Opinion
E080235
08-31-2023
In re A.G. et al., Persons Coming Under the Juvenile Court Law. v. F.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 Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INJ2100294, Susanne S. Cho, Judge.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS, J.
INTRODUCTION
F.G. (father) appeals from the juvenile court's order terminating parental rights as to his children, Al.G., El.G., Ed.G., J.G., and Ar.G. (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 the duty of inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California statutes, particularly Welfare and Institutions Code section 224.2, subdivision (b). DPSS argues it had no duty to ask extended family members about the children's potential Indian status since the children were taken into protective custody pursuant to a warrant. (§§ 224.2, subd. (b), 340.) We agree with DPSS and affirm the order terminating parental rights.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL BACKGROUND
On October 5, 2021, DPSS received an immediate response referral. The children's mother (mother) gave birth to Ar.G. and tested positive for methamphetamine, amphetamines, and cannabis. A social worker went to the hospital and spoke with a nurse, who said father dropped mother off at the hospital and had not returned. The social worker met with mother, who said the children were currently in father's care. The social worker drove to the family home and knocked on the door for 30 minutes, until someone answered, and called the sheriff's department for assistance. They went into the home and observed dirty clothes, piles of dirty diapers, a broken wine glass, tools, and other items around the house. The social worker observed drug paraphernalia and sharp tools that were within the reach of the children and noted there was minimal food items in the refrigerator.
Mother is not a party to this appeal.
On October 8, 2021, DPSS obtained protective custody warrants (§ 340) for all five children from the Riverside County Juvenile Court. That same day, DPSS filed a section 300 petition on behalf of the children, alleging they came within the provisions of subdivision (b) (failure to protect), and Ar.G. additionally came within the provisions of subdivision (a) (serious physical harm).
The court held a detention hearing on October 12, 2021, and found father to be the presumed father of the children. Father's counsel indicated that he had no Indian heritage. Father and mother (the parents) each filed a Judicial Council Forms, form ICWA-020, stating he/she had no Indian heritage. The court found that DPSS conducted a sufficient inquiry regarding whether the children may have Indian ancestry and that ICWA did not apply to this case. The court detained the children in foster care and set a jurisdiction hearing.
The social worker filed a jurisdiction report on October 28, 2021, and indicated that the court had determined that ICWA did not apply and that no new information had been received that the children may have Indian ancestry.
The court held a jurisdiction hearing on December 7, 2021, and again found that ICWA did not apply. It sustained the petition, adjudged the children dependents of the court, removed them from the parents' custody, and ordered reunification services.
The social worker filed a six-month status review report on April 19, 2022, and recommended that the court terminate reunification services and set a section 366.26 hearing. The court held a hearing on May 9, 2022, and terminated reunification services. It again stated that ICWA did not apply.
The social worker filed a section 366.26 report and stated that on August 23, 2022, the maternal grandmother reported that the children did not have any Native American ancestry. The social worker further stated that no new information had been reported to indicate that ICWA may apply to these proceedings.
At the section 366.26 hearing held on November 8, 2022, the court terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
Under the Plain Language of Section 224.2, DPSS Was Not Required to Ask Extended Family Members About the Children's Potential Indian Ancestry
Father argues that DPSS failed to comply with the duty of initial inquiry under section 224.2 by not inquiring of extended family members about the children's potential Indian ancestry. DPSS responds that since the children were removed pursuant to a custody warrant under section 340, it had no duty to inquire of extended family members. We agree with DPSS.
"ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. [Citation.] California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes." (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.).) DPSS 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." (§ 224.2, subd. (a).) "The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry." (Ricky R., at p. 678.) We note that this case does not concern the duty of further inquiry, which arises only if the court or the department has "reason to believe that an Indian child is involved." (§ 224.2, subd. (e).)
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).) Specifically, section 224.2, subdivision (b), provides that, "[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306," DPSS's obligation includes asking the "extended family members" about the child's Indian status.
"Section 306 permits a social worker to take a child into temporary custody 'without a warrant' in emergency situations-namely, when 'the social worker has reasonable cause to believe that the child has an immediate need for medical care or is in immediate danger of physical or sexual abuse or the physical environment poses an immediate threat to the child's health or safety.'" (In re Robert F. (2023) 90 Cal.App.5th 492, 500-501 (Robert F.); see § 306, subd. (a)(2).) In contrast, section 340 authorizes the juvenile court to issue protective custody warrants when a section 300 petition has been filed and "the circumstances of [the minor's] home environment may endanger the health, person, or welfare of the minor, or whenever a dependent minor has run away from his or her court-ordered placement." (§ 340, subd. (a).) A court may also issue a protective custody warrant without a section 300 petition. (§ 340, subd. (b).) "[S]ection 340 requires neither imminent danger nor the threat of physical harm for the court to issue a warrant." (Robert F., at p. 501.)
The language of section 224.2, subdivision (b), is clear. It plainly states: "If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 . . . the county welfare department . . . has a duty to inquire whether that child is an Indian child." (§ 224, subd. (b), italics added.) As we recently explained in detail in Robert F., the legislative history supports the view that the Legislature intended to apply section 224.2, subdivision (b), narrowly. (See Robert F., supra, 90 Cal.App.5th at pp. 500-504.) "The Legislature intended to impose a duty to question extended family members if the child was placed into the county welfare department's temporary custody under section 306." (Id. at p. 500.)
In this case, it is undisputed that the children were not placed into DPSS's temporary custody "pursuant to Section 306." (§ 224.2, subd. (b).) Rather, DPSS obtained protective custody warrants from the juvenile court under section 340. Section 306 played no role in this removal. Thus, as DPSS asserts, the expanded duty of initial inquiry under section 224.2, subdivision (b), does not apply. (Robert F., supra, 90 Cal.App.5th at p. 504; see In re Adrian L. (2022) 86 Cal.App.5th 342, 355-357 (conc. opn. of Kelley, J.).) As a result, father's argument that DPSS violated its duty of initial inquiry under section 224.2, subdivision (b), lacks merit.
In his reply brief, father argues that DPSS urges this court to follow Justice Kelley's concurring opinion in In re Adrian L., but "ignores that this Court, along with the First and Second Appellate Districts have previously agreed the continuing duty of inquiry under section 224.2, subdivision (a) includes asking all relevant individuals about a child's possible Indian status." (Italics added.) As in Robert F., "[w]e emphasize that nothing in this opinion is intended to limit DPSS's or the court's duty of inquiry prescribed by subdivisions (a) and (c) of section 224.2. [T]hose subdivisions describe the duty of inquiry that arises in every dependency case. But the plain language of those subdivisions does not require the county welfare department or the court to question extended family members as part of the initial inquiry in every case. And although casespecific circumstances may require the department to interview extended family members under one of those subdivisions, [Father] has not identified any such circumstances here." (Robert F., supra, 90 Cal.App.5th at pp. 503-504.) Moreover, it is undisputed that DPSS had a continuing duty of inquiry under section 224.2, subdivision (a); however, the specific issue in this case is whether DPSS had a duty under section 224.2, subdivision (b), to inquire of extended relatives. The legislative intent to limit the application of section 224, subdivision (b), is further made clear by the Legislature's inclusion of subdivision (e) within section 224.2. Similar to section 224.2, subdivision (b), section 224.2, subdivision (e), requires further inquiry, which includes interviewing extended relatives, but only when there is "reason to believe" a child may be an Indian child. (§ 224.2, subd. (e)(2).) If the Legislature intended to simply require an expanded duty of inquiry in every case, it would have said so.
We note that our recent opinion in Robert F. was not published at the time DPSS submitted its briefing, but it follows the reasoning in In re Adrian L. (See Robert F., supra, 90 Cal.App.5th at pp. 500-504.)
In support of father's argument, he cites In re S.R. (2021) 64 Cal.App.5th 303, 314, In re S.H. (2022) 82 Cal.App.5th 166, 173-177, In re Rylei S. (2022) 81 Cal.App.5th 309, 316, and In re Charles W. (2021) 66 Cal.App.5th 483, 489. However, none of these cases address the issue of whether an agency has a duty under section 224.2, subdivision (b), to inquire of extended relatives.
In sum, we conclude that section 224.2, subdivision (b), "requires a county welfare department to ask extended family members about a child's Indian status only if the department has taken the child into temporary custody under section 306." (Robert F., supra, 90 Cal.App.5th at p. 504.) Because section 306 played no role in the children's removal here, subdivision (b) of section 224.2 does not apply.
Our colleague has filed a dissent, stating that he would follow In re Delila D. (2023) 93 Cal.App.5th 953. We address the issues presented in Delila D. in our recent opinions, including In re Andres R. (Aug. 23, 2023, E079972)Cal.App.5th [pp. 20-41], In re Robert F. (2023) 90 Cal.App.5th 492, 500-504, review granted July 26, 2023, S279743, and In re Ja.O. (2023) 91 Cal.App.5th 672, 679680, review granted July 26, 2023, S280572. We continue to agree with those holdings and see no reason to repeat our discussions.
DISPOSITION
The order terminating parental rights is affirmed.
I concur: CODRINGTON Acting P. J.
RAPHAEL, J., Dissenting.
I respectfully dissent, as I would follow rule 5.481(a)(1) of the California Rules of Court, and In re Delila D. (2023) 93 Cal.App.5th 953, which read the dependency statutes as requiring inquiry of readily available extended family as to whether a child is Indian in every case where a child has been removed from parents. I would not read the law to exclude from that duty cases, such as this one, where the child was removed with a warrant.