In re D.S. CA4/2

Opinion

Filed 8/25/23 In re D.S. CA4/2 See Concurring Opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.S. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080751

Plaintiff and Respondent, (Super.Ct.No. DPIN2200005)

v. OPINION

S.J.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge.

Affirmed with directions.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant

and Appellant.

Minh C. Tran, County Counsel and Teresa K.B. Beecham and Prabhath Shettigar,

Deputy County Counsel, for Plaintiff and Respondent.

1 Mother appeals from a judgment declaring her four children to be dependents

under Welfare and Institutions Code,1 section 300, subdivisions (a) and (b). She does not

challenge the declaration of dependency or the removal of the children from her custody,

rather, she challenges only the determination that the Indian Child Welfare Act (ICWA)

does not apply because neither the court nor the Riverside County Department of Public

Social Services (DPSS or Department) inquired of extended relatives, who were readily

available, about possible Indian heritage.

We affirm with directions.

BACKGROUND

Because mother does not challenge the bases for jurisdiction over or removal of

her children, we do not need a detailed recounting of the matters that led to intervention

by DPSS.

Mother, S.J., has four children, three of them by father J.S. (sons D.S., R.S., and

A.S.) and one child by father D.R. (daughter A.R.). On June 24, 2022, DPSS received a

referral alleging general neglect, physical abuse and emotional abuse, because mother cut

off all of her family and she moved her boyfriend, a homeless drug addict and musician

who takes all of her money, into her home in March 2022. The children appeared

malnourished and two of the boys bore marks suggesting physical abuse. Neither father

intervened on behalf of their children, who were afraid to return to their mother’s home

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

2 because of her boyfriend. Mother refused to provide contact information for either of the

fathers, including the identities or contact information for relatives.

Mother admitted frequent use of marijuana and tested positive for marijuana and

amphetamines following a saliva test. DPSS determined it was necessary to detain the

children, for which it sought protective warrants for removal of the children. A

dependency petition was filed respecting each of the children, alleging they were persons

described by section 300, subdivisions (a) (R.S., A.S.), (b)(1) (all children), (g) (A.R.)

and (j) (D.S., A.R.).

On July 7, 2022, at the detention hearing, the mother and father J.S. denied the

allegations of the petition and both mother and father J.S. submitted ICWA-020 forms,

indicating no Indian heritage. Father J.S. submitted a JV-505 form indicating he had

established parentage over his three children and he requested presumed father

designation. The court ordered the children detained from the custody of all parents and

recalled the protective custody warrants. On July 9, 2022, the children were placed with

a maternal great-aunt and great-uncle in Imperial County.

On August 9, 2022, the petition was amended to strike out some language from the

section 300, subdivision (a) allegation, and the department dismissed the allegation under

section 300, subdivision (g). Further, it corrected the spelling of father D.R.’s name. On

August 15, 2022, father D.R. submitted a JV-505 form regarding parentage of A.R., but

while the form was filed, it was not executed by D.R. D.R. was found to be the presumed

father of A.R. and was ordered to submit a hair follicle sample for drug testing.

3 The jurisdiction/disposition report was submitted on September 15, 2022. In the

report, the social worker noted that on August 5, 2022, all three parents denied any Indian

heritage or tribal affiliation. An addendum report was filed on November 22, 2022,

indicating that mother’s boyfriend, M.R., had no criminal records indicating gang

membership. Mother indicated she was no longer in a relationship with her boyfriend,

but she continued to refuse to sign releases for information, or to drug test for the

department. Mother explained her reason for the refusal to test was because the

department “dirtied” her initial drug tests; her privately obtained drug tests were negative

for everything except marijuana. Based on the results of the private testing, mother

asserted she did not need a substance abuse program and refused to enroll in one.

In a subsequent addendum report, the social worker indicated mother called

incessantly (19 times on one day) to complain that the social worker’s reports falsely

claimed she did not bring food for the children at visits. She also complained that the

department dirtied her drug tests. The social worker confirmed with one visitation

supervisor that mother had brought food for the children, but that supervisor only

observed visits on two days out of the week. Another supervisor indicated mother did not

bring food for the children, although she brought food for herself, claiming the children

had eaten before the visit.

The jurisdiction hearing commenced on January 3, 2023, but was not completed

until January 6, 2023, because mother’s counsel had not received copies of the reports of

the forensic child abuse evaluations of the children. At the hearing, no testimony was

4 offered although mother “vehemently denied” the allegations. However, counsel’s

statement of mother’s position included an admission that she used corporal punishment

on the children and left them alone on one occasion with her violent boyfriend (referred

to as “Wiz” by mother’s counsel) when she went to test for the department. She

maintained that the first drug test for the department (showing a positive result for

amphetamines) was fabricated and inaccurate. The privately obtained test, which yielded

negative results, was done within 24 hours of the department’s test. She admitted to

using marijuana for pain management.

The court made true findings under section 300, subdivisions (a) (allegations a-1,

a-2, a-3) and (b)(1) (allegations b-1 through 5-5, b-10, b-12 and b-14). The children were

declared dependents and custody was removed from all parents. The court found that

DPSS had conducted a sufficient inquiry and that ICWA did not apply. Family

reunification services were ordered for mother, who was ordered to participate.

On February 23, 2023, mother appealed.

DISCUSSION

Mother’s sole argument on appeal is that the court erroneously found that ICWA

did not apply where DPSS failed to conduct an adequate inquiry into possible Indian

heritage. The record shows that at the inception of the case, the social worker inquired of

all three parents if there was Indian ancestry, and that at the initial hearing attended by

mother and the two fathers, the court inquired of the parents. Because no inquiry was

5 made of any relatives, mother argues the judgment should be either reversed or

conditionally affirmed.

DPSS, which acknowledges that no inquiry was made of relatives, argues the

appeal should be dismissed because the issue is premature, and that there was and is no

duty to inquire of relatives because the children were detained by means of protective

custody warrants, for which reason the inquiry provisions of section 224.2, subdivision

(b) were not triggered. The Department relies upon the recent case out of our division, In

re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.). We disagree with that approach and

conclude the duty of inquiry begins when the children are received by DPSS, by

whatever means, following temporary removal from parental custody. However, reversal

is not required because the case is ongoing and any failure to inquire can be corrected

over the rest of the proceedings.

ICWA reflects a congressional determination to protect Indian children and to

promote the stability and security of Indian tribes and families by establishing minimum

federal standards that a state court, except in emergencies, must follow before removing

an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1

Cal.5th 1, 7-8.) In any “proceeding for the foster care placement of, or termination of

parental rights to, an Indian child,” the Indian custodian and the Indian child’s tribe have

the right to intervene and may petition the court to invalidate any foster care placement of

an Indian child made in violation of ICWA (25 U.S.C., §§ 1911, subd. (c), 1914; see

§ 224, subd. (e)).

6 Under California law, the juvenile courts and the child protective agencies, “(but

not parents)[, have] an ‘affirmative and continuing duty to inquire’ whether a child in the

dependency proceeding ‘is or may be an Indian child.’” (In re Benjamin M. (2021) 70

Cal.App.5th 735, 741-742, quoting § 224.2, subd. (a).) “That duty to inquire begins with

[the] initial contact [citation] and obligates the juvenile court and child protective

agencies to ask all relevant involved individuals whether the child may be an Indian

child.” (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).)

Section 224.2, subdivision (a), expressly states the duty to inquire is not limited to asking

the reporting party if they have information that the child may be an Indian child.

Section 224.2, subdivision (b), requires the department to ask extended relatives where

the “child is placed into the temporary custody of a county welfare department pursuant

to Section 306.”

Section 306, subdivision (b), requires departmental inquiry into Indian heritage

pursuant to section 224.2, “[u]pon receiving temporary custody of a child.” “Under both

ICWA and California law, ‘“extended family member[s]”’ include the 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.’” [Citations.]” (In re D.S. (2020) 46

Cal.App.5th 1041, 1053; see also, In re Dominick D. (2022) 82 Cal.App.5th 560, 567.)

Upon each party’s first appearance in a dependency proceeding, the juvenile court must

ask each participant “whether the participant knows or has reason to know that the child

7 is an Indian child” (§ 224.2, subd. (c)), and “[o]rder the parent . . . to complete [an

ICWA-020 form].” (Cal. Rules of Court, rule 5.481(a)(2)(C).)

“The court, county welfare department, and the probation department have an

affirmative and continuing duty to inquire whether a child for whom a petition under

Section 300, 601, or 602 may be or has been filed, is or may be an Indian child. The duty

to inquire begins with the initial contact, including, but not limited to, asking the party

reporting child abuse or neglect whether the party has any information that the child may

be an Indian child.” (§ 224.2, subd. (a).) The initial contact refers to the first face-to-face

contact between DPSS and the family following a referral to investigate for child abuse

or neglect.

Removal of a child from his parents is the true triggering event, because ICWA is

not involved in juvenile dependency proceedings where a child remains placed with his

parent or parents. The language of ICWA specifically states that it applies when a child

is placed in foster care or an adoptive placement: “The Congress hereby declares that it is

the policy of this Nation 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, and by providing for assistance to Indian tribes in the operation

of child and family service programs. (25 U.S.C. § 1902, italics added.)

8 Not every child is removed at the time of “initial contact” by the Department. Any

peace officer may take a child or children into temporary custody without a warrant,

based on probable cause to believe the child is a person coming under the definition of a

dependent child, or when the child is in apparent need of protection from harm. (See

§ 305.) Once taken into temporary custody, the peace officer must try to contact the

parent or guardian, and, if the parent or guardian cannot be contacted, the peace officer

shall notify a social worker in the county welfare department to assume custody of the

child. (§ 305, subd. (a).) When delivered to the social services agency, a social worker

must receive and maintain, pending investigation, temporary custody of a child who is

described in section 300, and who has been delivered by a peace officer. (§ 306, subd.

(a).)

An initial contact may also occur when the social services agency receives a

referral for suspected abuse or neglect, investigates the referral and determines 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. In such situations, a social worker may take the child into custody and detain

him or her. (§ 306, subd. (a)(2).)

A child may also be taken into temporary custody by means of a protective

custody warrant, where there is no emergency situation requiring immediate removal.

(§ 340.) In any of these situations, the child is “received” by the agency, and “[u]pon

9 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).)

Some recent published decisions have concluded that the duty of inquiry of

extended relatives is limited to situations in which the social services agency takes the

child into custody without a warrant. (See Robert F., supra, 90 Cal.App.5th 492, relying

upon In re Adrian L. (2022) 86 Cal.App.5th 342, 364 [conc. opn. of Kelley, J.]; see also

In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678.) However, in each case, the decision

misinterprets the language of section 224.2, subdivision (b), without considering section

306 in its entirety. The reference to section 306 in section 224.2, subdivision (b), which

is generic, does not limit the duty of inquiry to any specific subdivision of section 306.

Instead, section 306, subdivision (b), provides, without limitation “Upon receiving

temporary custody of a child, the county welfare department shall inquire pursuant to

Section 224.2, whether the child is an Indian child.”

Yet Robert F., on which In re Ja.O. relies, incorrectly states that “Section 306

authorizes county welfare departments to take children into temporary custody ‘without a

warrant’ in certain circumstances. (§ 306, subd. (a)(2).)” (Robert F., supra, 90

Cal.App.5th at p. 497.) The decision then goes on to hold that the duty to inquire of

extended family is limited to children received by the department in that circumstance.

Instead, what is misconstrued as limiting language found in section 306,

subdivision (a)(2), is simply a description of one of the various means in which the

department assumes responsibility to temporarily place and care for a child who is

10 removed from his or her parents. The Legislature simply described situations in which a

social worker, responding to an emergency referral, initiates a contact and determines that

immediate removal of a child is necessary, from situations in which a peace officer

delivers a child to the Department. Reading the entire statute, it broadly describes the

social services agency’s authority to receive and maintain a child in temporary custody,

and its duty to inquire about possible Indian heritage.

By relying on the language of a single subsection of section 306, that is,

subdivision (a)(2), to reach their conclusions, the conclusions of Robert F. and Ja.O.

ignore the rest of section 306. Yet section 224.2, subdivision (b) refers generally to

section 306. There is no language limiting the application of section 224.2 to situations

arising under section 306, subdivision (a)(2), as the cases suggest.

Our position is buttressed by the fact that the duty of inquiry imposed by section

224.2 is also applicable to non-dependency cases in which a possible Indian child may be

the subject of a guardianship or specified conservatorship proceeding under the Probate

Code; in such cases, inquiry as to Indian heritage is required and notice must be given as

prescribed in rule 7.1015 (c) [inquiry duty], (e) [notice to tribes]. . (Cal. Rules of Ct., rule

7.51(f); see also rules 7.1003, 7.1015, relating to guardianship and certain

conservatorship proceedings involving Indian children.)

Specifically, Rule 7.1015 (d) provides: “(1) The court, the court investigator or

county officer appointed to conduct an investigation under Probate Code section 1513 or

1826, a petitioner, and an appointed temporary or general guardian or conservator of the

11 person of a minor child each have an affirmative and continuing duty to inquire whether

each child who is the subject of a proceeding identified in (b)(1) is or may be an Indian

child.” (Cal Rules of Court, rule 7.1015(d).) If the Department’s position were followed,

there would be no ICWA inquiry except where a social worker makes an emergency

removal of children without a warrant. This theory is not tenable.

Section 306, subdivision (a) covers situations in which the social worker receives

a child pending investigation, who was delivered by a peace officer. (§ 306, subd.

(a)(1).) Children removed pursuant to a warrant are similarly “received” by the

Department when a peace officer executes a protective custody warrant and delivers a

child to the Department. (§ 340, subd. (c).) In other words, use of language in section

306 referring to the department’s receipt of a child into its temporary care indicates a

legislative intent not to exclude or limit the application of section 306 to any single type

of situation. When a child is received by the agency, the duty of inquiry is triggered.

Because the duty to inquire of extended relatives pursuant to section 224.2,

subdivision (b), applies to children who are received by the Department by the means

described in section 306, that condition is met when a child is picked up by peace officers

pursuant to a protective custody warrant and is “delivered” to the Department, which then

“receives” the child pursuant to section 306, subdivision (a)(1).)

The express language of section 306, subdivision (a)(1), covers situations in which

the Department “receives” a child who is delivered by a peace officer upon the execution

of a protective custody warrant that was issued pursuant to section 340, and does not

12 exclude children taken into custody pursuant to a protective custody warrant. Therefore,

children detained upon the execution of a protective custody warrant are delivered to the

social worker within the meaning of section 306, subdivision (a)(1), whereupon the duty

of inquiry into Indian ancestry is triggered. Similarly, when the Department is appointed

to conduct an investigation in a Probate Code guardianship or certain conservatorship

proceedings, the same duty of inquiry into the child’s possible Indian heritage is required.

(Cal.Rules of Ct., rule 7.1015(c)(1).)

In our view, section 306, subdivision (a)(2), authorizing a social worker to

immediately “take into and maintain temporary custody of, without a warrant” is

intended to serve the obvious purpose of permitting the social worker to act quickly in the

face of exigent circumstances, without the necessity of seeking a pre-petition warrant or

waiting until the initial hearing on the petition, where an emergency is present. Nothing

in the statute reflects that the Legislature intended to limit the duty of inquiry to such

situations. Indeed, such an interpretation would directly contravene the express

provisions of ICWA itself, which applies to any removal of an Indian child from the

custody of a parent, where the child will be placed in foster or adoptive placement.

It is the delivery of the child to the Department that triggers section 306,

subdivisions (a)(1) and (b), which, in turn, trigger the duty of inquiry pursuant to section

224.2, subdivision (b). Thus, the fact the child was detained upon a warrant does not give

rise to a lesser duty of inquiry into Indian ancestry. We therefore adopt the reasoning of

In re Delila B. (2023) 93 Cal.App.5th 953, where another panel of this court determined

13 that the duty of inquiry of extended relatives is triggered whenever the social services

agency receives a child and maintains temporary custody.

The Department’s interpretation of section 224.2, subdivision (b), as followed in

the recent case of Robert F., supra, would frustrate the legislative intent, which is to

insure a continuing, full, and complete inquiry respecting possible Native American

heritage of children removed from parents’ custody, contrary to the Department’s

suggestion.

The procedural posture of this case is young and there is time remaining for the

Department to complete its inquiry. The child is in a relative home, and the Department

appears to have contact information for relatives.

DISPOSITION

The judgment is affirmed. DPSS is directed to continue its duty of inquiry in

compliance with section 224.2.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

I concur:

RAPHAEL J.

14 [In re D.S., E080751]

FIELDS, J., Concurring.

I fully concur in the majority’s determination to affirm the decision of the juvenile

court. However, I respectfully disagree with their determination adopting the reasoning

and holding of this court’s decision in In re Delilah D. (2023) 93 Cal.App.5th 953,

regarding the scope of the ICWA inquiry required in this case. I continue to agree with

and follow this court’s decisions on the ICWA inquiry question in In re Robert F. (2023)

90 Cal.App.5th 492, review granted July 26, 2023, S279743, and In re Ja.O. (2023)

91 Cal.App.5th 672, review granted July 26, 2023, S280572.

FIELDS J.