Opinion
E080326
08-23-2023
In re E.J., et al. Persons Coming Under the Juvenile Court Law. v. L.M., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIJ101025 Michael J. Rushton, Judge. Affirmed with directions.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
In this appeal from the juvenile court's jurisdictional and dispositional findings and orders, defendant and appellant L.M. (mother) contends only that plaintiff and respondent Riverside County Department of Public Social Services (the department) violated its duty of initial inquiry imposed by state statutory provisions implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
The department apparently has not asked anyone but mother about the children's Indian heritage as part of its initial ICWA inquiry but contends this was not reversible error. We agree with the department due to the stage of this case at the time that this appeal was taken. (See In re Dominick D. (2022) 82 Cal.App.5th 560, 563, 567 (Dominick D.).) Accordingly, we affirm.
"[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.).)
BACKGROUND
This dependency concerns mother's children E.J. and I.M. It is unclear who the father or fathers of the children are. Mother was married to P.J. when both children were born, and the petition and other documents allege P.J. is E.J.'s father. However, mother told the court P.P. was the father of both children. Ultimately, the court designated P.P. the alleged father of both children, and P.J. the legal father of both children.
In June 2022, the department received referrals alleging mother was suffering from severe mental health issues, had unstable or nonexistent housing, had a history of abusing substances, and generally neglected her children. That same month mother denied any Indian heritage. She was unable to provide any information about P.P. or P.J.'s potential Indian heritage.
In September 2022, the department filed a dependency petition under Welfare and Institutions Code section 300, subdivisions (b) and (g). The department attached forms to the petition attesting it asked mother about the children's potential Indian heritage, and that she did not give the department any reason to believe they had Indian heritage. At the detention hearing, the court found no reason to know either child was an Indian child.
Undesignated statutory references are to the Welfare and Institutions Code.
In October 2022, the department was able to locate P.J. They spoke to both paternal grandmother and P.J. himself. They did not ask about any potential Indian heritage.
In November 2022, the department spoke to maternal grandmother but did not ask her about the children's potential Indian heritage. That same month a maternal uncle was denied for relative placement.
The court held a contested jurisdiction and disposition hearing in December 2022. Neither P.J. nor P.P. appeared for the hearing. The court asked mother whether she had Indian heritage, and she told the court she did not but could not speak to P.P.'s Indian heritage. The court then found the department "conducted a sufficient inquiry regarding whether the children . . . may have Indian ancestry," and "ICWA does not apply." It also found the allegations in the amended petition true and removed the children from mother.
Mother insisted P.P. was the father of both children, which is likely why she did not comment about P.J.'s potential Indian heritage.
Mother appealed the jurisdictional and dispositional orders.
ANALYSIS
Mother argues the department and the juvenile court did not comply with their duty of initial inquiry under ICWA. The department concedes it did not but argues that this error does not warrant reversal of the jurisdictional and dispositional orders. We agree with the department.
Under California law, the juvenile court and county child welfare department have "an affirmative and continuing duty to inquire" whether a child subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566.) "This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F., at p. 566.)
The department generally has an initial duty to inquire into whether a child is an Indian child. (In re J.S. (2021) 62 Cal.App.5th 678, 686 (J.S.); see § 224.2, subd. (b).) " 'The child welfare department's initial duty of inquiry includes "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." '" (J.S., at p. 686; see § 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The department argues that under this court's holding in In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743, they did not have a duty of initial inquiry in this case because the children were removed pursuant to a protective custody warrant. However, another panel of our court has recently disagreed with Robert F. and concluded that the department always has a duty of initial inquiry regardless of how the minors are initially removed. (See In re Delila D. (2023) 93 Cal.App.5th 953.) We need not take a side in this split, as doing so is not dispositive in this case.
The law requires further inquiry only" 'when "the court, social worker, or probation officer has reason to believe that an Indian child is involved [or, under Cal. Rules of Court, rule 5.481(a)(4), 'may be involved'] in a proceeding...." '" (J.S., supra, 62 Cal.App.5th at p. 686 .) In short, "[i]f the initial inquiry gives the juvenile court or the agency 'reason to believe' that an Indian child is involved, then the juvenile court and the agency have a duty to conduct 'further inquiry' [citation], and if the court or the agency has 'reason to know' an Indian child is involved, ICWA notices must be sent to the relevant tribes." (Benjamin M., supra, 70 Cal.App.5th at p. 742.)
The department has apparently not asked anybody other than mother about her children's potential Indian heritage, despite it actually contacting maternal grandmother, paternal grandmother, one of the alleged fathers, and a maternal uncle. Given this, the department concedes it has not conducted a sufficient initial inquiry. Therefore, we agree with both mother and the department that to conduct a sufficient inquiry the department must at least ask the family members it has already identified and contacted about the children's potential Indian heritage. The department must also either inquire of P.P. or demonstrate that they could not do so. These inquiries are the floor, not the ceiling, for a proper inquiry-and there may be other readily available extended family members who might have information about the children's potential Indian heritage.
Nevertheless, as this court has previously noted, "ICWA inquiry and notice errors do not warrant reversal of the juvenile court's jurisdictional or dispositional findings and orders other than the ICWA finding itself." (Dominick D., supra, 82 Cal.App.5th at pp. 567, 563.) Because the jurisdictional and dispositional findings must be affirmed, and this dependency case will be ongoing until disposition, with an "affirmative and continuing" duty to comply with ICWA under section 224.2, subdivision (a), we will simply remand with directions to the juvenile court and department to do so through the end of the case. Compliance would stave off an ICWA error that would be reversible at that time.
DISPOSITION
We direct the juvenile court to order the department to comply with its inquiry and (if applicable) notice obligations under ICWA and related California law. In all other respects, we affirm the dispositional findings and orders.
We concur: McKINSTER Acting P. J. MILLER J.