finding that ICWA did not apply and the representations of the only person mother identified as having information on her claim of unknown Indian ancestry, maternal grandfather, that they had no new information nor any Indian ancestry. The department’s repeated efforts to gather information concerning the child’s Indian ancestry constitutes substantial evidence that the department met its duty of further inquiry. (See D.F., supra, 55 Cal.App.5th at p. 570.) “Based on the record before us, we find [the department] made a good faith effort to gather information about the children’s membership status or eligibility.” (Ibid.) Considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference, and resolving all conflicts in support of the order, as we must, we conclude that the department complied with its duties, and that the juvenile court properly found ICWA did not apply. (See In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)

Appellant’s Burden to Establish Prejudicial Error

Even if the juvenile court’s or the department’s further inquiry was inadequate, we find any error harmless. The department’s obligation to interview extended family members in the course of a further inquiry of a parent’s claim of Indian ancestry is not new. Prior to January 2019, California law required further inquiry, “If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required … and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (Former § 224.3, subd. (c), effective January 1, 2007, to December 31, 2018.) The department had “ ‘reason to know’ a child may be an Indian child if, for instance, a ‘person having an interest in the child … provide[d] information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.’ ” (In re A.M., supra, 47 Cal.App.5th at p. 316.) This standard did not demand much to trigger further ICWA inquiry and notice. (Ibid.)

We note that current section 224.2, subdivision (e) does not require that any extensive or particular formal documentation of ICWA inquiry be provided to the juvenile court or relevant tribes. (In re M.W. (2020) 49 Cal.App.5th 1034, 1046; but see rule 5.481(a)(5) [“The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child’s Indian status, as well as evidence of how and when this information was provided to the relevant tribes.”].)

Section 224.2, subdivision (g), which solely applies to situations where there is a “reason to know,” now provides that the juvenile court may confirm the department’s due diligence “by way of a report, declaration, or testimony included in the record.” However, even prior to the substantial amendments that took effect in January 2019, appellate courts would not permit the department to omit any discussion of its efforts to interview family members and claim that its efforts could not be challenged on appeal because the record is silent. (In re K.R. (2018) 20 Cal.App.5th 701, 709; In re N.G. (2018) 27 Cal.App.5th 474, 485 (N.G.).)

Mother relies on both K.R. and N.G. to support her claim that she is not required to demonstrate prejudicial error. Mother also relies on several recent cases declining to require the appellant to demonstrate prejudice from errors in the department’s initial inquiry. (See In re Antonio R. (2022) 76 Cal.App.5th 421; In re Y.W., supra, 70 Cal.App.5th 542.) Those cases primarily adopt their reasoning from the cases of K.R. and N.G. However, we find these more recent cases of minimal relevance given that they do not involve the documentation of a department’s further inquiry where there was already a reason to believe that the child may be an Indian child.[4]

In K.R., the Court of Appeal concluded there was prejudicial error because the social services agency had not provided a record of its efforts undertaken to comply with ICWA. There was no evidence the agency had contacted the paternal aunt, paternal grandparents, or paternal great-grandmother, even though there was contact information available for them. The appellate court remanded the matter for further inquiry because, unlike in the instant case, the record indicated that the paternal aunt, paternal grandparents, and paternal great-grandmother would likely provide additional information that would assist in determining whether the children had Indian ancestry. (In re K.R., supra, 20 Cal.App.5th at pp. 707−708.)

In N.G., the appellate court reversed an order terminating parental rights and remanded the case for compliance with ICWA. In that case, the mother successfully challenged the juvenile court’s determination that ICWA did not apply. The father had filed an ICWA-020 form indicating he might have Blackfeet or Navajo ancestry, ICWA notices were sent out early in the proceedings, and after reviewing responses from the tribes, the court found ICWA did not apply. Later in the proceedings, the father told a social worker he had been in contact with paternal cousins who were registered members of the Cherokee tribe. The father died shortly thereafter, and there was no evidence the agency attempted to identify or interview paternal lineal ancestors. The agency was only in contact with the mother twice, and there was no evidence the agency asked the mother to complete an ICWA-020 form or asked the mother or any maternal relatives whether N.G. may have any maternal Indian ancestry. (N.G., supra, 27 Cal.App.5th at pp. 478–479.)

The appellate court in N.G. ultimately found conditional reversal was required because, among other things, the record failed to show the agency fully investigated the minor’s paternal lineal ancestry after the father reported possible Blackfeet, Navajo or Cherokee ancestry. (N.G., supra, 27 Cal.App.5th at pp. 481–482.) In noting its departure from established case law requiring appellant to demonstrate prejudicial error, the court of appeal reasoned, “in a case such as this one, where the record does not show what, if any, efforts the agency made to discharge its duty of inquiry [citations], and the record also does not show that all required ICWA notices were given or that the ICWA notices that were given included all known identifying information, the burden of making an adequate record demonstrating the court’s and the agency’s efforts to comply with ICWA’s inquiry and notice requirements must fall squarely and affirmatively on the court and the agency. In the absence of an appellate record affirmatively showing the court’s and the agency’s efforts to comply with ICWA’s inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court’s finding that proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a general rule, we will find the appellant’s claims of ICWA error prejudicial and reversible.” (N.G., supra, 27 Cal.App.5th at p. 484.)

In the instant case, the department did provide a record of its efforts to comply with its duty of further inquiry, and there was no record that a relative having information regarding Indian ancestry was not explicitly interviewed on the family’s unknown Indian ancestry. For these reasons, we decline to shift the burden on the juvenile court and the department to demonstrate its compliance with ICWA based upon the existence of a record that shows its efforts at complying with the duty of further inquiry under ICWA.

No Prejudicial Error Demonstrated

The standard for assessing prejudice arising from an ICWA error is relatively straight forward despite the different approaches that have been recently employed regarding deficiencies in the duty of initial inquiry. (See In re A.C. (2022) 75 Cal.App.5th 1009, 1011 [deficient initial inquiry mandates reversal]; In re A.C., supra, 65 Cal.App.5th 1060 [deficient initial inquiry harmless unless parent proffers Indian ancestry on appeal; In re Benjamin M. (2021) 70 Cal.App.5th 735 [deficient initial inquiry harmless unless record indicates there was readily obtainable information likely to bear meaningfully upon whether the child is an Indian child].)

To establish prejudicial error, we must find it reasonably probable that further inquiry based on the record before us would yield a different result. (See, e.g., In re I.W. (2009) 180 Cal.App.4th 1517, 1531 [no prejudicial error where “mother does not suggest how the supposed deficiencies she notes would have made a difference given the information that was in the notices”]; In re Charlotte V., supra, 6 Cal.App.5th at p. 58 [no prejudicial error from department’s failure to gather additional information from family members]; In re Breanna S. (2017) 8 Cal.App.5th 636, 654 [prejudicial error found where reviewing court “ ‘[could not say] with any degree of confidence that additional information concerning [a] relative … would not have altered the tribe’s evaluation”]; In re E.H. (2018) 26 Cal.App.5th 1058, 1074−1075 [finding prejudicial error for agency’s failure to ask great-grandmother about her father, who was a possible source of Indian heritage].)

Under these circumstances, mother must show that the department failed to interview a relative that had knowledge of the family’s Indian ancestry such that the result of the inquiry would have been different. However, mother never identified any other family members having further information about her unknown Indian ancestry aside from the maternal grandfather. She expressly denied that anyone in her family had knowledge about the alleged Indian ancestry of her own maternal grandfather. It is unclear how further inquiry of family members that mother claimed to not have knowledge of her Indian ancestry would have changed the outcome here. Mother’s contention that one of these relatives might have had knowledge is purely speculative and not sufficient to establish prejudice. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [it is appellant’s burden to affirmatively show error on the record].) If we must assume that every relative had information meaningfully bearing on the child’s status as an Indian child despite mother’s suggestion to the contrary, then we would be drawing inferences contrary to the judgment of the juvenile court. Such an assumption is not compatible with a substantial evidence review. (See In re I.J. (2013) 56 Cal.4th 766, 773 [“we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations”].)

Mother’s reliance upon In re Benjamin M., supra, 70 Cal.App.5th 735 in urging us to remand is similarly unpersuasive.[5] In Benjamin M., one parent was not available to report or deny Indian heritage and the agency never inquired of any of the missing parent’s available relatives. (Id. at pp. 744–745.) Here, mother specifically identified only one relative, the maternal grandfather, as having information regarding her Indian ancestry. The department interviewed the maternal grandfather multiple times and discovered no new information after he denied having Indian ancestry. Thus, unlike Benjamin M., it cannot be said that interviews with additional relatives “would [likely] have shed meaningful light” on whether ICWA applied. (Id. at p. 744; see In re Darian R. (2022) 75 Cal.App.5th 502, 509–510 [“The record simply does not support mother’s unvarnished contention that additional interviews of mother’s [family] would have meaningfully elucidated the child[]’s Indian ancestry.”].)

Finally, the evidence demonstrates that mother’s family had come before the juvenile court in a previous dependency case, and the juvenile court found that ICWA did not apply. The child’s Indian ancestry, which would have been through mother’s family, would not change over time. Without maternal grandfather or any other maternal relatives providing new information that the child is an Indian child, the prior finding that ICWA was inapplicable makes it unlikely that additional inquiry would have revealed the child to be within ICWA, rendering any error harmless. (See In re Charles W. (2021) 66 Cal.App.5th 483, 492 [“given the prior ICWA finding regarding this family and the parents’ unequivocal denials of Indian ancestry, we do not find it reasonably probable that further inquiry based on the record before us would yield a different result”].)

Most importantly, mother never disputed that the prior ICWA finding was in error or asserted that herself or a relative had new information regarding Indian ancestry. To the contrary, given the prior ICWA finding regarding this family and the maternal grandfather’s unequivocal denials of Indian ancestry, we do not find it reasonably probable that further inquiry based on the record before us would yield a different result. “This is because there is no doubt that the three Choctaw tribes and the BIA would respond to any ICWA [inquiry] regarding [the child] with the exact same answer as they did when they received [the] notices regarding [the child’s siblings].” (In re E.W. (2009) 170 Cal.App.4th 396, 402.)

We decline to further delay the proceedings, particularly where mother made no specific claim that the ICWA finding in the prior dependency case was erroneous. (See In re Shane G. (2008) 166 Cal.App.4th 1532, 1539 [when agency performed reasonable inquiry and found no reason to believe minor was an Indian child, “reversing the judgment … for the sole purpose of sending notice to the tribe would serve only to delay permanency … rather than further the important goals of and ensure the procedural safeguards intended by ICWA”].)

Mother has not demonstrated prejudicial error and remand for further inquiry of relatives, who were never alleged to have information on mother’s claim of unknown Indian ancestry, would be an idle act. The child “deserve[s] permanence and stability as soon as possible.” (In re E.W., supra, 170 Cal.App.4th at p. 402.) Accordingly, mother has not carried her burden of demonstrating a reasonable probability that the result here would have been different had the department interviewed additional relatives regarding mother’s claim of unknown Indian ancestry.

DISPOSITION

The order appealed from is affirmed.

* Before Hill, P. J., Levy, J. and Poochigian, J.

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

[2] The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts to those bearing on that issue.

[3] All further references to rules are to the California Rules of Court.

[4] We also decline to apply the rational from In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, which would require a parent to proffer on appeal as to why further inquiry would lead to a different ICWA finding because it involves cases “without any showing whatsoever that the interests protected by the ICWA are implicated in any way.”

[5] We are aware of recent criticism of Benjamin M. and the proposal of a new “ ‘reason to believe’ ” rule from the Court of Appeal, Second District, Division 2. (In re Dezi C. (2022) 79 Cal.App.5th 769, 779.) Such a rule is not applicable to the present case involving a further inquiry where the department was already provided with a reason to believe the child might be an Indian child.