Opinion
E083272
07-11-2024
In re A.R. et al., Persons Coming Under the Juvenile Court Law. v. S.R., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Minh Tran, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ2200062. Mona M. Nemat, Judge. Conditionally reversed and remanded with directions.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh Tran, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
S.R. (Mother) appeals from a judgment terminating her parental rights as to one of her three dependent children, N.R. pursuant to Welfare and Institutions Code section 366.26, following a dependency proceeding arising from unresolved domestic violence, Father's substance abuse, and Mother's inability to protect the children. On appeal, she challenges only the trial court's determination that the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) does not apply because neither the court nor the Riverside County Department of Public Social Services (DPSS or Department) inquired of extended relatives, who were readily available, about possible Indian heritage.
The notice of appeal refers to termination of parental rights as to all three children, but only the youngest child, N.R., was freed for adoption.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The Department concedes the issue. We conditionally reverse.
Background
On January 19, 2022, the DPSS received a referral regarding the children, A.R. (age eight), R.R., Jr., (age seven), N.R. (age four), and A.H. (age 12), when Mother called 911 stating she was experiencing anxiety after R.R., Sr., (Father) threatened her with a gun in the house. Mother was taken by ambulance to a hospital and the children were left with the paternal grandmother at the time, because Father was not present. Mother acknowledged she had used methamphetamine with Father in the recent past, indicating Father had been verbally abusive of her in the children's presence, and that there were unregistered guns in the home. She also reported controlling behavior by Father, and stated she remained in the relationship because he threatened to kill himself if she left him. Maternal relatives were unwilling to take Mother in because she kept returning to Father.
A.H. is a child from Mother's previous relationship whose father had legal custody, so was not detained with the younger children.
The youngest child, N.R., was nonverbal, had sensory issues, unusual sleeping habits, and displayed other autistic behaviors. Although N.R. was four years old at the time of the intervention, she had never had any services in place to help her, and Mother had not followed through with an assessment because Father said no. Later that day, Mother requested that the Department take the children because her mental health was not good, she needed to stabilize, and her family was unwilling to help due to Father's unpredictable behavior. The children were frightened of their Father, worried he would hurt their Mother, and reported excessive discipline by Father.
When contacted, Father denied recent domestic violence, and declined to give his location so that a drug test could be performed. After the initial unfruitful contact, he did not respond to later texts or answer his phone when the Department attempted to contact him for an interview. Due to the Mother's self-acknowledged unstable mental health, along with her admission of domestic violence, fear that Father wanted to kill or harm her, the presence of guns in the home, Father's ongoing drug use, and Mother's inability to protect the children along with Father's refusal to cooperate with the Department, the decision was made to place the children in protective custody. Although protective custody warrants were issued on January 21, 2022, they were apparently not executed because Mother requested to turn the children over to the Department due to her unstable mental state on January 20. On January 25, an original petition pursuant to section 300, subdivision (b)(1), was filed as to A.R., R.R., Jr., and N.R. (collectively, children) alleging parental failure or inability to supervise or protect the children, failure to provide adequate food, clothing, shelter or medical treatment, and inability to provide regular care for the children due to mental illness, developmental disability or substance abuse.
The detention report reflects Mother informed the Department she was unable to care for the children on January 20, 2022, that she wished to turn the children over to the Department. It also reflects that the decision to take the children into protective custody was made that same day, prior to the issuance of the warrants on June 21, 2022. The detention report is unclear how the children were actually taken into custody, but the juvenile court ordered the protective custody warrants quashed at the detention hearing, and no returns were filed evidencing that the warrants had been executed prior to the order quashing them. Additionally, the Department's concession letter makes no mention of the manner in which the children were received by the Department, so we assume our interpretation that the protective custody warrants were not served or executed is accurate. In the future, it would be helpful to our decision-making if the Department could specify in its detention reports the manner in which it acquired temporary physical custody of children and how it received them into its care.
Because A.H.'s father had legal custody, A.H. was not named in the dependency petition, and he is not a part of this appeal.
The next day, the court ordered the children detained, temporarily removing them from the custody of both parents, recalled the protective custody warrants, and issued restraining orders against Father. The court made visitation orders for Mother, but suspended Father's visits until he made himself available to the Department and the court. Mother executed a form ICWA-020 (Parental Notification of Indian Status), indicating no Indian ancestry and submitted it to the court at the hearing, at which time the court found ICWA did not apply. Neither the clerk's minutes or the reporter's transcript for the detention hearing indicate whether relatives were present and the court did not make any inquiry.
On February 17, 2022, Mother appeared in court along with the maternal grandparents, and a contested hearing date was set. The court did not ask the maternal grandparents about Indian ancestry. Additionally, the jurisdiction/disposition report does not reflect whether any further inquiry was made of relatives as to possible Indian ancestry. On March 16, the jurisdiction/disposition hearing took place, with Mother and the maternal grandparents present. An amended petition was filed at that time, modifying the allegations of paragraph b-6 so that it alleged that Mother had "a history of" substance abuse, rather than the previous language that she "abuse[d]" controlled substances. Mother filed a waiver of rights form (JV-190) and submitted the matter for determination on the basis of the social workers' reports. Father was not present. The court found all the allegations of the amended petition to be true, adjudged the children as dependents, removed physical custody from the parents, and ordered reunification services. Visitation for Father was denied until he made himself available to the Department or the court.
DPSS had been unable to locate or otherwise contact Father since the initial intervention. Search results were unsuccessful.
In the six-month status review report, the social worker noted that Mother was participating in services and had started overnight visits with the children at the maternal grandmother's home, which were going well. However, there was not enough room at the maternal grandmother's home, so Mother moved to another residence, where overnight and unsupervised visits continued after the Department conducted an evaluation of Mother's new living quarters. However, after Mother changed residences, A.R. reported that Father had been present at the overnight visits, sneaking into Mother's room, and spending the night there. A.R. also reported that Father had spanked her hard while Mother was in the shower during one of Father's unauthorized visits. The social worker conducted further investigation with mixed results, so Mother's overnight visits were suspended.
At the six-month review hearing, the court found Mother's progress was minimal, and continued reunification services for Mother. The court also found that ICWA did not apply, that a proper and adequate further inquiry and due diligence had been conducted, and that there was no reason to know that the children were Indian children. Father's services were terminated. Regarding visitation, Mother's counsel requested liberalized visitation because the children were very bonded to her, and they requested to see her more frequently. The court authorized liberalized visits for Mother, to include unsupervised day, overnight and weekend visits. The court ordered supervised visits, one time per month, for Father, once he made himself available to the Department and the court.
Shortly after the six-month review hearing, A.R. and R.R., Jr., were moved to the home where N.R. was placed. During the reporting period leading to the 12-month status review, Mother changed residences three times because she was renting a room from a family member and the arrangements were only temporary as she saved money for an apartment. Mother was still working long hours, and was continuing with her program requirements, having completed most of them. There was no indication Mother used any controlled substances, but her continued denial of allowing Father to have unauthorized contact with the children, as well as her accusations that A.R. was lying about the issue, caused the social worker to conclude Mother had only minimally demonstrated the new skills and behaviors she had been working on. During one contact with A.R., initiated after A.R. indicated she missed her Mother, A.R. asked her Mother why she was in foster care, to which Mother responded it was because A.R. was a liar. It was for this reason that Mother's visits had not been liberalized and supervision was still required.
The social worker also noted in the 12-month status review report at the jurisdiction hearing on March 16, 2022, the trial court found that ICWA did not apply and at the jurisdiction hearing on December 7, Mother had again denied any Indian ancestry.
In an addendum report submitted on April 6, 2023, the social worker reported that A.R. and R.R., Jr., had been moved at the request of their caretaker to a new placement, due to their behaviors. On April 21, the court held the 12-month status review hearing, at which Mother testified. She denied ever allowing Father to secretly visit the children, indicating she had no contact with and no knowledge of him, except for one accidental encounter in April 2022, at a store. Mother also denied calling A.R. a liar, explaining that A.R. just did not understand what was really happening, and what A.R. reported had not occurred. Mother opined that A.R. was confusing events from prior years.
Minors' counsel informed the court that the children loved their Mother, but they did not trust her to protect them, so they did not seek return to Mother or to have unsupervised contact with her. The court did not believe Mother would be protective of the children or that she had benefitted from services. The court terminated Mother's reunification services and set a section 366.26 hearing. The court again found ICWA did not apply, that the children were not Indian children, that sufficient inquiry had been made, and that no new information had been discovered to indicate that ICWA may now apply.
The clerk's minutes reflect that Mother had made adequate progress towards alleviating or mitigating the causes necessitating placement.
A postpermanency status review and section 366.26 report was submitted on August 9, 2023, requesting additional time to complete a preliminary adoption assessment as to N.R., as well as to consider permanent placement options for A.R. and R.R., Jr. The report noted that ICWA did not apply because the court had previously found it did not apply at the jurisdiction/disposition hearing, and because Mother denied Indian ancestry on July 28, 2023. The two older children, A.R. (now age nine) and R.R., Jr., (now age eight), continued to exhibit problematic behaviors; in a recent "Child and Family Team Meeting" A.R. admitted to habitual lying for which she sought help, and the team was informed of incidents at school in which A.R. stole items from other children and acted out sexually with other children in her placement residence, including with R.R., Jr. A.R. also continued to wet the bed and was unable to complete basic self-care tasks, such as tying her own shoes, or bathing and showering herself, so the caretaker had to assist her. A.R. was described as having an overall manipulative nature, and her caretaker declined a referral to assist A.R. with the habitual lying.
R.R., Jr., also continued to have behavioral challenges and performed poorly in all subjects at school, where he had an Independent Educational Program in place. The report referred to possible regression in R.R., Jr.'s behavior related to A.R.'s behaviors.
Although not specifically mentioned in the report, R.R., Jr., had been on multiple psychotropic medications since at least June 21, 2023, when the initial application for psychotropic medication was approved and ordered. R.R., Jr.'s, diagnosis was posttraumatic stress disorder, unspecified disruptive or other conduct disorder, and attention deficit hyperactivity disorder, combined presentation. In addition, the social worker indicated a probable specific learning disorder in reading and math. The behavior for which medication was sought was described as "Patient has for past at least 4 months exhibited re-experiencing of past trauma including: nightmares > 1/2 weeks, aggression when experiencing intrusive thoughts, poor sleep (4 hours per night), isolative behaviors, withdrawal, defiance toward authority figures. In addition, exhibits symptoms of distractibility, forgetfulness, poor concentration, high energy, impulsivity, disorganization, trouble sitting still, interrupting others, restlessness and poor boundaries. Lastly, has been exhibiting aggression toward peers at school, animal cruelty, property damage, fights with foster siblings, lying, and stealing." Unfortunately, despite the medications, only minimal changes in R.R., Jr.'s behavior were achieved, insofar as he demonstrated the same combative behaviors, tantrums and nightmares throughout the case.
N.R., now age five, was still mostly nonverbal (her language skills were limited to one-word expressions), she was not toilet trained, and she received services for autism. N.R.'s caretakers were committed to providing permanency for her and were open to adoption. However, the report noted that the caregivers for A.R. and R.R., Jr., had submitted a 14-day notice, requesting their removal from the foster home due to their "overwhelming and concerning behaviors."
In September 2023, Father appeared in court. He submitted an ICWA-020 form indicating "None of the above apply," indicating no known Indian ancestry. In an addendum report submitted on October 31, 2023, the social worker identified adoption as the permanent plan for N.R., and recommended proceeding with termination of parental rights. N.R.'s caretakers were fully committed to providing her with a permanent, stable and loving home.
A separate addendum to the section 366.26 report was submitted on behalf of A.R. and R.R., Jr. There, the social worker noted that as of November 10, 2023, A.R. and R.R., Jr., had been removed from their former caretaker, and placed separately, with R.R., Jr., placed in Los Angeles County and A.R. placed in San Bernardino County. A.R.'s behaviors were particularly problematic, resulting in her suspension from school on one occasion due to inappropriate sexual activity toward other students at school, followed by a second suspension for inappropriate language, including racial slurs to insult other students during recess. A.R.'s teacher thought A.R. was engaging in attention seeking behavior. The social worker recommended continuing the selection and implementation hearing for A.R. and R.R., Jr., in order to "secure and stabilize placement" for A.R. and R.R., Jr., and to allow A.R. and R.R., Jr., to bond with caretakers and continue with their wrap-around services. On December 15, the section 366.26 hearing was continued to determine placement options for A.R. and R.R., Jr. On February 7, 2024, Mother filed a request to change court order (form JV-180) (§ 388), seeking reinstatement of reunification services. As changed circumstances, Mother alleged she had completed counseling to be more protective of her children and she had tried to obtain a restraining order against Father. In terms of how the requested change would serve the children's best interests, Mother asserted she was ready to be protective and deny any/all unauthorized access to the children. The request was summarily denied on the ground the proposed change of order did not promote the best interests of the children.
The report includes a reference to A.R. being placed in Riverside County, but this appears to be a mistake, given that "presumptive transfers" were requested to maintain continuity of services in the new county, and the addendum report refers to Mother's visit with A.R. in Ontario, California.
On February 7, 2024, the court conducted the selection and implementation hearing under section 366.26 as to N.R. only. The court found it was likely N.R. would be adopted and that termination of parental rights would not be detrimental because none of the exceptions pursuant to section 366.26, subdivision (c)(1)(A) and (B) were applicable. The court then permanently severed parental rights as to N.R.
On February 9, 2024, Mother timely appealed.
The notice of appeal refers erroneously to an order terminating parental rights as to all three children. In addition, the notice indicates the appeal is from orders made at three separate hearings, specifically, the hearings that took place on "02/07/24, 01/24/24, 12/15/24 [sic]." The order made on December 15, 2023, was merely a continuance of the section 366.26 hearing for A.R. and R.R., Jr., to which there was no objection. The order made on January 24, 2024, involved a continuance of N.R.'s section 366.26 hearing, to which no objection was made by Mother. The only other order made on that date was the order designating educational rights holder, to which Mother did orally object. This order is appealable, but the argument has been forfeited. ""'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'"" (In re J.F. (2019) 39 Cal.App.5th 70, 79, quoting In re A.C. (2017) 13 Cal.App.5th 661, 672.)
Discussion
Mother's sole argument on appeal is that the court erroneously found that ICWA did not apply where DPSS failed to conduct an adequate inquiry into possible Indian heritage. DPSS, by letter addressed to this Court, concedes that inadequate inquiry was made. We accept DPSS's concession.
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child," the Indian custodian and the Indian child's tribe have the right to intervene and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C., §§ 1911, subd. (c), 1914; see § 224, subd. (e)).
Under California law, the juvenile courts and the child protective agencies, "(but not parents)[, have] an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.'" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742, quoting § 224.2, subd. (a).) "That duty to inquire begins with [the] initial contact [citation] and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child." (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).) Section 224.2, subdivision (a), expressly states the duty to inquire is not limited to asking the reporting party if they have information that the child may be an Indian child.
Section 224.2, subdivision (b), requires the department to ask extended relatives where the "child is placed into the temporary custody of a county welfare department pursuant to Section 306."
Section 306, subdivision (b), requires departmental inquiry into Indian heritage pursuant to section 224.2, "[u]pon receiving temporary custody of a child." There is no dispute that the county welfare department received temporary custody of the children pursuant to section 306 when Mother surrendered them to the Department. The Department's inquiry duty under section 224.2, subdivision (b) was therefore triggered.
"Under both ICWA and California law, '"extended family member[s]"' include the child's 'grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.'" (In re D.S. (2020) 46 Cal.App.5th 1041, 1053; see In re Dominick D. (2022) 82 Cal.App.5th 560, 567.) Upon each party's first appearance in a dependency proceeding, the juvenile court must ask each participant "whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)), and "[o]rder the parent . . . to complete [an ICWA-020 form]." (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Removal of a child from his parents is the true triggering event for inquiry into possible Native American ancestry, because ICWA is not involved in juvenile dependency proceedings where a child remains placed with his parent or parents. By its plain language, ICWA states that it applies when a child is placed in foster care or an adoptive placement: "The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902, italics added.)
Not every child is removed at the time of "initial contact" by the Department. Nevertheless, the duty of inquiry into Indian ancestry is triggered when the Department receives a child into its temporary care and custody. (§ 306, subd. (a)(2).) Here, the Department had reasonable cause to believe the children were persons described in section 300, subdivision (b), and Mother surrendered her children to the Department's care as a result of her inability to provide regular care and to protect them against Father due to her mental state. We need not address the decisions in which some members of this Court, as well as courts of other districts, have concluded that the duty of inquiry of extended relatives is limited to situations in which the social services agency takes the child into custody without a warrant, because the children were received by the Department without the aid of protective custody warrants. (See In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review granted July 26, 2023, S280572.)
As is relevant here, if a child is placed in the Department's (or agency's) temporary custody pursuant to section 306, the Department 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); see 25 U.S.C. § 1903(2) &§ 224.1, subd. (c) [defining '"extended family member' and 'parent"'].)
The record shows that at the inception of the case, the social worker inquired of Mother if there was Indian ancestry, and, at the initial hearing attended by Mother, the court inquired of her in open court. But it also shows that the parents were living with paternal relatives at the time of the Department's intervention, and that the social worker had contact with maternal relatives leading up to the declaration of dependency and throughout the reunification phase. The maternal grandparents attended several hearings during the dependency proceedings but were never addressed on the topic. At subsequent hearings, the trial court found the Department had made adequate further inquiry and used due diligence as required but there was no reason to know whether the children were Indian children, despite the fact that status review reports revealed the Department had only re-asked Mother about possible Indian ancestry. But there is no indication anywhere in the record that any relatives were asked about possible Indian ancestry.
Because no inquiry was made of any relatives, Mother seeks reversal of the judgment and remand for compliance with the statutory duty of inquiry. The Department agrees that inadequate inquiry was conducted and does not oppose a conditional reversal and remand for the limited purpose of ensuring that a proper inquiry pursuant to the ICWA and related California statutes is accomplished. We accept the concession. The Department has contact information for relatives of both parents, who could and still can provide "readily obtainable" information about the possibility of Native American heritage in the family, from which the court can determine whether there was a reason to believe the children are Indian children or not. Until such inquiry is completed, it is premature to conclude that there is no reason to believe the children are Indian children, or that ICWA does not apply.
We reverse the findings that ICWA does not apply and remand the matter to conduct an inquiry of relatives as to possible Indian heritage.
Disposition
The judgment is conditionally reversed and remanded. On remand, the juvenile court shall order DPSS to comply with its duty of initial inquiry under subdivision (b) of section 224.2 and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the proper tribes (25 U.S.C. § 1912(a); § 224.3). If the court determines that ICWA does not apply, then the court shall reinstate the order terminating parental rights. If the court determines that ICWA applies, then it shall proceed in conformity with ICWA and related California law.
I Concur: FIELDS J.
MENETREZ, J., Concurring.
Given the record's lack of clarity about the manner in which the children were taken into custody before the detention hearing, I agree that we should accept respondent's concession and conditionally reverse. I therefore concur in the judgment.