In re A.W. CA4/2

Opinion

Filed 9/30/24 In re A.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.W., et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082592

Plaintiff and Respondent, (Super.Ct.No. SWJ2100258)

v. OPINION

E.W.

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Donal B. Donnelly,

Judge. (Retired judge of the Imperial Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Conditionally reversed and remanded with directions.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and

Appellant.

1 Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman,

Deputy County Counsel, for Plaintiff and Respondent.

Appellant E.W. (Mother) appeals from the juvenile court’s order appointing a

guardian under Welfare and Institutions Code1 section 366.26. Mother challenges the

order on the ground that the Riverside County Department of Public Social Services (the

Department) social workers and the juvenile court failed to comply with the duty of

initial inquiry under the Indian Child Welfare Act2 (ICWA). For the reasons set forth

post, we conditionally reverse and remand this matter to the juvenile court.

FACTUAL AND PROCEDURAL HISTORY3

Mother and R.W.4 (Father; collectively, Parents) are the parents of Ar.W. (male

born September 2008; Minor 1), Av.W. (female born January 2010; Minor 2), and Am.W.

(female born January 2010; Minor 3,5 collectively, Minors).6

1 All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

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.)

3 Because the only issue on appeal is whether the Department and the juvenile court properly complied with their duties under ICWA, this court will focus on ICWA- related facts and procedural history.

4 Father is not a party to this appeal.

5 Minor 2 and Minor 3 are twins.

6 On December 20, 2023, this court incorporated the record in case No. E082269 in the record of this case.

2 On April 7 and 16, 2021, the Department received referrals regarding two separate

incidents of domestic violence between Parents. On June 7, 2021, the Department filed a

petition under section 300, subdivision (b), on behalf of Minors. The petition alleged that

Father perpetrated acts of domestic violence on Mother, Parents had histories of abusing

controlled substances, Mother had been previously offered family reunification and

maintenance services, and Mother had demonstrated limited ability to protect herself and

Minors from harm.

The Judicial Council Indian Child Inquiry Attachment forms (ICWA-010(A)) that

accompanied the petition indicated that the Department had been unable to make contact

with Father regarding ICWA inquiry. In the forms, the social worker checked the box

which stated, this inquiry “gave me reason to believe the child is or may be an Indian

child.” However, nothing else was filled out regarding ICWA status in the forms.

At the detention hearing on June 8, 2021, Mother appeared telephonically. Father

did not appear. Mother denied Native American ancestry. The court asked Mother,

“Mom, does the dad have any Native American ancestry?” Mother replied, “No.” With

regard to the ICWA-010(A) forms indicating Minors may be Indian children, the

Department’s counsel stated that was likely an error because Father had not been

interviewed regarding ICWA. The court then found that the Department conducted a

sufficient inquiry regarding Indian ancestry and ICWA did not apply.

The juvenile court found prima facie evidence of allegations in the petition and

detained Minors from Father, who was found to be the presumed father, under

3 section 319, subdivision (b)(1). Minors were not detained from Mother with specified

conditions. The court then recalled and quashed previously issued protective custody

warrants for Minors.

On June 8, 2021, Mother’s counsel filed a Judicial Council Parental Notification

of Indian Status form (ICWA-020) on behalf of Mother. In the form, the box, “None of

the above apply,” was checked.

In an addendum report filed on August 2, 2021, the social worker noted that on

July 25, 2021, Mother sent numerous texts. One of the texts stated that she was

“challenging the detention report because there is a lot of false information in it, like my

children are Indian.” However, Mother had previously told the social worker on May 6,

2021, and June 17, 2021, that she had no Native American ancestry.

At the contested jurisdiction and disposition hearing on August 2, 2021, the

juvenile court found the allegations in the petition were true and adjudged Minors

dependents of the court. A declaration of due diligence was filed as to Father; he had not

been found. The court denied Father reunification services under section 361.5,

subdivision (b)(1), since his whereabouts were unknown. Mother retained physical

custody of Minors with family maintenance services. When the juvenile court asked

Mother if she had any Native American ancestry, she responded, “No.” When asked if

Father had any, Mother responded, “Not that I know of.” The court found that the

Department had conducted a sufficient inquiry regarding Indian ancestry and found that

ICWA did not apply.

4 On January 31, 2022, at a section 364 family maintenance review hearing, the

juvenile court ordered Mother to complete a hair follicle drug test. Mother completed the

hair follicle test on February 11, 2022. On March 1, 2022, the Department received the

results which showed Mother tested positive for amphetamine and methamphetamine.

At the contested section 364 review hearing on March 2, 2022, Mother was not

present. The Department requested that the juvenile court issue protective custody

warrants under section 340 to detain Minors from Mother. The juvenile court ordered the

social worker to notify Mother and Minors to appear at the court later that day at

1:30 p.m. Otherwise, the warrants would be issued.

At the 1:30 p.m. hearing, Mother appeared with Minors. The Department again

requested that the court issue the section 340 protective custody warrants. When the

court asked, “[e]ffectively what you are asking for now is you want me to do a removal

today? [¶] . . . [¶] . . . And then set the matter for a detention hearing?” County counsel

answered in the affirmative.

Thereafter, the juvenile court made the following findings: Minors came within

section 300, subdivision (b), continuance in the home of Mother is contrary to Minors’

welfare, there was a substantial danger to the physical health of Minors and/or Minors

were suffering severe emotional damage, and there were no reasonable means by which

Minors’ physical and/or emotional health could be protected without removing them from

the parents’/guardian’s physical custody under section 319, subdivision (b)(1). The court

then detained Minors. The court stated: “So at this point in time I am ordering the

5 children removed from the mother’s care and making removal findings and setting the

matter for a detention hearing.” The court then ordered Mother to take another saliva and

urine test on the same day, and “set the matter for a detention hearing so that the mother

can further contest the removal.” After further discussion between the juvenile court,

Mother, and the attorneys, the court stated: “The children are detained, and temporary

placement and care is vested with DPSS pending the hearing under WIC 355 or further

order of the Court.” The court did not remove Minors under section 340.

Two days later, on March 4, 2022, the Department filed a section 387 petition.

The petition alleged that the previous disposition was not effective in protecting Minors

because Mother failed to benefit from services and continued to violate court orders by

testing positive for methamphetamine.

On March 7, 2022, a detention hearing for the section 387 petition was held. The

juvenile court found that ICWA did not apply. The court then found that a prima facie

showing had been made and ordered Minors detained from Mother. The court also

ordered an Interstate Compact on the Placement of Children (ICPC) with the state of

Oklahoma for an adult sister.

On May 25, 2022, at the contested jurisdiction and disposition hearing on the

section 387 petition, the juvenile court removed physical custody of Minors from Mother

under section 361, subdivision (c)(1), and ordered family reunification services. The

court found that the Department conducted a sufficient ICWA inquiry and that ICWA did

not apply, and Minors were not Indian children.

6 On June 8, 2022, Minors were placed with their maternal grandmother (MGM). A

maternal uncle, Mother’s half brother, also resided in MGM’s home. The maternal uncle

was in court on three occasions throughout the case. Moreover, pursuant to the ICPC

order, the social worker spoke with N., Minors’ maternal half sister.

On December 20, 2022, Mother denied Native American ancestry. On

September 17, 2022, MGM stated there was no Native American ancestry to her

knowledge. On April 21, 2023, MGM again denied Native American ancestry.

On February 2, 2023, at a section 366.21, subdivision (e) review hearing, the

juvenile court continued Mother’s reunification services.

On May 8, 2023, at the 12-month review hearing, the juvenile court ordered

another hair follicle test for Mother. Mother refused the Department’s referral. Mother

insisted on picking her own lab because she did not trust labs contracted with the

Department. Mother sent an email of a screen shot to her social worker; it showed that

Mother had completed her follicle test with Quest Diagnostics and the result was

negative.

When the social worker called the phone number for Quest Diagnostics on the

screen shot, the lab reported that the test result was invalid. Quest Diagnostics did not

collect a hair specimen from Mother on the date indicated; the specimen identification

number on the document did not match Mother’s name.

7 On September 28, 2023, at the contested 12-month section 366.21, subdivision (f)

review hearing, the juvenile court terminated Mother’s reunification services. The court

again found that ICWA did not apply, and Minors were not Indian children.

On October 5, 2023, Mother filed a 10-page written declaration with attachments.

On November 3, 2023, Mother filed an “Objections and Corrections to the Report of the

Social Worker [Dated 4/5/2023]” with attachments. (All caps omitted.)

On November 9, 2023, Mother filed an “Objection/Correction to [the] Social

Worker’s . . . Report . . . [Dated 11/09/2023.]” (All caps omitted.) In this objection,

Mother stated: “MOTHER has always denied any Native American Ancestry for herself,

however MOTHER never denied Native [American] Ancestry for FATHER, [R.W.].

MOTHER has no knowledge to deny ancestry for Father. This is false and untrue. This

only proves that the Department has never contacted Father, and the Department cannot

say if Father ever received proper notice of any court hearings throughout this entire

process. MOTHER has never spoken or had contact with ‘SSP Mora’ who inquired about

Native American Ancestry with maternal grandmother, who has no knowledge of Father’s

ancestry and has full knowledge that her mother claims to have Cherokee Indian Ancestry

from Maternal grandmothers, grandmother. My grandmother can provide more

information about this. That is maternal grandmother’s mother, the children’s great-

grandmother, [J.P.].”

On November 9, 2023, at the section 366.26 hearing, the juvenile court granted

MGM legal guardianship.

8 On November 13, 2023, Mother filed a timely notice of appeal.

DISCUSSION

Mother’s sole contention on appeal is that “[t]he juvenile court erred when it

found the Indian Child Welfare Act does not apply because neither the Department nor

the juvenile court asked readily-available [sic] extended family members if there was

Native American ancestry.” Mother asserts error only as to maternal family members,

specifically, MGM, maternal uncle, and maternal half sibling, N.

“ICWA establishes minimum national 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.)

Under California law, the juvenile court and county child welfare department have ‘an

affirmative and continuing duty to inquire’ whether a child subject to a section 300

petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2005) 55 Cal.App.5th

558, 566.) ‘This continuing duty can be divided into three phases: the initial duty to

inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.’ (D.F.,

at p. 566.)” (In re Samantha F. (2024) 99 Cal.App.5th 1062, 1066 (Samantha F.).)

When a child is taken into temporary custody under section 306, the Department

has a duty to ask 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).) Extended family members include adults who are the child’s stepparents,

9 grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and

first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)

Section 306 permits a social worker to take a child into temporary custody

“without a warrant” in emergency situations, namely, when “the social worker has

reasonable cause to believe that the child has an immediate need for medical care or is in

immediate danger of physical or sexual abuse or the physical environment poses an

immediate threat to the child’s health or safety.” (§ 306, subd. (a)(2).) Section 340 also

provides for the issuance of protective custody warrants. (§ 340, subd. (b).)

California Courts of Appeal, including members of this court, are deeply split on

whether ICWA’s duty to inquire extended family members about a child’s Indian

ancestry under section 224.2, subdivision (b), is triggered when the child is taken into

custody under section 340. (See generally Samantha F., supra, 99 Cal.App.5th at

pp. 1066-1086.)

In this case, the Department argues that “the inquiry obligation under

section 224.2, subdivision (b), was never triggered, and the Department was not

statutorily required to conduct an ICWA inquiry of extended family members, as the

children were never in temporary custody under section 306.” In support, the

Department contends that “even though the section 340 warrants were not signed, this

was a detention which had been ordered by the Trial Court and the children were not

placed into temporary custody [of the Department].” We reject the Department’s

argument.

10 Under section 306, “[a]ny social worker in a county welfare department . . . may

do all of the following: [¶] . . . [¶] (2) Take into and maintain temporary custody of,

without a warrant, a child who has been declared a dependent child of the juvenile court

under Section 300 . . . and the social worker has reasonable cause to believe that the child

has an immediate need for medical care or is in immediate danger of physical or sexual

abuse or the physical environment poses an immediate threat to the child’s health or

safety.” (§ 306, subd. (a)(2).) Then, “[u]pon receiving temporary custody of a child, the

county welfare department shall inquire pursuant to Section 224.2, whether the child is an

Indian child.” (§ 306, subd. (b).)

Here, as provided ante, at the March 2, 2022 contested section 364 hearing, the

juvenile court clearly stated: “The children are detained, and temporary placement and

care is vested with DPSS pending the hearing under WIC 355 or further order of the

Court.” (Italics added.) Prior to detaining Minors, the court noted: “And the information

that was provided to the Court today indicates a lack of confidence in the Department as

to where the mother is living with the children, that the mother is basically threatening to

move to Oklahoma with the children. And perhaps the most concerning part, which is

that the mother tested positive for methamphetamine via hair follicle. She was ordered to

take the hair follicle because of some missed UA tests. [¶] And so the long and the short

of it is since the initiation of this case and what would appear, given sort of the way the

hair follicle works, is that in the time that the kids have been in the mother’s care and that

she has been driving them back and forth allegedly from L.A. county to their school in

11 Menifee, she has been using methamphetamine. So that’s extremely concerning to the

Court given all of the issues in this case.” After further discussion between the juvenile

court and the present parties, the court stated: “All right. In the meantime, I’m detaining

from the mother. To that end, I’m just making the standard removal orders and findings.

At this time, I do find that the children fall within Welfare and Institutions Code

Section 300 (b).”7

Based on the above, we find the Department’s argument that “the children were

never in temporary custody pursuant to section 306,” to be without merit (caps omitted).

Accordingly, we need not consider the cases determining whether ICWA’s duty of

inquiry applies to cases where the children are removed pursuant to a protective custody

warrant issued under section 340, and not under section 306. (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 Delila D. (2023) 93

Cal.App.5th 953, 962, review granted Sept. 27, 2023, S281447.)

Here, because Minors were not removed pursuant to section 340 and ordered

detained and placed in the temporary care of the Department, the Department and the

juvenile court had a duty to inquire of Minors’ extended family members about their

potential Indian ancestry. As Mother points out and the Department agrees, “the record

7 “A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] “(b) “(1) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness . . . .” (§ 300, subd. (b)(1).)

12 does not reflect an ICWA inquiry of maternal uncle and maternal half-sibling [sic].” The

maternal uncle and maternal half sibling were readily available, and there is nothing in

the record to indicate that the Department could not have contacted them to ask about

Minors’ Indian heritage on their maternal side. The maternal uncle attended numerous

hearings, and the Department had telephonic contact with the aunt. The Department thus

did not satisfy its duty of initial inquiry, and, in turn, the juvenile court erroneously found

that ICWA did not 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; In re Ricky R. (2022) 82 Cal.App.5th

671, 680.)

In In re Dezi C. (2024) 16 Cal.5th 1112, 1125 (Dezi C.), California’s Supreme

Court recently made its determination on the issue of “whether a child welfare agency’s

failure to make the statutorily required initial inquiry under California’s heightened

ICWA requirements constitutes reversible error.” 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.)

Therefore, this case must be conditionally reversed and remanded to the juvenile

court for the Department to conduct an adequate ICWA inquiry.

13 DISPOSITION

The order granting the appointment of guardian for Minors is conditionally

reversed. The matter is remanded to the juvenile court with directions to comply with the

initial inquiry provisions of ICWA and of sections 224.2 and 224.3, and the

documentation provisions of the California Rules of Court, rule 5.481(a)(5), consistent

with this opinion. If the juvenile court thereafter finds a proper and adequate further

inquiry and due diligence has been conducted and concludes ICWA does not apply

(§ 224.2, subd. (i)(2)), then the court shall reinstate the order appointing the guardian for

Minors. If the juvenile court concludes ICWA applies, then it shall proceed in

conformity with ICWA and California implementing provisions. (See 25 U.S.C. § 1912,

subd. (a); §§ 224.2, subd. (i)(1), 224.3, 224.4.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS McKINSTER Acting P. J.

We concur:

CODRINGTON J.

FIELDS J.