California Court of Appeal Sep 30, 2024 No. E082592Unpublished
Filed 9/30/24 In re A.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.W., et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082592
Plaintiff and Respondent, (Super.Ct.No. SWJ2100258)
v. OPINION
E.W.
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Donal B. Donnelly,
Judge. (Retired judge of the Imperial Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Conditionally reversed and remanded with directions.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and
Appellant.
1
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman,
Deputy County Counsel, for Plaintiff and Respondent.
Appellant E.W. (Mother) appeals from the juvenile court’s order appointing a
guardian under Welfare and Institutions Code1 section 366.26. Mother challenges the
order on the ground that the Riverside County Department of Public Social Services (the
Department) social workers and the juvenile court failed to comply with the duty of
initial inquiry under the Indian Child Welfare Act2 (ICWA). For the reasons set forth
post, we conditionally reverse and remand this matter to the juvenile court.
FACTUAL AND PROCEDURAL HISTORY3
Mother and R.W.4 (Father; collectively, Parents) are the parents of Ar.W. (male
born September 2008; Minor 1), Av.W. (female born January 2010; Minor 2), and Am.W.
(female born January 2010; Minor 3,5 collectively, Minors).6
1 All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 “[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.)
3 Because the only issue on appeal is whether the Department and the juvenile court properly complied with their duties under ICWA, this court will focus on ICWA- related facts and procedural history.
4 Father is not a party to this appeal.
5 Minor 2 and Minor 3 are twins.
6 On December 20, 2023, this court incorporated the record in case No. E082269 in the record of this case.
2
On April 7 and 16, 2021, the Department received referrals regarding two separate
incidents of domestic violence between Parents. On June 7, 2021, the Department filed a
petition under section 300, subdivision (b), on behalf of Minors. The petition alleged that
Father perpetrated acts of domestic violence on Mother, Parents had histories of abusing
controlled substances, Mother had been previously offered family reunification and
maintenance services, and Mother had demonstrated limited ability to protect herself and
Minors from harm.
The Judicial Council Indian Child Inquiry Attachment forms (ICWA-010(A)) that
accompanied the petition indicated that the Department had been unable to make contact
with Father regarding ICWA inquiry. In the forms, the social worker checked the box
which stated, this inquiry “gave me reason to believe the child is or may be an Indian
child.” However, nothing else was filled out regarding ICWA status in the forms.
At the detention hearing on June 8, 2021, Mother appeared telephonically. Father
did not appear. Mother denied Native American ancestry. The court asked Mother,
“Mom, does the dad have any Native American ancestry?” Mother replied, “No.” With
regard to the ICWA-010(A) forms indicating Minors may be Indian children, the
Department’s counsel stated that was likely an error because Father had not been
interviewed regarding ICWA. The court then found that the Department conducted a
sufficient inquiry regarding Indian ancestry and ICWA did not apply.
The juvenile court found prima facie evidence of allegations in the petition and
detained Minors from Father, who was found to be the presumed father, under
3
section 319, subdivision (b)(1). Minors were not detained from Mother with specified
conditions. The court then recalled and quashed previously issued protective custody
warrants for Minors.
On June 8, 2021, Mother’s counsel filed a Judicial Council Parental Notification
of Indian Status form (ICWA-020) on behalf of Mother. In the form, the box, “None of
the above apply,” was checked.
In an addendum report filed on August 2, 2021, the social worker noted that on
July 25, 2021, Mother sent numerous texts. One of the texts stated that she was
“challenging the detention report because there is a lot of false information in it, like my
children are Indian.” However, Mother had previously told the social worker on May 6,
2021, and June 17, 2021, that she had no Native American ancestry.
At the contested jurisdiction and disposition hearing on August 2, 2021, the
juvenile court found the allegations in the petition were true and adjudged Minors
dependents of the court. A declaration of due diligence was filed as to Father; he had not
been found. The court denied Father reunification services under section 361.5,
subdivision (b)(1), since his whereabouts were unknown. Mother retained physical
custody of Minors with family maintenance services. When the juvenile court asked
Mother if she had any Native American ancestry, she responded, “No.” When asked if
Father had any, Mother responded, “Not that I know of.” The court found that the
Department had conducted a sufficient inquiry regarding Indian ancestry and found that
ICWA did not apply.
4
On January 31, 2022, at a section 364 family maintenance review hearing, the
juvenile court ordered Mother to complete a hair follicle drug test. Mother completed the
hair follicle test on February 11, 2022. On March 1, 2022, the Department received the
results which showed Mother tested positive for amphetamine and methamphetamine.
At the contested section 364 review hearing on March 2, 2022, Mother was not
present. The Department requested that the juvenile court issue protective custody
warrants under section 340 to detain Minors from Mother. The juvenile court ordered the
social worker to notify Mother and Minors to appear at the court later that day at
1:30 p.m. Otherwise, the warrants would be issued.
At the 1:30 p.m. hearing, Mother appeared with Minors. The Department again
requested that the court issue the section 340 protective custody warrants. When the
court asked, “[e]ffectively what you are asking for now is you want me to do a removal
today? [¶] . . . [¶] . . . And then set the matter for a detention hearing?” County counsel
answered in the affirmative.
Thereafter, the juvenile court made the following findings: Minors came within
section 300, subdivision (b), continuance in the home of Mother is contrary to Minors’
welfare, there was a substantial danger to the physical health of Minors and/or Minors
were suffering severe emotional damage, and there were no reasonable means by which
Minors’ physical and/or emotional health could be protected without removing them from
the parents’/guardian’s physical custody under section 319, subdivision (b)(1). The court
then detained Minors. The court stated: “So at this point in time I am ordering the
5
children removed from the mother’s care and making removal findings and setting the
matter for a detention hearing.” The court then ordered Mother to take another saliva and
urine test on the same day, and “set the matter for a detention hearing so that the mother
can further contest the removal.” After further discussion between the juvenile court,
Mother, and the attorneys, the court stated: “The children are detained, and temporary
placement and care is vested with DPSS pending the hearing under WIC 355 or further
order of the Court.” The court did not remove Minors under section 340.
Two days later, on March 4, 2022, the Department filed a section 387 petition.
The petition alleged that the previous disposition was not effective in protecting Minors
because Mother failed to benefit from services and continued to violate court orders by
testing positive for methamphetamine.
On March 7, 2022, a detention hearing for the section 387 petition was held. The
juvenile court found that ICWA did not apply. The court then found that a prima facie
showing had been made and ordered Minors detained from Mother. The court also
ordered an Interstate Compact on the Placement of Children (ICPC) with the state of
Oklahoma for an adult sister.
On May 25, 2022, at the contested jurisdiction and disposition hearing on the
section 387 petition, the juvenile court removed physical custody of Minors from Mother
under section 361, subdivision (c)(1), and ordered family reunification services. The
court found that the Department conducted a sufficient ICWA inquiry and that ICWA did
not apply, and Minors were not Indian children.
6
On June 8, 2022, Minors were placed with their maternal grandmother (MGM). A
maternal uncle, Mother’s half brother, also resided in MGM’s home. The maternal uncle
was in court on three occasions throughout the case. Moreover, pursuant to the ICPC
order, the social worker spoke with N., Minors’ maternal half sister.
On December 20, 2022, Mother denied Native American ancestry. On
September 17, 2022, MGM stated there was no Native American ancestry to her
knowledge. On April 21, 2023, MGM again denied Native American ancestry.
On February 2, 2023, at a section 366.21, subdivision (e) review hearing, the
juvenile court continued Mother’s reunification services.
On May 8, 2023, at the 12-month review hearing, the juvenile court ordered
another hair follicle test for Mother. Mother refused the Department’s referral. Mother
insisted on picking her own lab because she did not trust labs contracted with the
Department. Mother sent an email of a screen shot to her social worker; it showed that
Mother had completed her follicle test with Quest Diagnostics and the result was
negative.
When the social worker called the phone number for Quest Diagnostics on the
screen shot, the lab reported that the test result was invalid. Quest Diagnostics did not
collect a hair specimen from Mother on the date indicated; the specimen identification
number on the document did not match Mother’s name.
7
On September 28, 2023, at the contested 12-month section 366.21, subdivision (f)
review hearing, the juvenile court terminated Mother’s reunification services. The court
again found that ICWA did not apply, and Minors were not Indian children.
On October 5, 2023, Mother filed a 10-page written declaration with attachments.
On November 3, 2023, Mother filed an “Objections and Corrections to the Report of the
Social Worker [Dated 4/5/2023]” with attachments. (All caps omitted.)
On November 9, 2023, Mother filed an “Objection/Correction to [the] Social
Worker’s . . . Report . . . [Dated 11/09/2023.]” (All caps omitted.) In this objection,
Mother stated: “MOTHER has always denied any Native American Ancestry for herself,
however MOTHER never denied Native [American] Ancestry for FATHER, [R.W.].
MOTHER has no knowledge to deny ancestry for Father. This is false and untrue. This
only proves that the Department has never contacted Father, and the Department cannot
say if Father ever received proper notice of any court hearings throughout this entire
process. MOTHER has never spoken or had contact with ‘SSP Mora’ who inquired about
Native American Ancestry with maternal grandmother, who has no knowledge of Father’s
ancestry and has full knowledge that her mother claims to have Cherokee Indian Ancestry
from Maternal grandmothers, grandmother. My grandmother can provide more
information about this. That is maternal grandmother’s mother, the children’s great-
grandmother, [J.P.].”
On November 9, 2023, at the section 366.26 hearing, the juvenile court granted
MGM legal guardianship.
8
On November 13, 2023, Mother filed a timely notice of appeal.
DISCUSSION
Mother’s sole contention on appeal is that “[t]he juvenile court erred when it
found the Indian Child Welfare Act does not apply because neither the Department nor
the juvenile court asked readily-available [sic] extended family members if there was
Native American ancestry.” Mother asserts error only as to maternal family members,
specifically, MGM, maternal uncle, and maternal half sibling, N.
“ICWA establishes minimum national 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.’ (25 U.S.C. § 1902.)
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. (2005) 55 Cal.App.5th
558, 566.) ‘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.)” (In re Samantha F. (2024) 99 Cal.App.5th 1062, 1066 (Samantha F.).)
When a child is taken into temporary custody under section 306, the Department
has a duty to 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).) Extended family members include adults who are the child’s stepparents,
9
grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and
first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
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).) Section 340 also
provides for the issuance of protective custody warrants. (§ 340, subd. (b).)
California Courts of Appeal, including members of this court, are deeply split on
whether ICWA’s duty to inquire extended family members about a child’s Indian
ancestry under section 224.2, subdivision (b), is triggered when the child is taken into
custody under section 340. (See generally Samantha F., supra, 99 Cal.App.5th at
pp. 1066-1086.)
In this case, the Department argues that “the inquiry obligation under
section 224.2, subdivision (b), was never triggered, and the Department was not
statutorily required to conduct an ICWA inquiry of extended family members, as the
children were never in temporary custody under section 306.” In support, the
Department contends that “even though the section 340 warrants were not signed, this
was a detention which had been ordered by the Trial Court and the children were not
placed into temporary custody [of the Department].” We reject the Department’s
argument.
10
Under section 306, “[a]ny social worker in a county welfare department . . . may
do all of the following: [¶] . . . [¶] (2) Take into and maintain temporary custody of,
without a warrant, a child who has been declared a dependent child of the juvenile court
under Section 300 . . . and 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).) Then, “[u]pon receiving temporary custody of a child, the
county welfare department shall inquire pursuant to Section 224.2, whether the child is an
Indian child.” (§ 306, subd. (b).)
Here, as provided ante, at the March 2, 2022 contested section 364 hearing, the
juvenile court clearly stated: “The children are detained, and temporary placement and
care is vested with DPSS pending the hearing under WIC 355 or further order of the
Court.” (Italics added.) Prior to detaining Minors, the court noted: “And the information
that was provided to the Court today indicates a lack of confidence in the Department as
to where the mother is living with the children, that the mother is basically threatening to
move to Oklahoma with the children. And perhaps the most concerning part, which is
that the mother tested positive for methamphetamine via hair follicle. She was ordered to
take the hair follicle because of some missed UA tests. [¶] And so the long and the short
of it is since the initiation of this case and what would appear, given sort of the way the
hair follicle works, is that in the time that the kids have been in the mother’s care and that
she has been driving them back and forth allegedly from L.A. county to their school in
11
Menifee, she has been using methamphetamine. So that’s extremely concerning to the
Court given all of the issues in this case.” After further discussion between the juvenile
court and the present parties, the court stated: “All right. In the meantime, I’m detaining
from the mother. To that end, I’m just making the standard removal orders and findings.
At this time, I do find that the children fall within Welfare and Institutions Code
Section 300 (b).”7
Based on the above, we find the Department’s argument that “the children were
never in temporary custody pursuant to section 306,” to be without merit (caps omitted).
Accordingly, we need not consider the cases determining whether ICWA’s duty of
inquiry applies to cases where the children are removed pursuant to a protective custody
warrant issued under section 340, and not under section 306. (In re Robert F. (2023) 90
Cal.App.5th 492, review granted July 26, 2023, S279743; In re Ja.O. (2023) 91
Cal.App.5th 672, review granted July 26, 2023, S280572; & In re Delila D. (2023) 93
Here, because Minors were not removed pursuant to section 340 and ordered
detained and placed in the temporary care of the Department, the Department and the
juvenile court had a duty to inquire of Minors’ extended family members about their
potential Indian ancestry. As Mother points out and the Department agrees, “the record
7 “A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] “(b) “(1) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness . . . .” (§ 300, subd. (b)(1).)
12
does not reflect an ICWA inquiry of maternal uncle and maternal half-sibling [sic].” The
maternal uncle and maternal half sibling were readily available, and there is nothing in
the record to indicate that the Department could not have contacted them to ask about
Minors’ Indian heritage on their maternal side. The maternal uncle attended numerous
hearings, and the Department had telephonic contact with the aunt. The Department thus
did not satisfy its duty of initial inquiry, and, in turn, the juvenile court erroneously found
that ICWA did not apply. (§ 224.2, subd. (b); In re Y.M. (2022) 82 Cal.App.5th 901, 916;
In re Oscar H. (2022) 84 Cal.App.5th 933, 937; In re Ricky R. (2022) 82 Cal.App.5th
671, 680.)
In In re Dezi C. (2024) 16 Cal.5th 1112, 1125 (Dezi C.), California’s Supreme
Court recently made its determination on the issue of “whether a child welfare agency’s
failure to make the statutorily required initial inquiry under California’s heightened
ICWA requirements constitutes reversible error.” The court held “that an inadequate
Cal-ICWA inquiry requires conditional reversal of the juvenile court’s order terminating
parental rights with directions to the agency to conduct an adequate inquiry, supported by
record documentation.” (Id. at p. 1125.)
Therefore, this case must be conditionally reversed and remanded to the juvenile
court for the Department to conduct an adequate ICWA inquiry.
13
DISPOSITION
The order granting the appointment of guardian for Minors is conditionally
reversed. The matter is remanded to the juvenile court with directions to comply with the
initial inquiry provisions of ICWA and of sections 224.2 and 224.3, and the
documentation provisions of the California Rules of Court, rule 5.481(a)(5), consistent
with this opinion. If the juvenile court thereafter finds a proper and adequate further
inquiry and due diligence has been conducted and concludes ICWA does not apply
(§ 224.2, subd. (i)(2)), then the court shall reinstate the order appointing the guardian for
Minors. If the juvenile court concludes ICWA applies, then it shall proceed in
conformity with ICWA and California implementing provisions. (See 25 U.S.C. § 1912,
subd. (a); §§ 224.2, subd. (i)(1), 224.3, 224.4.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS McKINSTER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
14
AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the order appointing a legal guardian because the Department failed to satisfy its duty of initial inquiry under the Indian Child Welfare Act (ICWA) by neglecting to interview readily available maternal extended family members.
Issues
Whether the Department and juvenile court complied with the duty of initial inquiry under ICWA regarding the minors' potential Indian ancestry.
Whether the duty of inquiry under Welfare and Institutions Code section 224.2, subdivision (b) was triggered when the minors were placed in the temporary care of the Department.
Disposition. conditionally reversed and remanded
Quotations verified verbatim against the opinion
“The Department thus did not satisfy its duty of initial inquiry, and, in turn, the juvenile court erroneously found that ICWA did not apply.”
“The order granting the appointment of guardian for Minors is conditionally reversed.”
“The matter is remanded to the juvenile court with directions to comply with the initial inquiry provisions of ICWA and of sections 224.2 and 224.3”