Riverside Cnty. Dep't of Pub. Soc. Servs. v. M.M. (In re K.H.)

• Docket Number: E081801
• Decision Date: 28 December 2023
• Parties: In re K.H. et al., Persons Coming Under the Juvenile Court Law. v. M.M., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

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In re K.H. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
v.
M.M., Defendant and Appellant.

E081801

California Court of Appeals, Fourth District, Second Division

December 28, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. SWJ2200040. Michele A. Mathis, Judge.

Joseph T. Tavano; Law Offices of Vincent W. Davis &Associates, and Vincent W. Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham, Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

RAPHAEL J.

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In this appeal following the termination of parental rights, defendant and appellant M.M. (Mother) contends that the county welfare department failed to comply with California law implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) by failing to ask several available extended family members whether the children have any Indian ancestry. The department argues it had no such duty. We disagree with the department's contentions, conditionally affirm, and remand with directions.^[1] I. BACKGROUND

In November 2021, plaintiff and respondent Riverside County Department of Public Social Services (DPSS) received an immediate response referral alleging general neglect. K.H., then two years old, had been taken to the hospital after being found unresponsive. Test results showed that he had ingested fentanyl.

Two months later, in January 2022, DPSS filed a dependency petition for K.H. and his younger sibling A.M. From the initial report, it appears the social worker initially believed court intervention might not be necessary but that the parents' subsequent failure to consistently test negative for drugs prompted the petition. When the petition was filed, the children were in the parents' custody, no protective custody warrant had been sought, and the initial report requested that the children remain with the parents.

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At the initial hearing, the juvenile court disagreed with DPSS's custodial request and ordered the children removed. The children were declared dependents of the court at the jurisdictional hearing in April 2022.

The juvenile court terminated Mother's parental rights to the children in July 2023. By then, regarding ICWA inquiry, five of the children's extended family members had either spoken with social workers or made appearances at court hearings, but were not asked about possible Indian ancestry: Mother's mother, Mother's great grandmother, Mother's sister, and the children's father's parents.^[2]

II. ANALYSIS

During the dependency, Mother and the father both denied having any Indian ancestry, as did Mother's grandmother and the father's sister. The record does not demonstrate, however, that DPSS's inquiry included the five extended family members identified above. DPSS contends that it had no duty to include extended family members in its ICWA initial inquiry. We disagree.

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.).) "This continuing duty can be divided into three phases: the initial duty

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