Opinion
E083757
09-05-2024
In re S.V., a Person Coming Under the Juvenile Court Law. v. K.G., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R. McKenna, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWJ1400412 Dorothy McLaughlin, Judge. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R. McKenna, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS J.
I. INTRODUCTION
K.G. (Mother) appeals from an order terminating her parental rights with respect to S.V. pursuant to Welfare and Institutions Code section 366.26. The sole claim raised in Mother's appeal is that the Riverside County Department of Public Social Services (the department) failed to fulfill its duty of inquiry under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) as defined in section 224.2, subdivision (b) because it did not interview paternal extended family members.
Undesignated statutory references are to the Welfare and Institutions Code.
With respect to Mother's claim of error, it is undisputed that S.V. was taken into protective custody pursuant to a warrant issued under section 340, and the parties acknowledge there is a split of authority over whether section 224.2, subdivision (b) applies in such cases. (See Delila D. (2023) 93 Cal.App.5th 953 (Delila D.) [§ 224.2, subd. (b) applies in all cases], review granted Sept. 27, 2023, S281447; see also In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.) [§ 224.2, subd. (b) does not apply where a dependent child is taken into protective custody pursuant to a warrant], review granted July 26, 2023, S279743.) Thus, the parties' arguments on this point are focused almost entirely on the question of whether we should follow the reasoning of Delila D. or Robert F. However, as we explain, we need not weigh in on this current dispute because, regardless of whether we follow Delila D. or Robert F., Mother has failed to show error under either standard.
II. BACKGROUND
Mother and S.V.S. (Father) are the parents of S.V. In October 2022, the Department took S.V. into protective custody pursuant to a warrant issued under section 340. Shortly thereafter, the department filed a petition pursuant to section 300 on behalf of S.V., alleging that Mother and Father were unable to supervise, protect, provide, or care for S.V. as the result of domestic violence and substance abuse.
Father is not a party to this appeal.
On October 20, 2022, the juvenile court held a hearing in which both parents were present. Both parents denied having Native American ancestry at the time of hearing and filed ICWA-020 forms reaffirming this representation under penalty of perjury. Unlike prior versions of the ICWA-020 form, the version completed by parents listed each of the statutory factors identified in section 224.2, subdivision (d) that might indicate S.V. is an Indian child. It provided parents with an opportunity to indicate whether they knew or suspected that any of the factors applied in the case. However, both parents unequivocally indicated that none of the factors applied.
In November 2022, the Department filed a jurisdictional and dispositional report. The Department reported that Mother's parental rights with respect to five other children had been terminated in other dependency proceedings. As a result, the Department recommended the juvenile court bypass reunification services for Mother but grant reunification services for Father. With respect to its ICWA inquiry, the Department disclosed that both parents reaffirmed their denial of any Native American ancestry in interviews with a social worker; noted that the maternal grandmother who was initially considered for placement had also denied Native American ancestry when asked; and recommended a finding that ICWA did not apply. However, as part of its assessment of Father's family background, the department noted that Father disclosed growing up with 15 siblings and made a statement that," 'My sister and brother visit me ....' ". The report did not contain any additional information regarding Father's siblings.
In June 2023, the department filed a six-month status review report. With respect to its ICWA inquiry, the department disclosed that it had contacted a maternal aunt in the course of assessing placement for S.V., and the maternal aunt denied any Native American ancestry.
In October 2023, the Department filed a selection and implementation report in advance of a noticed hearing pursuant to section 366.26. The department did not identify any new attempts to inquire of family members regarding any potential native American ancestry. The department also reported that Father had not appeared for any visits with S.V. since the six-month review hearing. At the time of hearing, Father appeared in custody, and it was disclosed that Father was presently incarcerated. The juvenile court again inquired directly of Father whether he was aware of any information suggesting Native American ancestry in his background, and Father responded in the negative. The juvenile court terminated parental rights and Mother appeals.
III. DISCUSSION
In this appeal, the only claim of error is that the juvenile court and the department failed to fulfill their initial duty of inquiry under the ICWA and section 224.2 by failing to interview the paternal relatives who were briefly mentioned by Father during one of an interview with a social worker. For the reasons set forth below, we conclude that Mother has failed to show error and affirm order terminating parental rights.
A. General Legal Principles and Standard of Review
"Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
Section 224.2 of the Welfare and Institutions Code "creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department's] initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. [Citation.] Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' [Citation.] Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply." (In re D.S., supra, 46 Cal.App.5th at p. 1052; § 224.2)
Following the inquiry stages, the juvenile court may make a finding that ICWA does not apply because the department's inquiry and due diligence was" 'proper and adequate' but no 'reason to know' whether the child is an Indian child was discovered." (In re D.S., supra, 46 Cal.App.5th at p. 1050.) "The finding implies that notice to a tribe was not required because social workers and the court did not know or have a reason to know the [dependent] children were Indian children and that social workers had fulfilled their duty of inquiry." (In re Austin J. (2020) 47 Cal.App.5th 870, 885, overruled on other grounds by In re Dezi C. (2024)__Cal.5th__(Aug. 19, 2024, S275578) [2024 Cal.Lexis 4634, *54].)
"[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, overruled on other grounds by In re Dezi C., supra,__Cal.5th__[2024 Cal.Lexis 4634 at *54]; In re Austin J., supra, 47 Cal.App.5th at p.885 [implicit finding that social workers fulfilled their duty of inquiry and is reviewed for substantial evidence].)
B. Mother Has Failed to Show Error Warranting Reversal
Here, Mother's entire claim of error rests on the argument that the juvenile court's implied finding that social workers fulfilled their duty of inquiry under ICWA is not supported by substantial evidence. Specifically, Mother argues that the failure to interview paternal uncles and aunts violates section 224.2, subdivision (b), precluding an implied finding that social workers fulfilled their duty of inquiry under the statute and, as a result, precluding a finding that ICWA does not apply. We disagree.
As Mother and the department both acknowledge, there is a current split of authority regarding whether section 224.2, subdivision (b) might apply under the facts of this case. Under Robert F., supra, 90 Cal.App.5th 492, and cases that have followed its reasoning, section 224.2, subdivision (b) applies only when a dependent child is taken into protective custody without a warrant pursuant to section 306. (Robert F. at pp. 497, 500-504; In re Ja.O. (2023) 91 Cal.App.5th 672, 677-680 [same].) In contrast, under Delila D., supra, 93 Cal.App.5th 953, and cases that have followed its reasoning, section 224.2, subdivision (b) imposes a broad duty of inquiry in all dependency cases. (Delia D. at pp. 970-976; In re Samantha F. (2024) 99 Cal.App.5th 1062, 1067-1068, overruled on other grounds by In re Dezi C., supra,__Cal.5th__[2024 Cal.Lexis 4634 at *54]; In re Jerry R. (2023) 95 Cal.App.5th 388, 426; In re C.L. (2023) 96 Cal.App.5th 377, 387; In re L.B. (2023) 98 Cal.App.5th 512, 517-518.) The issue is currently under review by the California Supreme Court, and we see no need to add to the extensive argument and analysis already devoted to this dispute because, as we explain, the record in this case does not establish error regardless of which interpretation is adopted.
Here, it is undisputed that S.V. was taken into protective custody pursuant to a warrant. Thus, if we applied the Robert F. line of cases, the inquiry described in section 224.2, subdivision (b) simply does not apply, and merely showing that the department failed to inquire of extended family members would not be sufficient to show error warranting reversal.
In contrast, if we applied the reasoning of Delila D., the department would have a duty to inquire of extended family members under section 224.2, subdivision (b), but this conclusion would not, in itself, establish error warranting reversal. Notably, even prior to the issuance of Delila D. and the divergence of opinion regarding the circumstances under which section 224.2, subdivision (b) applies, courts grappled with an interrelated question: What is the scope of the duty imposed by section 224.2, subdivision (b)? As numerous published decisions have recognized, "complying with the literal language of [section 224.2, subdivision (b)]-that is, making an initial and further ICWA inquiry of every member of a child's extended family, . . . plus every other person who has an interest in the child-is absurd at best and impossible at worst." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1006, overruled on other grounds by In re Dezi C., supra,__Cal.5th__[2024 Cal.Lexis 4634 at *54]; In re K.H. (2022) 84 Cal.App.5th 566, 603-604 [agreeing that a literal interpretation of section 224.2, subd. (b) "could arguably lend itself to an absurd interpretation"].)
Thus, in order to avoid an interpretation of section 224.2, subdivision (b) that would produce absurd outcomes, the Court of Appeal in In re S.S. (2023) 90 Cal.App.5th 694 conducted an extensive analysis of the legislative intent behind enactment of the statute. In doing so, it identified numerous instances in which the Legislature expressed the view that the enactment of section 224.2, subdivision (b) was not intended to "significantly change the administrative work required of county agencies and caseworkers" and observed that "[n]owhere in the legislative history is there any indication that legislators anticipated or wanted [section 224.2, subdivision (b)] to require child welfare agencies . . . to embark on significantly expensive or time-consuming new investigations to find extended family members simply to ask about Indian ancestry." (In re S.S., supra, 90 Cal.App.5th at pp. 703-704.) Based upon this analysis, In re S.S. explained that "[c]ourts should not interpret [section 224.2, subdivision (b)] as creating a limitless or even a significantly burdensome new duty.... That would be contrary to the Legislature's intent." (In re S.S., at p. 704.) Instead, the juvenile court's finding that social workers fulfilled their duty of inquiry under section 224.2, subdivision (b) turns on (1) whether social workers conducted an inquiry of extended family members whom they were already investigating as part of their usual course of work (In re S.S., at pp. 704705; In re H.B. (2023) 92 Cal.App.5th 711, 720); and (2) whether the record was sufficient to support a reasonable conclusion that the inquiry "has reliably answered the question at the heart of the ICWA inquiry: Whether a child involved in a proceeding 'is or may be an Indian child.'" (In re H.B., at p. 720.)
In concluding that section 224.2, subdivision (b) represents a broad duty applicable in all cases, Delila D. cited directly to In re S.S. for the proposition that any broadened duty under the statute should not result in significant increased costs to child welfare agencies. (Delila D., supra, 93 Cal.App.5th at p. 975.) By incorporating In re S.S.'s limits on the scope of any duty imposed by section 224.2, subdivision (b), Delila D. harmonized its view of a broad duty under the statute with the express legislative history suggesting that any duty under section 224.2, subdivision (b) was not intended to add any significant increase in work for child welfare agencies or social workers. Indeed, multiple cases that have since adopted Delila D.'s reasoning to conclude that section 224.2, subdivision (b) should apply in all cases have also affirmed this corollary view that literal compliance with the statute's provisions was not part of the Legislature's intent. (See In re L.B. (2023) 98 Cal.App.5th 512, 518-519 [adopting reasoning of Delila D. but also citing to In re S.S. to explain that any expanded duty should be slight]; In re Jerry R., supra, 95 Cal.App.5th at p. 428 [adopting reasoning of Delila D., but also holding that juvenile court has broad discretion to determine whether any inquiry was sufficient under the specific facts of case].)
Thus, under Delila D., the duty imposed by section 224.2, subdivision (b) applies in all cases, but literal compliance with the statute is not required to fulfill the duty imposed by section 224.2, subdivision (b). Instead, in line with In re S.S., the party claiming error must show that social workers either failed to interview a family member that social workers were already investigating as part of their normal duties or that the totality of the efforts disclosed to the juvenile court were insufficient for the juvenile court to conclude that the question of whether a dependent child was an Indian child has been reliably answered.
Indeed, while Mother urges us to adopt the reasoning of Delila D. to conclude that section 224.2, subdivision (b) applies, Mother concedes that even under this standard, literal compliance with the statute is not required.
We observe that our Supreme Court has recently expressed similar reasoning, explaining that section 224.2 "does not require reversal in all cases in which every possible extended family member has not been asked about the child's Indian ancestry"; that "the juvenile court's fact-specific determination that an inquiry is adequate, proper, and duly diligent is 'a quintessentially discretionary function' [citation] subject to a deferential standard of review"; and"' "[o]n a well-developed record, the court has relatively broad discretion to determine whether the agency's inquiry was proper, adequate, and duly diligent on the specific facts of the case." '" (In re Dezi C., supra,__Cal.5th__[2024 Cal.Lexis 4634 at *32-*33].)
Here, the record shows that social workers made an ICWA related inquiry of the extended family members whom the Department actually investigated as part of it usual course of work. Additionally, the ICWA-020 forms signed under penalty of perjury in this case were incredibly detailed, specifically identifying each of the statutory factors that might suggest S.V. could be an Indian child and giving parents an opportunity to indicate whether they knew or suspected that any of these factors might apply. In response, Father indicated unequivocally that none of the factors applied, and reaffirmed this understanding on multiple occasions. Under the In re S.S. line of cases, this was substantial evidence upon which the juvenile court could rely to conclude that the department's efforts had reliably answered the question of S.V.'s status as an Indian child notwithstanding the fact that additional extended family members were not interviewed. (See In re E.W., supra, 91 Cal.App.5th at p. 323 ["appellants do not explain how not interviewing additional relatives . . . casts any doubt on the reliability of the answers already obtained from the parents and relatives"]; In re Rylei S. (2022) 81 Cal.App.5th 309, 323-324 [differentiating the "failure to confirm" an answer already provided by parents and family members from the failure to interview family members where no reliable information has yet been obtained].) And Mother has not suggested why these efforts were insufficient for the juvenile court to conclude that the question of S.V.'s status as an Indian child had been reliably answered.
In this regard, the ICWA-020 responses by parents are not comparable to those considered in many prior published decisions, which did not fully disclose to parents what factors might be relevant to a determination of whether their child may be an Indian child and merely solicited an equivocal response from parents that:" 'I have no Indian ancestry as far as I know.'" (See In re Austin J., supra, 47 Cal.App.5th at p. 879; In re Y.W. (2021) 70 Cal.App.5th 542, 554.)
Thus, regardless of how the current dispute between the Robert F. and Delila D. line of cases is ultimately resolved, Mother has not shown error warranting reversal in this case. Under Delila D., section 224.2, subdivision (b) applies in all cases, but the scope of any duty imposed by the statute is defined by the principles espoused in In re S.S., which gives the juvenile court discretion to determine that ICWA does not apply so long as the investigative efforts are sufficient to conclude that the question of whether S.V. was an Indian child has been reliably answered. And under Robert F., there is no duty to conduct an inquiry of extended family members in the first instance, since section 224.2, subdivision (b) does not apply when a child is taken into custody pursuant to a warrant. As such, we conclude that Mother has not met her burden to show error warranting reversal, and we need not reach the question of prejudice.
IV. DISPOSITION
The order is affirmed.
We concur: RAMIREZ P. J., McKINSTER J.