In re P.F. CA4/2

• Court: California Court of Appeal
• Decided: March 3, 2023
• Docket: E079489
• Status: Unpublished

Opinion

Filed 3/3/23 In re P.F. CA4/2 See Concurring and Dissenting 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 P.F. et al., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E079489

Plaintiff and Respondent, (Super.Ct.No. SWJ2200160)

v. OPINION

D.F.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Affirmed in part; reversed in part and remanded with directions.

Jill Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham ad Julie K. Jarvi, Deputy

County Counsel, for Plaintiff and Respondent.

1 INTRODUCTION

D.F. (father) appeals from the juvenile court’s jurisdictional and dispositional

orders as to his children, P.F. and N.F. (the children). Father’s sole contention on appeal

is that the juvenile court and the Riverside County Department of Public Social Services

(DPSS) failed to comply with their duty of initial inquiry under the Indian Child Welfare

Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California statutes. DPSS

concedes error. We vacate the court’s finding that ICWA did not apply and remand for

compliance with ICWA and related California law, but otherwise affirm the jurisdictional

and dispositional orders.

PROCEDURAL BACKGROUND

On April 5, 2022, a Welfare and Institutions Code1 section 300 petition was filed

on behalf of the children alleging they came within subdivisions (b) (failure to protect)

and (g) (no provision for support). The children lived with father, and the whereabouts of

their mother, J.P. (mother)2 were unknown. A California Judicial Council Forms, form

ICWA-010 (Indian Child Inquiry Attachment) was filed with the petition, stating that

father was questioned and did not give DPSS a reason to believe the children were Indian

children.

At the initial hearing held on April 20, 2022, father appeared along with the

paternal stepgrandfather and a paternal aunt. The court asked father if he had any Native

1 All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

2 Mother is not a party to this appeal. 2 American ancestry, and he responded, “Not enough to even speak of.” Father stated his

aunt said the family had some Native American ancestry, but he “never went and actually

did everything.” The court asked father if he knew of a tribe he might be affiliated with,

and father responded, “No. It’s not even enough.” He added, “I can’t even get you any

information if we are. I just heard from the grapevine in my family that we have enough

Indian as to get free Medi-Cal on the reservation.” The court concluded, “I don’t believe

I have reason to believe at this point in time with that rumored information, so I’ll adopt

the ICWA findings” that DPSS conducted a sufficient inquiry and ICWA did not apply to

these proceedings. The court asked father if mother had any Indian ancestry, and he said

no. The court then detained the children in foster care. That day, father filed a Judicial

Council Forms, form ICWA-020 (Parental Notification of Indian Status), indicating that

none of the options on the form applied (e.g., neither he nor the children were members

of, or eligible for membership in, an Indian tribe).

On May 6, 2022, the social worker filed a jurisdiction/disposition report stating

that on April 29, 2022, father denied there was Native American ancestry in his family.

She also reported the children were placed in an approved non-relative extended family

members (NREFM) home. The social worker further reported that DPSS was continuing

its efforts to locate mother. On May 3, 2022, a social worker made an in-person visit to

mother’s last known address and contacted the maternal grandmother, who said mother

had not lived at that address in several years.

The social worker reported that there were relatives to consider for placement. On

April 20, 2022, a referral was submitted to the Relative Family Approval (RFA) unit for

3 the paternal aunt (C.F.) to be assessed for emergency placement, but she was denied due

to her child welfare and criminal histories. On May 3, 2022, the social worker apparently

spoke with the paternal grandmother on the phone and gave her the information needed to

be considered for placement.

The social worker subsequently reported that father had a visit with the children

on June 19, 2022, and the paternal grandparents (L.H. and J.H.) attended and paid for the

children’s meals.

The court held a jurisdiction hearing on May 10, 2022, and noted that the paternal

aunt and the paternal grandfather were present in the courtroom. Father’s counsel set the

matter for contest and noted that father was currently living with the paternal aunt and

wanted the children to come home. The court stated it would allow DPSS to increase the

frequency and location of the visits, as long as they were supervised. Then, the paternal

grandfather raised his hand and said he wanted visits for the family. The court thus

authorized relatives to have visits.

The court held a contested jurisdiction hearing on June 10, 2022, and a maternal

aunt (S.M.) was present. Counsel for the children asked for a continuance and requested

that the court assess the maternal aunt for placement. Father objected to that placement,

noting that the paternal aunt was in the final stages of approval for placement, and he

wanted the children placed with her. The court ordered DPSS to commence an

assessment of the maternal aunt, and then set the matter for contest.

On June 28, 2022, the court held the contested jurisdiction hearing. Although

father appeared telephonically, the paternal grandfather, a paternal cousin, and the

4 maternal aunt were present in the courtroom. The court was informed that the maternal

aunt had been approved for placement, but the paternal aunt’s approval was still pending.

Then the paternal grandfather addressed the court and asked for visitation and placement

of the children. The court engaged in a discussion with him and said it would order

unsupervised visitation and order DPSS to initiate a relative placement. The court set the

matter for July 19, 2022.

On July 19, 2022, the court held a hearing, and father was present, along with the

paternal grandfather and paternal cousin. The court found that DPSS did a sufficient

inquiry regarding whether the children may have Indian heritage and that ICWA did not

apply. It then sustained the petition, adjudged the children dependents of the court,

removed them from father’s custody, and ordered reunification services.

DISCUSSION

Father contends the juvenile court and DPSS failed to comply with their initial

duty of inquiry with respect to ICWA and, thus, there was insufficient evidence to

support the court’s finding that ICWA did not apply. He requests this court to reverse the

jurisdiction and dispositional findings and orders and remand the matter for compliance

with ICWA. DPSS concedes it failed to comply with its initial duty of inquiry, but

argues there is no need to vacate any findings and orders since its ICWA duties are

continuing. We vacate the ICWA finding and remand for compliance with ICWA and

related California law but otherwise affirm the jurisdictional and dispositional orders.

5 A. Applicable Law

ICWA requires that notice of the state court proceedings be given to Indian tribes

“where the court knows or has reason to know that an Indian child is involved, . . .”

(25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); In re

Benjamin M. (2021) 70 Cal.App.5th 735, 740-741 (Benjamin M.).) ICWA’s notice

requirement, which is also codified in California law (§ 224.3), “enables a tribe to

determine whether the child is an Indian child and, if so, whether to intervene” in the

state court proceeding or exercise its own jurisdiction in the matter. (Isaiah W., at p. 5.)

Although “ICWA itself does not impose a duty on courts or child welfare agencies

to inquire as to whether a child in a dependency proceeding is an Indian child,” federal

regulations implementing ICWA “require that state courts ‘ask each participant in an

emergency or voluntary or involuntary child-custody proceeding whether the participant

knows or has reason to know that the child is an Indian child.’ [Citation.] The court

must also ‘instruct the parties to inform the court if they subsequently receive information

that provides reason to know the child is an Indian child.’ ” (In re Austin J. (2020)

47 Cal.App.5th 870, 882-883 (Austin J.), superseded by statute on other grounds as stated

in In re E.C. (2022) 85 Cal.App.5th 123, 147; see 25 C.F.R. § 23.107(a) (2022).)

Under California law, the juvenile court and social services agency 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).) This duty consists of three phases:

the initial duty to inquire, the duty of further inquiry, and the duty to provide formal

6 ICWA notice. (In re D.F. (2020) 55 Cal.App.5th 558, 566.) Only the initial duty of

inquiry is at issue here.

The duty of initial inquiry begins with the initial contact when DPSS must ask “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).) Once a child is taken into temporary

custody, DPSS must 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, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, or first or

second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) DPSS is obligated “to make a

meaningful effort to locate and interview extended family members to obtain whatever

information they may have as to the child’s possible Indian status.” (In re K.R. (2018) 20

Cal.App.5th 701, 709.) The juvenile court “has a responsibility to ascertain that the

agency has conducted an adequate investigation and cannot simply sign off on the notices

as legally adequate without doing so.” (Ibid.) If the court finds that DPSS has complied

with its duty of inquiry and there is no reason to know that the child is an Indian child,

then the court may find that ICWA does not apply. (§ 224.2, subd. (i)(2); Cal. Rules of

Court, rule 5.481(b)(3)(A).) “A juvenile court’s finding that ICWA does not apply

implies ‘that social workers had fulfilled their duty of inquiry.’ ” (In re Dominick D.

(2022) 82 Cal.App.5th 560, 567 (Dominick D.), citing Austin J., supra, 47 Cal.App.5th at

p. 885.)

7 “[W]e review the juvenile court’s ICWA findings under the substantial evidence

test, which requires us to determine if reasonable, credible evidence of solid value

supports the court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; see Austin J.,

supra, 47 Cal.App.5th at p. 885 [implicit finding, reviewed for substantial evidence, that

social workers fulfilled their duty of inquiry].)

B. The Court’s ICWA Finding Is Not Supported by Substantial Evidence Since

DPSS Failed to Satisfy its Duty of Inquiry

Father argues the juvenile court’s finding that ICWA does not apply is not

supported by substantial evidence since DPSS did not discharge its statutory duty of

initial inquiry. DPSS concedes “the record does not reflect that relatives who were

readily available were asked about Native American ancestry in the family” and

acknowledges that it must comply with its duty to complete all appropriate inquiries. We

agree with the parties that DPSS failed to satisfy its initial duty of inquiry.

Section 224.2 required DPSS to inquire of the children’s extended family

members regarding their possible Indian ancestry, and it was error for DPSS to fail to do

so. (In re Antonio R. (2022) 76 Cal.App.5th 421, 431; In re J.W. (2022) 81 Cal.App.5th

384, 389 [error not to ask the mother’s extended family members about their Indian

ancestry despite having contact with a grandmother, uncle, and aunt].) There were both

maternal and paternal relatives available for inquiry throughout the case. DPSS had

contact with the maternal grandmother, the maternal aunt (S.M.), the paternal aunt (C.F.),

and the paternal grandparents. Furthermore, the paternal grandfather, a paternal cousin,

8 the paternal aunt, and the maternal aunt attended various hearings.3 Yet, nothing in the

record suggests these relatives were asked about the children’s Indian ancestry. By

failing to ask these extended relatives about Indian ancestry, DPSS failed to discharge its

duty of initial inquiry. (Dominick D., supra, 82 Cal.App.5th at p. 567.)

“ICWA inquiry and notice errors do not warrant reversal of the juvenile court’s

jurisdictional or dispositional findings and orders other than the ICWA finding itself.”

(Dominick D., supra, 82 Cal.App.5th at p. 567; see In re S.H. (2022) 82 Cal.App.5th 166,

175 (S.H.) [where parent on appeal solely challenges finding that ICWA does not apply,

“we need not disturb the juvenile court's jurisdiction/disposition order just because the

duty of initial ICWA inquiry has not yet been fully satisfied”]). The appropriate

disposition is to affirm the findings and orders, but vacate the finding that ICWA does not

apply, and “direct the juvenile court on remand to order [DPSS] to comply with its

inquiry and (if applicable) notice obligations under ICWA and related California law.”

(Dominick D., at pp. 567-568.)

DPSS contends there is no need to vacate the ICWA finding because ICWA

obligations are continuing duties. In support of its position, DPSS cites In re Baby Girl

M. (2022) 83 Cal.App.5th 635, in which the father argued the county agency failed to

comply with its obligations under ICWA and related California law. (Id. at pp. 636-637.)

However, in that case, the court dismissed the appeal as moot, since no effective relief

3 Father mentions that the paternal stepgrandfather was available, but not questioned. However, it does not appear that he would be considered an extended relative of the children. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) 9 could be granted, as the county agency started complying with its inquiry duties after the

appeal was filed. (Id. at pp. 638-639.) Here, there is no indication DPSS has started

complying with its duties.

We acknowledge that the First District Court of Appeal, in a case with a similar

procedural posture as the instant case, chose to simply affirm the dispositional order and

did not vacate the ICWA finding. (S.H., supra, 82 Cal.App.5th at pp. 179-180.)

However, we follow our court’s disposition in Dominick D. and vacate the ICWA finding

and remand for compliance. (Dominick D., supra, 82 Cal.App.5th at pp. 567-568.)

DISPOSITION

The finding that ICWA does not apply to the proceedings is vacated and the matter

is remanded to the juvenile court. The juvenile court is directed to order DPSS to comply

with its inquiry and (if applicable) notice obligations under ICWA and related California

law. In all other respects, the jurisdiction and dispositional findings and orders are

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

I concur:

MILLER Acting P. J.

10 In re P.F. et al.; DPSS v. D.F., E079489]

MENETREZ, J., Concurring and Dissenting.

In my view, the expanded duty of initial inquiry under subdivision (b) of Welfare

and Institutions Code section 224.2 applies only if the child was taken into temporary

custody without a warrant pursuant to Welfare and Institutions Code section 306. (See In

re Adrian L. (2022) 86 Cal.App.5th 342, 355-359 (conc. opn. of Kelley, J.).) The child in

this case was detained pursuant to a warrant, so the expanded duty of initial inquiry under

subdivision (b) of Welfare and Institutions Code section 224.2 does not apply. I therefore

respectfully dissent from the majority opinion’s reasoning and result concerning the

Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) and related California law,

but I otherwise concur. I would affirm the juvenile court’s findings and orders in their

entirety.

MENETREZ J.