Riverside Cnty. Dep't of Pub. Soc. Servs. v. Jessica G. (In re Robert F.)

• Docket Number: E080073
• Decision Date: 12 April 2023
• Citation: 90 Cal.App.5th 492,307 Cal.Rptr.3d 228
• Parties: IN RE ROBERT F., a Person Coming Under the Juvenile Court Law. Riverside County Department of Public Social Services, Plaintiff and Respondent, v. Jessica G., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

90 Cal.App.5th 492

307 Cal.Rptr.3d 228

IN RE ROBERT F., a Person Coming Under the Juvenile Court Law.

Riverside County Department of Public Social Services, Plaintiff and Respondent,

v.Jessica G., Defendant and Appellant.

E080073

Court of Appeal, Fourth District, Division 2, California.

Filed April 12, 2023

Terence M. Chucas, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MENETREZ, J.

California law implementing the Indian Child Welfare Act of 1978 (ICWA) ( 25 U.S.C. § 1901 et seq. ) requires a county welfare department to ask extended family members about a child's Indian status under certain circumstances.¹ In particular, subdivision (b) of Welfare and Institutions Code section 224.2 requires the department to interview extended family members "[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306." (Unlabeled statutory citations are to the Welfare and Institutions Code.)

Section 306 authorizes county welfare departments to take children into temporary custody "without a warrant" in certain circumstances. (§ 306, subd. (a)(2).) A department that takes a child into protective custody pursuant to a warrant does so under section 340, not section 306. Thus, as the concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342, 302 Cal.Rptr.3d 317 ( Adrian L. ) cogently explained, because subdivision (b) of section 224.2 applies only when a child is placed in temporary custody under section 306, it does not apply when a county welfare department takes a child into protective custody pursuant to a warrant. ( Adrian L., supra , at pp. 357-358, 302 Cal.Rptr.3d 317 (conc. opn. of Kelley, J.).)

Jessica G. (Mother) appeals from the juvenile court's order terminating parental rights to her son, Robert F. Relying on subdivision (b) of section 224.2, Mother argues that the Riverside County Department of Public Social Services (DPSS) failed to discharge its duty of initial inquiry, because DPSS did not ask various extended family members whether Robert has any Indian ancestry.

DPSS took Robert into protective custody pursuant to a warrant, so DPSS did not take Robert into temporary custody under section 306. Accordingly, DPSS had no obligation to ask Robert's extended family members about his potential Indian status under section 224.2, subdivision (b). We therefore affirm the order terminating parental rights.

BACKGROUND

In October 2019, DPSS received a referral alleging that Jonathan F. (Father) was emotionally and physically abusing nine-year-old Robert. A detective later contacted the social worker and said that he was investigating Father for the alleged sexual abuse of a five-year-old child. Mother was serving a prison sentence for attempted murder in Arizona, where she had been incarcerated since at least 2015.

DPSS sought a protective custody warrant for Robert's removal under section 340. The court issued the warrant in late November 2019, and Robert was taken into protective custody the next day, when Father was arrested on child sexual abuse charges.² DPSS filed a petition under section 300, subdivisions (b)(1), (d), and (g), alleging that Robert was at substantial risk of serious physical harm or illness, he was at substantial risk of sexual abuse, and the parents were unwilling or unable to provide care or support for him.

Father denied having any Native American or Indian ancestry when DPSS interviewed him for the detention report, and he filed a Parental Notification of Indian Status form (ICWA-020) indicating that he did not have any Indian ancestry. DPSS was unable to interview Mother.

At the detention hearing in December 2019, the court asked Father whether it was true that he had no Indian ancestry, and Father said that it was. Mother was not present, so the court did not ask her about Indian ancestry. The court detained Robert from the parents and found that ICWA did not apply, but it stated that DPSS needed to continue the ICWA investigation.

Mother denied having any Indian ancestry when DPSS interviewed her for the jurisdiction/disposition report. At the combined jurisdiction and disposition hearing, Mother also told the court that she did not have any Indian ancestry. The court found the allegations of the petition to be true, took jurisdiction over Robert, and removed him from the parents' custody. It ordered reunification services for Father but denied Mother reunification services under section 361, subdivision (e)(1) (parent incarcerated and services would be detrimental to child). The court found that ICWA did not apply to Robert.

The court continued Father's services at the six-month review hearing and terminated them at the 12-month review hearing. It found that ICWA did not apply at both hearings. Early in the case, DPSS placed Robert with paternal cousin, and DPSS later placed the child with paternal great-grandparents. DPSS also explored placing Robert with the maternal grandmother and a maternal great-aunt. There is no indication in the record that DPSS asked those extended family members about potential Indian ancestry.

The court continued the section 366.26 hearing several times, and the hearing eventually occurred in October 2022. The court found that Robert was likely to be adopted and terminated parental rights. Although the court did not make an express ICWA finding at the section 366.26 hearing, the order terminating parental rights "was ‘necessarily premised on a current finding by the juvenile court’ " that ICWA did not apply to Robert. ( Benjamin M., supra , 70 Cal.App.5th at p. 740, 285 Cal.Rptr.3d 682.)

DISCUSSION

To implement ICWA, the county welfare department and the juvenile court must determine whether a case involves an Indian child. The department and the court thus have an " ‘affirmative and continuing duty to inquire’ whether a child in a dependency proceeding ‘is or may be an Indian child.’ " ( In re Ricky R. (2022) 82 Cal.App.5th 671, 678, 298 Cal.Rptr.3d 602 ( Ricky R. ), quoting § 224.2, subd. (a).) "The duty to inquire consists of two phases— the duty of initial inquiry and the duty of further inquiry." ( Ibid. ) 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 applies in every dependency proceeding." ( In re Ricky R., supra , 82 Cal.App.5th at p. 678, 298 Cal.Rptr.3d 602.) The department's "duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224, subd. (a).) In addition, "[f]ederal regulations require state courts to ask each participant ‘at the commencement’ of a child custody proceeding ‘whether the participant knows or has reason to know that the child is an Indian child.’ ( 25 C.F.R. § 23.107(a) (2022).)" ( Ricky R. , at pp. 678-679, 298 Cal.Rptr.3d 602.) Similarly, "[s]tate law requires the court to pursue an inquiry ‘[a]t the first appearance in court of each party’ by asking ‘each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.’ ( § 224.2, subd. (c).)" ( Ricky R. , at p. 679, 298 Cal.Rptr.3d 602.)

In some cases, California law requires the county welfare department to do more at the initial inquiry stage. Specifically, under subdivision (b) of section 224.2, "[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306," the department's obligation includes asking the "extended family members" about the child's Indian status.³

In this case, DPSS did not take Robert into temporary custody under section 306. Rather, DPSS obtained a protective custody warrant under section 340. That difference matters because the statutory provision on which Mother relies says that it matters. ( Adrian L., supra , 86 Cal.App.5th at p. 355, 302 Cal.Rptr.3d 317 (conc. opn. of Kelley, J.).) The inquiry obligation prescribed by subdivision (b) of section 224.2 was not triggered.

The Adrian L. concurrence explains in detail why the provision did not apply here. First, the language of the statute is plain and therefore controls. ( Adrian L., supra , 86 Cal.App.5th at pp. 355-358, 302 Cal.Rptr.3d 317 (conc. opn. of Kelley, J.).) 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. And "[p]lacing a child into ‘temporary custody of a county welfare department pursuant to [section] 306’ is fundamentally different from taking a child into ‘protective custody’ under section 340." ( Adrian L. , at p. 357, 302 Cal.Rptr.3d 317 (conc. opn. of Kelley, J.). )

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 requires neither imminent danger nor the threat of physical harm for the court to issue a warrant. (Adrian L., supra , 86 Cal.App.5th at p. 357, 302 Cal.Rptr.3d 317 (conc. opn. of Kelley, J.).) Rather, before the department has filed a section 300 petition, ...