Riverside Cnty. Dep't of Pub. Soc. Servs. v. K.A. (In re N.L.)

• Docket Number: E080557
• Decision Date: 31 July 2023
• Parties: In re N.L. et al., Persons Coming Under the Juvenile Court Law. v. K.A. et al., Defendants and Appellants. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

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In re N.L. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. K.A. et al., Defendants and Appellants.

E080557

California Court of Appeals, Fourth District, Second Division

July 31, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. SWJ1900380 Michael J. Rushton, Judge. Affirmed.

Donna B. Kaiser, by appointment of the Court of Appeal, for Defendant and Appellant, K.A.

Robert McLaughlin, by appointment of the Court of Appeal, for Defendant and Appellant, D.L Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

FIELDS J.

I. INTRODUCTION

On December 12, 2022, the juvenile court held a hearing pursuant to Welfare and Institutions Code^[1] section 366.26 and terminated the parental rights of K.A. (Mother) and D.L (Father) with respect to their two children, N.L. and S.L. Mother and Father appeal from the order terminating their parental rights, arguing only that the Riverside County Department of Public Social Services (DPSS) failed to comply with its duty of inquiry under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes. Specifically, Mother and Father claim that DPSS failed to interview extended family members regarding N.L.'s and S.L.'s potential Indian ancestry as required by section 224.2, subdivision (b).

We conclude that section 224.2, subdivision (b), does not apply in this case because N.L. and S.L. were taken into protective custody pursuant to a warrant. Thus, any claim of error cannot be premised solely upon the alleged failure to comply with the provisions of section 224.2, subdivision (b), and we affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

Mother and Father are the parents of S.L. and N.L. On June 26, 2019, DPSS obtained a warrant pursuant to section 340 to take S.L. into protective custody. On June 28, 2019, DPSS filed a petition pursuant to section 300 alleging Mother's and Father's inability to adequately supervise, protect, or provide for S.L. Specifically, DPSS alleged that Mother had unresolved mental health issues, Father had a prior child welfare and criminal history, and that both parents engaged in substance abuse. The juvenile court formally detained S.L., sustained the allegations of the petition, and removed S.L. from parental custody. During this period of removal, Mother gave birth to N.L.

On June 10, 2020, the juvenile court returned S.L. to parental custody pursuant to a family maintenance plan upon the recommendation of DPSS.

On December 16, 2020, Father was detained by law enforcement in response to allegations of domestic violence against Mother and the children. As a result, DPSS filed a supplemental petition pursuant to section 387 on behalf of S.L., alleging that the prior disposition had not been effective. DPSS also filed a petition pursuant to section 300 on behalf of N.L., alleging Father's inability to supervise, protect or provide, and abuse of a sibling. On December 18, 2020, DPSS obtained warrants pursuant to section 340 to take S.L. and N.L. into protective custody. The juvenile court detained the children from Father, sustained the allegations of both petitions, removed the children from Father's custody, and maintained S.L. and N.L. in Mother's custody. The juvenile court denied reunification services to Father and limited his visits with the children to once per month.

In June 2021, DPSS received two separate referrals alleging that Father had physically assaulted Mother in the children's presence, and that Mother had permitted Father unauthorized access to the children. As a result, DPSS again obtained warrants pursuant to section 340 to take S.L. and N.L. into protective custody. DPSS also filed a supplemental petition on behalf of both children pursuant to section 387 on the basis that the previous dispositions had not been effective.

On September 1, 2021, the trial court found the allegations of the section 387 petitions true, removed the children from Mother's custody, and denied further reunification services. On December 12, 2022, the trial court held a section 366.26 hearing and terminated both Mother's and Father's parental rights. Both Mother and Father appeal from the order terminating parental rights.

III. DISCUSSION

On appeal, the only claim of error raised by Mother and Father is that DPSS failed to comply with its initial duty of inquiry under ICWA and related California statutes. Specifically, Mother and Father argue that DPSS failed to comply with a mandatory statutory duty imposed by section 224.2, subdivision (b), requiring DPSS to contact extended family members in order to obtain information regarding the children's potential status as Indian children. For the reasons set forth below, we conclude that section 224.2, subdivision (b), does not apply under the circumstances of this case and, as a result, Mother and Father have failed to show reversible error.

A. Legal Background and Standard of Review

"Congress enacted the ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) The Welfare and Institutions Code "creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department's] initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. [Citation.] Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' [Citation.] Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply." (In re D.S., at p. 1052; § 224.2)

Following the inquiry stages, the juvenile court may make a finding that ICWA does not apply because the Department's inquiry and due diligence was" 'proper and adequate' but no 'reason to know' whether the child is an Indian child was discovered." (In re D.S., supra, 46 Cal.App.5th at p. 1049.) A juvenile court's finding that ICWA does not apply includes an implicit finding that social workers fulfilled their duty of inquiry. (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) "[W]e review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order." (In re A.M. (2020) 47 Cal.App.5th 303, 314; In re Austin J., at p. 885 [implicit finding that social workers fulfilled their duty of inquiry and reviewed for substantial evidence].) B. Section 224.2, Subdivision (b), Does Not Apply in This Case

The only claim of error asserted on appeal is that DPSS failed to comply with a mandatory statutory duty imposed by section 224.2, subdivision (b), requiring DPSS to contact extended family members in order to fulfill its initial duty of inquiry. As relevant here, section 224.2, subdivision (b), provides: "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. Inquiry includes, but is not limited to, asking . . . extended family members . . . whether the child is, or may be, an Indian child ...." (Ibid.) However, it is undisputed that the children in this case were taken into protective custody pursuant to a warrant issued under section 340. As a result, DPSS contends that section 224.2, subdivision (b), does not apply because the plain language of the statute provides that it applies only when children are taken into temporary custody pursuant to section 306. We agree.

This court has repeatedly concluded that section 224.2, subdivision (b), applies only when children are taken into protective custody pursuant to section 306 or section 307. (In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672.) We concluded in Robert F. that "[s]udivision (b) of section 224.2 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," and its provisions do not apply when "section 306 played no role in [a dependent child's] removal." (Robert F., at p. 504.) We explained that this interpretation of section 224.2, subdivision (b), is supported by the plain meaning of the statutory text, consideration of the statutory provision in context with the entire statutory scheme, the practical and reasonable application of the statute, and the statute's legislative history. (Robert F., at pp. 500-504.)

Thus we agree with DPSS that section 224.2, subdivision (b), did not apply in this case, and that error cannot be premised solely on a failure to comply with its provisions. This legislative intent to limit the application of section 224.2, 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...