Filed 5/11/17 In re Caroline E. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re CAROLINE E. et al., Persons
Coming Under the Juvenile Court Law.
____________________________________
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
EMMANUEL E.,
Defendant and Appellant.
B278811
(Los Angeles County
Super. Ct. No. DK02085)
APPEAL from an order of the Superior Court of
Los Angeles County, Robert S. Draper, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel and Sally Son, Associate County
Counsel for Plaintiff and Respondent.
_________________________
2
This appeal concerns three children born to Karina E.
(mother) and Emmanuel E. (father): Caroline E. (born in
October 2012), Daniel E. (born in August 2013), and Victoria E.
(born in July 2014). Mother and father’s fourth child, M.E. (born
in May 2015), is not a subject of this appeal.
Father contends that the order terminating his parental
rights must be conditionally reversed because the Los Angeles
County Department of Children and Family Services (DCFS)
failed to conduct an inquiry into father’s Indian ancestry, as
required by the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.). Because we conclude that any error was not
prejudicial, we affirm the order terminating parental rights.
I.
Dependency Proceedings
A. Caroline and Daniel
On November 1, 2013, DCFS filed a juvenile dependency
petition on behalf of Caroline, Daniel, and their two older halfsiblings,
Alize M. and Crystal M.
1 The petition alleged the
children were at substantial risk of harm within the meaning of
Welfare and Institutions Code2 section 300, subdivision (b)
because mother and Daniel had tested positive for amphetamines
and methamphetamines at Daniel’s birth. The petition also
alleged father had a history of illegal drug use and had cared for
Caroline while under the influence of drugs.

1 Alize and Crystal were placed with their father, and the juvenile
court terminated its jurisdiction over them in October 2014. They are
not subjects of this appeal.
2 All subsequent undesignated statutory references are to the
Welfare and Institutions Code.
3
When interviewed at the hospital on August 28, 2013,
mother and father both stated they did not have any Indian
ancestry. Father subsequently signed a Form ICWA-020 stating
that to his knowledge, he had no Indian ancestry.
At the November 1, 2013 detention hearing, the court
ordered the children released to mother. However, after mother
missed three drug tests in January 2014 and father appeared to
be on drugs during an interview with DCFS, the children were
detained on January 23, 2014. On January 28, 2014, the court
found that the ICWA-020 forms had been signed and filed, and
that ICWA did not apply.
At the adjudication hearing on March 12, 2014, the court
sustained the dependency petition and ordered reunification
services for both parents.
In September 2014, father was incarcerated. On
October 30, 2014, the juvenile court found father was not in
compliance with his case plan, and it terminated his reunification
services as to Caroline and Daniel.
B. Victoria
Mother gave birth to Victoria in July 2014. DCFS filed a
juvenile dependency petition on behalf of Victoria on January 23,
2015, pursuant to section 300, subdivisions (b) and (j). The
petition alleged that mother tested positive for amphetamine use
on January 7, 2015, and that Victoria’s siblings were juvenile
court dependents. On January 23, 2015, the juvenile court found
a prima facie case for detaining Victoria.
On January 30, 2015, father signed a Form ICWA-020
stating that he “may have Indian ancestry.” (Italics added.)
Father did not identify a tribe or band in which he might be
eligible for membership, however. The same day, the court
4
ordered DCFS to “follow up regarding possible ICWA through
paternal family side.”
On March 13, 2015, the juvenile court sustained the
allegations of the petition and ordered DCFS to provide
reunification services to both parents.
C. M.E.
Mother tested positive for amphetamines on May 26, 2015,
four days before giving birth to M.E. DCFS detained M.E. on
June 1, 2015.
On June 4, 2015, father completed and filed a Form ICWA-
020 as to M.E., which stated that to his knowledge, he had no
Indian heritage. The same day, at M.E.’s detention hearing, the
court made a finding that it did not have reason to know that
M.E. was an Indian child under ICWA. On July 16, 2015, the
court sustained the petition as to M.E.
II.
Termination of Father’s Parental Rights
On July 16, 2015, the court found mother in minimal
compliance with her case plan and terminated her reunification
services as to Caroline and Daniel. On October 29, 2015, the
court terminated mother’s and father’s reunification services as
to Victoria, and denied both parents reunification services as to
M.E.
The court terminated parental rights as to M.E. on June
23, 2016, and to Caroline, Daniel, and Victoria on October 27,
2016.
On July 12, 2016, father filed a notice of appeal from the
June 23, 2016 order terminating parental rights as to M.E. On
September 22, 2016, father’s appointed appellate counsel filed a
“no issue” brief pursuant to In re Phoenix H. (2009) 47 Cal.4th
5
835. Father was notified of his right to file a letter identifying
appellate contentions or arguments, but he failed to do so. His
appeal as to M.E. was dismissed as abandoned on November 3,
2016.
On November 2, 2016, father filed a notice of appeal from
the October 27, 2016 order terminating parental rights as to
Caroline, Daniel, and Victoria.
DISCUSSION
Father’s sole contention on appeal is that the order
terminating his parental rights must be conditionally reversed
because DCFS failed to conduct a proper ICWA inquiry after the
court ordered it to do so in January 2015. Father acknowledges
that he subsequently advised the court that he was not aware of
any Indian ancestry, but he urges that a “conflict in the
evidence”—that is, his conflicting representations about his
possible Indian ancestry—required further inquiry.
For the reasons that follow, we conclude that DCFS’s
failure to conduct an ICWA inquiry was harmless. We therefore
affirm the order terminating father’s parental rights as to
Caroline, Daniel, and Victoria.
I.
Legal Standards
“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.’
[Citation.] ICWA declared that ‘it is the policy of this Nation to
protect the best interests of Indian children and to promote the
6
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. . . .’ (25 U.S.C. § 1902.)”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.)
Notice to Indian tribes is central to effectuating ICWA’s
purpose, enabling a tribe to determine whether the child involved
in a dependency proceeding is an Indian child and, if so, whether
to intervene in or exercise jurisdiction over the matter. (In re
Isaiah W., supra, 1 Cal.5th at pp. 8-9.) Accordingly, 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” of the
pending proceedings and its right to intervene. (25 U.S.C.
§ 1912(a).) Similarly, California law requires notice to the
Indian custodian and the Indian child’s tribe in accordance with
section 224.2, subdivision (a)(5), if the Department or court
knows or has reason to know that an Indian child is involved in
the proceedings. (§ 224.3, subd. (d); see Cal. Rules of Court,
rule 5.481(b)(1) [notice is required “[i]f it is known or there is
reason to know that an Indian child is involved in a proceeding
listed in rule 5.480,” which includes all dependency cases filed
under section 300].)
If the court fails to ask a parent about his or her Indian
heritage, a limited reversal of an order or judgment and remand
for proper inquiry and any required notice may be necessary.
(In re A.B. (2008) 164 Cal.App.4th 832, 839.) Reversal is not
7
warranted, however, when the court’s noncompliance with the
inquiry requirement constitutes harmless error. (Ibid.; see also
In re H.B. (2008) 161 Cal.App.4th 115, 121.)
II.
Father Has Not Demonstrated that
DCFS’s Failure to Make an ICWA Inquiry
Is Reversible Error
The relevant facts are undisputed: In January 2015, father
represented to the juvenile court in a Form ICWA-020 filed in
connection with Victoria’s detention hearing that he “may have
Indian ancestry”; four months later, in June 2015, father
represented in a Form ICWA-020 filed in connection with M.E.’s
detention hearing that he did not have Indian ancestry. DCFS
did not comply with the juvenile court’s January 2015 order to
investigate father’s claim of Indian ancestry.
Although the parties agree on the relevant facts, they
disagree about their legal significance. Father contends that the
Form ICWA-020 filed in June 2015 is outside the appellate record
and should not be considered; alternatively, father urges that
even if we consider the June 2015 Form ICWA-020, it merely
creates a conflict in the evidence that requires a limited remand.
DCFS contends that the June 2015 Form ICWA-020 is properly
before the court and compels the conclusion that any ICWA error
was harmless.
We begin by considering the significance of the Form
ICWA-020 father filed in June 2015. Father urges that his
submission of the form was a “post-judgment event,” and thus it
should be considered on appeal only in “exceptional
circumstances” not present here. We do not agree that the
June 2015 Form ICWA-020 was filed postjudgment. To the
8
contrary, when father filed the Form ICWA-020 in June 2015,
parental rights to Caroline, Daniel, and Victoria had not yet been
terminated. The court ordered those parental rights terminated
16 months later, in October 2016.
Moreover, although DCFS filed a separate dependency
petition for M.E. (who was not yet born when the juvenile court
adjudicated the petitions as to Caroline, Daniel, and Victoria),
the petitions for all four children were filed under the same case
number and were considered by the same juvenile court judge.
Accordingly, father’s June 2015 Form ICWA-020 was before the
juvenile court in this proceeding well prior to the entry of the
order from which father appeals, and thus it properly is part of
our appellate record.
Father next contends that even if the June 2015 Form
ICWA-020 is properly before us, it is not dispositive because it
merely creates an evidentiary conflict that requires a reversal
and limited remand to permit DCFS to conduct a further ICWA
inquiry. We do not agree. Although father indisputably made
inconsistent statements about his Indian ancestry, his final
representation to the juvenile court was that, to his knowledge,
he did not have Indian ancestry. This statement does not suggest
a conflict in the evidence, but rather that whatever father may
have believed in January 2015, he had determined as of
June 2015 that he did not have any Indian ancestry.
This case therefore is analogous to In re Jeremiah G. (2009)
172 Cal.App.4th 1514, in which a father initially told the court
that he “might” have Indian ancestry, but then later said he did
not.3 On that record, the court concluded that ICWA notice was

3 In re Michael V. (2016) 3 Cal.App.5th 225, cited by father, is
distinguishable from the present case. Here, as we have said, father
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not required because there was no information that reasonably
would suggest the child had Indian heritage: “At the December 6
hearing, father told the juvenile court he might have some Indian
heritage and the matter needed to be researched. But he did not
mention any tribe name or even know if his great-grandfather
had been a member of a tribe. . . . At the February 4
jurisdictional/dispositional hearing, upon inquiry from the court,
father’s counsel clarified that although father had initially
claimed he might have Indian ancestry, he had retracted that
claim and did not have any Indian heritage. Father was present
at the hearing and represented by counsel. Because father
retracted his claim of Indian heritage, and because there was no
other basis for suspecting that Jeremiah might be an Indian
child, the trial court properly proceeded without ICWA notice.”
(Id. at p. 1521.)
Of course, it is possible that father checked the wrong box
when he filled out the Form ICWA-020 in June 2015—i.e., that
he meant to check the box next to “I may have Indian ancestry,”
rather than “I have no Indian ancestry as far as I know”—but
nothing in father’s appellate briefs suggests that is the case.
That is, although father repeatedly suggests on appeal that there
was a conflict in the evidence, he has not made an affirmative
representation that he believes he has Indian ancestry.
We find the reasoning of In re Rebecca R. (2006)
143 Cal.App.4th 1426 (Rebecca R.) instructive. In that case, the
father argued that the termination of his parental rights

told the court in January 2015 that he might have Indian ancestry, but
in June 2015 said he did not. In Michael V., in contrast, the parent
never disclaimed Indian ancestry.
10
should be reversed because there was no evidence that the
San Bernardino Department of Children’s Services had inquired
whether father had Indian ancestry. (Id. at pp. 1428-1429.) The
Court of Appeal declined to reverse, concluding that the father
had not demonstrated a miscarriage of justice because on appeal
he had not made an affirmative representation of Indian
ancestry. The court explained:
“The sole reason an appellate court is put into a position of
‘speculation’ on the matter is the parent’s failure or refusal to tell
us. Father complains that he was not asked below whether the
child had any Indian heritage. Fair enough. But, there can be no
prejudice unless, if he had been asked, father would have
indicated that the child did (or may) have such ancestry.
“Father is here, now, before this court. There is nothing
whatever which prevented him, in his briefing or otherwise, from
removing any doubt or speculation. He should have made an
offer of proof or other affirmative representation that, had he
been asked, he would have been able to proffer some Indian
connection sufficient to invoke the ICWA. He did not.
“In the absence of such a representation, the matter
amounts to nothing more than trifling with the courts.
[Citation.] The knowledge of any Indian connection is a matter
wholly within the appealing parent’s knowledge and disclosure is
a matter entirely within the parent’s present control. The ICWA
is not a ‘get out of jail free’ card dealt to parents of non-Indian
children, allowing them to avoid a termination order by
withholding secret knowledge, keeping an extra ace up their
sleeves. Parents cannot spring the matter for the first time on
appeal without at least showing their hands. Parents unable to
reunify with their children have already caused the children
11
serious harm; the rules do not permit them to cause additional
unwarranted delay and hardship, without any showing
whatsoever that the interests protected by the ICWA are
implicated in any way.
“The burden on an appealing parent to make an affirmative
representation of Indian heritage is de minimis. In the absence
of such a representation, there can be no prejudice and no
miscarriage of justice requiring reversal.” (Rebecca R., supra,
143 Cal.App.4th at p. 1431.)
Rebecca R. stands for the proposition that a parent cannot
be heard to complain that DCFS or the court failed to conduct an
adequate inquiry into his Indian ancestry absent an affirmative
representation on appeal that such inquiry would have revealed
Indian ancestry sufficient to invoke the ICWA. In the present
case, as in Rebecca R., father points to uncertainty in the record,
but he has not in any of his appellate submissions made an
affirmative representation that he has (or may have) Indian
ancestry. Nothing prevented him from doing so. Father thus has
failed to demonstrate prejudicial error, and accordingly we affirm
the order terminating his parental rights. (See In re N.E. (2008)
160 Cal.App.4th 766, 771 [where court failed to make ICWA
inquiry, error was not reversible because on appeal parent failed
to suggest he had any Indian ancestry]; compare In re Noreen G.
(2010) 181 Cal.App.4th 1359, 1387-1390 [court’s failure to make
ICWA inquiry required reversal where mother made an
affirmative claim on appeal that her father’s grandmother was a
Seminole Indian].)
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DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
JOHNSON (MICHAEL), J.*

*
Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.