Opinion
E082999
05-23-2024
In re WINTER L., a Person Coming Under the Juvenile Court Law. v. JEREMY H., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel and Larisa Reithmeier-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ2200269, Dorothy McLaughlin, Judge. Conditionally reversed and remanded with directions.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel and Larisa Reithmeier-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MENETREZ, J.
Jeremy H. appeals from the juvenile court's order terminating parental rights to his daughter, Winter L. He argues that the Riverside County Department of Public Social Services (DPSS) failed to comply with state law implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree and conditionally reverse and remand.
BACKGROUND
In April 2022, DPSS received a referral alleging general neglect of Winter. Kayla L. (Mother) was serving a six-year prison sentence for felony child endangerment (Pen. Code, § 273, subd. (a)); her seven-month-old child died in 2021 after ingesting fentanyl and methamphetamine. The referral reported that Mother had given birth to Winter while Mother was incarcerated. Mother initially identified her husband, Shawn L., as Winter's father. Shawn was also serving a six-year prison sentence for the death of the seven-month-old child. Mother had designated a paternal aunt to take custody of Winter from the hospital, but the hospital was unable to reach the paternal aunt. DPSS took temporary custody of Winter and later reached the paternal aunt. The aunt lived in Oklahoma and was not prepared to take Winter.
When DPSS interviewed Mother, she told the social worker that she did not have any Indian ancestry. DPSS filed a petition under subdivision (b) of Welfare and Institutions Code, section 300, alleging that Mother and Shawn both had a dependency history involving the death of their child in 2021, a criminal history, and a history of abusing controlled substances. (Unlabeled statutory citations refer to this code.) The petition also alleged under subdivision (g) of section 300 that Mother and Shawn were incarcerated and unavailable to provide Winter with care and support.
"[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.).)
At the detention hearing in April 2022, the court detained Winter from Mother and Shawn. Mother filed Judicial Council form ICWA-020 (Parental Notification of Indian Status) indicating that she did not have any Indian ancestry.
In the jurisdiction/disposition report, DPSS stated that it spoke to a maternal aunt who was interested in placement. There was no indication in the agency's reports that it asked the maternal aunt about Indian ancestry.
At the jurisdiction hearing in August 2022, the court asked Mother whether she had any Indian ancestry, and Mother replied that she did not. The court found true all of the allegations in the petition.
The disposition hearing occurred in September 2022. The court removed Winter from Mother's and Shawn's custody and denied both of them reunification services under section 361.5, subdivisions (b)(4) (parent caused the death of another child through abuse or neglect) and (e)(1) (parent is incarcerated and reunification services would be detrimental to the child). The court also set a section 366.26 hearing. In addition, it found that DPSS had conducted a sufficient ICWA inquiry and that ICWA did not apply to Winter.
Roughly three months later, Mother indicated that Shawn might not be Winter's biological father. Jeremy's paternity test resulted in a 99.99 percent probability of paternity, while Shawn's test resulted in a 0.00 percent probability of paternity. The court entered a judgment of non-paternity as to Shawn.
DPSS made numerous attempts to interview Jeremy, but he failed to follow up with the social worker. The agency asked the court to add the matter to its calendar for an ICWA inquiry as to Jeremy, because he did "not communicate well with DPSS-CSD." The record does not contain a reporter's transcript of that hearing. According to the minute order for the hearing, Jeremy and Mother appeared telephonically, and the court conducted an ICWA inquiry of "each participant." The court then found that there was "not new information to indicate that ICWA may now apply," and the court again found that ICWA did not apply to Winter.
A status review report prepared for the section 366.26 hearing indicated that Jeremy has three sons (ages 14, 15, and 19). His 15-year-old son lived with the child's mother in San Luis Obispo County, and the 14-year-old son was the subject of a recent child welfare referral. That son's maternal grandmother was seeking legal guardianship of the child. In a text message to the social worker, Jeremy said that he had no new information regarding ICWA applicability. When the social worker asked if he had any relatives to consider for placement of Winter, he failed to provide any such information.
At the section 366.26 hearing in January 2024, the court again asked Jeremy about Indian ancestry, and he said that he did not have any. The court again found that ICWA did not apply to Winter. The court also found that Winter was likely to be adopted, and the court terminated parental rights.
DISCUSSION
Jeremy argues that DPSS prejudicially erred by failing to ask extended family members about Winter's potential Indian ancestry. DPSS concedes that we should conditionally reverse and remand for a proper ICWA inquiry. We agree, because at least one extended family member was available.
The child welfare department and the juvenile court have an "'affirmative and continuing duty to inquire' whether a child in a dependency proceeding 'is or may be an Indian child.'" (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.), quoting § 224.2, subd. (a).) "The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry." (Ibid.)
"The duty of initial inquiry applies in every dependency proceeding." (Ricky R., supra, 82 Cal.App.5th at p. 678.) The child welfare 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." (§ 224.2, subd. (a).) 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.' (25 C.F.R. § 23.107(a) (2022).)" (Ricky R., at pp. 678-679.) Similarly, "[s]tate law requires the court to pursue an inquiry '[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).)" (Id. at p. 679.)
Further, under 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 must ask "extended family members" about the child's Indian status. "Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)" (Ricky R., supra, 82 Cal.App.5th at p. 679.)
If the child welfare department fails to comply with its duty of inquiry under state law, the error is prejudicial and warrants conditional reversal if "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.)
Courts are split on whether the duty to inquire of extended family members under section 224.2, subdivision (b) is triggered if the child welfare department takes the child into custody pursuant to a protective custody warrant. (E.g., In re Robert F. (2023) 90 Cal.App.5th 492, 500, review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, 678, review granted July 26, 2023, S280572; In re Delila D. (2023) 93 Cal.App.5th 953, 961, review granted Sept. 27, 2023, S281447; In re Jerry R. (2023) 95 Cal.App.5th 388, 404.) Our Supreme Court is reviewing the issue. (In re Ja.O. (2023) 310 Cal.Rptr.3d 728.)
We need not decide the issue in this case, because DPSS did not seek a protective custody warrant for Winter. Rather, it took her into temporary custody without a warrant under section 306. The agency was required to ask extended family members about the child's Indian status as part of the initial inquiry. (§§ 224.2, subd. (b), 306, subd. (a)(1), (2).) But there is no evidence that DPSS asked an available extended family member, the maternal aunt, about Winter's Indian status. The juvenile court's finding that DPSS had conducted a sufficient ICWA inquiry therefore was not supported by substantial evidence. (In re Dominick D. (2022) 82 Cal.App.5th 560, 566 [ICWA findings reviewed for substantial evidence].)
Moreover, the ICWA inquiry error was prejudicial. DPSS had contact information for the maternal aunt and spoke to her about placement. She thus was readily available, and her response would shed meaningful light on whether Winter is an Indian child, whatever the outcome of the inquiry may be. (Ricky R., supra, 82 Cal.App.5th at p. 680.)
Jeremy also argues that DPSS should have contacted other individuals, but those additional claims of error lack merit. First, he asserts that DPSS should have contacted relatives of his sons (the maternal grandmother of his 14-year-old son and the mother of his 15-year-old son) to ask whether they had contact information for Jeremy's extended family. DPSS had no duty to contact the maternal relatives of his sons. Those individuals were not related to Winter, so they did not qualify as Winter's extended family members for purposes of ICWA. And even if they did qualify as Winter's extended family members, there was no indication that DPSS had contact information for them, so they were not a source of "readily obtainable information." (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Second, Jeremy points out that early in the case, DPSS sent letters to four relatives in Kansas explaining that Winter was in foster care and asking whether they might want to help by, for instance, visiting or taking placement of the child. (See § 309, subd. (e) [requiring the social worker to conduct a "'family finding'" investigation and to notify located relatives of options to support the child and parents].) Jeremy suggests that DPSS should have asked those relatives about Indian ancestry. But the record identifies those individuals only as relatives and does not indicate whether they are related to Mother or Shawn, who was believed to be Winter's father at the time. Nor does the record indicate whether the individuals would qualify as extended family members for ICWA purposes, even if they were related to Mother. Jeremy accordingly fails to show any error with respect to those individuals.
For all of these reasons, we conclude that DPSS prejudicially erred by failing to ask the maternal aunt about Winter's Indian status. We conditionally reverse the order terminating parental rights and remand for a proper ICWA inquiry.
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the juvenile court shall order DPSS to comply with its duty of initial inquiry under subdivision (b) of section 224.2 and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the proper tribes (25 U.S.C. § 1912(a); § 224.3). If the court determines that DPSS has complied and 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.
I concur:
FIELDS, J.
RAMIREZ, P. J., Concurring.
I concur in the result but write separately to make clear that, while the relatives of Jeremy's sons and the relatives in Kansas may not fall within the definition of extended family members, the duty of inquiry may nevertheless apply to them because they might be persons having an interest in the child within the meaning of section 224.2, subdivision (b) of the Welfare and Institutions Code.