Filed 11/13/24 In re A.P. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.P., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E084041
Plaintiff and Respondent, (Super. Ct. No. RIJ1700224)
v. OPINION
A.V.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Conditionally reversed and remanded with directions.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Appellant M.T.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy
County Counsels, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant, A.V. (Mother) appeals from the juvenile court’s order 1 terminating parental rights as to her five-year-old daughter A.P. (Welf. & Inst. Code,
§ 366.26). Mother contends that the juvenile court and plaintiff and respondent, the
Riverside County Department of Public Social Services (DPSS), failed to comply with 2 the duty of inquiry under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 3 1901 et seq.) and related state law. For the reasons set forth post, we conditionally
reverse and remand this matter to the juvenile court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. General Background
Mother has a prior history with child protective services involving two of her other
children due to issues with general neglect, homelessness, substance abuse, and domestic
violence in the home. Prior to this case, Mother received reunification services from May
2017 to June 2018 as to her two older children. Mother failed to reunify with the children
1 All future statutory references are to the Welfare and Institutions Code. 2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1), overruled on other grounds in In re Dezi C. (2024) 16 Cal.5th 1112, 1152, fn. 18. (Dezi C.).) 3 C.P. (Father) is not a party to this appeal.
2 resulting in her parental rights being terminated and a permanent plan of adoption being 4 implemented for the children. Mother’s two older children were adopted in 2019.
Mother again came to the attention of DPSS in December 2021, after a 10-day
referral was received by DPSS as to then three-year-old A.P. for general neglect. It was
reported that the parents were arguing and Mother chased Father in her car while he had
A.P. in his car. Father refused to return the child to Mother, and both parents called law
enforcement. Father was homeless and slept in his car with A.P., and the parents kept the
child out on the street at all hours. The parents had a history of methamphetamine use
and it was suspected that they were using again.
When the social worker met with Mother, she reported that she lived with the
maternal grandfather and A.P. Mother also stated that the maternal grandmother had
filed a restraining order against her. Mother submitted drug tests and tested positive for
marijuana, codeine, amphetamine, and methamphetamine.
Following an investigation, DPSS attempted to serve the protective custody
warrant on March 3, 2022. However, Mother and A.P. were no longer residing at the
maternal grandfather’s residence. The social worker left multiple voicemails explaining
to Mother that she needed to work with DPSS. On March 9, 2022, Mother left an
emotional call to the social worker agreeing to bring A.P. to the social worker’s office.
4 Mother appealed the order terminating parental rights as to her two older children before this court in 2018, case No. E071486. The sole issue Mother raised in that appeal was a lack of compliance with ICWA (25 U.S.C. § 1901 et seq.) and related California law. (See In re G.C. (Mar. 12, 2019, E071486) [nonpub. opn.].) We take judicial notice of our prior nonpublished opinion in case No. E071486.
3 After Mother brought A.P. to DPSS that same day, A.P. was placed with her paternal
aunt, Y.P. The social worker spoke with the maternal grandfather, Y.P., and the maternal
grandmother for consideration of relative placement of A.P. in March 2022.
On March 9, 2022, a petition was filed on behalf of the child pursuant to section
300, subdivision (b) (failure to protect) based on the parents’ extensive history of
engaging in domestic violence in the child’s presence, the parents’ unresolved substance
abuse history, Mother’s history with DPSS, the parent’s criminal history, and Father’s
transient lifestyle. A first amended petition was filed on April 12, 2022, amending two of
the allegations.
The detention hearing was held on March 10, 2022. At that time, the juvenile
court recalled and quashed the protective custody warrant and formally detained the child
from parental custody. The court stated: “The child is already detained. Temporary care
and placement is vested with DPSS pending any further hearing or further order of the
Court. [¶] I’m not inclined to make a finding as to (c)2 regarding flight since the mother
did comply and return[ed] the child over to DPSS.” After DPSS’s counsel noted that
DPSS had obtained a warrant on March 3, 2022 and that they had attempted to serve the
warrant for four days, the juvenile court responded: “I did see that. She ultimately did
comply, so I’m not going to make that finding. The child is ordered detained.
Temporary care and placement is vested with DPSS pending further hearing or further
order of the Court.”
4 Mother reported that she was homeless, living in her car, and attempting to get
into a sober living home. She reported that her support system included the maternal
grandfather, her siblings, her “‘ex-step mom,’” a sponsor, and a friend. Referring to her
childhood, Mother noted that she was raised by the maternal grandmother and “one of her
step dads.” She also stated that she had half-siblings—one sister and two brothers.
The juvenile court took jurisdiction of the instant matter on April 12, 2022. The
court found true the allegations in the first amended petition, declared the child a
dependent of the court, and provided the parents with reunification services. The child
remained placed with paternal aunt Y.P.
Mother’s services were continued at the April 14, 2023, 12-month review hearing,
but Father’s services were terminated. The child was maintained with paternal aunt Y.P.
Mother continued to struggle with her sobriety and failed to benefit from the services she
received. She tested positive for methamphetamines and amphetamines six days after she
completed her in-patient drug treatment program. Mother’s reunification services were
terminated on September 11, 2023, at the 18-month review hearing, and a section 366.26
hearing was set to establish a permanent plan for A.P.
A.P. remained placed with paternal aunt Y.P. She was attached to paternal aunt
Y.P. and referred to her as “‘mom.’” Paternal aunt Y.P. was the prospective adoptive
parent, and A.P. stated that she wanted to remain with her.
Mother filed a section 388 petition on January 19, 2024, requesting reunification
services. The petition was denied.
5 The section 366.26 hearing was held on May 7, 2024. The juvenile court found
the child to be adoptable and terminated parental rights. Mother timely appealed.
B. ICWA Background
ICWA was found not to apply in Mother’s prior dependency case involving her
two older children. (See In re G.C., supra, E071486.) In this case, Mother denied having
any Native American ancestry orally when inquired by the social worker and in her
ICWA-020 Parental Notification of Indian Status form (ICWA-020). Mother’s counsel
also represented to the juvenile court at the detention hearing that Mother had no Native
American ancestry. Father also denied Indian ancestry in his ICWA-020 form, and his
counsel represented to the juvenile court at the detention hearing that Father had no
Native American heritage. The juvenile court found that DPSS had conducted a
sufficient inquiry regarding whether the child may have Indian ancestry and that ICWA
did not apply to the proceedings.
Throughout this dependency proceedings, DPSS continued to inquire of the
parents and their relatives concerning whether A.P. had Native American ancestry.
Mother and Father repeatedly denied having any Native American ancestry or tribal
affiliation and reported no known new information regarding Native American ancestry
or tribal affiliation for the child and their family. And the juvenile continued to find
DPSS had conducted a sufficient ICWA inquiry, that ICWA did not apply to the
proceedings, and that A.P. was not an Indian child.
6 On June 9, 2022, paternal aunt Y.P. denied A.P. had Native American lineage.
She again denied having Native American ancestry or tribal affiliation on January 30,
2023.
At the 12-month review hearing on October 12, 2022, the juvenile court personally
inquired of the parents whether they had Native American ancestry. Father and Mother
both denied having any such ancestry. The court also inquired of the maternal
grandfather who was present at the hearing. The maternal grandfather stated “no” when
the court asked him whether he was aware of having any Native American ancestry in his
family. The court found that proper and adequate further inquiry and due diligence as
required by ICWA had been conducted and that there was no reason to know whether the
child is an Indian child.
At the March 29, 2023, hearing, the maternal grandfather and paternal aunts Y.P.
and H.C. were present in court. The juvenile court personally conducted an inquiry of
Mother, the maternal grandfather, paternal aunt Y.P., and paternal aunt H.C. They all
responded that they were not aware of having any Native American ancestry in their
families.
The parents, the maternal grandfather, and paternal aunts Y.P. and H.C. were
present at the hearing on April 12, 2023. The juvenile court asked Mother, Father, and
the two paternal aunts if they were aware of any Native American ancestry in the family.
All denied being aware of having such ancestry.
7 On August 28, 2023, the juvenile court again personally asked both parents
whether they knew or had reason to know the child was an Indian child. Both parents
stated that they had no reason to believe A.P. had any Native American ancestry in her
background. They also stated that they had no Native American ancestry. The court
found a sufficient ICWA inquiry had been made and that there was no new information
to indicate ICWA may now apply.
At the September 11, 2023, 18-month review hearing, the juvenile court inquired
of Mother, paternal aunts Y.P. and H.C., and Father whether they were aware of any
Native American ancestry in their backgrounds, and they all responded that they were not
aware of any such heritage. The juvenile court found that a proper, adequate and
sufficient further ICWA inquiry and due diligence had been conducted, that there was no
reason to know A.P. was an Indian child, and that ICWA did not apply.
On January 22, 2024, the juvenile court again asked Father and paternal aunts Y.P.
and H.C. if they were aware of, or had reason to believe, they had any Native American
ancestry. They all responded in the negative. The court found that a sufficient ICWA
inquiry had been made and that there was no new information to indicate ICWA may
now apply.
On April 22, 2024, the juvenile court asked Mother, Father, and paternal aunts
H.C. and Y.P. if they were aware of, or had reason to believe, they had any Native
American ancestry. They all responded in the negative again.
8 Once again, at the May 7, 2024, contested section 366.26 hearing, the juvenile
court inquired of Mother, Father, and paternal aunts Y.P. and H.C. if they were aware of
any Native American ancestry in their background. They all responded that they were
not aware of any such ancestry.
III.
DISCUSSION
Mother challenges the order terminating parental rights on the grounds that the
juvenile court and DPSS failed to comply with the inquiry requirements of ICWA and
related California law. Mother specifically asserts that DPSS never inquired with the
paternal grandparents, the maternal grandmother, and a maternal half-sister. DPSS
responds that there was no statutory duty to inquire of these individuals because A.P. was
removed from the home pursuant to a warrant. In the alternative, DPSS asserts that no
error occurred in failing to inquire of these relatives.
ICWA is a federal law that gives Indian tribes “concurrent jurisdiction over state
court child custody proceedings that involve Indian children living off of a reservation.”
(In re W.B. (2012) 55 Cal.4th 30, 48.) The law was enacted to “further the federal policy
‘“that, where possible, an Indian child should remain in the Indian community.”’” (Ibid.)
To effectuate this policy, ICWA establishes minimum federal standards that a state court
must follow before removing Indian children from their families. (In re Ricky R. (2022)
82 Cal.App.5th 671, 678 (Ricky R.), disapproved on other grounds in Dezi C., supra, 16
Cal.5th at p. 1152, fn. 18.) California has adopted various procedural and substantive
9 provisions of ICWA. (In re E.C. (2022) 85 Cal.App.5th 123, 138.) Consistent with
ICWA, California law defines an “Indian child” as “[a]ny unmarried person who is under
18 years of age and is either of the following: [¶] (A) [a] member or citizen of an Indian
tribe” or “(B) [e]ligible for membership or citizenship in an Indian tribe and is a
biological child of a member or citizen of an Indian tribe.” (§ 224.1, subd. (b)(1); 25
U.S.C. § 1903(4).) However, because it is typically not self-evident whether a child is an
Indian child within the meaning of ICWA, federal and state law both mandate certain
inquiries to be made in each case. (Ricky R., supra, at p. 678.)
Under California law implementing ICWA, the juvenile court, and the child
protective agency have “an affirmative and continuing duty” to inquire whether a child
who is the subject of a dependency proceeding is, or may be, an Indian child. (§ 224.2,
subd. (a).) This continuing duty applies in all dependency cases (§ 224.2, subd. (a)) and
can be divided into two phases—the initial duty to inquire and the duty of further inquiry.
(Ricky R., supra, 82 Cal.App.5th at p. 678; In re T.G. (2020) 58 Cal.App.5th 275, 290.)
“If the initial inquiry gives the juvenile court or the [child protective] agency ‘reason to
believe’ that an Indian child is involved, then the juvenile court and the agency have a
duty to conduct ‘further inquiry’ (§ 224.2, subd. (e)(1)), and if the court or the agency has
‘reason to know’ an Indian child is involved, ICWA notices must be sent to the relevant
tribes (§ 224.3, subd. (a); 25 U.S.C. § 1912(a)).” (In re Benjamin M., supra, 70
Cal.App.5th at p. 742.)
10 Where the child protective agency has complied with its duty of inquiry and there
is no reason to know that the child is an Indian child, the court may find that ICWA does
not apply. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A).) However,
before the juvenile court makes such a finding, it must ensure the child protective agency
has made an adequate inquiry under ICWA and related California law. (In re Dominick
D. (2022) 82 Cal.App.5th 560, 566-567.) “A juvenile court’s finding that ICWA does
not apply implies ‘that social workers [have] fulfilled their duty of inquiry.’” (Id. at p.
567.) We review the juvenile court’s ICWA findings for substantial evidence, which
requires us to determine if reasonable, credible evidence of solid value supports the
court’s order. (Ibid; In re D.F. (2020) 55 Cal.App.5th 558, 565.) We will uphold the
court’s orders and findings if any substantial evidence, contradicted or uncontradicted,
supports them, and we resolve all conflicts in favor of affirmance. (In re Dominick D.,
supra, at p. 567; In re D.F., supra, at p. 565.) Although this is a deferential standard,
“‘“an appellate court [nevertheless] exercises its independent judgment to determine
whether the facts satisfy the rule of law.”’” (In re K.H. (2022) 84 Cal.App.5th 566, 602.)
The juvenile court “may not find that ICWA does not apply when the absence of
evidence that a child is an Indian child results from [an] inquiry that is not proper,
adequate, or demonstrative of due diligence.” (In re Josiah T. (2021) 71 Cal.App.5th
388, 408.)
At issue in this case is the duty of initial inquiry. While this appeal was pending,
the Legislature recently enacted Assembly Bill No. 81, which clarified that the duty of
11 initial inquiry, includes but is not limited to, asking the child, the party who reported the
abuse or neglect, and each family member with whom the child protective agency has
contact, including extended family members, whether the child is or may be an Indian
child. (§ 224.2, subd. (b)(1); Stats. 2024, ch. 656, § 3.) Before Assembly Bill No. 81
was enacted, there was a dispute in our court as to whether the duty of initial inquiry
applied to extended family members when the child was taken into custody pursuant to a
warrant. (See e.g., In re Delila D. (2023) 93 Cal.App.5th 953, review granted Sept. 27,
2023, S281447; In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26,
2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023,
S280572; In re Andres R. (2023) 94 Cal.App.5th 828, 840-856, review granted Nov. 15,
2023, S282054; In re D.M. (2024) 101 Cal.App.5th 1016, review granted July 24, 2024,
S285537.) The passage of Assembly Bill No. 81 resolved that dispute. Section 224.2,
subdivision (b)(2), now provides that when a child is taken into custody “pursuant to a
warrant described in [s]ection 340” the initial 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,
whether the child is, or may be, an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b)(2).)
Applying the current version of section 224.2, subdivision (b), as amended by
Assembly Bill No. 81, we conclude DPSS had a duty to inquire of the paternal
grandparents, the maternal half-sister, and the maternal grandmother because they
12 qualified as extended family members. The term “‘[e]xtended family member’” is
statutorily defined to have “the same meaning as defined by the law or custom of the
Indian child’s tribe or, in the absence of such law or custom, shall be a person who has
reached 18 years of age and who is the Indian 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.” (§ 224.1, subd. (c)(1).)
DPSS was aware that the paternal grandmother had taken care of A.P. when
Father was not available and thus could have obtained her contact information from
Father. In addition, A.P.’s caregiver, paternal aunt Y.P., maintained a relationship with
both paternal grandparents but she was never asked for their contact information. DPSS
was also aware that Mother spoke to her half-sister “a lot” and could have obtained the
maternal half-sister’s contact information from Mother. Regarding the maternal
grandmother, DPSS spoke with her on March 8, 2022, to assess her for placement and
visitation but did not inquire as to her Native American ancestry. Relying on our prior
nonpublished opinion from Mother’s appeal in her two older children’s cases, DPSS
notes “‘On September 21, 2018, the social worker spoke to the maternal grandmother,
and she said there was no Indian ancestry on either the maternal or paternal side of the
family.’” (In re G.C., supra, E071486.) Although that is correct, DPSS should have
inquired of the maternal grandmother again as this case involves a different child and the
state ICWA statutes have since been amended. DPSS thus did not satisfy its duty of
initial inquiry, and, in turn, the juvenile court erroneously found that ICWA did not
13 apply. (§ 224.2, subd. (b); In re Y.M. (2022) 82 Cal.App.5th 901, 916; In re Oscar H.
(2022) 84 Cal.App.5th 933, 937; Ricky R., supra, 82 Cal.App.5th at p. 680.)
In Dezi C., supra, 16 Cal.5th 1112, our Supreme Court recently resolved a split
amongst the Courts of Appeal regarding the proper standard to apply in assessing the
prejudicial effect of a child protective agency’s failure to comply with its duty of initial
inquiry. (Id. at pp. 1125, 1134-1135.) The court held “that an inadequate Cal-ICWA
inquiry requires conditional reversal of the juvenile court’s order terminating parental
rights with directions to the agency to conduct an adequate inquiry, supported by record
documentation.” (Id. at p. 1125.) The court explained that “[w]hen a Cal-ICWA inquiry
is inadequate, it is impossible to ascertain whether the agency’s error is prejudicial.
[Citations.] ‘[U]ntil an agency conducts a proper initial inquiry and makes that
information known, it is impossible to know what the inquiry might reveal.’” (Id. at p.
1136.) As a result, “error resulting in an inadequate initial Cal-ICWA inquiry requires
conditional reversal with directions for the child welfare agency to comply with the
inquiry requirement of section 224.2, document its inquiry in compliance with rule
5.481(a)(5), and when necessary, comply with the notice provision of section 224.3.”
(Id. at p. 1136.)
Accordingly, until DPSS has completed their duty of initial inquiry by contacting
or making a reasonable and diligent effort to contact the paternal grandparents, the
maternal grandmother, and the maternal half-sister it is premature to conclude that ICWA
14 does not apply. Therefore, this case must be conditionally reversed and remanded to the
juvenile court for DPSS to conduct an adequate ICWA inquiry.
IV.
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the
juvenile court shall order DPSS to comply with its duty of initial inquiry under
subdivision (b) of section 224.2 and, if applicable, the duty of further inquiry (§ 224.2,
subd. (e)) and the duty to provide notice to the proper tribes (25 U.S.C. § 1912(a);
§ 224.3), and the documentation provisions of the California Rules of Court, rule
5.481(a)(5). If the court determines that ICWA does not apply, then the court shall
reinstate the order terminating parental rights. If the court determines that ICWA applies,
then it shall proceed in conformity with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.