Opinion
E081037
10-25-2023
In re M.T., a Person Coming Under the Juvenile Court Law. v. M.T. et al., Defendants and Appellants. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant M.T. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant G.G. Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIJ2000641, Dorothy McLaughlin, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant M.T.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant G.G.
Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
M.T. (Father) and G.G. (Mother) appeal from the juvenile court's order terminating parental rights as to their 13-year-old son M.T. Father contends, and Mother joins in the argument, that the juvenile court erred in failing to apply the beneficial parental relationship exception to the termination of parental rights (Welf. &Inst. Code, § 366.26, subd. (c)(1)(B)(i)). The parents also argue that the juvenile court and the Riverside County Department of Public Social Services (DPSS) failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state law, and therefore substantial evidence did not support the court's finding ICWA did not apply. For the reasons explained, we affirm the order terminating parental rights.
All future statutory references are to the Welfare and Institutions Code.
"[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.)
II. FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of DPSS on October 16, 2020, after an immediate response referral was received with allegations of physical abuse and general neglect. A concerned citizen had found then 10-year-old M.T. walking down a street and contacted law enforcement. M.T. disclosed that he ran away from home because Father was going to beat him with a belt or an extension cord for doing something incorrectly. M.T. had a bruise on his left elbow and significant bruising on his body, arm, torso, and leg reportedly from Father hitting M.T. with an extension cord four days earlier after Father's girlfriend got mad at M.T. and told Father. M.T. stated that he felt "'afraid, painful,'" and was crying, begging Father to stop hitting him with the extension cord and promising to do better. Father replied that he did not care.
M.T. lived with Father, Father's girlfriend, the girlfriend's four children, and M.T.'s four-month-old half sister in a one bedroom, one bathroom converted garage. M.T. lived with Father on a full-time basis, and reported that he had not seen his mother in over a year and did not know her whereabouts. M.T. noted that his relationship with Father was "sometimes good," and he did not recall any "happy times" between him and Father. M.T. had a better relationship with his paternal uncle than Father.
If M.T. did not complete a chore correctly or pay attention to the girlfriend, the girlfriend would tell Father and Father would hit him. Father began spanking M.T. with his hand when he was five or six years old. Around the age of eight or nine, Father began to hit M.T. with a belt or kicked him. About a month earlier, Father grabbed the back of M.T.'s shirt collar, screamed at him while lifting him off the ground by his collar, and choked him after M.T.'s mopping was not good enough. M.T. stated that Father hit him in the face and kicked him on the side more than one time. M.T. did not feel safe in the home and wanted to attend counseling. A medical examination of M.T. revealed that he had multiple areas of bruising and healing, and loop-pattern lacerations consistent with being struck with a cord. The marks and bruises were found on the inside of M.T.'s left arm, the front and back of both legs, and on his buttock. There were also cord marks and hyperpigmentation.
While the social worker was interviewing Father, the police investigator stopped the interview stating that he needed to discuss the allegations further with Father. A short time later, Father was arrested for felony corporal punishment and transported to jail.Father requested that the paternal uncle, who was present at the police station, take custody of M.T. M.T. stated that he felt comfortable and safe with the paternal uncle, and he was released to his care.
Father was eventually granted formal probation, which would expire on September 20, 2025, for inflicting injury on M.T.
On October 18, 2020, M.T. was placed into protective custody via a protective custody warrant pursuant to section 340. He was placed in a foster home because the paternal uncle was unable to pass for emergency placement due to a prior child welfare history and criminal issues. The social worker had contacted a paternal cousin about possible placement of M.T. in her care, however the cousin reported that M.T. did not know her and declined consideration at that time.
On October 20, 2020, a petition was filed on behalf of M.T. pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support). The petition was later amended several times. According to the Judicial Council ICWA-010(A) inquiry form attached to the petition, Father was asked about M.T.'s Native American heritage, and Father gave no reason to believe that M.T. is or may be an Indian child. On October 16, 2020, Father denied any known Indian ancestry. Mother's whereabouts were unknown, thus a statement from her regarding Indian ancestry was unavailable.
On October 21, 2020, Father filed a Judicial Council ICWA-020 Parental Notification of Indian Status form (ICWA-020) indicating he had no Native American ancestry.
At the October 21, 2020, detention hearing, Father was present in court, but Mother was not. The juvenile court recalled and quashed the previously issued protective custody warrant and formally detained M.T. from parental custody. The court noted that it had Father's ICWA-020 form where he indicated that he was unaware of any Indian ancestry. The court, however, did not personally inquire of Father as to his Native American heritage. The court also found that DPSS had conducted a sufficient ICWA inquiry and ICWA did not apply to the proceedings.
On November 2, 2020, Father again denied having any Native American ancestry and stated he was born in Mexico. He noted that he came to the United States in 2007. He was one of eight children, but only one brother was in the United States. Other than the paternal uncle, Father denied having any additional family in the United States. Father stated Mother was also from Mexico and that he did not have contact with extended maternal family members.
On November 17, 2020, Mother contacted the social worker by phone and provided her contact information and current address. Mother denied having any Native American ancestry. She stated that she was born in Honduras and came to the United States 22 years earlier. She began abusing methamphetamine at the age of 12 and had failed to address her addiction. She was residing with a sister-in-law and her cousins. She reported that Father had stopped allowing her to visit with M.T. about a year ago and had filed a restraining order against her due to domestic violence.
M.T. did not want to speak with Mother by phone and stated he did not feel safe visiting with her in-person. The last time M.T. had visited Mother was about a year ago, and she had given M.T. a black eye when she hit him in anger. M.T. only wanted to visit with his father and baby sister but indicated "there is nothing good about his family and [he] does not desire to reunify with the father, due to the abuse he suffered." M.T. later participated in some phone calls with Mother. Father stated he was very regretful of what happened and indicated that he would work hard to participate in all services to reunify with his family. In that regard, Father enrolled in his pre-dispositional services and regularly visited M.T. Father had moved out of the family home and was staying in his car.
On November 30, 2020, the social worker contacted a maternal aunt regarding placement of M.T. She provided the necessary information for her and her husband to complete an assessment, and on December 1, 2020, M.T. was placed with the maternal aunt and uncle.
Mother made her first appearance before the juvenile court at a hearing held on December 4, 2020. At that time, Mother's counsel informed the court that, after speaking with Mother, she indicated she did not believe either she or M.T. had Native American ancestry. The court did not personally inquire of Mother as to her Indian heritage. Mother filed an ICWA-020 form, indicating that none of the Indian status options on the form applied.
The contested jurisdictional/dispositional hearing was held on December 22, 2020. Both parents were present in court. The juvenile court found true the section 300, subdivision (b) allegations in the third amended petition; the subdivision (a) and (g) allegations were stricken. M.T. was adjudged a dependent of the court and the parents were provided with reunification services. The court found that DPSS had conducted a sufficient ICWA inquiry and that ICWA did not apply.
On April 15, 2021, Father again denied having any Native American ancestry.
The social worker was unable to conduct a further ICWA inquiry of Mother because she failed to contact DPSS during the six-month reporting period and failed to participate in her case plan services. Father continued to participate in his case plan services. He had completed his anger management classes and parenting education program, and regularly tested negative for all substances. Father also consistently visited M.T. twice a week for one hour. He was appropriate with M.T. during the visits, and M.T. enjoyed spending time with Father. Father would bring snack and drinks and usually play soccer with M.T.
The six-month review hearing was held on June 8, 2021. Both parents were present in court. The juvenile court found ICWA did not apply to M.T., that DPSS had conducted a sufficient ICWA inquiry, and there was no new information to indicate ICWA may now apply. The court continued reunification services for the parents.
On July 12, 2021, Father again denied having any Native American ancestry. On September 9, 2021, Mother denied having any Native American ancestry. Mother made little effort to communicate with DPSS and minimally participated in her case plan services. Although she had completed the parenting and domestic violence component of her case plan, she had not completed any drug tests for DPSS or a substance abuse program. Mother also made no effort to have visits with M.T., and the last time she visited or had any contact with M.T. was in March 2021. Father continued to participate in his services and visit M.T. once a week for two hours. He had missed a couple of visits due to schedule conflicts, but the maternal aunt was always willing to reschedule and work with Father. M.T. stated that he liked visits with Father and "feels okay when he visits," but he did not want to return to his house because of Father's girlfriend. The social worker discussed a permanent plan with M.T. He stated he wanted to stay with his maternal aunt because he felt safe in her care. When the social worker explained to M.T. about legal guardianship and adoption, M.T. asserted that he wanted to be adopted.
The 12-month review hearing was held on December 7, 2021. Both parents were present in court. The juvenile court found ICWA did not apply, DPSS had made a sufficient ICWA inquiry, and there was no new information to indicate that ICWA may now apply. The court continued services for Father but terminated Mother's reunification services.
Mother continued to not make any attempts to visit with M.T. Father continued to consistently visit M.T. once a week for six hours on the weekend, and was authorized to spend the holidays with M.T. Although M.T. stated that he felt good about spending time with his father, DPSS reported that the prognosis of returning M.T. to Father's home was poor. Father was unable to complete conjoint therapy with M.T. because it was difficult to find a provider that would accommodate an earlier session that would be easier for M.T. Moreover, M.T. did not want to live with Father because he did not feel safe in Father's home and still did not feel comfortable with Father's girlfriend. M.T. reported that Father's girlfriend often appeared in a "bad mood" and was "always" yelling at her children. M.T. enjoyed spending time with Father but did not want to spend the night in Father's home. Father continued to defend his girlfriend and did not believe his girlfriend was doing anything wrong and informed M.T. that his girlfriend "would not cause any more problems." Meanwhile, M.T. flourished developmentally, emotionally, and educationally in the care of his maternal aunt where he had remained since December 2020. M.T.'s grades and emotional well-being improved, and his aunt provided M.T. with security, safety, and stability. DPSS recommended that Father's services be terminated.
The 18-month review hearing was held on April 4, 2022. Father was present in court, Mother was not. The juvenile court found ICWA did not apply, DPSS made a sufficient ICWA inquiry, and that there was no new information to indicate ICWA may now apply. The court thereafter terminated Father's reunification services, finding the statutory limit on the provisions of services had ended, and ordered M.T.'s case plan to be modified to include conjoint counseling with Father as deemed appropriate. The court denied DPSS's request to reduce Father's visits, and they remained supervised, once a week.
The maternal aunt denied having Native American ancestry on June 10, August 17, and October 31, 2022. On November 14, 2022, M.T. denied having Native American ancestry. Father denied having any Native American ancestry once again on January 17, 2023, and again stated that he was born in Mexico. The social worker was unable to further inquire of Mother as to her Native American ancestry as she did not make herself available to DPSS.
In July 2022, the social worker was informed that M.T. would have to start individual therapy, and, if the assigned therapist believed it was in the child's best interest, then M.T. and Father would start conjoint therapy. In August 2022, M.T. expressed to his maternal aunt that he wanted to return to his father because Father had informed M.T. that Father moved to a bigger home and M.T. would get his own room. On August 31, 2022, the social worker learned that M.T. was linked with a counseling center so he could receive mental health services. The counseling center subsequently informed the caregiver that they did not provide conjoint therapy and was advised they could only provide individual therapy. However, M.T. did not want to participate in counseling because he already completed counseling. The social worker was advised that family therapy was only provided with private insurance and not for Medi-Cal clients.
On October 31, 2022, the social worker discussed with both M.T. and the maternal aunt the permanent plan for M.T. The social worker asked M.T. what his wishes would be and where he wanted to live on a permanent basis. M.T. responded that he loved Father, but he felt safe with his maternal aunt and her family. The social worker asked M.T. if he felt safe with Father, and he responded that Father was fine but he did not feel safe with Father's girlfriend. The social worker asked M.T. what he would like to do, and he replied, "'Be adopted.'" M.T. stated again on November 14, 2022, that he wanted to stay with the maternal aunt and he would like to be adopted by the maternal aunt. The social worker asked about Mother, and M.T. stated that he had not had a visit or talked to her in over a year. The maternal aunt believed Mother was in jail.
At a hearing on December 1, 2022, the juvenile court asked each participant whether the participant knew or had reason to know the child was an Indian child. The court asked Father if he was aware of having any Native American heritage in his background, and Father responded, "'No.'" Mother was not present in court. The court found that a sufficient ICWA inquiry had been made and there was no new information to indicate ICWA may now apply.
Father continued to live with his girlfriend, the girlfriend's children from another relationship, and M.T.'s half sibling. Father continued to visit M.T. once a week. Father missed some visits, but he would call to reschedule the visits with the maternal aunt, who worked with Father to accommodate his visits.
On February 2, 2023, the trial court again found that ICWA did not apply as to M.T.
The maternal aunt and uncle were not willing to enter into a formal post adoption agreement with the birth parents or relatives but expressed their willingness to maintain regular contact between M.T., Father, and M.T.'s half sister, as they wished to continue the connection when in the best interest of M.T.'s safety and well-being. The maternal aunt expressed concerns with Mother's life choices regarding her use of controlled substances. The maternal aunt and uncle noted their willingness to have the parents remain a part of M.T.'s life, when appropriate, as well as witness major life milestones.
Although they were assuming the primary caretaking role for M.T., they asserted that their roles of aunt and uncle would remain intact as they wished for M.T. to continue to have a relationship with Mother and Father. The maternal aunt and uncle noted that their primary role of adopting M.T. was not to take the parenting roles from the biological parents but provide stability and appropriate care to M.T.'s physical and emotional wellbeing.
On March 22, 2023, M.T. was observed to be comfortable and attached with the maternal aunt and uncle and their family. He was calm and engaged with them and their biological children who were also M.T.'s cousins. M.T. responded to his maternal aunt and uncle with a smile and appeared comfortable in their presence. M.T. voiced an age-appropriate understanding of the legal ramifications of adoption, as well as the lifelong commitment the maternal aunt and uncle were making. The social worker noted, "Miguel reported with a smile on his face that he felt 'good' about his prospective adoptive parents pursing adoption for him." M.T. described feeling comfortable in his maternal aunt and uncle's household, stating that he felt "'good'" living with his cousins. M.T. was made aware that, due to his age, he was entitled to choose or not choose adoption as his permanent plan. M.T. replied that he wished to be adopted by his maternal aunt and uncle.
Father continued to be consistent with visiting M.T. once a week, supervised by the maternal aunt. The maternal aunt reported the visits went well and she worked with Father's schedule. M.T. expressed he would like the visits to continue with Father, and the maternal aunt expressed to him she had no intentions of stopping his visits as long as M.T. felt safe. M.T. had not visited Mother in over a year and had no interest in visiting with her.
The section 366.26 hearing was held on April 3, 2023. Father was present in court, but Mother was not. Father requested legal guardianship for M.T. rather than adoption, if the court did not find the parental-beneficial relationship exception did not apply. The juvenile court found no exceptions to the termination of parental rights and terminated parental rights. The parents timely appealed.
III. DISCUSSION
A. Beneficial Parental Relationship Exception
Father contends the juvenile court erred in finding that the beneficial parental relationship exception did not apply to the termination of his parental rights because the record indicates M.T. had "a significant and meaningful relationship with father that was detrimental to terminate." Mother joins in the relevant issues presented by Father. We conclude the juvenile court did not err in finding the exception inapplicable.
"At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for a dependent child." (In re C.P. (2023) 91 Cal.App.5th 145, 153; § 366.26, subd. (b) [at a hearing under section 366.26, court must select and implement a permanent plan for a dependent child, with the express purpose of providing the child a "stable, permanent" home].) "In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption . . .; (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care." (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) "If a child is adoptable, there is a strong preference for adoption over the alternative permanent plans." (In re Collin E. (2018) 25 Cal.App.5th 647, 663 (Collin E.).) Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1).)
"'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' [Citation.] 'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.'" (Celine R., supra, 31 Cal.4th at p. 53.)
"If the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)." (Collin E., supra, 25 Cal.App.5th at p. 663.) The statutory exceptions to the termination of parental rights and adoption "merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Celine R., supra, 31 Cal.4th at p. 53, italics omitted.)
The parental benefit exception "is limited in scope. It applies where '[t]he court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child'" because "'(i) [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)" (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
To establish that the parental benefit exception applies, a parent must prove three elements by a preponderance of the evidence: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Ibid., italics omitted; see In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [proof that an exception to adoption applies must be made by a preponderance of the evidence].) Section 366.26 does not require a juvenile court to make express factual findings in determining that the parental benefit exception does not apply. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156; see Cal. Rules of Court, rule 5.725(d); Therolf v. Superior Court (2022) 80 Cal.App.5th 308, 324.)
We review the juvenile court's findings as to the first two elements-whether the parent has maintained regular visitation with the child and whether the child has a beneficial relationship with the parent-for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We review the third element-whether termination of parental rights would be detrimental to the child due to the child's relationship with the parent-for abuse of discretion. (Id. at p. 640.) The reviewing court will find an abuse of discretion "only when '"'the [juvenile] court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"'" (Id. at p. 641.)
Father claims he proved the first element of the parental benefit exception by showing he maintained regular visitation and contact with M.T. We agree. "The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632.) Although Father missed some scheduled visits with M.T., the record shows Father consistently visited M.T. to the extent he was permitted to do so by the court's visitation orders and frequently rescheduled visits with M.T. when he missed the scheduled visits.
Father claims he also proved the second element: that he had a relationship with M.T., and M.T. would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at pp. 631-632.) To prove the second element, "the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship." (Id. at p. 636.) A parent-child relationship may be "shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Id. at p. 632.) Father proved the second element. M.T. was comfortable with Father during visits and enjoyed his visits with Father. Father would play soccer with M.T. at a park near his maternal aunt's home and would bring snacks and drink for M.T. Thus, Father proved the second element that M.T. had a substantial, positive emotional attachment to Father, and M.T. would benefit from continuing his relationship with Father.
Father, however, did not prove the third element of the parental benefit exception. He did not show that terminating parental rights to M.T., and M.T.'s relationship with Father, would be detrimental to M.T. due to the resulting termination of the parent-child relationship. (Caden C., supra, 11 Cal.5th at pp. 631, 633 [courts must assume that terminating parental rights terminates the parent's relationship with the child].) "What courts need to determine [in assessing the third element] is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Id. at p. 633.)
"'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[ ]' the child, the court should not terminate parental rights. [Citation.] That subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]' [Citation.] When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent. (§ 366.26, subd. (c)(1)(B)(i), italics added.)" (Caden C., supra, 11 Cal.5th at pp. 633-634.)
In finding that terminating parental rights (and his relationship with Father) would not be detrimental to M.T., because none of the exceptions to adoption applied, the juvenile court implicitly and reasonably determined that M.T. would benefit more from adoption than M.T. would suffer or be harmed by the loss of his relationship with Father. (Caden C., supra, 11 Cal.5th at p. 633.) At the time of the section 366.26 hearing, M.T. was 13 years old and had been out of Father's care since October 2020, almost three years, since he was 10 years old. M.T. was flourishing in his maternal aunt and uncle's home and was bonded to them and his cousins. The maternal aunt and uncle were committed to adopting M.T. and providing him with stability, love, and security while allowing M.T. to maintain contact and visits with his parents. They ensured that M.T.'s medical, developmental, educational, and emotional needs were met.
Moreover, M.T. specifically and repeatedly stated he wanted to be adopted by his maternal aunt and uncle and did not feel comfortable or safe in Father's home. Father speculates it was unclear if M.T. understood that adoption meant there was no guarantee he would continue to see his father. However, the evidence demonstrates that M.T. had voiced an age-appropriate understanding of the legal ramification of adoption, as well as the lifelong commitment his maternal aunt and uncle were making. The social worker asked M.T. what his wishes would be and where he wanted to live on a permanent basis, and M.T. repeatedly stated that although he loved Father and enjoyed visits with him, he felt safe with the maternal aunt and her family and uncomfortable and unsafe in Father's home.
Given the above circumstances, the juvenile court reasonably determined that M.T.'s need for permanency and stability, through placement in an adoptive home, outweighed M.T.'s need to continue his relationship with Father. In sum, the court did not abuse its discretion in determining the parental benefit exception did not apply to M.T.'s relationship with Father.
B. ICWA Inquiry
Father and Mother also challenge the order terminating their parental rights on the ground that the juvenile court and DPSS failed to comply with the inquiry requirements of ICWA and related California law. Relying on section 224.2, subdivision (b), and California Rules of Court, rule 5.481, Father specifically asserts that DPSS never inquired with the paternal uncle or cousin as to their Indian ancestry. Mother argues DPSS failed to inquire of two maternal uncles and the maternal grandmother, who were presumably known and readily available to DPSS.
DPSS acknowledges the record does not reflect that DPSS had inquired of the paternal uncle and cousin about their Native American ancestry, despite DPSS having contact with them. DPSS also recognizes that they did not conduct an inquiry of the two maternal uncles and the maternal grandmother, but claim they never had any contact with these individuals. Nonetheless, DPSS contends there was no statutory duty to inquire of these individuals and no error occurred because M.T. was never "'placed into the temporary custody of a county welfare department pursuant to [s]ection 306.'" Alternatively, DPSS argues any error in failing to inquire of extended relatives was harmless and not prejudicial.
"ICWA . . . establish[es] minimum federal standards a state court must follow before removing [Indian children] from [their] famil[ies]." (In re T.G. (2020) 58 Cal.App.5th 275, 287; see, e.g., 25 C.F.R. § 23.107 (2023); § 224.2; Cal. Rules of Court, rule 5.481.) California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes. (See §§ 224-224.6; In re Abbigail A. (2016) 1 Cal.5th 83, 91 ["persistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[ ] ICWA's requirements into California statutory law'"].)
"'"'Federal regulations implementing ICWA . . . require that state courts "ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child." [Citation.] The court must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child."'"' [Citations.] 'State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an "affirmative and continuing duty to inquire" whether a child in the dependency proceeding "is or may be an Indian child."'" (In re J.C. (2022) 77 Cal.App.5th 70, 77.)
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 (D.F.); In re Ricky R. (2022) 82 Cal.App.5th 671, 678.) "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." (D.F., at p. 566.) 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)), or the duty to provide formal ICWA notice, which occurs only if the court or the department has reason to know that an Indian child is involved (25 C.F.R. § 23.107(c)(1)-(6) (2023); § 224.2, subd. (d)(1)-(6)).
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).) Part of the initial inquiry also includes requiring each party to complete form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) 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. Thus, the duty of initial inquiry requires DPSS to ask extended family members, which include uncles, aunts, cousins, and grandparents, about the possible Indian status of a child only if DPSS has taken that child into temporary custody pursuant to section 306. (In re Robert F. (2023) 90 Cal.App.5th 492, 497 (Robert F.), review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678 (Ja.O.), review granted July 26, 2023, S280572; In re Adrian L. (2022) 86 Cal.App.5th 342, 357-358 (conc. opn. of Kelley, J.) (Adrian L.); In re Andres R. (2023) 94 Cal.App.5th 828 (Andres R.), petn. for review filed Oct. 2. 2023, S282054; see In re Darian R. (2022) 75 Cal.App.5th 502, 507; 25 U.S.C. § 1903(2).)
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." (§ 306, subd. (a)(2).) Peace officers may also take children into temporary custody without a warrant when similar exigent circumstances exist (§§ 305, 305.6, subd. (a)), and section 306 also permits the social worker to take temporary custody of a child "who has been delivered by a peace officer." (§ 306, subd. (a)(1).)
By contrast, section 340 provides for the issuance of protective custody warrants, and on a weaker showing than is required for a warrantless detention under section 306. (§ 340, subd. (b)(2); Robert F., supra, 90 Cal.App.5th at p. 501; Ja.O., supra, 91 Cal.App.5th at p. 678; Adrian L., supra, 86 Cal.App.5th at p. 357 (conc. opn. of Kelley, J.).) Specifically, 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 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, M.T. was taken into protective custody pursuant to a warrant under section 340, so he was not taken into temporary custody pursuant to section 306. The expanded duty of initial inquiry under subdivision (b) of section 224.2 therefore does not apply. The parents' argument that DPSS failed to discharge its duty of initial inquiry as to extended family members consequently lacks merit.
Our interpretation of section 224.2 does not exclude children removed pursuant to warrants from ICWA inquiry. Rather, it excludes such children from the expanded duty of initial inquiry under subdivision (b) of section 224.2. Such children are still subject to the duty of initial inquiry under subdivisions (a) and (c) of section 224.2. They are also subject to the duty of further inquiry under subdivision (e) of section 224.2 if there is reason to believe they are Indian children. Our interpretation of the statute merely limits the expanded duty of initial inquiry under subdivision (b) of section 224.2 to the children to whom the Legislature said it applies, in keeping with relevant federal guidelines. (Robert F., supra, 90 Cal.App.5th at pp. 502-503; Ja.O., supra, 91 Cal.App.5th at pp. 680-681.)
We acknowledge that another panel of this court has declined to follow Robert F. (In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.)), and the California Supreme Court granted review (S281447) on September 27, 2023, to decide the issue. Father urges us to follow Delila D. For the reasons recently explained in Andres R., supra, 94 Cal.App.5th 828, we continue to agree with Robert F. and Ja.O., and we are not persuaded by the criticisms of Robert F. that were expressed in Delila D. (The majority opinion in Delila D. never cites Ja.O. and does not address its analysis.)
For all the foregoing reasons, we conclude that neither parent has shown ICWA error by either DPSS or the juvenile court.
IV. DISPOSITION
The juvenile court's order terminating parental rights over M.T. is affirmed.
We concur: RAMIREZ P. J. MENETREZ J.