Filed 11/29/23 In re R.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 R.C., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080692
Plaintiff and Respondent, (Super.Ct.No. RIJ1100280)
v. OPINION
R.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Reversed.
Anna Rak, 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 Father appeals from a judgment terminating his parental rights to R.C., pursuant to
Welfare and Institutions Code1, section 366.26. The child was born with extreme
medical complications due to heroin withdrawal after being exposed to drugs in utero.
Both mother and father had a history of using heroin and methamphetamine, for which
reason mother had lost custody and failed to reunify with four older half siblings of R.C.
The Riverside County Department of Public Social Services (DPSS or the Department)
filed a dependency petition, and, at jurisdiction, mother was denied services, but services
were offered for father.
Over the reunification period, father was slow to engage in services, which were
terminated at a combined six- and 12-month review hearing where a section 366.26
hearing to select and implement a permanent plan of adoption was set. Father filed a
motion to modify the order terminating services, some of which he completed after
services were terminated, which was heard and denied at the selection and
implementation hearing. Parental rights of both parents were terminated. Father appeals.
On appeal, father argues that (1) the juvenile court erred in denying his
modification petition pursuant to section 388; and (2) the court and DPSS failed to
conduct a proper inquiry into possible Indian ancestry. We conditionally reverse.
BACKGROUND
Because mother is not a party to this appeal, we limit our references to her to those
matters needed for context.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
2 R.C. was born in June 2021 at 32 weeks gestation with serious medical problems
related to being born prematurely with opioid withdrawal. Mother came into the
emergency room seeking treatment, telling staff she did not care about the baby, and that
they needed to save her. Mother was intubated due to breathing issues related to opioid
withdrawal, and was in an induced coma, while R.C. also suffered from respiratory
distress syndrome, as well as severe issues requiring a peripherally inserted central
catheter (PICC) line, a spinal tap, and milk consent (because mother was unable to
consent to treatment). Additionally, the baby was born with a small, poorly functioning
kidney, requiring a catheter, and had jaundice, requiring light therapy.
Mother had a long history of using opioids and methamphetamines and had lost
custody of four2 older children (unrelated to this father) due to her substance abuse. A
fifth child was stillborn. Mother identified two possible fathers, V.R. (her boyfriend) and
R.B. Father R.B. fathered the stillborn infant. R.B. also had a long history of drug abuse,
including methamphetamines and heroin, and earned money by committing theft related
offenses. He also had an extensive criminal record of drug and theft related offenses.
R.B. indicated he had been denied access to visit the infant in the hospital, so he
requested paternity testing in order to visit.
When the child was ready for discharge, DPSS obtained a protective custody
warrant and detained the child. On July 22, 2021, the Department filed a dependency
2 Two of the older four children are in legal guardianships with relatives, while parental rights were terminated as to the other two, who were freed for adoption after mother failed to benefit from reunification services for drug use.
3 petition alleging the child came within the provisions of section 300, subdivisions (b)(1)
and (g), based on the long history of drug use by mother and father R.B., as well as
mother’s prior child welfare history that had resulted in the loss of custody of her other
children, including the termination of parental rights as to two children, and the unknown
whereabouts of alleged father V.R., who was soon dismissed and stricken from the
petition when DNA testing eliminated him as father.
At the detention hearing, the court ordered the child detained in foster care and
authorized paternity testing for the two alleged fathers. The court denied visitation to
both alleged fathers, finding visits would be detrimental because the men were alleged
fathers only.
The jurisdiction/disposition report was submitted on August 11, 2021,
recommending true findings on all the allegations, removal of R.C. from her parents’
custody, denial of reunification services to mother pursuant to section 361.5, subdivision
(b)(10), and denial of services to the alleged fathers. The report indicated that on June
14, 2021, father R.B. denied any Indian ancestry; on July 1, 2021, mother did likewise.
The report did not include any information from R.B. regarding placement, because the
social worker was unable to interview him. The report recommended denying services to
both alleged fathers because neither had made themselves available for an interview.
On October 29, 2021, in another addendum report filed prior to the jurisdiction
hearing, the social worker recommended reunification services for father R.B., whose
DNA tests established he was the biological father. However, the social worker
recommended that visits between R.B. and his daughter continue to be denied. During
4 the period between the detention and jurisdiction hearings, mother failed to submit drug
tests, participate in drug treatment, or counseling. Mother also failed to visit the baby,
although her cousin, who was seeking relative placement of R.C., did visit. Mother
attributed some of her failures to Covid-19, indicating she was required to test negative
for the virus three times before she could drug test. On October 25, 2021, the Resource
Family Approval (RFA) Unit approved the maternal cousin for placement.
The Department filed an amended petition on November 3, 2021, striking the
alleged father, V.R., and the allegation pursuant to section 300, subdivision (g), from the
petition. On December 2, 2021, the caretakers of the child sought de facto parent status.
On December 8, 2021, in another addendum report, the social worker continued to
recommend reunification services for father but requested that visits with mother be
denied. The report also noted that although the maternal cousin had been approved for
relative placement, the cousin withdrew her request for placement due to changed
circumstances. In the meantime, mother had not shown up for any drug tests and did not
participate in any services.
On January 24, 2022, yet another addendum was filed (more than six months after
the child was detained in the Department’s custody), which for the first time
recommended that father receive supervised visits. By this time, the social worker
contacted paternal relatives, including the paternal grandmother, where father was
supposed to be, learning that father had not been there for two days. The family was well
aware of the drug use by mother and father, who used on the property where the paternal
5 grandmother lived, but indicated father had gotten treatment in the past and did well until
he hooked up with mother and started using drugs again.
Eventually, father contacted the social worker and indicated he had called a
substance abuse program to deal with his habit. Father admitted he used heroin twice a
day and also used methamphetamines and marijuana. However, father had failed to show
up for a drug test when directed, and the results of a recent test had not been received.
On January 27, 2022, the court conducted a combined jurisdiction/disposition
hearing. The court made true findings on all the allegations under section 300,
subdivision (b)(1), and struck the allegation under section 300, subdivision (g). The court
removed custody from the parents, denied services for mother, but granted services for
father. The court found that ICWA did not apply. The court also granted the de facto
parent application.
In the six-month status review report, the Department recommended terminating
services for father, reducing his visits, and setting the matter for a selection and
implementation hearing under section 366.26. The report reflected that ICWA did not
apply based on the finding made at the jurisdictional/dispositional hearing and based on
an inquiry of father made on March 22, 2022, in which he denied any tribal ancestry or
membership. At this time, mother’s whereabouts were unknown, so no further inquiry
could be made of her.
Father had been charged with a new criminal offense during this reporting period,
and a hearing on an alleged violation of probation was pending. He was interested in an
in-patient treatment program, so the social worker sent him referrals. In April 2022, he
6 entered the MFI Recovery Center, but he left after approximately one week. The social
worker sent an additional referral, after which father indicated he had entered Victory
Outreach, but he left after a few weeks. While there, father tested negative for drugs on
one test, but did not show up for a second. Additional referrals were provided, and father
initiated counseling services. Father then started an outpatient drug treatment program.
In the meantime, father had visited the child three times, all of which were
appropriate. Because father had just begun drug treatment and counseling, and because
he had pending criminal charges, the social worker recommended a finding that return to
father would be detrimental and that services be terminated.
The six-month review hearing was continued because mother’s counsel declared a
conflict. Shortly thereafter, father submitted certificates of completion relating to a
relapse prevention program, a substance abuse program, and parenting classes; he also
submitted a sentencing memorandum regarding the criminal charges showing he had
been placed on summary probation.
On August 10, 2022, the Department submitted a combined six-month and 12-
month status review report, containing the same recommendations as had been made in
the prior report. The report also recommended a finding that ICWA does not apply,
although no additional inquiries appear to have been made. The report indicated father
was living with a friend awaiting placement in a sober living program. Father had
obtained full time employment at a warehouse. Father’s substance abuse program was
ongoing, and he was in compliance; however, father had only attended a few counseling
sessions, had missed a therapy session, and had just begun attending a parenting
7 education program. Father submitted a hair follicle test for controlled substances and had
visited with R.C. seven time since his visits were initiated, canceling, or failing to
schedule a visit, on five occasions. On August 22, 2022, the social worker filed an
addendum report to inform the court father’s hair follicle test was negative for all
controlled substances. The report was accompanied by two more certificates showing
father had completed substance abuse and parenting classes.
On August 25, 2022, the court conducted the review hearing; it found ICWA did
not apply, that father had made minimal progress, and that return of the child to father
would be detrimental. The court terminated reunification services and set a selection and
implementation hearing under section 366.26, reducing father’s visits to one time per
month.
On December 12, 2022, the social worker submitted a report for the section 366.26
hearing, recommending termination of parental rights of both parents. The father
maintained monthly visits, missing only one, and the caretakers were committed to
adopting the child and were open to maintaining contact between father and the child.
On January 27, 2023, father filed a section 388 request to modify a prior order (Judicial
Council Forms, form JV-180), seeking to reinstate reunification services. The petition
alleged father completed his outpatient program and was currently enrolled in recovery
services, an optional program to support recovery. In addition, he drug tested weekly and
all tests were negative. Further, he had stable housing. The court set the hearing in
connection with the pending section 366.26 hearing.
8 In response to father’s petition, the Department submitted an addendum report
recommending denial of the petition. The report confirmed father had completed the
substance abuse program and had tested negative but indicated he had completed minimal
counseling sessions and had not shown any benefit from counseling or parenting classes.
The report also acknowledged father had visited regularly but that the child was not
bonded to him: frequently the child refused to go to him at visits, and during visits, she
spent most of her time with the caretakers. The Department recommended that the
modification petition be denied.
On February 8, 2023, the court denied father’s modification petition and
terminated parental rights of both parents, freeing the child for adoption, and designating
the de facto parents as the prospective adoptive parents. On February 14, 2023, father
timely appealed.
DISCUSSION
1. Whether the Court Abused Discretion in Denying Father’s Petition to Modify the Prior Court Order.
A juvenile court order may be changed, modified, or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new evidence or
changed circumstances exist, and (2) the proposed change would promote the best
interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The parent
bears the burden to show both a legitimate change of circumstances and that undoing the
prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 529 (Kimberly F.).) “Generally, the petitioner must show by a
9 preponderance of the evidence that the child’s welfare requires the modification sought.”
(In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)
In evaluating whether the petitioner has met the burden to show changed
circumstances, the trial court should consider: “(1) the seriousness of the problem which
led to the dependency, and the reason for any continuation of that problem; (2) the
strength of relative bonds between the dependent children to both parent and caretakers;
and (3) the degree to which the problem may be easily removed or ameliorated, and the
degree to which it actually has been.” (Kimberly F., supra, 56 Cal.App.4th at p. 532.)
The juvenile court may also consider the reason the problem was not resolved, the
passage of time since the child’s removal, the relative strength of the bonds with the
child, the nature of the change of circumstance, and the reason the change was not made
sooner. (In re Mickel O. (2011) 197 Cal.App.4th 586, 616; see Kimberly F., supra, at
pp. 530-532.)
“To support a section 388 petition, the change in circumstances must be
substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Moreover, once
reunification services are ordered terminated or bypassed, the focus shifts from
reunification to the child’s need for permanency and stability, and a presumption arises
that “continued care [under the dependency system] is in the best interest of the child.”
(In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) After reunification services are
terminated, inquiry into a child’s best interests includes consideration of his or her need
for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 526-527.)
10 Further, to establish a prima facie basis for modification, the parent must show
circumstances have changed, not merely that they are in the process of changing. (In re
Casey D. (1999) 70 Cal.App.4th 38, 47.) The change “must be of such significant nature
that it requires a setting aside or modification of the challenged prior order.” (Ansley v.
Superior Court (1986) 185 Cal.App.3d 477, 485.) Showing that circumstances are in the
process of changing is insufficient because of the interest in promoting stability for the
child, a concern that is heightened in cases like this where the child is of very young age.
(In re A.S. (2009) 180 Cal.App.4th 351, 358; In re Casey D., supra, at p. 47.)
The petition is addressed to the sound discretion of the juvenile court, and its
decision will not be overturned on appeal in the absence of a clear abuse of discretion.
(In re Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953,
959.)
We recognize the difficulty of establishing a change of a parent’s circumstances
where the problems that led to the dependency relate to chronic drug abuse, as was the
case here. (See Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“[i]t is the nature of
addiction that one must be ‘clean’ for a much longer period . . . to show real reform”]; see
also In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [no changed circumstances where
“recent efforts at rehabilitation were only three months old at the time of the section
366.26 hearing”].) That is due to the persistent nature of drug addiction, particularly with
drugs like heroin and methamphetamines. Relapse is common, even after months of
11 sobriety, and a return to drug use can throw a child back into circumstances of neglect
and abuse.
Here, father’s efforts at rehabilitation are truly laudable, but his recovery was still
“young,” insofar as his sobriety had not been sustained long enough to show his situation
was duly changed, rather than changing. With a very young child like R.C., we must be
mindful that childhood does not wait for the parent to become adequate. (Michael G. v.
Superior Court (2023) 14 Cal.5th 609, 627; In re Marilyn H., supra, 5 Cal.4th at p. 308;
see also, In re C.W. (2019) 33 Cal.App.5th 835, 839.) Father had received 12 months of
services but had not established the sustained sobriety that would support a finding of
changed circumstances.
For this reason, while we commend father’s efforts, we conclude the juvenile court
did not abuse its discretion in denying the requested modification.
2. Whether the Court and DPSS Properly Discharged the Duty of Continuing Inquiry into Possible Indian Ancestry.
Father also argues the Department failed to inquire of relatives whether there was
Indian ancestry. DPSS, which acknowledges that no inquiry was made of relatives,
argues there was and is no duty to inquire of relatives because the child was detained
based on protective custody warrants, so the inquiry provisions of section 224.2,
subdivision (b), were not triggered, relying upon the recent case out of our division, In re
Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743 (Robert
F.). We disagree with that approach and conclude the duty of inquiry begins when the
children are received by DPSS, by whatever means.
12 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
Welf. & Inst. Code, § 224, subd. (e)).
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 “a
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
13 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
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 in-person
contact between DPSS and the family following a referral to investigate for child abuse
or neglect. (See Child Welfare Services, Manual of Policies and Procedures, §§ 31-
125.1, 32-127.1 [describing the social worker’s investigatory duties of in-person contact
to assess risk upon receiving a referral for suspected 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
14 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.)
Not every child is removed at the time of “initial contact.” A 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
15 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 without a warrant. (§ 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
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 In re
Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review granted July 26, 2023, S280572.)
However, each of these decisions 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), is general and 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
16 warrant’ in certain circumstances. (§ 306, subd. (a)(2).)” (Robert F., supra, 90
Cal.App.5th at p. 497.) The statute contains no such language. 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. We disagree with this analysis.
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 removed from his or her parents. The Legislature 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.
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
17 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
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.
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
18 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 D. (2023) 93 Cal.App.5th 953, review granted September 27, 2023, S281447,
where another panel of this court determined 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., would frustrate the legislative intent, which is to ensure a
continuing, full, and complete inquiry respecting possible Indian heritage of children
removed from parents’ custody, contrary to the Department’s suggestion. While neither
parent claimed any Indian ancestry at the detention hearing, this did not relieve the
Department of its duty to inquire into possible Indian ancestry as “parents may not know
their possible relationship with or connection to an Indian tribe.” (In re Y.W. (2021) 70
Cal.App.5th 542, 554; see In re Breanna S. (2017) 8 Cal.App.5th 636, 650.)
19 Here, the Department interviewed both grandmothers and other relatives in the
initial stages of the dependency.3 Asking family members about possible Indian heritage
while also inquiring of relatives about the parents’ family history, is not an undue burden.
We remand the matter to conduct an inquiry of relatives as to possible Indian heritage.
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the
juvenile court shall order the Department to comply with the duty of initial inquiry (Welf.
& Inst. Code, § 224.2, subd. (b)) and, if and when applicable, the duty of further inquiry
(Welf. & Inst. Code, § 224.2, subd. (e)) and the duty to provide notice to the pertinent
tribes (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3). If the juvenile 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
RAMIREZ P. J. I concur:
RAPHAEL J.
3 We are aware that the maternal grandmother is now deceased after contracting Covid-19, but the maternal cousin, who was initially considered for relative placement, is available.
20 [In re R.C., E080692]
FIELDS, J., Concurring and Dissenting.
I fully concur in the majority’s decision in this case except its holding determining
that an inadequate ICWA inquiry occurred below and its adoption of the reasoning and
holding of this court’s decision in In re Delila D. (2023) 93 Cal.App.5th 953, review
granted September 27, 2023, S281447, 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; In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023,
S280572; and In re Andres R. (2023) 94 Cal.App.5th 828, 836, 840-860, review granted
November 15, 2023, S282054. Thus, I would affirm the decision of the juvenile court.
FIELDS J.