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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

Coming Under the Juvenile Court Law.

_____________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

CHESTER J.,

Defendant and Appellant.

B319069

(Los Angeles County

Super. Ct. No. DK02773B–C)

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.
2

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. § 1901 

et 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 Code1

section 301.

1 All subsequent undesignated statutory references are to 

the Welfare and Institutions Code.
3

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.
4

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-
5

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.
6

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––
7

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, 
8

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 
9

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. 
10

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-greatgreat 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 
11

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 
12

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.
13

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.
1

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.