In re Victoria J. CA2/3

Filed 11/15/22 In re Victoria J. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
In re VICTORIA J. et al., Persons B319069
Coming Under the Juvenile Court Law.
_____________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK02773B–C)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHESTER J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Affirmed.
Christine E. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Kelly Emling, Deputy County Counsel
for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Chester J. (father) appeals from juvenile court orders
terminating parental rights to two of his children. He contends
the orders should be reversed because the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with the inquiry provisions of state law implementing the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.). We conclude that any ICWA inquiry error was not
prejudicial, and we therefore will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior dependency proceeding.
Father and Kimberly J. (mother) are the parents of
Victoria J. (born in September 2010) and Noah J. (born in
April 2013).
In December 2013, DCFS filed a petition alleging that
domestic violence between mother and father put the children at
risk of physical harm, and the family’s home was unsanitary and
lacked a functioning toilet, shower, refrigerator, oven, and stove.
In April 2014, after the parents obtained new housing, the court
dismissed the petition but ordered that DCFS continue to
supervise the family pursuant to Welfare and Institutions Code 1
section 301.
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
2
II. Present petition, adjudication, and disposition.
DCFS filed a petition in the present case on October 9,
2014.2 It alleged that the children were subject to juvenile court
jurisdiction pursuant to section 300, subdivision (b) because
mother abused drugs and suffered from mental illness, and
father failed to protect the children. Because the family’s
whereabouts were then unknown, the court issued arrest
warrants for the parents and protective custody warrants for the
children.
DCFS located the family approximately 18 months later, in
March 2016, and took the children into protective custody. They
were placed with their paternal aunt.
The jurisdiction/disposition report noted that in the prior
proceeding the juvenile court had found ICWA did not apply
through father. Mother had claimed possible ancestry through
the Cherokee tribe, but she had said she was not eligible to be
enrolled or registered with a Cherokee tribe. ICWA notices had
been sent to the Cherokee tribes, the Secretary of the Interior,
and the Bureau of Indian Affairs (BIA) based on the information
mother provided, but no ICWA finding had been made as to
mother prior to the court’s termination of jurisdiction.
The court held a jurisdiction/disposition hearing on May 26,
2016, at which neither parent appeared. The juvenile court
sustained the allegations of the petition, ordered the children
removed from the parents, and entered reunification plans for
each parent. With regard to ICWA, the court took judicial notice
2 An older sibling was also named in the petition, but he
turned 18 years old in July 2021, and thus he is not a subject of
this appeal.
3
of its prior ICWA findings and noted that neither parent had
come to court to provide any additional information. Because
father previously had denied Indian ancestry and mother had
said no one in her family was enrolled or registered with a tribe,
the court found there presently was no reason to know the
children were Indian children. It ordered the parents to keep
DCFS, their attorneys, and the court aware of any new
information relating to ICWA.
In November 2016, DCFS reported that neither parent was
participating in court-ordered services. The children remained
placed with the paternal aunt, with whom DCFS had regular
contact, and social workers in Louisiana had made contact with
the maternal grandparents to assess them for placement.
III. ICWA findings; placement with prospective adoptive
parents; termination of parental rights.
In late February 24, 2017, the paternal aunt reported that
father had abducted the children from her home. Their
whereabouts remained unknown for approximately a year.
The children were located in February 2018 and placed in
foster care. In April 2018, DCFS reported that father was
emotionally abusive to mother and his adult children, and it did
not believe there were any interventions that would create a safe
home for the children. DCFS further believed mother did not
have the ability to protect the children, although she expressed
the desire to do so. Therefore, DCFS did not recommend
returning the children to either parent. In October 2018, DCFS
recommended that the juvenile court set a section 366.26
hearing.
The parents, children, and an adult sibling were present at
a hearing on October 29, 2018. Both parents submitted ICWA-
4
020 forms: Mother said she might have Indian ancestry through
a Cherokee tribe, and father said he did not have Indian
ancestry. After reviewing mother’s ICWA-020 form, the court
asked mother if she was a member of a tribe. She said that on
her mother’s side, she believed her grandfather’s grandmother
(the children’s great-great-great grandmother) was Cherokee; on
her father’s side, she believed her grandmother grew up on a
reservation, but she did not know the name of the tribe. She
thought some of her relatives might have more information. The
court ordered DCFS to further inquire of mother regarding her
Indian ancestry and “to provide notice under ICWA to the
Department of the Interior, Bureau of Indian Affairs, [and] all
other tribes identified by either [mother] or family members.”
The court told mother she would be contacted by DCFS and
asked her to “please cooperate with the worker as to acquiring as
much information as we can about possible Indian ancestry.”
The court then set a section 366.26 hearing for February 26,
2019.
In February 2019, DCFS reported that the children’s
caregiver’s adult son and his girlfriend had formed a strong
attachment to the children and wished to adopt them. The same
month, the juvenile court determined that the section 366.26
hearing would have to be continued because the children had not
yet been placed with the prospective adoptive parents and DCFS
had not complied with the court’s order to conduct a further
inquiry into mother’s claim of Indian ancestry. The court ordered
DCFS to immediately serve ICWA-030 notices on the Department
of the Interior, the BIA, and all Cherokee tribes, and it continued
the hearing for six months.
5
DCFS sent ICWA-030 notices to three Cherokee tribes in
early March 2019. All three tribes responded that the children
were not tribal members or eligible for membership; the United
Keetoowah Band of Cherokee Indians further explained that “All
Keetoowah citizens must have a Certificate of Degree of Indian
Blood (CDIB) indicating at least 1/4 (one-quarter) of Keetoowah
(Cherokee) blood and have direct ancestry to an individual listed
on the 1949 Keetoowah Base Roll or the Dawes Roll. NO
EXCEPTIONS will be made to these requirements.”
At the August 29, 2019 hearing, the court found that all the
noticed tribes had provided responses indicating that the children
were not Indian children within the meaning of ICWA. Thus, it
said, “[a]long with father’s ICWA-020 form, [in] which he
indicated no Indian ancestry, the court is finding, at this time,
there’s no reason to believe that the minor children are Indian
children within the meaning of ICWA.” The court asked whether
any party wished to be heard with regard to Indian ancestry; no
party did. The court ordered the children to be placed with the
prospective adoptive parents and continued the section 366.26
hearing for six months.
The section 366.26 hearing was continued many more times
for a variety of reasons, including the Covid-19 pandemic,
mother’s death, and changes in DCFS’s recommendations.
Ultimately, parental rights were terminated on January 13,
2022, more than seven years after the petition was filed. Father
timely appealed from the order terminating parental rights.
DISCUSSION
Father contends DCFS failed to properly investigate
mother’s claims of Cherokee ancestry because it did not conduct
an ICWA inquiry of mother’s extended family members––
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specifically, her parents and adult children. He thus urges that
the order terminating parental rights should be conditionally
reversed and the matter remanded to the juvenile court for
further compliance with ICWA.
I. Legal standards.
ICWA was enacted “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .’ [Citation.]”
(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.)
“Juvenile courts and child protective agencies have ‘an
affirmative and continuing duty to inquire’ whether a dependent
child is or may be an Indian child.” (In re Michael V. (2016)
3 Cal.App.5th 225, 233; see also Isaiah W., supra, 1 Cal.5th at
pp. 9–11; § 224.2, subd. (a).) An “Indian child” is “any unmarried
person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].)
The affirmative duty to inquire has several elements. If a
child is removed from his or her parents and placed in the
custody of a county welfare agency, the agency must inquire
whether a child is an Indian child. Such inquiry “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,
7
whether the child is, or may be, an Indian child . . . .” (§ 224.2,
subd. (b).) The court also must make an ICWA inquiry when the
parents first appear in court: 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” (§ 224.2,
subd. (c)), and must require each party to complete California
Judicial Council Form ICWA-020, Parental Notification of Indian
Status (Cal. Rules of Court, rule 5.481(a)(2)(C)).
If the court or social worker has “reason to believe that an
Indian child is involved in a proceeding,” the court or social
worker must “make further inquiry regarding the possible Indian
status of the child” by, among other things, interviewing the
parents and extended family members, and contacting any tribe
that may reasonably be expected to have information about the
child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e)(2).) There is “reason to believe” a child involved in a
proceeding is an Indian child whenever the court or social worker
“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.” (§ 224.2, subd. (e)(1).)
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings must be
provided to the identified tribe or tribes. (§ 224.2, subd. (f).)
There is “reason to know” a child is an Indian child if any one of
six statutory criteria is met—e.g., if the court is advised that the
child “is an Indian child,” the child’s or parent’s residence is on a
reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe. (§ 224.2,
subd. (d).) Thereafter, the court shall confirm that the agency
8
used due diligence to identify and work with all of the tribes of
which there is reason to know the child may be a member, or
eligible for membership, to verify whether the child is in fact a
member or whether a biological parent is a member and the child
is eligible for membership. (§ 224.2, subd. (g).) A determination
by an Indian tribe that a child is or is not a member of, or eligible
for membership in, that tribe “shall be conclusive.” (§ 224.2,
subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section 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, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)
II. The trial court did not prejudicially err in finding
that the children are not Indian children and ICWA
does not apply to this case.
Father’s sole contention on appeal is that the trial court
erred in concluding that DCFS sufficiently investigated mother’s
claims of Cherokee ancestry because it failed to inquire of
mother’s extended family––specifically, of her parents and adult
children. For the reasons that follow, we find no prejudicial
error.
Father is correct that mother’s claim of Cherokee ancestry
created “reason to believe” the children were Indian children,
thus requiring further inquiry. It appears no further inquiry was
made of mother’s extended family members, including of her
parents, with whom DCFS had contact. The juvenile court thus
erred by concluding that DCFS conducted an adequate ICWA
inquiry.
9
However, after parental rights have been terminated, we
will return a case to the juvenile court for ICWA error only if the
appellant demonstrates such error was prejudicial. (In re
Ezequiel G. (2022) 81 Cal.App.5th 984, 1014; In re Dezi C. (2022)
79 Cal.App.5th 769, 781, review granted Sept. 21, 2022, S275578;
see also In re M.M. (2022) 81 Cal.App.5th 61, 71, review granted
Oct. 12, 2022, S276099 [declining to follow “the ‘error per se’ line
of cases”].) Here, the inquiry error plainly was not prejudicial.
Mother’s initial disclosure of Cherokee ancestry included her
statement that she was not eligible to be enrolled in or registered
with a Cherokee tribe, suggesting that she had investigated
Cherokee tribal enrollment requirements and learned that she
did not meet them. Mother’s statement was confirmed by the
three federally registered Cherokee tribes, each of which
responded to the ICWA-030 notices mailed by DCFS in
March 2019 that the children were not members or eligible for
tribal membership. One of the three tribes, the United
Keetoowah Band of Cherokee Indians, further explained that all
tribal citizens must be at least one quarter Keetoowah (that is,
must have at least one Keetoowah grandparent) and have direct
ancestry to an individual listed on the 1949 Base Roll or the
Dawes Roll. Because the children were, at best, the great-great-
great grandchildren of a tribal citizen, they were at most 1/32
Cherokee, and thus they clearly did not meet this requirement.
Thus, the concern expressed by many courts––that an agency’s
inaction results in a tribe’s inability to make a determination as
to tribal membership––does not apply here. (Cf. In re Benjamin
M. (2021) 70 Cal.App.5th 735, 745 [“it is in part the tribe’s right
to a determination of a child’s Indian ancestry, but the tribe is
not present, and the agency is charged with obtaining
10
information to make that right meaningful”]; In re Antonio R.
(2022) 76 Cal.App.5th 421, 436 [same]; In re Isaiah W., supra,
1 Cal.5th at p. 13 [“Indian tribes have interests protected by
ICWA that are separate and distinct from the interests of parents
of Indian children”].)
Father suggests that mother’s representation that she was
not eligible for membership in a Cherokee tribe is a red herring
because “a determination of enrollment or eligibility for
enrollment is not up to the parent.” Father’s reasoning is flawed.
While it unquestionably is up to individual tribes to set their own
enrollment requirements, we understand mother’s statement not
to be her own opinion, but instead to be based on information she
had obtained from the relevant tribes or from her family.
Further, as we have said, the tribes confirmed mother’s
statement in their responses to DCFS’s ICWA-030 notices.
As we explained in In re Ezequiel G., supra, 81 Cal.App.5th
at p. 1009, ICWA applies only if a child is an “Indian child”––that
is, if he or she is either (a) “a member of an Indian tribe” or (b) “is
eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); see
also § 224.1, subds. (a)–(b); Indian Child Welfare Act
Proceedings, 81 Fed.Reg. 38795 (June 14, 2016) [“The statute
specifies that if the child is not a Tribal member, then the child
must be a biological child of a member and be eligible for
membership, in order for the child to be an ‘Indian child.’ ”].)
Nothing in our appellate record suggests that mother was a
member of a Cherokee tribe or had obtained membership on
behalf of the children. To the contrary, her statements that the
children were ineligible for tribal membership is persuasive
evidence that she had not done so. (See In re Ezequiel G., at
11
p. 1010 [“[A] parent typically will know whether she has applied
for membership for herself or her child—and her disclosure that
she has not will, in most cases, reliably establish that a child is
not an Indian child within the meaning of ICWA”].)
We note in conclusion that this dependency case has been
pending for more than eight years. In all of that time, no one––
including father, in this appeal––has ever suggested that the
children are members of or eligible for membership in an Indian
tribe. Instead, father’s sole argument on appeal is that had
DCFS spoken to additional members of mother’s family, they
might have uncovered additional biographical information that
might have caused a Cherokee tribe to conclude that the children
were eligible for membership. Such speculation, without more,
does not demonstrate prejudicial error.
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DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
RICHARDSON (ANNE K.), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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LAVIN, J., Dissenting:
For the reasons set forth in my dissent in In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1015–1025, I would conditionally
affirm the orders and remand for further proceedings. Certainly,
I appreciate that this dependency case has been pending for
years. But the Department of Children and Family Services
(Department) could easily have asked mother’s identified family
members about the children’s possible Indian heritage and
documented those efforts. It did not. Further, nothing in the
record shows how those extended family members would have
responded to questions about the children’s possible Indian
heritage.
I also note that instead of agreeing to a limited remand to
allow the Department’s social workers to ask a few simple
questions, the parties have, inexplicably, spent months litigating
this case on appeal. And this appeal will not be the last word on
whether a parent must make an affirmative showing of prejudice
to support a conditional affirmance and remand where the
Department failed fully to perform its duty of inquiry. This issue
is currently on review in In re Dezi C. (2022) 79 Cal.App.5th 769,
review granted September 21, 2022, S275578, and will not be
decided by our high court for months or years. The delay and
continued lack of finality in this case are detrimental to all
concerned, including the children and their prospective adoptive
parents.
LAVIN, J.
1