In re L.R. CA4/2

• Court: California Court of Appeal
• Decided: August 30, 2023
• Docket: E080714
• Status: Unpublished

Opinion

Filed 8/30/23 In re L.R. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.R. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080714

Plaintiff and Respondent, (Super.Ct.No. RIJ2000251)

v. OPINION

R.R. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,

Judge. Conditionally affirmed and remanded with directions.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and

Appellant R.R.

Jesse McGowan, under appointment by the court of Appeal, for Defendant and

Appellant E.D.

1 Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna,

Deputy County Counsel for Plaintiff and Respondent.

In this appeal following the termination of parental rights, defendants and

appellants E.D. (mother) and R.R. (father) contend only that the county welfare

department failed to comply with California law implementing the Indian Child Welfare 1 Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). Relying on Welfare and Institutions

Code, section 224.2, subdivision (b), the parents argue the department failed to discharge

its duty of initial inquiry because it did not ask several extended family members whether 2 the children have any Indian ancestry. The department, relying on In re Robert F.

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

Ja.O. (2023) 91 Cal.App.5th 672, 680-681, review granted July 26, 2023, S280572

(Ja.O.), argues that it had no duty to ask extended family members about possible Indian

ancestry. In the alternative, the department argues that it satisfied that duty by

conducting a sufficient inquiry, and that any arguable error was harmless.

Absent further instruction from our Supreme Court, we reject the Department’s

arguments based on Robert F. and Ja.O. because we disagree with those cases’

interpretation of the relevant statutes. We find the analysis of In re Delila D. (2023) 93

1 “[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 (Benjamin M.).) 2 Undesignated statutory references are to the Welfare and Institutions Code.

2 Cal.App.5th 953, (Delila D.) more persuasive. We disagree with the department that it

conducted a sufficient inquiry, as it failed to ask several available extended family

members about possible Indian ancestry. We also disagree with the department that the

error was harmless, as the record indicates that there was “readily obtainable information

that was likely to bear meaningfully upon whether the child is an Indian child.”

(Benjamin M., supra, 70 Cal.App.5th at p. 744.) The department’s arguments that

Benjamin M. was wrongly decided are unpersuasive. We conditionally affirm and

remand with directions.

BACKGROUND

Mother and father are the parents of L.R. (born June 2015). I.M. (born January

2018) and L.R. have the same mother, but different fathers. I.M.’s father is not a party to

this appeal.

In April 2020, plaintiff and respondent Riverside County Department of Public

Social Services (the department) filed a dependency petition, alleging that they both came

within section 300, subdivision (b)(1) (failure to protect), and that L.R. also came within

subdivision (g) (no provision for support). The children were initially left in parental

care.

In July 2020, the department filed an amended petition, requesting that the

children be detained from their respective fathers. Father had been arrested for robbery

in June 2020, and remained incarcerated. I.M.’s father was arrested in July 2020 on three

3 counts of attempted murder. The juvenile court detained the children from their fathers,

leaving the children in mother’s care.

In January 2021, the department obtained protective custody warrants to detain the

children from mother. In a section 387 supplemental petition filed several days later, the

department alleged mother had failed to comply with her case plan and neglected the

children. The juvenile court detained the children out of mother’s care and ordered that

“temporary placement and care is vested with [the department] pending the hearing under

[section 355] or further order of the court.”

During the dependency, mother and both fathers denied any Indian ancestry. The

available maternal extended relatives—grandmother and a great aunt—also denied any

Indian ancestry, as did both paternal grandmothers and a paternal aunt to L.R. The record

does not demonstrate, however, that three other paternal extended relatives were ever

asked whether the children are or may be Indian children, even though the department

was in contact with them about other matters. These three extended relatives are a

second paternal aunt of L.R. and a paternal aunt and uncle of I.M.

Reunification efforts were unsuccessful. In February 2023, the juvenile court

terminated parental rights as to both children. Mother and father appealed, but I.M.’s

father did not.

DISCUSSION

Relying on Robert F. and Ja.O., the department contends that it had no duty to

contact the paternal extended relatives omitted from the ICWA inquiry. This conclusion

4 follows from those cases’ reasoning. We are not persuaded, however, that the reasoning

of those cases is correct.

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. (2020) 55 Cal.App.5th

558, 566 (D.F.).) “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.) Only the first of these phases is at issue in this appeal.

In every dependency proceeding, the department has an initial duty to inquire into

whether a child is an Indian child. (In re J.S. (2021) 62 Cal.App.5th 678, 686.) “The

department’s ‘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.’” (Robert F., supra, 90 Cal.App.5th at p. 499; see

§ 224, subd. (a); Cal. Rules of Court, rule 5.481, subd. (a) (rule 5.481).) “In addition,

‘[f]ederal regulations require state courts to ask each participant “at the commencement”

of a child custody proceeding “whether the participant knows or has reason to know that

the child is an Indian child.”’” (Robert F., at pp. 499-500; see 25 C.F.R. § 23.107(a)

(2022).) As well, state law requires the court to inquire “‘“[a]t the first appearance in

court of each party”’” by asking “‘“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).)’” (Robert F., at p. 500.)

5 “[U]nder subdivision (b) of section 224.2, ‘[i]f a child is placed into the temporary

custody of a county welfare department pursuant to Section 306,’ the department’s

obligation includes asking the ‘extended family members’ about the child’s Indian

status.”3 (Robert F., supra, 90 Cal.App.5th at p. 500.) This language was added by

Assembly Bill No. 3176 (2017-2018 Reg. Sess.), which made various ICWA related

changes to the Welfare and Institutions Code, effective January 1, 2019. (Stats. 2018, ch.

833 (A.B. 3176), § 5.) Similar language appears in rule 5.481 of the California Rules of

Court, which the Judicial Council revised to implement section 224.2, subdivision (b):

“The party seeking a foster-care placement, . . . termination of parental rights,

preadoptive placement, or adoption must ask the child, if the child is old enough, and the

parents, Indian custodian, or legal guardians, extended family members, others who have

an interest in the child, and where applicable the party reporting child abuse or neglect,

whether the child is or may be an Indian child . . . .” (rule 5.481 (italics added).)

Following the concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342,

357-358 (Adrian L.), Robert F. equates the phrase “‘placed into the temporary custody of

a county welfare department pursuant to Section 306’” with exercise of the department’s

authority under section 306, subdivision (a)(2) “to take children into temporary custody

‘without a warrant’ in certain circumstances.” (Robert F., supra, 90 Cal.App.5th at p.

3 Section 224.2, subdivision (b), also applies when a child is placed in the temporary custody of a county probation department pursuant to section 307. But then it is the county probation department’s duty of inquiry, and not the county welfare department’s. (See § 224.2, subd. (b).)

6 497; see Adrian L., supra, 86 Cal.App.5th at pp. 357-358 (conc. opn. of Kelley, J.).)

According to Robert F. and the Adrian L. concurrence, “[a] department that takes a child

into protective custody pursuant to a warrant does so under section 340, not section 306.”

(Robert F., at p. 497.) Ja.O. adopted the same reading of section 224.2, subdivision (b).

(Ja.O., supra, 91 Cal.App.5th at pp. 680-681.)

Recently, however, Delila D. declined to follow Robert F., finding its holding

“contrary to both the letter and spirit of Assembly Bill 3176.” (Delila D., supra, 93

Cal.App.5th at p. 962.) Instead, Delila D. concluded “there is only one duty of initial

inquiry, and that duty encompasses available extended family members no matter how

the child is initially removed from home.” (Ibid.) Under Delila D.’s analysis of section

224.2, subdivisions (a) and (b), together with rule 5.481, social workers have “a duty of

initial inquiry that begins at first contact, lasts throughout the proceeding, and includes

‘but is not limited to’ the reporting party, the child’s parents and extended family

members, and others who have an interest in the child, as those individuals become

available during the case.” (Delila D., at p. 966.)

This conflict in authority is currently under review by our Supreme Court, with In

re Ja.O. as the lead case. We find Delila D.’s thoughtful discussion of the statutory

language and legislative history persuasive, and adopt its reasoning and conclusions,

pending our Supreme Court’s resolution of the conflict.

Applying Delila D. to this case, the department’s initial duty of inquiry—

including the ongoing duty to inquire of extended family members who become available

7 during the case—was triggered in January 2021, when the children were detained out of

mother’s care, after having been previously detained from their respective fathers, and the

department then maintained the children in temporary custody, as authorized by section

306, subdivision (a)(1). We decline to follow the reasoning of Ja.O., Robert F., or the

Adrian L. concurrence that would lead to a different result.

Our next questions, then, are whether the department satisfied that expanded duty

of inquiry and, if not, whether failing to do so was harmless. We answer both questions

in the negative.

Relying on In re Ezequiel G. (2022) 81 Cal.App.5th 984 (Ezequiel G.) and In re

J.K. (2022) 83 Cal.App.5th 498 (J.K.), the department argues that the ICWA inquiry it

conducted was adequate, even though it did not “contact every extended family member

including every aunt, uncle, and first and second cousin.” Certainly, we agree that the

department was only required to make “reasonable and diligent efforts to conduct the

required inquiry and report those efforts and the results thereof to the court.” (J.K., at p.

508, fn. 7.) No one is asserting that the department was required to “undergo overly

voluminous record searches, attend family reunions, conduct stakeouts, or search

Ancestry.com. Nor [is it] required to interview young children or other extended family

members who would not be expected to have any information regarding the child’s

Indian status.” (Ibid.) We are not persuaded, however, that an inquiry may be

considered reasonable and diligent when the department fails to inquire of extended

8 relatives who are readily available and reasonably might have information regarding the

child’s Indian status. To the extent Ezequiel G. holds otherwise, we decline to follow it.

We find no merit in the department’s suggestion that deference to the trial court’s

credibility findings requires that we find the ICWA inquiry adequate. The issue is not

whether any relatives who denied Native American heritage were telling the truth, so far

as they knew, but rather whether there are other relatives who are readily available for

inquiry and may have different information. (See In re Y.W. (2021) 70 Cal.App.5th 542,

554 [to accept a parent’s denial of any knowledge of Indian ancestry, without further

inquiry, “ignores the reality that parents may not know their possible relationship with or

connection to an Indian tribe”]; In re T.G. (2020) 58 Cal.App.5th 275, 289 [“Oral

transmission of relevant information from generation to generation and the vagaries of

translating from Indian languages to English combine to create the very real possibility

that a parent’s or other relative’s identification of the family’s tribal affiliation [or lack

thereof] is not accurate”].)

In short, the department did not fulfill its duty of initial inquiry under ICWA

because it failed to ask three readily available extended relatives whether the children are

or might be Indian children. The trial court erred by finding ICWA did not apply, even

though the department had not fulfilled its duty of initial inquiry. We turn, then, to the

issue of whether the error should be considered harmless error.

There are multiple approaches to assessing harmlessness in the ICWA context, and

the issue is currently under review by our Supreme Court. (See In re Dezi C. (2022) 79

9 Cal.App.5th 769, 777-782, review granted Sept. 21, 2022, S275578).) We will apply the

approach we described in Benjamin M., supra, 70 Cal.App.5th at p. 739. That is, we will

find prejudice when an agency “fail[s] to investigate readily obtainable information

tending to shed meaningful light on whether a child is an Indian child.” (Ibid.) Even

where the agency has erred, however, it may be that, “considering the entire record, it

was obvious that additional information would not have been meaningful to the inquiry.”

(Id. at p. 743) “This might occur where the evidence already uncovered in the initial

inquiry was sufficient for a reliable determination.” (Ibid.)

The department is incorrect to suggest that the Benjamin M. approach (which

parents agree we should apply) “essentially” amounts to a “reversible per se” standard.

There are circumstances where the record could demonstrate that the initial inquiry was

sufficient for a reliable determination, even though there was an erroneous failure to

inquire of some extended relatives. For example, in theory, the department could have

uncovered information affirmatively showing the children were disqualified from tribal

membership. (Cf. In re J.M. (2012) 206 Cal.App.4th 375, 382 [tribe’s membership

criteria showed children disqualified from membership “irrespective of their great-great

grandparents’ possible membership in the tribe”].) In some circumstances, a thorough,

but not perfect, inquiry can suffice for a reliable determination, despite some omissions.

(See In re Rylei S. (2022) 81 Cal.App.5th 309, 325 [discussing hypothetical where

agency “interviews the maternal grandfather; several, but not all of his four siblings; and

the maternal grandfather’s surviving parent, none of whom indicates the family has any

10 Indian ancestry,” and concluding that the “failure to interview the grandfather’s

remaining siblings would certainly be harmless absent some additional unusual

circumstance”].)

Here, the department properly inquired of several extended family members.

Nevertheless, though we find it a close question, we do not find this to be a circumstance

where the inquiry suffices, despite some omissions. Although the two paternal

grandmothers were available and denied any Native American heritage, the two paternal 4 grandfathers were not asked. On the two paternal sides of the children, the department

failed to inquire of three of six readily available extended family members. In this

circumstance, it is likely that the three family members omitted from the inquiry would

have information that would bear meaningfully on the issue of whether the children are

Indian on their paternal side, either by confirming information previously obtained or by

providing new information.

We are not persuaded by the department’s comparison of this case to In re S.S.

(2022) 75 Cal.App.5th 575 or In re Y.M. (2022) 82 Cal.App.5th 901. In both S.S. and

Y.M., the extended relatives who were omitted from the inquiry had compelling reasons

to volunteer that they knew the family had Native American ancestry, even if not

affirmatively asked about it by the department, and the court of appeal inferred from their

failure to come forward that they were unlikely to have any such knowledge. (In re Y.M.,

4 The parents have not argued that the grandfathers were reasonably available for inquiry, though we have not determined from the record why they were unavailable.

11 supra, at pp. 917-918; In re S.S., supra, at pp. 582-583.) There is no basis for any similar

inference here.

We conclude that the department’s failure to ask readily available extended family

members whether the children are or may be Indian children is not harmless, and the

matter must be remanded for the department to complete the required inquiry.

DISPOSITION

The orders terminating parental rights to L.R. and I.M. are conditionally affirmed.

We remand to the juvenile court for the department and the court to comply with the

inquiry and notice provisions of ICWA and California law consistent with this opinion,

including inquiring of extended family members. If the court finds the children are

Indian children, it shall conduct a new section 366.26 hearing, as well as all further

proceedings, in compliance with ICWA and related California law. If not, the court’s

original section 366.26 orders will remain in effect.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL J.

I concur:

McKINSTER Acting P. J.

12 [In re L.R., E080714]

MILLER, J., Dissenting

I respectfully dissent to the majority opinion. E.D. (Mother) and R.R. (Father)

contend the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) inquiry was

insufficient because the Riverside County Department of Public Social Services (the

Department) failed to ask extended relatives of E.D. and R.R. about possible Indian

ancestry. Mother and Father assert the Department had a duty to question extended

relatives under Welfare and Institutions Code section 224.2, subdivision (b), and In re

Delila D. (2023) 93 Cal.App.5th 953.

I believe In re Robert F. (2023) 90 Cal.App.5th 492, 500-501, correctly

concluded that the Department’s duty to initially question extended relatives is only

triggered when children are removed without protective custody warrants. In this case,

because the children were removed with protective custody warrants, the Department

did not have an initial duty to question extended relatives about possible Indian

ancestry. I would affirm.

MILLER

J.