Opinion
G062938
03-07-2024
In re J.P., a Person Coming Under the Juvenile Court Law. v. M.P., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP021808-002 Julie Swain, Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
GOETHALS, ACTING P. J.
In this juvenile dependency appeal, M.P. (Mother) appeals from an order terminating her parental rights as to her 12-year-old son, J.P. Mother's sole contention is that the Orange County Social Services Agency (the Agency) failed to ask extended relatives whether J.P. is or may be an Indian child and therefore failed to conduct a proper initial inquiry as required by the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
Because ICWA and related California statutes use the term "Indian," we do so for the sake of consistency, while we acknowledge other terms are preferred.
The Agency concedes there is no evidence it attempted to ask extended family members about possible Indian ancestry, but it asserts the duty of initial inquiry does not apply to extended family in cases, like this one, where the child was never in temporary custody under Welfare and Institutions Code section 306, but rather was taken into protective custody via a warrant. We agree and therefore affirm.
All further undesignated statutory references are to this code.
FACTS
Given the limited issues raised on appeal, we provide only a brief summary of this case.
J.P. and his siblings were the subject of a previous dependency case from 2011 to 2014. The juvenile court in that case found ICWA did not apply.
In 2018, Mother left J.P. and his siblings with their maternal grandparents. In November 2019, the children came to the Agency's attention again because of their unsanitary state and the filthy condition of their residence.
Social workers obtained a protective custody warrant for the removal of children. Together with Santa Ana police, the social workers presented the warrant to the children's maternal grandmother and took the children into protective custody. The Agency then filed a petition alleging J.P. and his siblings came within the provisions of section 300, subdivisions (b)(1), (g), and (j) (risk of serious physical harm or illness, failure to support, and sibling abuse or neglect).
Mother was present in court for the detention hearing a few days later but left before the case was called. J.P.'s presumed father and alleged father (Fathers) did not appear, and their whereabouts have remained unknown for the duration of the case. J.P. was detained pending further proceedings. The juvenile court noted the
J.P.'s Fathers are not parties to this appeal.
ICWA finding from J.P.'s prior dependency and asked the parties for information that might indicate ICWA applied; none was offered. The court also was in receipt of Mother's Parental Notification of Indian Status form, in which Mother denied any known Indian ancestry. The court therefore found ICWA was inapplicable. The record contains few references to ICWA after that.
The status report prepared for J.P.'s July 2022 postpermanency review hearing stated there were "no new relative[s] who have come to light that could provide further information as to the youth's ICWA status." In December 2022, J.P. (then age 11) denied any knowledge of new information as to Indian ancestry or heritage. And at an unreported hearing in February 2023, the court directed the Agency "to continue ICWA inquiry and provide [an] update" in March, but the minute order from the March hearing does not reflect any such discussion of ICWA.
J.P. was placed in a prospective adoptive home in 2022. He adjusted well and expressed a desire to be adopted.
The section 366.26 hearing went forward in July 2023, and the juvenile court terminated the parental rights of Mother and Fathers. Mother filed a notice of appeal.
DISCUSSION
Mother raises only one issue in this appeal: the Agency failed to make a proper initial inquiry as to whether J.P. is or may be an Indian child as required by ICWA. Before addressing her argument, we provide some additional background on ICWA.
Congress enacted ICWA to address rising concerns in the mid-1970's regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) An "'Indian child'" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); § 224.1, subd. (b).)
Under California law adopted pursuant to ICWA, whenever a section 300 petition is filed, both the juvenile court and the county child welfare agency have an "affirmative and continuing duty" to inquire whether the child is or may be an Indian child. That duty begins with the "initial contact" and includes asking the party reporting abuse or neglect if they have any information that the child may be an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rules 5.481(a), 5.668(c).) "At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).)
As is relevant here, if a child is placed in the agency's temporary custody pursuant to section 306, the agency must also ask the child, the parents, and "extended family members," including the child's grandparents, aunts, and uncles, about possible Indian ancestry. (§ 224.2, subd. (b) (section 224.2(b)) [italics added]; see 25 U.S.C. § 1903(2) &§ 224.1, subd. (c) [defining '"extended family member"' and '"parent"'].)
The initial inquiry process may trigger a duty of further inquiry based on the information obtained at that initial step. If the juvenile court or social worker "has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court [or the] social worker . . . shall make further inquiry . . . as soon as practicable." (§ 224.2, subd. (e); see id., subd. (e)(1) [defining "reason to believe"].) "[F]urther inquiry" includes actions like "[i]nterviewing the parents, Indian custodian, and extended family members," "[c]ontacting the Bureau of Indian Affairs and the State Department of Social Services for assistance" in identifying contact information of relevant tribes, and contacting the tribe or any other person who may have information regarding the child's tribal membership or eligibility. (Id., subd. (e)(2)(A) &(B).)
"[T]he point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child [is] to obtain information the parent may not have." (In re Y.W. (2021) 70 Cal.App.5th 542, 556; see, e.g., In re S.R. (2021) 64 Cal.App.5th 303, 314 ["the children's parents apparently had no idea of their family's connection to the Yaqui tribe of Arizona, even though the children's great-grandmother was a member and still lived with the grandparents in Colorado"].)
"[W]here the [juvenile] court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe . . . of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); § 224.3, subd. (a).) Conversely, "[i]f the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence." (§ 224.2, subd. (i)(2).)
Mother contends the Agency failed to make a proper initial inquiry as to whether J.P. is or may be an Indian child as required by ICWA. She acknowledges that the juvenile court in J.P.'s previous dependency case found in 2012 that ICWA did not apply to him, but asserts that in the present case, the Agency should have made inquiries to J.P.'s extended family members-specifically, his maternal grandparents and maternal aunt. Because the Agency failed to satisfy its duty of initial inquiry, Mother contends the juvenile court's order must be reversed.
The Agency concedes there is no evidence that it attempted to ask those maternal family members about possible Indian ancestry prior to the termination order, but asserts that under the circumstances of this case, its duty of inquiry did not extend to J.P.'s extended family members. According to the Agency, the duty to inquire of extended family members arises only when children are in temporary custody under section 306, not to children taken into protective custody via a warrant. In support, the Agency relies on section 224.2(b): "If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307, the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (Italics added.)
The parties acknowledge there is presently a split between California appellate courts on whether section 224.2(b) limits the duty of inquiry as to extended family members to cases where a minor is taken into protective custody without a warrant, and the question is currently pending before the California Supreme Court. Some appellate courts have found the statutory language means an agency has no initial duty to ask extended family members about possible Indian ancestry unless the child was taken into temporary custody under section 306. (See, e.g., In re Andres R. (2023) 94 Cal.App.5th 828, review granted Nov. 15, 2013, S282054 (Andres R.); In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572 (Ja.O.); In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743 (Robert F.); see also In re Adrian L. (2022) 86 Cal.App.5th 342, 355-358 (conc. opn. of Kelley, J.) (Adrian L.).) Other courts have found that reading to be contrary to the legislative intent of section 224.2(b) and have concluded the duty of initial inquiry applies regardless of how the child is removed from the home. (See, e.g., In re Samantha F. (Feb. 22, 2024, E080888) Cal.App.5th ; In re L.B. (2023) 98 Cal.App.5th 512, 517; In re C.L. (2023) 96 Cal.App.5th 377; In re Jerry R. (2023) 95 Cal.App.5th 388; In re V.C. (2023) 95 Cal.App.5th 251; In re Delila D. (2023) 93 Cal.App.5th 953, review granted Sept. 27, 2023, S281447.)
The split includes conflicting views on the enforceability of California Rules of Court, rule 5.481(a)(1). (Andres R., supra, 94 Cal.App.5th at pp. 853-854 [reasoning rule should be '"disapproved"' as contrary to the legislative intent expressed by section 224.2(b)].) Rule 5.481(a)(1) states in relevant part that "[t]he party seeking a . . . declaration freeing a child from the custody or control of one or both parents, termination of parental rights . . . 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 ...."
We agree with the statutory analysis of the former set of cases and conclude section 224.2(b)'s initial inquiry obligation as to extended family is only triggered if, as the statute expressly states, the child is placed in temporary custody under section 306 (or 307). (See, e.g., Robert F., supra, 90 Cal.App.5th at pp. 501-503, rev.gr.) We also agree that "[p]lacing a child into 'temporary custody of a county welfare department pursuant to [section] 306' is fundamentally different from taking a child into 'protective custody' under section 340. Beyond the obvious feature that one process requires a court order and the other does not, these provisions are found in entirely different articles of the juvenile law." (Adrian L., supra, 86 Cal.App.5th at p. 357 (conc. opn. of Kelley, J.).)
Rule 5.481(a)(1) of the California Rules of Court cannot compel a different result because it was promulgated based on section 224.2(b), which itself has conflicting language. (In re Andres R., supra, 94 Cal.App.5th at pp. 853-854.)
Because J.P. was taken into protective custody by a warrant in this case, and not taken into temporary custody under section 306, section 224.2(b) did not impose a duty of initial inquiry as to J.P.'s extended family. We therefore find no ICWA error.
DISPOSITION
The order terminating Mother's parental rights is affirmed.
WE CONCUR: MOTOIKE J., GOODING, J.